Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of New Jersey, 38491-38499 [2023-12604]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Notices]
[Pages 38491-38499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12604]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC889]


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

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

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

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

SUMMARY: NMFS has received a request from Ocean Wind II, LLC (Ocean 
Wind II) for authorization to take marine mammals incidental to marine 
site characterization surveys offshore of New Jersey in the Bureau of 
Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease 
Area OCS-A 0532 and associated export cable routes (ECRs) to landfall 
locations in New Jersey.

DATES: Comments and information must be received no later than July 13, 
2023.

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

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

SUPPLEMENTARY INFORMATION:

Background

    The activities described in Ocean Wind II's request, the overall 
survey duration, the project location, and the acoustic sources 
proposed for use are identical to what was previously analyzed in 
support of the IHA issued by NMFS to Ocean Wind II for 2022 site 
characterization surveys (2022 IHA) (87 FR 14823, March 16, 2022; 87 FR 
30453, May 19, 2022). All proposed mitigation, monitoring, and 
reporting requirements remain the same. While Ocean Wind II's planned 
activity would qualify for renewal of the 2022 IHA, due to the 
availability of updated marine mammal density data (https://seamap.env 
.duke.edu/models/Duke/EC/), which NMFS has determined represents the 
best available scientific data, NMFS has determined it appropriate to 
provide a 30-day period for the public to comment on this proposed 
action.
    Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an IHA to allow Ocean Wind 
II to incidentally take marine mammals

[[Page 38492]]

during the specified activities. NMFS is also requesting comments on a 
possible one-year Renewal IHA that could be issued under certain 
circumstances and if all requirements are met, as described in Request 
for Public Comments at the end of this notice. NMFS will consider 
public comments prior to making any final decision on the issuance of 
the requested MMPA authorization and agency responses will be 
summarized in the final notice of our decision.
    The activities described in Ocean Wind II's request, the overall 
survey duration, the project location, and the acoustic sources 
proposed for use are identical to what was previously analyzed in 
support of the Incidental Harassment Authorization (IHA issued by NMFS 
to Ocean Wind II for 2022 site characterization surveys (2022 IHA) (87 
FR 14823, March 16, 2022). All proposed mitigation, monitoring, and 
reporting requirements remain the same. While Ocean Wind II's planned 
activity would qualify for renewal of the 2022 IHA, due to the 
availability of updated marine mammal density data (https://seamap.env.duke.edu/models/Duke/ EC/), which NMFS has determined 
represents the best available scientific data, NMFS has determined it 
appropriate to provide a 30-day period for the public to comment on 
this proposed action.
    NMFS is requesting comments on its proposal to issue an IHA to 
incidentally take marine mammals during the specified activities. NMFS 
is also requesting comments on a possible one-year Renewal IHA that 
could be issued under certain circumstances and if all requirements are 
met, as described in Request for Public Comments at the end of this 
notice. NMFS will consider public comments prior to making any final 
decision on the issuance of the requested MMPA authorizations and 
agency responses will be summarized in the final notice of our 
decision.
    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such 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 such takings are set forth.

National Environmental Policy Act

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

Summary of Request

    On February 14, 2022, NMFS received a request from Ocean Wind II 
for an IHA to take marine mammals incidental to high-resolution 
geophysical (HRG) marine site characterization surveys offshore of New 
Jersey in the area of BOEM Commercial Lease of Submerged Lands for 
Renewable Energy Development on the OCS-A 0532 (Lease Area) and 
associated ECR area. Following NMFS' review of the application, Ocean 
Wind II submitted a revised request on April 28, 2023. The application 
(the 2023 request) was deemed adequate and complete on April 28, 2023. 
Ocean Wind II's request is for take of 16 species (comprising 17 
stocks) of marine mammals, including 14 cetacean and two pinniped 
(seal) species, by Level B harassment only. Neither Ocean Wind II nor 
NMFS expects serious injury or mortality to result from this activity 
and, therefore, an IHA is appropriate. Take by Level A harassment 
(injury) is considered unlikely, even absent mitigation, based on the 
characteristics of the signals produced by the acoustic sources planned 
for use.
    On October 1, 2021, NMFS received a request from Ocean Wind II for 
an IHA to take marine mammals incidental to HRG marine site 
characterization surveys offshore of New Jersey in the area of BOEM 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the OCS Lease Area OCS-A 0532 (Lease Area) and associated ECR area. 
Ocean Wind II requested authorization to take small numbers of 16 
species (comprising 17 stocks) of marine mammals by Level B harassment 
only. NMFS published a notice of the proposed IHA in the Federal 
Register on March 16, 2022 (87 FR 14823). After a 30-day public comment 
period and consideration of all public comments received, we 
subsequently issued the IHA on May 19, 2022 (87 FR 30453), which is 
effective from May 10, 2022 through May 9, 2023.
    Ocean Wind II completed the survey work under the 2022 IHA and 
submitted a final monitoring report, which demonstrates that they 
conducted the required marine mammal mitigation and monitoring, and did 
not exceed the authorized levels of take under the previous IHA issued 
for surveys offshore of New Jersey (see 87 FR 30452, May 19, 2022). 
These monitoring results are available to the public on our website: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-ii-llc-marine-site-characterization-surveys-new.
    The 2023 IHA request is identical to the 2022 IHA request. However, 
NMFS has determined a renewal of the 2022 IHA is not appropriate 
because Duke University's Marine Geospatial Ecology Laboratory released 
updated marine mammal density information (June 20, 2022) for all 
species in the project area (https://seamap.env.duke.edu/models/Duke/
EC/) after issuance of the 2022 IHA. In evaluating the 2023 request, 
which incorporates the updated density information, and to the extent 
deemed appropriate, NMFS relies on the information presented in notices 
associated with issuance of the 2022 IHA (87 FR 14823, March 16, 2022; 
87 FR 30453, May 19, 2022).

[[Page 38493]]

Description of the Proposed Activity and Anticipated Impacts

Overview

    Ocean Wind II proposes to conduct HRG marine site characterization 
surveys in the BOEM Lease Area OCS-A 0532 and along potential submarine 
ECRs to landfall locations in New Jersey. The purpose of the proposed 
surveys is to obtain an assessment of seabed (geophysical, 
geotechnical, and geohazard), ecological, and archeological conditions 
within the footprint of a planned offshore wind facility development 
area. Surveys are also conducted to support engineering design and to 
map unexploded ordnance. Survey equipment would be deployed from 
multiple vessels or remotely operated vehicles (ROVs) during site 
characterization activities in the project area; however, only one 
vessel would operate at a time in the lease area and ECR area (two 
vessels total). During survey effort, the vessel would operate at a 
maximum speed of 4 knots (4.6 miles or 7.4 km per hour). Underwater 
sound resulting from Ocean Wind II's activities has the potential to 
result in incidental take of marine mammals in the form of Level B 
harassment.

Dates and Duration

    The proposed activity is estimated to require 275 survey days, and 
is expected to be carried out over the course of the one-year period of 
effectiveness beginning from the date of issuance of this IHA. A 
``survey day'' is defined as a 24-hour (hr) activity period in which 
active HRG acoustic sources are used. This schedule is inclusive of any 
inclement weather downtime and crew transfers. The number of survey 
days was calculated as the number of days needed to reach the overall 
level of effort required to meet survey objectives assuming any single 
vessel covers, on average, 70 km (129.6 miles) of survey trackline per 
24 hours of operations.

Specific Geographic Region

    Ocean Wind II's proposed activities would occur in the Northwest 
Atlantic Ocean within Federal and state waters offshore of New Jersey 
in BOEM Lease Area OCS-A 0532 and associated ECR area to landfall 
locations in New Jersey (Figure 1). As compared to the 2022 IHA (87 FR 
14823, March 16, 2022; 87 FR 30453, May 19, 2022), Ocean Wind II 
revised their project area map (Figure 1) to be more representative of 
the actual area in which HRG surveys would occur. The revised project 
area description is based on updated information received from the 
Ocean Wind II site investigation team. The Lease Area is approximately 
343.8 square kilometers (km\2\) and is within the New Jersey Wind 
Energy Area (WEA) of BOEM's Mid-Atlantic planning area. The total 
survey area depicted in Figure 1 (including the Lease Area and 
potential ECRs) encompasses 3,801 km\2\. Water depths in the Lease Area 
range from 14 meters (m) (45.9 feet (ft)) to 38 m (124.6 ft), and the 
potential ECRs extend from the shoreline to approximately 30 m (98.4 
ft) depth.
BILLING CODE 3510-22-P

[[Page 38494]]

[GRAPHIC] [TIFF OMITTED] TN13JN23.008

BILLING CODE 3510-22-C

Detailed Description of the Action

    A detailed description of the proposed survey activities can be 
found in the previous Federal Register notices (87 FR 14823, March 16, 
2022; 87 FR 30453, May 19, 2022) and supplementary documents, available 
online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-ii-llc-marine-site-characterization-surveys-new. The specific geographic region (except for the abovementioned 
slight revisions made based on information received from the Ocean Wind 
II site investigation team); duration (275 total survey days); and 
nature of the activities, including the types of HRG equipment planned 
for use (boomers, sparkers, and non-parametric sub-bottom profilers); 
daily trackline distances (70 km per day); and number of survey vessels 
(one vessel operating at a time in the Lease Area and ECR Area, for a 
total of two vessels) are identical or nearly identical to those 
described in those previous notices.

Description of Marine Mammals

    A description of the marine mammals in the proposed survey area can 
be

[[Page 38495]]

found in the previous documents and notices for the 2022 IHA (87 FR 
14823, March 16, 2022; 87 FR 30453, May 19, 2022), which remains 
applicable to this proposed IHA. NMFS reviewed the most recent draft 
Stock Assessment Reports (SARs, found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), up-to-date information on relevant Unusual 
Mortality Events (UMEs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events), and recent 
scientific literature and determined that no new information affects 
our original analysis of impacts under the 2022 IHA.
    NMFS notes that, since issuance of the 2022 IHA, a new SAR is 
available for the North Atlantic right whale (NARW). Estimated 
abundance for the species declined from 368 to 338. However, this 
change does not affect our analysis of impacts, as described under the 
2022 IHA. Additionally, on August 1, 2022, NMFS announced proposed 
changes to the existing NARW vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered NARWs 
from vessel collisions, which are a leading cause of the species' 
decline and a primary factor in an ongoing Unusual Mortality Event (87 
FR 46921). Should a final vessel speed rule be issued and become 
effective during the effective period of this IHA (or any other MMPA 
incidental take authorization), the authorization holder would be 
required to comply with any and all applicable requirements contained 
within the final rule. Specifically, where measures in any final vessel 
speed rule are more protective or restrictive than those in this or any 
other MMPA authorization, authorization holders would be required to 
comply with the requirements of the rule. Alternatively, where measures 
in this or any other MMPA authorization are more restrictive or 
protective than those in any final vessel speed rule, the measures in 
the MMPA authorization would remain in place. The responsibility to 
comply with the applicable requirements of any vessel speed rule would 
become effective immediately upon the effective date of any final 
vessel speed rule and, when notice is published of the effective date, 
NMFS would also notify Ocean Wind II if the measures in the speed rule 
were to supersede any of the measures in the MMPA authorization such 
that they were no longer applicable

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat can be found in the documents 
supporting the 2022 IHA (87 87 FR 14823, March 16, 2022; 87 FR 30453, 
May 19, 2022). At present, there is no new information on potential 
effects that would influence our analysis.

Estimated Take

    A detailed description of the methods used to estimate take 
anticipated to occur incidental to the project is found in the previous 
Federal Register notices (87 FR 14823, March 16, 2022; 87 FR 30453, May 
19, 2022). The methods of estimating take are identical to those used 
in the 2022 IHA. Ocean Wind II updated the marine mammal densities 
based on new information (Roberts et al., 2016; Roberts and Halpin, 
2022), available online at: https://seamap.env.duke.edu/models/Duke/
EC/. We refer the reader to Table 2 in Ocean Wind II's 2023 IHA request 
for the specific density values used in the analysis. The IHA request 
is available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The take that NMFS proposes to authorize can be found in Table 2, 
which presents the results of Ocean Wind II's density-based 
calculations for the survey area. For comparative purposes, we have 
provided the 2022 IHA authorized Level B harassment take (87 FR 30453, 
May 19, 2022). NMFS notes that take by Level A harassment was not 
requested, nor does NMFS anticipate that it could occur. Therefore, 
NMFS has not proposed to authorize any take by Level A harassment. 
Mortality or serious injury is neither anticipated to occur nor 
proposed for authorization.

                                               Table 2--Summary of Take Numbers Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               2023 proposed IHA
                                                                                                          2022 IHA    ----------------------------------
               Species                    Scientific name               Stock             Abundance      authorized    Take proposed for    Max percent
                                                                                                          take \1\     authorization \1\    population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..........  Eubalaena glacialis....  Western North Atlantic             338              11                  2              <1
Fin whale...........................  Balaenoptera physalus..  Western North Atlantic           6,802               4                  4              <1
Sei whale...........................  Balaenoptera borealis..  Nova Scotia...........           6,292           0 (1)                  1              <1
Minke whale.........................  Balaenoptera             Canadian East Coast...          21,968               1                  8              <1
                                       acutorostrata.
Humpback whale......................  Megaptera novaeangliae.  Gulf of Maine.........           1,396               2                  4              <1
Sperm whale.........................  Physeter macrocephalus.  North Atlantic........           4,349           0 (3)              0 (3)              <1
Atlantic white-sided dolphin........  Lagenorhynchus acutus..  Western North Atlantic          93,233          6 (50)            12 (50)              <1
Atlantic spotted dolphin............  Stenella frontalis.....  Western North Atlantic          39,921          2 (15)             1 (15)              <1
Common bottlenose dolphin \2\.......  Tursiops truncatus.....  Western North                   62,851           1,842              2,221             2.3
                                                                Atlantic, Offshore.
                                                               Western North                    6,639  ..............  .................            21.4
                                                                Atlantic, Northern
                                                                Migratory Coastal.
Long-finned pilot whale \3\.........  Globicephala melas.....  Western North Atlantic          39,215          1 (20)             1 (20)              <1
Risso's dolphin.....................  Grampu griseus.........  Western North Atlantic          35,215          0 (30)             1 (30)              <1
Common dolphin......................  Delphinu delphis.......  Western North Atlantic         172,974        54 (400)           67 (400)              <1
Harbor porpoise.....................  Phocoena phocoena......  Gulf of Maine/Bay of            95,543              90                 72              <1
                                                                Fundy.
Seals \4\:
    Gray seal.......................  Halichoerus grypus.....  Western North Atlantic      \5\ 27,300              25                 13              <1
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic          61,336              25                 13              <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote proposed take authorization where different from calculated take estimates. Increases from calculated values are based on average
  group size for the following species: sei whale and pilot whales, Kenney and Vigness-Raposa, 2010; sperm whale and Risso's dolphin, Barkaszi and
  Kelly, 2018; Atlantic white-sided dolphins, NMFS 2022a; and Atlantic spotted dolphins, NMFS 2022b.The amount of proposed common dolphin take is based
  on the number of individuals observed in previous HRG surveys in the area, and is identical to the amount of take authorized in the 2022 IHA.
\2\ At this time, Ocean Wind II is not able to identify how much work would occur inshore and offshore of the 20 m isobaths, a common delineation
  between offshore and coastal bottlenose dolphin stocks. Because Roberts et al. does not provide density estimates for individual stocks of common
  bottlenose dolphins, the take presented here is the total estimated take for both stocks. Although unlikely, for our analysis, we assume all takes
  could be allocated to either stock.

[[Page 38496]]

 
\3\ Roberts (2018) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be of long-
  finned pilot whales.
\4\ Roberts (2018) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
  equally in the survey area; therefore, density values were split evenly between the two species, i.e., total estimated take for ``seals'' is 24.
\5\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,600.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures proposed here 
are identical to those included in the Federal Register notice 
announcing the final 2022 IHA and the discussion of the least 
practicable adverse impact included in that document remains accurate. 
As described in the previous Federal Register notices (87 FR 14823, 
March 16, 2022; 87 FR 30453, May 19, 2022), NMFS determined that 
issuance of the 2022 IHA to Ocean Wind II was within the scope of the 
NOAA Fisheries Greater Atlantic Regional Office (GARFO) programmatic 
consultation regarding geophysical surveys along the U.S. Atlantic 
coast in the three Atlantic Renewable Energy Regions (NOAA GARFO, 2021; 
https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation). NMFS similarly concludes that the currently proposed 
survey activities are within scope of the consultation, and thus will 
require adherence to the relevant Project Design Criteria (PDC) 
(specifically PDCs 4, 5, and 7).
    Establishment of Shutdown Zones (SZ)--Marine mammal SZs must be 
established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSO) during HRG surveys as 
follows:
     500-m SZ for North Atlantic right whales during use of 
specified acoustic sources (impulsive: sparkers and boomers; non-
impulsive: non-parametric sub-bottom profilers); and,
     100-m SZ for all other marine mammals (excluding North 
Atlantic right whales) during operation of the sparker and boomer. The 
only exception for this is for pinnipeds (seals) and small delphinids 
(i.e., those from the genera Delphinus, Lagenorhynchus, Stenella or 
Tursiops).
    If a marine mammal is detected approaching or entering the SZs 
during the HRG survey, the vessel operator would adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
During use of acoustic sources with the potential to result in marine 
mammal harassment (sparkers, boomers, and non-parametric sub-bottom 
profilers; i.e., anytime the acoustic source is active, including ramp-
up), occurrences of marine mammals within the monitoring zone (but 
outside the SZs) must be communicated to the vessel operator to prepare 
for potential shutdown of the acoustic source.
     Visual Monitoring--Monitoring must be conducted by 
qualified PSOs who are trained biologists, with minimum qualifications 
described in the Federal Register notices for the 2022 project (87 FR 
14823, March 16, 2022; 87 FR 30453, May 19, 2022). Ocean Wind II must 
have one PSO on duty during the day and a minimum of two NMFS-approved 
PSOs must be on duty and conducting visual observations when HRG 
equipment is in use at night. Visual monitoring must begin no less than 
30 minutes prior to ramp-up of HRG equipment and continue until 30 
minutes after use of the acoustic source. PSOs must establish and 
monitor the applicable clearance zones, SZs, and vessel separation 
distances as described in the 2022 IHA (87 FR 30453, May 19, 2022). 
PSOs must coordinate to ensure 360-degree visual coverage around the 
vessel from the most appropriate observation posts, and must conduct 
observations while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs are required to estimate 
distances to observed marine mammals. It is the responsibility of the 
Lead PSO on duty to communicate the presence of marine mammals as well 
as to communicate action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    Pre-Start Clearance--Marine mammal clearance zones (CZs) must be 
established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSO) prior to use of boomers, 
sparkers, and non-parametric sib-bottom profilers as follow:
     500-m CZ for all ESA-listed species; and,
     100-m CZ for all other marine mammals.
    Prior to initiating HRG survey activities, Ocean Wind II must 
implement a 30-minute pre-start clearance period. The operator must 
notify a designated PSO of the planned start of ramp-up where the 
notification time should not be less than 60 minutes prior to the 
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes 
prior to the initiation of ramp-up. Prior to ramp-up beginning, Ocean 
Wind II must receive confirmation from the PSO that the CZs are clear 
prior to preceding. 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 zones.
    During this 30-minute period, the entire CZ must be visible. The 
exception to this would be in situations where ramp-up must occur 
during periods of poor visibility (inclusive of nighttime) as long as 
appropriate visual monitoring has occurred with no detections of marine 
mammals in 30 minutes prior to the beginning of ramp-up. Acoustic 
source activation must only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If a marine mammal is observed within the relevant CZs during the 
pre-start clearance period, initiation of HRG survey equipment must not 
begin until the animal(s) has been observed exiting the respective CZ, 
or, until an additional period has elapsed with no further sighting 
(i.e., minimum 15 minutes for small odontocetes and seals; 30 minutes 
for all other species). The pre-start clearance requirement includes 
small delphinids. PSOs must also continue to monitor the zone for 30 
minutes after survey equipment is shut down or survey activity has 
concluded.
     Ramp-Up of Survey Equipment--When technically feasible, a 
ramp-up procedure must be used for geophysical survey equipment capable 
of adjusting energy levels at the start or re-start of survey 
activities. The ramp-up procedure must be used at the beginning of HRG 
survey activities in order to provide additional protection to marine 
mammals near the project area by allowing them to detect the presence 
of the survey and vacate the area prior to the commencement of survey 
equipment operation at full power. Ramp-up of the survey equipment must 
not begin until the relevant SZs has been cleared by the PSOs, as 
described above. HRG equipment operators must ramp up acoustic sources 
to half power for 5 minutes and then proceed to full power. If any 
marine mammals are detected within the SZs prior to or during ramp-up, 
the HRG equipment must be shut down (as described below).

[[Page 38497]]

     Shutdown Procedures--If an HRG source is active and a 
marine mammal is observed within or entering a relevant SZ (as 
described above), an immediate shutdown of the HRG survey equipment is 
required. When shutdown is called for by a PSO, the acoustic source 
must be immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty has the authority to delay the start of 
survey operations or to call for shutdown of the acoustic source if a 
marine mammal is detected within the applicable SZ. The vessel operator 
must establish and maintain clear lines of communication directly 
between PSOs on duty and crew controlling the HRG source(s) to ensure 
that shutdown commands are conveyed swiftly while allowing PSOs to 
maintain watch. Subsequent restart of the HRG equipment may only occur 
after the marine mammal has been observed exiting the relevant SZ, or, 
until an additional period has elapsed with no further sighting of the 
animal within the relevant SZ.
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable SZ or, following a clearance period of 15 
minutes for small odontocetes (i.e., harbor porpoise) and 30 minutes 
for all other species with no further observation of the marine 
mammal(s) within the relevant SZ. If the HRG equipment is shut down for 
brief periods (i.e., less than 30 minutes) for reasons other than 
mitigation (e.g., mechanical or electronic failure) the equipment may 
be re-activated as soon as is practicable at full operational level, 
without 30 minutes of pre-clearance, only if PSOs have maintained 
constant visual observation during the shutdown and no visual 
detections of marine mammals occurred within the applicable SZs during 
that time. For a shutdown of 30 minutes or longer, or if visual 
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
    The shutdown requirement is waived for pinnipeds (seals) and 
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) under certain circumstances. If a delphinid(s) 
from these genera is visually detected within the SZ, shutdown would 
not be 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), 
PSOs must use best professional judgment in making the decision to call 
for a shutdown.
    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 
area encompassing the Level B harassment isopleth (141 m), shutdown 
must occur.
     Vessel Strike Avoidance--Ocean Wind II must comply with 
vessel strike avoidance measures as described in the Federal Register 
notice for the 2022 IHA (87 FR 30453, May 19, 2022). This includes 
speed restrictions (10 knots or less) when mother/calf pairs, pods, or 
large assemblages of cetaceans are spotted near a vessel; species-
specific vessel separation distances; appropriate vessel actions when a 
marine mammal is sighted (e.g., avoid excessive speed, remain parallel 
to animal's course, etc.); and monitoring of the NMFS North Atlantic 
Right Whale reporting system and Whale Alert daily.
     Seasonal Operating Requirements--Ocean Wind II will 
conduct HRG survey activities in the vicinity of a North Atlantic right 
whale Mid-Atlantic seasonal management area (SMA). Activities must 
comply with the seasonal mandatory speed restriction period for this 
SMA (November 1 through April 30) for any survey work or transit within 
this area.
    Throughout all phases of the survey activities, Ocean Wind II must 
monitor NOAA Fisheries North Atlantic right whale reporting systems for 
the establishment of a dynamic management area (DMA). If NMFS 
establishes a DMA in the surrounding area, including the project area 
or export cable routes being surveyed, Ocean Wind II is required to 
abide by the 10-knot speed restriction.
     Training--Project-specific training is required for all 
vessel crew prior to the start of survey activities.
     Reporting--PSOs must record specific information as 
described in the Federal Register notice of the issuance of the 2022 
IHA (87 FR 30453, May 19, 2022). Within 90 days after completion of 
survey activities, Ocean Wind II must provide NMFS with a monitoring 
report, which must include summaries of recorded takes and estimates of 
the number of marine mammals that may have been harassed.
    In the event of a ship strike or discovery of an injured or dead 
marine mammal, Ocean Wind II must report the incident to the Office of 
Protected Resources (OPR), NMFS and to the New England/Mid-Atlantic 
Regional Stranding Coordinator as soon as feasible. The report must 
include the information listed in the Federal Register notice of the 
issuance of the initial IHA (87 FR 30453, May 19, 2022).

Preliminary Determinations

    Ocean Wind II's HRG survey activities are unchanged from those 
analyzed in support of the 2022 IHA. The effects of the activity, 
taking into consideration the proposed mitigation and related 
monitoring measures, remain unchanged from those evaluated in support 
of the 2022 IHA, regardless of the minor increases in estimated take 
numbers for some marine mammal species and/or stocks. NMFS expects that 
all potential takes would be short-term Level B behavioral harassment 
in the form of temporary avoidance of the area or decreased foraging 
(if such activity was occurring), reactions that are considered to be 
of low severity and with no lasting biological consequences (e.g., 
Southall et al., 2007). In addition to being temporary, the maximum 
expected harassment zone around a survey vessel is 141 m. Although this 
distance is assumed for all survey activity evaluated here and in 
estimating take numbers proposed for authorization, in reality, much of 
the survey activity would involve use of non-impulsive acoustic sources 
with a reduced acoustic harassment zone of up to 48 m, producing 
expected effects of particularly low severity. Therefore, the 
ensonified area surrounding each vessel is relatively small compared to 
the overall distribution of the animals in the area and the available 
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. Even 
considering the increased estimated take for some species, the impacts 
of these lower severity exposures are not expected to accrue to a 
degree that the fitness of any individuals would be impacted and, 
therefore, no impacts on the annual rates of recruitment or survival 
would result.
    As previously discussed in the 2022 IHA (87 FR 30453, May 19, 
2022), impacts from the survey are expected to

[[Page 38498]]

be localized to the specific area of activity and only during periods 
when Ocean Wind II's acoustic sources are active. There are no 
rookeries, mating or calving grounds, or any feeding areas known to be 
biologically important to marine mammals within the proposed survey 
area. There is no designated critical habitat for any ESA-listed marine 
mammals in the survey area.
    As noted for the 2022 IHA (87 FR 30453, May 19, 2022), the survey 
area overlaps a migratory corridor biologically important area (BIA) 
for NARWs. Because the survey activities are temporary and the spatial 
extent of sound produced by the survey would be very small relative to 
the spatial extent of the available migratory habitat in the BIA 
(269,448 km\2\), NMFS does not expect NARW migration to be impacted by 
the survey. Given the relatively small size of the ensonified area, it 
is unlikely that prey availability would be adversely affected by HRG 
survey operations. Required vessel strike avoidance measures will also 
decrease risk of ship strike during migration; no ship strike is 
expected to occur during Ocean Wind II's planned activities. 
Additionally, Ocean Wind II requested and NMFS proposes to authorize 
only two takes by Level B harassment of NARWs. This amount is reduced 
from the 11 Level B harassment takes authorized in the 2022 IHA due to 
the revised Duke University density data (Roberts and Halpin, 2022). 
HRG survey operations are required to maintain a 500-m SZ, and shutdown 
if a NARW is sighted at or within the SZ. The 500-m SZ for NARWs is 
conservative, considering the Level B harassment isopleth for the most 
impactful acoustic source (i.e., sparker) is estimated to be 141 m, and 
thereby minimizes the potential for behavioral harassment of this 
species. As noted previously, Level A harassment is not expected due to 
the small PTS zones associated with HRG equipment types proposed for 
use. NMFS does not anticipate NARWs takes that would result from Ocean 
Wind II's activities would impact annual rates of recruitment or 
survival. Thus, any takes that occur would not result in population 
level impacts.
    We also note that our findings for other species with active UMEs 
that were previously described for the 2022 IHA remain applicable to 
this project. Therefore, in conclusion, there is no new information 
suggesting that our analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) the 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed authorized takes represent 
small numbers of marine mammals relative to the affected stock 
abundances; (4) Ocean Wind II's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action, and 
(5) appropriate monitoring and reporting requirements are included..

Endangered Species Act (ESA)

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

Proposed Authorization

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

Request for Public Comments

    We request comment on our analyses (included in both this document 
and the referenced documents supporting the 2022 IHA (ITA application; 
issued IHA; and Federal Register notices including 87 FR 4200, January 
27, 2022; 87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022)), the 
proposed authorization, and any other aspect of this notice of proposed 
IHA for the proposed site characterization surveys. We also request 
comment on the potential for renewal of this proposed IHA as described 
in the paragraph below. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical, or nearly identical, activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this notice is planned or (2) the activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this notice would not be completed by the time the IHA expires and a 
renewal would allow for completion of the activities beyond that 
described in the Dates and Duration section of this notice, provided 
all of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed renewal IHA effective date (recognizing that the 
renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA);
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take); 
and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.


[[Page 38499]]


    Dated: June 7, 2023.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2023-12604 Filed 6-12-23; 8:45 am]
BILLING CODE 3510-22-P