Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of New Jersey and New York, 38821-38845 [2023-12532]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 114 (Wednesday, June 14, 2023)]
[Notices]
[Pages 38821-38845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12532]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC979]


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

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

ACTION: Notice; issuance of an Incidental Harassment Authorization 
(IHA).

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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 
Atlantic Shores Offshore Wind, LLC (Atlantic Shores) to incidentally 
harass marine mammals during marine site characterization surveys off 
New Jersey and New York.

DATES: This Authorization is effective from June 9, 2023, through June 
8, 2024.

FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, 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 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.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

History of Request

    On August 16, 2021, NMFS received a request from Atlantic Shores 
for an IHA to take marine mammals incidental to high-resolution 
geophysical (HRG) marine site characterization surveys offshore of New 
Jersey and New York in the area of the Bureau of Ocean Energy 
Management's (BOEM) Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf Lease Area (OCS-A) 
0499 and associated Export Cable Route (ECR) area. Atlantic Shores 
requested authorization to take small numbers of up to 15 species of 
marine mammals, by Level B harassment only. On January 27, 2022, NMFS 
published a notice of the proposed IHA in the Federal Register (87 FR 
4200). After a 30-day public comment period and consideration of all 
public comments received, we subsequently issued the IHA, which was 
effective from April 20, 2022 through April 19, 2023 (87 FR 24103, 
April 22, 2022). A minor correction notice was published on May 5, 2022 
(87 FR 26726).
    Atlantic Shores conducted the required marine mammal mitigation and 
monitoring and did not exceed the authorized levels of take under 
previous IHAs issued for surveys offshore of New York and New Jersey 
(85 FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021). These 
previous monitoring results are available to the public on our website: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization.
    On December 27, 2022, NMFS received a request from Atlantic Shores 
for an IHA to take marine mammals incidental to HRG marine site 
characterization surveys off of New Jersey and New York in the areas of 
BOEM Lease Areas OCS-A 0499 and OCS-A 0549 and associated ECR area. 
Following NMFS' review of the application, Atlantic Shores submitted a

[[Page 38822]]

revised request. The application was deemed adequate and complete on 
January 10, 2023 (the 2023 request). Atlantic Shores' request was for 
the take of 15 species (16 stocks) of marine mammals, by Level B 
harassment only. Neither Atlantic Shores nor NMFS expect 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.
    This request is identical to the activities covered in the IHA 
previously issued in 2022. However, NMFS had determined a renewal of 
the 2022 IHA is not appropriate in this circumstance due to the 
availability of updated marine mammal density information (June 20, 
2022) for all species in the project area (https://seamap.env.duke.edu/models/Duke/EC/). Because of this, NMFS relied substantially herein, as 
appropriate, on the information previously presented in notices 
associated with issuance of the 2022 IHA (87 FR 4200, January 27, 2022; 
87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022). We note that 
BOEM had previously segmented Lease Area OCS-A 0499 into Lease Areas 
OCS-A 0499 and 0549; thus, the physical lease area is the same as 
described in the 2022 IHA. More information can be found on BOEM's 
website: https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549.
    No changes were made from the proposed to the final IHA.

Description of the Activity and Anticipated Impacts

Overview

    Atlantic Shores will conduct geotechnical and HRG marine site 
characterization surveys in BOEM Lease Areas OCS-A 0499 and OCS-A 0549 
and along potential submarine ECRs (ECRs North and South) that lead to 
landfall locations in either New York or New Jersey (refer back to 
Figure 1 in 88 FR 19075, March 30, 2023). The survey area is the same 
as previously described in the application for the 2022 IHA (see 87 FR 
24103, April 22, 2022) and will consist of approximately 1,450,006 
acres (5,868 square kilometers (km\2\)) and extends approximately 24 
nautical miles (nmi; 44 km) offshore.
    The purpose of these surveys are 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 Areas and along the 
ECRs. As many as three survey vessels will operate concurrently as part 
of the surveys. During the survey effort, vessels will operate at a 
maximum speed of 3.5 knots (4 miles per hour). Up to 360 survey days 
will occur, where a ``survey day'' is defined as a 24-hour activity 
period in which active acoustic sound sources are used (Table 1).

      Table 1--Number of Survey Days That Atlantic Shores Will Perform the Described HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                         Survey area   Number of active survey days expected
                                                         \1\
----------------------------------------------------------------------------------------------------------------
Lease Areas.........................  OCS-A-0499.............              50  120 days total.
                                      OCS-A-0549.............              70
----------------------------------------------------------------------------------------------------------------
Export Cable Route North (ECR North)....................180..
Export Cable Route South (ECR South).....................60..
----------------------------------------------------------------------------------------------------------------
\1\ Surveys in each area may temporally overlap; therefore, actual number of days of activity in a given year
  may be less than 360.

    Underwater sound resulting from Atlantic Shores' site 
characterization survey activities have the potential to result in 
incidental take of marine mammals in the form of behavioral harassment 
(i.e., Level B harassment), specifically during use of acoustic sources 
operating at <180 kilohertz (kHz). Geotechnical activities have been 
discussed previously with regards to past IHAs issued to Atlantic 
Shores (see 85 FR 7926, February 12, 2020; 87 FR 24103, April 22, 2022) 
and, as no new information has been presented that would change our 
determinations on these activities, this information will not be 
reiterated here. Atlantic Shores has requested and NMFS has issued an 
IHA authorizing the take by Level B harassment only of 15 species of 
marine mammals (comprising 16 stocks) incidental to marine site 
characterization surveys, specifically in association with the use of 
HRG survey equipment. The mitigation, monitoring, and reporting 
measures are described in detail later in this document (please see 
Mitigation and Monitoring and Reporting).
    A detailed description of Atlantic Shores' planned surveys is 
provided in the Federal Register notice of the proposed IHA (88 FR 
19075, March 30, 2023) and the 2022 Federal Register notice (87 FR 
24103, April 22, 2022). Since that time, no changes have been made to 
the survey activities. Therefore, a detailed description is not 
provided here. Please refer to those Federal Register notices for the 
description of the specified activities.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Atlantic Shores was 
published in the Federal Register on March 30, 2023 (88 FR 19075). That 
proposed notice described, in detail, Atlantic Shores' proposed 
activities, the marine mammal species that may be affected by these 
activities, and the anticipated effects on marine mammals while heavily 
referencing the previous and similar project described in the 2022 
proposed (87 FR 4200, January 27, 2022) and 2022 final notices (87 FR 
24103, April 22, 2022). In the March 30, 2023 notice, we requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization, and requested that interested 
persons submit relevant information, suggestions, and comments. This 
proposed notice was available for a 30-day public comment period.
    In total, NMFS received 118 public comment letters, including 84 
individual comments from private citizens that were non-responsive to 
NMFS' solicitation for public comment specifically on the proposed 
authorization for incidental harassment of marine mammals here and/or 
discuss topics that are otherwise out of scope for this specific 
action. These public comments fall into the following categories: 
general opposition to the planned HRG surveys unrelated to the specific 
marine mammal incidental take authorization that is the subject of this 
action, general opposition to wind energy development or related

[[Page 38823]]

activities, or general opposition to the take of marine mammals under 
the MMPA; comments relevant to BOEM's authorities and/or actions; and 
other unrelated and/or irrelevant comments to NMFS' decision regarding 
the proposed issuance of the subject IHA. Given that many of these 
comments were non-responsive to NMFS' solicitation and/or discuss 
topics that are out-of-scope for this specific action, these comments 
are not described herein or discussed further. NMFS also received five 
comment letters from non-governmental organizations (NGOs): Clean Ocean 
Action (COA), the Responsible Offshore Development Alliance (RODA), the 
Committee For A Constructive Tomorrow (CFACT), and two letters from 
local citizen groups (Save Long Beach Island (SaveLBI) and Defend 
Brigantine Beach Inc.), of which the latter of these presented a subset 
of the same comments submitted by SaveLBI, and therefore, we respond 
through our responses to both local citizen groups. Lastly, we received 
29 comment letters from private citizens that were considered 
substantive/responsive and are addressed below. However, we also note 
that these comments from private citizens echoed concerns brought up in 
the letters received from the aforementioned organizations. Responses 
to all substantive comments are provided below, and all substantive 
comments are available on NMFS' website: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please see the comment letters for full 
details regarding the comments and associated rationale.
    Comment: SaveLBI provided comments suggesting that this IHA is a 
renewal of the previous year's IHA.
    Response: As NMFS stated in the proposed IHA, the proposed action 
for which we requested comments was not for a renewal IHA. As described 
in the proposed Federal Register notice, we determined that a renewal 
IHA was not appropriate due to the release of the new 2022 Duke 
University density information (Roberts et al., 2023). Instead, we have 
issued a standard 1year IHA that relied heavily on the previously 
issued 2022 IHA to Atlantic Shores, as many project details from the 
previous 2022 survey remained the same as described for the 2023 survey 
(also as described in the proposed Federal Register notice). As we 
noted in the proposed IHA and in this 2023 IHA, Atlantic Shores has the 
option for a renewal, if specific conditions and criteria are met.
    Comment: A number of commenters have stated that NMFS is proposing 
to authorize the killing of marine mammals or that a ``take'' equates 
to mortality of an animal by project activities. Commenters also 
asserted that the killing of marine mammals has been authorized through 
previous IHAs.
    Response: These comments are founded on the presumption, absent 
evidence, that serious injury or mortality is a reasonably anticipated 
outcome of Atlantic Shores' specified activity. 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, and commenters provide no information to the contrary. 
We also refer commenters to the NMFS Greater Atlantic Regional 
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds 
that these survey activities are not likely to adversely affect 
Endangered Species Act (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.
    As stated in the Federal Register notice (88 FR 19075, March 30, 
2023), 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. We also note that NMFS has 
never authorized the mortality of marine mammals via IHAs previously, 
and NMFS may not permit that form of take under the MMPA using the IHA 
mechanism. Authorization of mortality and serious injury may only occur 
through Incidental Take Regulations (ITRs). Furthermore, the applicant 
did not request, and NMFS has not proposed and has not authorized 
mortality in any previous HRG IHAs to Atlantic Shores. As the 
commenters have not pointed out which IHAs they are referring to, NMFS 
cannot comment more specifically.
    Comment: COA advises NMFS to reject Incidental Take Authorizations 
(ITAs) to Atlantic Shores until the Draft North Atlantic Right Whale 
and Offshore Wind Strategy (Draft Strategy) is finalized, and measures 
to avoid, minimize, or eliminate harm are determined so that such 
measures might be applied to the project. To support its request, COA 
further notes that the Draft Strategy affirms that the North Atlantic 
right whales (NARW) population is in dire status, as evidenced by the 
fact that the potential biological removal (PBR) level is less than 
one, which, according to COA, means population impacts from Level A or 
B harassment must be avoided, as the NARW population cannot withstand 
any mortality/serious injury (M/SI) due to the species low genetic 
diversity and resilience to future perturbations.
    Response: As identified by COA, in October 2022, NMFS and BOEM 
released a draft joint strategy to protect and promote the recovery of 
NARWs while responsibly developing offshore wind energy. The draft 
strategy identifies three main goals: (1) mitigation and decision-
support tools, (2) research and monitoring, and (3) collaboration, 
communication and outreach. It focuses on improving the body of science 
and integrating past, present and future efforts related to NARWs and 
offshore wind development. In its comment, the COA discusses the PBR 
level and the stock's status suggesting that Level B (behavioral) 
harassment can have population level impacts. We note that no mortality 
or Level A harassment is anticipated or authorized from the Atlantic 
Shores proposed site assessment surveys. While NMFS agrees that the 
NARW population abundance is alarmingly low (with entanglement in 
fishing gear and vessel strikes being the leading causes of NARW 
mortality), NMFS disagrees that the type of harassment authorized in 
this IHA would adversely impact population levels. The magnitude of 
harassment is very low and the severity of any behavioral responses is 
limited to temporary displacement and avoidance of the area when some 
acoustic sources that have the potential to result in harassment are 
active (see Determinations section). Moreover, the MMPA mandates that 
NMFS shall issue requested authorizations provided certain findings are 
made and that those findings be made based on the best available 
science. NMFS has made the required findings, based on the best 
available science, and has included mitigation measures, many of which 
are included in the Draft Strategy as appropriate for HRG surveys, 
designed to effect the least practicable adverse impact on NARWs. 
Finalizing the Strategy or similar efforts is not a requirement to 
issue ITAs. COA's comment regarding other construction activities is 
outside the scope of this

[[Page 38824]]

authorization. NMFS analyzes requests for authorization to harass 
marine mammals for wind farm construction as received. The specified 
activity in Atlantic Shores' application is limited to HRG site 
assessment surveys, not construction.
    Comment: COA states that NMFS should pause all ``industrial full-
scale construction (and related activities)'' for offshore wind energy 
until the Federal agencies determine the best way to eliminate or avoid 
all impacts on NARW.
    Response: We note that COA has not provided any suggestions on how 
to eliminate and avoid all impacts on the NARW. Therefore, NMFS is not 
able to evaluate or consider other suggestions, beyond the mitigation 
measures that were already proposed in the Federal Register notice (88 
FR 19075, March 30, 2023). If COA wishes to provide additional 
suggestions in the future, NMFS would be able to evaluate these in 
context with the specific proposed action(s). In the absence of 
additional information or proposals regarding further reduction of 
impacts to NARWs, NMFS must implement the MMPA as required by the 
statute (i.e., upon making the necessary findings (e.g., small numbers; 
negligible impact) and prescribing measures affecting the least 
practicable adverse impact), as we have done here, NMFS shall authorize 
incidental take of marine mammals.
    Given the primary risk to NARWs is ship strike, the mitigation 
measures that NMFS requires do address this specifically and include: a 
requirement that all vessel operators comply with 10 knots (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 NARW 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 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 ship 
strike avoidance measures in the IHA are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat.
    Comment: COA states that the applicant's survey activities will 
increase the number of vessels in the ocean in the project area, which 
would lead to an increased threat of harm by vessel strikes to marine 
mammals, specifically NARW. Similarly, members of the public and CFACT 
have claimed that animals being displaced out of lower traffic areas 
into a higher trafficked area may increase the likelihood of fatal ship 
strikes.
    Response: NMFS does not anticipate that NARW would be permanently 
displaced or displaced for extended periods of time from the area where 
Atlantic Shores' marine site characterization surveys would occur, and 
commenters do not provide evidence that this effect should be a 
reasonably anticipated outcome of the specified activity. We expect 
temporary avoidance to occur, at worst, but that is distinctly 
different from displacement. Similarly, NMFS is not aware of any 
scientific information suggesting that the survey activity would drive 
marine mammals into shipping lanes and disagrees that this would be a 
reasonably anticipated effect of the specified activities. The 
authorized take by Level B harassment is precautionary but considered 
unlikely as NMFS' take estimation analysis does not account for the use 
of extremely precautionary mitigation measures (e.g., the requirement 
for Atlantic Shores to implement a shutdown zone (500 m) that is more 
than three times as large as the estimated harassment zone (141 m)). 
These requirements are expected to largely eliminate the actual 
occurrence of Level B harassment events and to the extent that 
harassment does occur, would minimize the duration and severity of any 
such events. Therefore, even if a NARW was in the area of the specified 
activities, a displacement impact is not anticipated.
    Although the primary stressor to marine mammals from the specified 
activities is acoustic exposure from the sound source, NMFS takes 
seriously the risk of vessel strike and has 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 kn; 7.4-9.3 km/h).
    Comment 7: COA and SaveLBI suggest that NMFS address the cumulative 
impacts on marine mammals, specifically the NARW and other endangered 
marine mammal species, from all vessels associated with Atlantic 
Shores' project as well as other projects occurring in the nearby 
region. SaveLBI additionally asserts that, because the MMPA refers to 
``citizens'' in the plural, and because section 101(a)(5)(A) of the 
MMPA refers to findings relating to the total taking over a 5-year (or 
less) period, the MMPA requires cumulative impact assessments.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of other unrelated activities and 
their impacts on populations. The preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989) states, in response to 
comments, that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline (e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and other relevant 
stressors). The 1989 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

[[Page 38825]]

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, Atlantic Shores 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 (54 FR 40338, September 29, 1989), NMFS also indicated (1) 
that we would consider cumulative effects that are reasonably 
foreseeable when preparing a National Environmental Policy Act (NEPA) 
analysis and (2) that reasonably foreseeable cumulative effects would 
also be considered under section 7 of the ESA for 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 2017 Ocean Wind, LLC EA for 
site characterization surveys off New Jersey and the 2018 Deepwater 
Wind EA for survey activities offshore Delaware, Massachusetts, and 
Rhode Island). Cumulative impacts regarding issuance of IHAs for site 
characterization survey activities, such as those planned by Atlantic 
Shores, 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 Atlantic Shores' 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; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 2021), which 
are similar to those planned by Atlantic Shores 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 Biological Opinion remains 
valid.
    With regard to SaveLBI's additional assertions that the MMPA's 
incidental take authorization provisions require a cumulative impacts 
assessment, we reiterate our disagreement. Regardless of the MMPA's 
references to ``citizens'' in the plural, there is no guidance offered 
by the MMPA, NMFS' implementing regulations, or any other supporting 
information, such as the associated legislative history, that an 
assessment of cumulative impacts is required under the MMPA. SaveLBI's 
reference to the 5-year period, found in section 101(a)(5)(A) of the 
MMPA, is not relevant to the issuance of the subject IHA under section 
101(a)(5)(D) of the MMPA, and we do not address it further.
    Comment 8: COA, SaveLBI, and a member of the public state that they 
do not believe the take proposed for authorization related to this 
project consists of ``small numbers'' of marine mammals as required by 
the MMPA. SaveLBI further states that NMFS' small numbers determination 
is not supported scientifically or consistent with the holding in 
Natural Resources Defense Council vs. Evans. SaveLBI further advises 
that NMFS redefine ``small numbers'' to align with a more science-based 
population percentage based on SaveLBI's suggestions where a specific 
distinction would be made for ``endangered'' and ``critically 
endangered'' species.
    Response: NMFS disagrees with the commenters' arguments on the 
topic of small numbers. Although there is limited legislative history 
available to guide NMFS and an apparent lack of biological underpinning 
to the concept, we have worked to develop a reasoned approach to small 
numbers. NMFS explains the concept of ``small numbers'' in recognition 
that there could also be quantities of individuals taken that would 
correspond with ``medium'' and ``large'' numbers. As such, NMFS 
considers that one-third of the most appropriate population abundance 
number--as compared with the assumed number of individuals taken--is an 
appropriate limit with regard to ``small numbers.'' This relative 
approach is consistent with the statement from the legislative history 
that ``[small numbers] is not capable of being expressed in absolute 
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)), 
and relevant case law (Center for Biological Diversity v. Salazar, 695 
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife 
Service reasonably interpreted ``small numbers'' by analyzing take in 
relative or proportional terms)). In regards to SaveLBI's suggestion 
that the one-third number is inconsistent with prior case law, we note 
that SaveLBI cited the Natural Resources Defense Council Inc. (NRDC) v. 
Evans decision of October 31, 2002 (232 F. Supp. 2d 1003), which was 
related to the plaintiffs' motion for a preliminary injunction. 
Ultimately, after parties' cross-motions for summary judgment, the 
Evans court held that NMFS' regulatory definition of small numbers 
(which NMFS did not apply here) improperly conflated the small numbers 
and negligible impact issues (NRDC v. Evans, 279 F. Supp. 2d 1129 (N.D. 
Cal. 2003)). Contrary to SaveLBI's suggestion, the Evans court 
expressly stated that it was not setting any numerical limit for small 
numbers. NRDC v. Evans, 279 F. Supp. 2d at 1153. As for SaveLBI's 
suggestion to reconsider small numbers specifically for NARW, the 
argument to establish a small numbers threshold on the basis of stock-
specific context is unnecessarily duplicative of the required 
negligible impact finding, in which relevant biological and contextual 
factors are considered in conjunction with the amount of take.
    Comment 9: SaveLBI states that NMFS authorizing take by harassment 
for 33 percent of a marine mammal population is approximately 43 times 
the potential biological removal (PBR) level of (0.7) defined for NARW.
    Response: SaveLBI inappropriately conflates Level B harassment 
(i.e., behavioral disturbance)--the only type of taking authorized 
through this IHA--with mortality and serious injury through its 
reference to the stock's PBR level. A stock's PBR level is ``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

[[Page 38826]]

population.'' PBR is not an appropriate metric to evaluate Level B 
harassment, which does not result in mortality or serious injury of 
marine mammals (i.e., removals from the population), and NMFS has 
described and used an analytical framework that is appropriate. We 
consider levels of ongoing anthropogenic mortality from other sources, 
such as commercial fisheries, in relation to calculated PBR levels as 
part of the environmental baseline in our negligible impact analysis.
    Comment: COA expresses their concern over potential ``masking'' of 
NARW calls, which could reduce breeding and foraging opportunities or 
impair navigation and transiting.
    Response: Fundamentally, the masking effects to any one individual 
whale from one survey are expected to be minimal. Masking is referred 
to as a chronic effect because one of the key harmful components of 
masking is its duration--the fact that an animal would have reduced 
ability to hear or interpret critical cues becomes much more likely to 
cause a problem the longer it is occurring. Also, inherent in the 
concept of masking is the fact that the potential for the effect is 
only present during the times that the animal and the source are in 
close enough proximity for the effect to occur (and further, this time 
period would need to coincide with a time that the animal was utilizing 
sounds at the masked frequency) and as our analysis both quantitatively 
and qualitatively indicates, we do not expect these exposures with the 
potential for masking to be of a long duration within a given day 
because of the relative movement of whales and vessels. Further, 
because of the relatively low density of mysticetes and relatively 
large area over which the vessels travel, we do not expect any 
individual whales to be exposed to potentially masking levels from 
these surveys for more than a few days in a year.
    As noted above, any masking effects of this survey are expected to 
be limited and brief, if present. Given the likelihood of significantly 
reduced received levels beyond even short distances from the survey 
vessel combined with the short duration of potential masking and the 
lower likelihood of extensive additional contributors to background 
noise offshore and within these short exposure periods, we believe that 
the incremental addition of the survey vessel is unlikely to result in 
more than minor and short-term masking effects likely occurring to some 
small number of the same individuals captured in the estimate of 
behavioral harassment.
    Comment: COA is concerned regarding the number of species that 
could be impacted by the activities as well as a lack of baseline data 
being available for species in the area (e.g., harbor seals), 
specifically their habitat use of the waters in and around Atlantic 
Shores' lease areas. In addition, COA has stated that NMFS did not 
adequately address the potential for cumulative impacts to bottlenose 
dolphins from Level B harassment over several years of project 
activities.
    Response: NMFS repeats our response from the previous Federal 
Register notice (87 FR 24103, April 22, 2022), as it remains applicable 
to the comment provided by COA.
    We appreciate the concern expressed by COA. NMFS utilizes the best 
available science when analyzing which species may be impacted by an 
applicant's proposed activities. Based on information found in the 
scientific literature as well as based on density models developed by 
Duke University, all marine mammal species included in the proposed 
Federal Register notice have some likelihood of occurring in Atlantic 
Shores' survey areas. Furthermore, the MMPA requires us to evaluate the 
effects of the specified activities in consideration of the best 
scientific evidence available and, if the necessary findings are made, 
to issue the requested take authorization. The MMPA does not allow us 
to delay decision making in hopes that additional information may 
become available in the future. Furthermore, NMFS notes that it has 
previously addressed discussions on cumulative impact analyses in 
previous comments and references COA back to these specific responses 
in this notice.
    Regarding the lack of baseline information cited by COA, with 
specific concern pointed out for harbor seals, NMFS points towards two 
sources of information for marine mammal baseline information: the 
Ocean/Wind Power Ecological Baseline Studies, January 2008--December 
2009 completed by the New Jersey Department of Environmental Protection 
in July 2010 (https://dspace.njstatelib.org/xmlui/handle/10929/68435) 
and the Atlantic Marine Assessment Program for Protected Species 
(AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2021 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that cover the areas across the 
Atlantic Ocean. NMFS has duly considered this and all available 
information. Based on the information presented, NMFS has determined 
that no new information has become available nor do the commenters 
present additional information that would change our determinations 
since the publication of the proposed notice.
    Comment: COA, RODA, Defend Brigantine Beach Inc., and members of 
the public assert that the strandings that have occurred in the New 
Jersey/New York region since December 2022 could be connected to 
offshore wind pre-construction activities.
    Response: NMFS reiterates that there is no evidence that noise 
resulting from offshore wind development-related site characterization 
surveys could potentially cause marine mammal stranding, and there is 
no evidence linking recent large whale mortalities and currently 
ongoing surveys. The commenters offer no such evidence. NMFS will 
continue to gather data to help us determine the cause of death for 
these stranded whales. We note the Marine Mammal Commission's recent 
statement: ``There continues to be no evidence to link these large 
whale strandings to offshore wind energy development, including no 
evidence to link them to sound emitted during wind development-related 
site characterization surveys, known as HRG surveys. Although HRG 
surveys have been occurring off New England and the mid-Atlantic coast, 
HRG devices have never been implicated or causatively-associated with 
baleen whale strandings.'' (Marine Mammal Commission Newsletter, Spring 
2023).
    There is an ongoing Unusual Mortality Event (UME) for humpback 
whales along the Atlantic coast from Maine to Florida, which includes 
animals stranded since 2016. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Necropsies were not 
conducted on other carcasses because they were too decomposed, not 
brought to land, or stranded on protected lands (e.g., national and 
state parks) with limited or no access. Of the whales examined (roughly 
90), about 40 percent had evidence of human interaction, either ship 
strike or entanglement. Vessel strikes and entanglement in fishing gear 
are the greatest human threats to large whales. The remaining 50 
necropsied whales either had an undetermined cause of death (due to a 
limited examination or decomposition of the carcass), or had other 
causes of death including parasite-caused organ damage and starvation.

[[Page 38827]]

    As discussed herein, HRG sources may behaviorally disturb marine 
mammals (e.g., avoidance the immediate area). These HRG surveys are 
very different from seismic airguns used in oil and gas surveys or 
tactical military sonar. They produce much smaller impact zones 
because, in general, they have lower source levels and produce output 
at higher frequencies. The area within which HRG sources might 
behaviorally disturb a marine mammal is orders of magnitude smaller 
than the impact areas for seismic airguns or military sonar. Any marine 
mammal exposure would be at significantly lower levels and shorter 
duration, which is associated with less severe impacts to marine 
mammals.
    Comment: COA suggests that NMFS provide evidence that whale 
occurrence increased in this area during the winter.
    Response: NMFS directs COA to Duke University's Marine Geospatial 
Ecology Laboratory's 2022 density data (Roberts et al., 2023), which 
NMFS considers to be the best available science regarding NARW 
occurrence (version 12; https://seamap.env.duke.edu/models/mapper/EC?species=Eubalaena%20glacialis). Based on the dataset, humpback whale 
occurrence off New Jersey is fairly consistent year-round, with 
reductions noted starting around July through August, and densities 
increasing again starting in September. Humpback whales, as the 
population has grown, are seen more often in the Mid-Atlantic. Along 
the New Jersey shore, these whales may be following their prey (small 
fish) which were reportedly close to shore this winter. These prey also 
attract fish that are of interest to recreational and commercial 
fishermen, which increases the number of boats in these areas.
    Comment: COA insists that NMFS provide ``clarity and due process'' 
for the ``determination of accountability,'' specifically related to 
understanding how much accumulated Level A harassment and Level B 
harassment from offshore wind energy development and other activities 
is too much.
    Response: NMFS is unclear regarding the meaning of COA's references 
to ``clarity and due process,'' or under what statutory requirement COA 
believes that an ambiguous ``determination of accountability'' is 
required. We do note, as discussed elsewhere herein, that NMFS has made 
all necessary findings under the MMPA in support of issuance of the 
subject IHA, and is similarly compliant with other relevant statutory 
requirements, e.g., NEPA, ESA. We also refer to the previous response 
addressing concerns regarding the need for additional analysis of 
cumulative impacts.
    Comment: COA states that BOEM has no legal authority for permitting 
offshore geotechnical and geophysical survey activities, based on text 
from the proposed BOEM Renewable Energy Modernization proposed rule (88 
FR 5968, January 30, 2023; 88 FR 19578, April 3, 2023). They further 
state that this has allowed for no oversight with regards to surveys 
off New Jersey and New York and that they do not understand how BOEM 
can make assertions without regulations/guidance for HRG survey work. 
COA further states that, given NMFS' regulatory authority under the 
MMPA and ESA, they should oversee the governance of surveys.
    Response: NMFS' statutory authority for this particular action is 
limited to authorizing incidental take of marine mammals. COA 
associates these authorities under the MMPA and ESA with a suggestion 
that NMFS should ``oversee the governance of surveys,'' but without 
further explanation of why this would be appropriate or authorized by 
statute. NMFS respectfully refers the commenter to BOEM, the agency 
with responsibility for managing development of U.S. Outer Continental 
Shelf energy and mineral resources in an environmentally and 
economically responsible way.
    Comment: RODA states that NMFS should cease what it describes as a 
segmented phase-by-phase and project-by-project approach to IHAs, and 
suggests that NMFS provide additional clarification and transparency on 
the ITA process for offshore wind actions and how an ITR is determined 
as appropriate versus an IHA. They also state that this process and 
information should be made publicly available, and recommend that NMFS 
improve the transparency of this process. Conversely, COA suggests that 
the IHA, as proposed, is for two separate offshore wind energy projects 
(Atlantic Shores 1 and Atlantic Shores 2) and their relevant export 
cable areas and that requests covering more than one project should be 
submitted and reviewed separately, rather than collectively.
    Response: The MMPA and its implementing regulations allow, 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 
finds 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 specified activity itself but rather, 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, Atlantic Shores 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 
Atlantic Shores' specified activity (note, not the authorization of 
takes incidental to that activity) is not within NMFS' jurisdiction.
    For transparency on NMFS' ITA process, we direct RODA to our 
website (https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act) and the detailed 
application instructions (https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization) for 
additional information on the ITA process, which is consistently 
applicable across all types of activities (e.g., offshore wind, 
construction, oil and gas, military, research, HRG). These resources 
describe, in detail, step-by-step instructions on what is needed in an 
ITA request, what is evaluated, and how determinations are made for any 
specific project. This information is and has remained publicly 
available.
    Regarding clarification on IHAs versus ITRs, as described on our 
website, IHAs are 1-year authorizations and ITRs are 5-year regulations 
that allow for the issuance of Letters of Authorization (LOA). An ITR 
must be used if authorization of take by mortality is appropriate. 
However, both options are available for applicants requesting 
authorization of harassment only. While applicants may request a 5-year 
regulation for HRG survey activities, NMFS has not received any 
requests like that to date. Instead, applicants have most often 
requested 1-year authorizations to cover a single year of activities at 
a single time.
    Finally, NMFS is required to consider applications upon request, 
and the MMPA does not provide NMFS with authority to dictate an 
applicant's definition of its specified activity (e.g., separation/
combination of survey effort for Atlantic Shores 1 and 2). 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, such

[[Page 38828]]

as activities conducted by Orsted (see 85 FR 63508, October 8, 2020; 87 
FR 13975, March 11, 2022; 87 FR 61575, October 12, 2022) or may request 
a single authorization for a single project or lease area. Regarding 
the RODA suggestion, to date, NMFS has not received any joint HRG 
applications between multiple applicants. While an individual company 
owning multiple lease areas may apply for a single authorization to 
conduct site characterization surveys across a combination of those 
lease areas (see 85 FR 63508, October 8, 2020; 87 FR 13975, March 11, 
2022), this is not applicable in this case. In the future, if 
applicants wish to undertake this approach, NMFS is open to the receipt 
of joint applications and additional discussions on joint actions.
    Comment: 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 Northeast Fisheries Science Center (NEFSC) 
surveys, including aerial surveys for protected species, and NEFSC has 
developed and implemented a Federal survey mitigation program to 
mitigate the impacts to these surveys. However, this impact is outside 
the scope of analysis related to the authorization of take incidental 
to Atlantic Shores' specified activity under the MMPA.
    Comment: RODA expressed concerns with the high amount of increased 
vessel traffic associated with offshore wind projects throughout the 
region in areas transited or utilized by certain protected resources as 
well as concern for vessel noise.
    Response: Atlantic Shores did not request authorization for take 
incidental to vessel traffic during marine site characterization 
surveys. Nevertheless, NMFS analyzed the potential for vessel strikes 
to occur during the survey and determined that the potential for vessel 
strikes is so low as to be discountable. NMFS does not authorize any 
take of marine mammals incidental to vessel strike resulting from the 
survey. If Atlantic Shores were to strike a marine mammal with a 
vessel, this would be an unauthorized take and a violation of the MMPA. 
This gives Atlantic Shores 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. Section 4(g) in the 
issued IHA contains a suite of non-discretionary requirements 
pertaining to ship strike avoidance, including vessel operation 
protocols and monitoring. To date, NMFS is not aware of any site 
characterization vessels from HRG surveys reporting a vessel strike 
within the United States. When considered in the context of low overall 
probability of any vessel strike by Atlantic Shores' 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 United States Coast Guard (USCG) 
Channel 16 for situational awareness regarding NARW presence in the 
survey area, communication protocols if whales are observed by any 
Atlantic Shores 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 offshore wind development is separate 
from the aforementioned analysis of potential for vessel strike during 
Atlantic Shores' specified survey activities and is not discussed 
further as this is out-of-scope of this specific action.
    Comment: RODA refers 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, we note that the Commission has questioned in its previous 
public comment submissions 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, which includes Atlantic 
Shores' activity described herein. Additionally, comments related to 
pile driving and offshore wind construction are outside the scope of 
this IHA and, therefore, are not discussed.
    Comment: RODA refers to the September 9, 2020 letter submitted by 
17 Environmental NGOs and echoes their concerns.
    Response: NMFS refers RODA to the Federal Register notice published 
at 85 FR 63508 (October 8, 2020) for our responses to the Environmental 
NGOs' letter.
    Comment: RODA expressed concern that negative impacts to local 
fishermen and coastal communities as a result of a potentially adverse 
impact to marine mammals (e.g., vessel strike resulting in death or 
severe injury) were not mentioned nor evaluated in ``the IHA request 
for this project.'' RODA also emphasized concern about the lack of 
adequate analysis of individual and cumulative impacts to marine 
mammals, noting existing fishery restrictions as a result of other NARW 
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. As detailed in the 
proposed IHA notice, NMFS has analyzed the potential for adverse 
impacts such as vessel strikes to marine mammals, including NARWs, as a 
result of Atlantic Shores' planned site characterization survey 
activities and determined that no serious injury or mortality is 
anticipated. In fact, as discussed in the Determinations section later 
in this document, no greater than low-level behavioral harassment is 
expected for any affected species. For the NARW, 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 (by Level B harassment only) would 
occur at all.
    In regards to the cumulative impacts, we reiterate our response 
from Comment 7 here as it remains applicable to this comment as well.
    Comment: RODA suggests NMFS modify the exclusion zone for all 
marine mammals to 500 m during nighttime hours.
    Response: RODA suggests that the shutdown zone should be increased 
at night for all marine mammals to match that required for NARW because 
of its contention that Protected Species Observers (PSOs) may not be 
able to differentiate between different species of cetaceans in low-
light conditions. However, the IHA empowers the PSO to, in cases where 
identification may be uncertain, base decisions regarding 
implementation of mitigation on best professional judgment. This means 
that,

[[Page 38829]]

if the PSO believes that an observed marine mammal may be a NARW but is 
not sure, they have the authority to call for shutdown of the acoustic 
source. NMFS does not agree that expansion of the shutdown zone for all 
species during nighttime conditions is warranted.
    Comment: RODA suggests that in the event of a ship strike by an 
Atlantic Shores vessel, the applicant is also required to notify the 
United States Coast Guard via VHF Channel 16.
    Response: As stated in the IHA, in the event of a ship strike of a 
marine mammal by any vessel involved in the survey activities, Atlantic 
Shores is required to report the incident to NMFS as soon as feasible. 
Given this, RODA does not adequately explain why this requirement would 
be useful nor why it should be required independent of the one 
described already in the IHA. As such, NMFS does not agree that it 
should be included in the IHA.
    Comment: RODA states that the IHA should not have the option to be 
renewed or should face additional scrutiny if (a) there are takes not 
authorized by the initial notice (Level A harassment or other takes of 
species not included in this IHA); and (b) if HRG surveys are proven to 
cause harm to marine mammals.
    Response: With regards to RODA's first suggestion, NMFS has 
included language in the final IHA, which was presented in the draft 
IHA during the public comment period, that includes a relevant 
provision in the General Conditions (3(c)): ``The taking by injury, 
serious injury or death of any of the species listed in Table 1 (of the 
IHA) or any taking of any other species of marine mammal is prohibited 
and may result in the modification, suspension, or revocation of this 
IHA.''
    In speaking to the second point described by RODA, NMFS would 
evaluate IHAs on a case-by-case basis, as necessary, if new information 
was presented.
    Comment: Members of the public, CFACT, and SaveLBI state that they 
are against the idea that this project is exempt from further analysis 
under NEPA based upon use of the Categorical Exclusion and suggest that 
the IHA violates the requirements of NEPA. CFACT and SaveLBI further 
state that this project requires preparation of a full scale 
Environmental Impact Assessment/Environmental Impact Statement (EIA/
EIS) under NEPA.
    Response: NMFS does not agree with the commenters. A categorical 
exclusion (CE) is a category of actions that an agency has determined 
does not individually or cumulatively have a significant effect on the 
quality of the human environment and is appropriately applied for such 
categories of actions so long as there are no extraordinary 
circumstances present that would indicate that the effects of the 
action may be significant. Extraordinary circumstances are situations 
for which NOAA has determined further NEPA analysis is required because 
they are circumstances in which a normally excluded action may have 
significant effects. A determination of whether an action that is 
normally excluded requires additional evaluation because of 
extraordinary circumstances focuses on the action's potential effects 
and considers the significance of those effects in terms of both 
context (consideration of the affected region, interests, and 
resources) and intensity (severity of impacts). Potential extraordinary 
circumstances relevant to this action include (1) adverse effects on 
species or habitats protected by the MMPA that are not negligible; (2) 
highly controversial environmental effects; (3) environmental effects 
that are uncertain, unique, or unknown; and (4) the potential for 
significant cumulative impacts when the proposed action is combined 
with other past, present, and reasonably foreseeable future actions.
    The relevant NOAA CE associated with issuance of incidental take 
authorizations is CE B4, ``Issuance of incidental harassment 
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the 
incidental, but not intentional, take by harassment of marine mammals 
during specified activities and for which no serious injury or 
mortality is anticipated.'' This action falls within CE B4. In 
determining whether a CE is appropriate for a given incidental take 
authorization, NMFS considers the applicant's specified activity and 
the potential extent and magnitude of takes of marine mammals 
associated with that activity along with the extraordinary 
circumstances listed in the Companion Manual for NOAA Administrative 
Order (NAO) 216-6A and summarized above. The evaluation of whether 
extraordinary circumstances (if present) have the potential for 
significant environmental effects is limited to the decision NMFS is 
responsible for, which is issuance of the incidental take 
authorization. While there may be environmental effects associated with 
the underlying action, potential effects of NMFS' action are limited to 
those that would occur due to the authorization of incidental take of 
marine mammals. NMFS prepared numerous Environmental Assessments (EAs) 
analyzing the environmental impacts of the categories of activities 
encompassed by CE B4, which resulted in Findings of No Significant 
Impacts (FONSIs) and, in particular, numerous EAs prepared in support 
of issuance of IHAs related to similar survey actions are part of NMFS' 
administrative record supporting CE B4. These EAs demonstrate the 
issuance of a given incidental harassment authorization does not affect 
other aspects of the human environment because the action only affects 
the marine mammals that are the subject of the incidental harassment 
authorization. These EAs also addressed factors in 40 CFR 1508.27 
regarding the potential for significant impacts and demonstrate the 
issuance of incidental harassment authorization for the categories of 
activities encompassed by CE B4 do not individually or cumulatively 
have a significant effect on the human environment.
    Specifically for this action, NMFS independently evaluated the use 
of the CE for issuance of Atlantic Shores' IHA, which included 
consideration of extraordinary circumstances. As part of that analysis, 
NMFS considered including whether this IHA issuance would result in 
cumulative impacts that could be significant. In particular, the 
issuance of an IHA to Atlantic Shores is expected to result in minor, 
short-term behavioral effects on marine mammal species due to exposure 
to underwater sound from site characterization survey activities. 
Behavioral disturbance is expected to occur intermittently in the 
vicinity of Atlantic Shores' survey area during the 1-year timeframe. 
Level B harassment will be reduced through use of mitigation measures 
described herein. Additionally, as discussed elsewhere, NMFS has 
determined that Atlantic Shores' activities fall within the scope of 
activities analyzed in GARFO's programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021), which concluded surveys such as those planned by Atlantic Shores 
are not likely to adversely affect ESA-listed species or adversely 
modify or destroy critical habitat. Accordingly, NMFS has determined 
that the issuance of this IHA will result in no more than negligible 
(as that term is defined by the Companion Manual for NAO 216-6A) 
adverse effects on species protected by the ESA and the MMPA.
    Further, the issuance of this IHA will not result in highly 
controversial environmental effects or result in environmental effects 
that are uncertain,

[[Page 38830]]

unique, or unknown because numerous entities have been engaged in site 
characterization surveys that result in Level B harassment of marine 
mammals in the United States. This type of activity is well documented; 
prior authorizations and analysis demonstrate issuance of an IHA for 
this type of action only affects the marine mammals that are the 
subject of the specific authorization and, thus, no potential for 
significant cumulative impacts are expected, regardless of past, 
present, or reasonably foreseeable actions, even though the impacts of 
the action may not be significant by itself. Based on this evaluation, 
we concluded that the issuance of the IHA qualifies to be categorically 
excluded from further NEPA review.
    Lastly, as NMFS has already stated, the specified activity 
identified in this IHA is not for construction activities related to 
offshore wind but instead for site characterization surveys routinely 
undertaken by applicants for site assessment. Therefore, any comments 
related to construction activities are out-of-scope for this action.
    Comment: CFACT stated that if a species is displaced due to survey 
activities this may pressure the prey and food supplies of other 
species and result in food scarcity.
    Response: Given the relatively low and temporary impacts expected 
from site characterization surveys, NMFS does not expect foraging 
activities for any species to change to a level that could cause a 
reduction of individual or species fitness. While NMFS has stated that 
some temporary avoidance of some species may occur (e.g., NARWs), these 
effects would be temporary and short-term with animals being able to 
move away from the vessel and return to the site after the vessel has 
passed. Even in the event that species are temporarily displaced into 
parallel habitat, given no known concentrated and primary foraging 
aggregations in the New Jersey/New York region for any species included 
in the IHA, we do not expect this to be a likely outcome of these 
surveys.
    Comment: SaveLBI and CFACT has made the assumption that HRG surveys 
may ``block'' the migration of NARWs, or at least seriously disrupt 
them. CFACT further states that this would mean 100 percent of the 
migratory corridor would be impacted instead of the 2.11 percent that 
NMFS calculated in the proposed notice. Similarly, SaveLBI states that 
NMFS did not accurately present the NARW migration corridor against 
Atlantic Shores' survey area. They assert that how NMFS described the 
overlap is misleading by providing the large spatial area of the 
migratory corridor. They also cite the 2015 Duke University density 
models to describe the highest presence of NARWs in the project area.
    Response: None of the commenters have provided any evidence or 
justification that HRG surveys would fully ``block'' the migration of 
NARWs in the area, so NMFS cannot evaluate this information beyond what 
is described here. There is no scientific evidence that HRG signals, 
which are of low intensity and consist of small distances to the Level 
B harassment threshold (141 m at the largest based on sparker usage), 
would impede NARW migration or the movements of any marine mammal 
species. Furthermore, given the relatively small size of the largest 
harassment zone (141 m), not even accounting for the required 500 m 
vessel separation distance for NARW from survey vessels, we note that 
the comparison of the width of the migratory corridor is not the entire 
survey area planned by Atlantic Shores. Instead, this width is 
determined by the size of the harassment zone at any given moment in 
the survey, a tiny portion of the total survey area.
    NMFS disagrees with SaveLBI's assertion regarding NARW migratory 
habitat. As we previously stated above, NARW migratory habitat is very 
large in comparison to the overall size of Atlantic Shores' survey area 
but also, importantly, we do not expect any meaningful or significant 
impacts to important behavior that may occur within the portion of this 
habitat that may be impacted by the specified activity. Because of 
this, we expect that any potential exposures NARWs may experience when 
transiting the migratory corridor would not result in more than 
behavioral harassment to a minor degree. Furthermore, as we stated 
above, the largest acoustic source is producing a relatively small 
harassment zone (141 m) from the vessel and that Atlantic Shores' 
surveys will not constitute the entire width of the migratory corridor. 
As is necessary for authorizations issued under the MMPA, we have fully 
evaluated any potential impacts to both the behaviors of marine mammals 
(including NARWs) and to their habitats to make our negligible impact 
determination.
    Furthermore, NMFS is not aware of any scientific literature, data, 
or reports that support this assertion. If the commenters were willing 
to share their data, NMFS would be able to take this under 
consideration. However, as it currently stands, there is no credible 
evidence that we are aware of that states that disturbances would 
physically ``block'' the migration of NARWs.
    Lastly, we also note here that SaveLBI references the Duke 
University density models for the U.S. Atlantic and Gulf of Mexico from 
2015 (https://seamap.env.duke.edu/models/Duke-EC-GOM-2015/). NMFS did 
not use this data in its analysis as much more recent data has since 
been released that NMFS has determined to constitute the best available 
science. NMFS refers SaveLBI to the more recent Roberts et al. (2023) 
density models for NARWs (version 12). Based on this data, it appears 
that December-April are the highest density months with densities 
dropping off into the summer.
    Comment: A private citizen commented that the ``wind wake'' effect 
from offshore wind farms would reduce annual primary production that 
some species use as a food source.
    Response: NMFS notes that this action, as was proposed for Atlantic 
Shores, is not for the construction of an offshore wind farm but for a 
site characterization survey. As such, comments related to construction 
specifically are out of scope for this specific action.
    Comment: CFACT provided a comment stating that Atlantic Shores' 
proposal is premature because the Atlantic Shores Wind Project has not 
been approved and harassment should not be authorized for speculative 
projects.
    Response: The MMPA does not require that NMFS ascertain whether a 
proposed project will be approved or not prior to issuing requested 
incidental take authorizations. Furthermore, as previously discussed, 
NMFS considers applications upon request and the issuance of this 
authorization is separate from any construction activities directly 
relevant to offshore wind farms.
    Comment: CFACT and SaveLBI indicated that they believe the survey 
area to be too large for the described proposed surveys as the 
geographical scope of the survey does not seem to match up with the 
stated site characterization survey area. Commenters justify this by 
saying that the export cable routes were not previously described in 
BOEM's Construction and Operations Plans (COP) and Notice of Intent 
(NOI) and therefore, cannot be included in the scope of Atlantic 
Shores' requested activities.
    Response: As previously stated, it is not in NMFS' jurisdiction to 
dictate how and where an applicant's activities should be performed. 
Under the MMPA, NMFS must analyze and make findings, if possible, based 
on the specified

[[Page 38831]]

activity as described by the applicant. Any stakeholder comments 
regarding the geographical scope and size of survey activities or what 
information is or is not included in BOEM's COP and NOI (i.e., 
inclusion of the export cable routes, wind turbine generator placement/
locations) are out of scope for the described proposed action as BOEM, 
not NMFS, is in charge of leasing and activities occurring within a 
defined area and region.
    Comment: A member of the public has expressed concern that the 
proposed HRG surveys will cause irreparable damage to marine mammal 
habitat.
    Response: NMFS does not expect impacts or damage to marine mammal 
habitat from HRG surveys. This is due, in part, to the limited area of 
effect from the acoustic sources as compared to the entire habitat 
extent (141 m maximum using the sparker) as well as the temporary and 
localized nature of the acoustic sources themselves. Temporary 
avoidance of marine mammals and their prey may occur at some points, 
but these are expected to be localized and few, with occurrence 
patterns returning to normal levels once the acoustic source has been 
turned off and/or after the survey vessel has moved. No physical 
impacts are expected to occur that would change the habitat in any way 
during the acoustic surveys (i.e., no destruction of the seabed, any 
nearby reefs, or removal of sediment or bottom resources that fish may 
use). Because of this, NMFS has determined that all impacts to the 
marine environment and habitat are considered negligible.
    Comment: SaveLBI requests that NMFS explain why a 20 decibel (dB) 
propagation loss coefficient was applicable to the analysis presented 
in the proposed notice or to go back and rerun the analysis using a 15 
dB propagation loss coefficient.
    Response: SaveLBI states that NMFS' assumption that use of a 20logR 
transmission loss factor (i.e., spherical spreading) is inappropriate 
and states that ``According to a number of scientific sources, the use 
of a noise propagation loss coefficient of 20 dB per tenfold increase 
in distance represents ``spherical spreading'' and is only appropriate 
in the ``near field'' where the calculated horizontal distance is 
comparable with the water depth. However, SaveLBI does not cite any 
such scientific sources, so NMFS must evaluate SaveLBI's 
recommendations based only on its comment.
    A major component of transmission loss is spreading loss and from a 
point source in a uniform medium, sound spreads outward as spherical 
waves (``spherical spreading'') (Richardson et al., 1995). In water, 
these conditions are often thought of as being related to deep water, 
where more homogenous conditions may be likely. However, the 
theoretical distinction between deep and shallow water is related more 
to the wavelength of the sound relative to the water depth versus the 
water depth itself. Therefore, when the sound produced is in the 
kilohertz range, where wavelength is relatively short, much of the 
continental shelf may be considered ``deep'' for purposes of evaluating 
likely propagation conditions.
    As described in the previous Federal Register notice of proposed 
IHA (87 FR 4200, January 27, 2022), the area of water ensonified at or 
above the root mean square (RMS) sound pressure level 160 dB threshold 
was calculated using a simple model of sound propagation loss, which 
accounts for the loss of sound energy over increasing range. Our use of 
the spherical spreading model (where propagation loss = 20 * log 
[range]; such that there would be a 6-dB reduction in sound level for 
each doubling of distance from the source) is a reasonable 
approximation over the relatively short ranges involved and is 
suggested for use in our HRG guidance (NMFS, 2020). Use of a spherical 
spreading model in this case is also consistent with a recent 
publication regarding HRG (Ruppel et al., 2022), wherein the authors 
state that spherical spreading dominates even in shallow water depths, 
at the frequencies of most HRG surveys. Even in conditions where 
cylindrical spreading (where propagation loss = 10 * log [range]; such 
that there would be a 3-dB reduction in sound level for each doubling 
of distance from the source) may be appropriate (e.g., non-homogenous 
conditions where sound may be trapped between the surface and bottom), 
this effect does not begin at the source. In any case, spreading is 
usually more or less spherical from the source out to some distance and 
then may transition to cylindrical (Richardson et al., 1995). For these 
types of surveys, NMFS has determined that spherical spreading is a 
reasonable assumption even in relatively shallow waters (in an absolute 
sense) as the reflected energy from the seafloor will be much weaker 
than the direct source and the volume influenced by the reflected 
acoustic energy would be much smaller over the relatively short ranges 
involved.
    In support of its position, SaveLBI cites several examples of use 
of practical spreading (a useful real-world approximation of conditions 
that may exist between the theoretical spreading modes of spherical and 
cylindrical; 15logR) in asserting that this approach is also 
appropriate here. However, as NMFS has previously stated to SaveLBI, 
these examples (U.S. Navy construction at Newport, RI, and NOAA 
construction in Ketchikan, AK) are not relevant to the activity at 
hand. First, these actions occur in even shallower water (e.g., less 
than 10 m for Navy construction). Of greater relevance to the action 
here, pile driving activity produces sound with longer wavelengths than 
the sound produced by the acoustic sources planned for use here. As 
noted above, a determination of appropriate spreading loss is related 
to the ratio of wavelength to water depth more than to a strict reading 
of water depth. NMFS indeed uses practical spreading in typical coastal 
construction applications, but for reasons described here, uses 
spherical spreading when evaluating the effects of HRG surveys on the 
continental shelf.
    In addition, for many of these HRG sources, absorption should also 
be accounted for when discussing sound propagation (i.e., great 
absorption for higher frequency sources). Thus, this analysis is likely 
conservative for other reasons (e.g., the lowest frequency was used for 
systems that are operated over a range of frequencies).
    NMFS has determined that spherical spreading is the most 
appropriate form of propagation loss for these surveys and has relied 
on this approach for past IHAs with similar equipment, locations, and 
depths. Please refer back to the Garden State HRG IHA (83 FR 14417, 
April 4, 2018) and the 2019 Skipjack HRG IHA (84 FR 51118, September 
27, 2019) for examples. Prior to the issuance of these IHAs 
(approximately 2018 and older), NMFS typically relied upon practical 
spreading for these types of survey activities. However, as additional 
scientific evidence became available, including numerous sound source 
verification reports, NMFS determined that this approach was 
inappropriately conservative and since that time, has consistently used 
spherical spreading.
    Comment: A member of the public expressed concern about the 
concurrent use of vessels for surveying increasing the likelihood of 
incidental take.
    Response: NMFS appreciates the commenter's concern but notes that 
no evidence is provided to substantiate this concern. NMFS' believes 
that the authorized take numbers adequately account for the potential 
take that may result from the proposed survey work, inclusive of the 
concurrent use of surveying vessels. As a result of the small estimated 
Level B harassment zones (i.e., maximum 141 m), no overlap of the 
footprint of potential

[[Page 38832]]

effect would occur due to concurrent vessel use. The use of concurrent 
survey vessels over the relatively large survey area is not expected to 
increase either the number of takes or the degree of individual take 
events that may occur.
    Comment: SaveLBI and a member of the public assert that Level A 
harassment may occur, and that this was not accounted for in the 
proposed notice.
    Response: NMFS has previously responded to this comment from 
SaveLBI (see 87 FR 24103, April 22, 2022) and our response has neither 
changed nor has new information presented itself that would change our 
determination. NMFS acknowledges the commenters' concerns regarding the 
potential for Level A harassment of marine mammals. However, no Level A 
harassment is expected to result, even in the absence of mitigation, 
given the characteristics of the sources planned for use. This is 
additionally supported by the required mitigation and very small 
estimated Level A harassment zones described in Atlantic Shores' 2020 
Federal Register notice (85 FR 21198, April 16, 2020), carried through 
to the 2021 renewal IHA (86 FR 21289, April 22, 2021), and present in 
the 2022 IHA (87 FR 24103, April 22, 2022) which is of a similar scope 
of activities presented for the 22023 survey. Furthermore, the 
commenters do not provide any support for the apparent contention that 
Level A harassment is a potential outcome of these activities. As 
discussed in the notice of proposed IHA for the 2023 surveys, NMFS 
considers this category of survey operations to be near de minimis, 
with the potential for Level A harassment for any species to be 
discountable.
    Comment: SaveLBI continues to suggest that NMFS utilize a source 
level of 211 dB root-mean-square (rms) instead of the 203 dB for the 
Dura-Spark 240, as was cited in the proposed Federal Register notice 
(e.g., for sparkers, the peak sound pressure level can be approximately 
7 dB higher than the rms sound pressure level (rms SPL) typically 
associated with NMFS's marine mammal behavioral harassment thresholds 
(NMFS, 2020)).
    Response: As stated in a previous Federal Register notice (87 FR 
24103, April 22, 2022), NMFS disagrees with SaveLBI's recommendation, 
and has determined that the 203 dB rms SPL source level is still the 
most appropriate for use herein. As discussed in the notice of proposed 
IHA, the Applied Acoustics Dura-Spark was included and measured in 
Crocker and Fratantonio (2016), but not with an energy setting near 800 
J, the energy setting which was determined as the ``worst-case 
scenario'' by Atlantic Shores for use in the presence of denser 
substrates. The SIG ELC 820 sparker was deemed as a similar alternative 
to the Dura-Spark based on information in Table 9 of Crocker and 
Fratantonio (2016), and where a higher energy setting of 750 J (at a 5 
m depth) had been measured. We also note that using the SIG ELC as a 
surrogate system has been previously documented and employed in other 
issued IHAs, such as the Mayflower Wind HRG surveys (86 FR 38033, July 
19, 2021). NMFS further based this decision on further information on 
the SIG acoustic source, Crocker and Fratantonio (2016), and other IHA 
applications (see Mayflower Wind's application at https://media.fisheries.noaa.gov/2021-02/Mayflower-2021HA_Appl_OPR1.pdf?null=). 
The frequency ranges provided for the SIG ELC represent a broad range 
(0.01--1.9 kHz), which includes the highest bandwidth at the 750 J 
reported in Crocker and Fratantonio (2016).
    We also note that, based on additional discussion with Atlantic 
Shores, a power level of 750 J was likely an overestimate and that 500-
600 J was more likely to be used during the HRG surveys and that 750 
was a conservative overestimate. NMFS carries over this information in 
the 2023 project from Table 2 found in the 2022 proposed Federal 
Register notice (87 FR 4200, January 27, 2022). The use of information 
that appropriately addresses the potential for use at the higher power 
level means that the analysis herein, including the selection of source 
level, is conservative for most typical applications of the acoustic 
sources.
    Comment: SaveLBI states that it believes NMFS' negligible impact 
finding for NARWs to be insufficient given the analysis SaveLBI 
included in their letter, which produced higher take numbers for marine 
mammals, including NARWs. SaveLBI also states that, based on their 
assertion that serious injury and/or mortality is a potential outcome 
of the specified activity for NARWs, a rulemaking (Incidental Take 
Regulation with subsequent Letters of Authorization) would be necessary 
to authorize Atlantic Shores' site characterization surveys due to 
SaveLBI's premise that take by serious injury and/or mortality may 
occur.
    Response: NMFS acknowledges that authorization under section 
101(a)(5)(A) of the MMPA would be required were mortality or serious 
injury an expected outcome of the action. However, as noted previously, 
there is no scientific evidence suggesting that such outcomes are 
possible and, therefore, an IHA issued under section 101(a)(5)(D) is 
appropriate. Similarly, if SaveLBI's analysis were considered credible, 
the results would necessitate a revision to NMFS' negligible impact 
determination. However, as detailed in previous comment responses, 
SaveLBI's analysis is not based on the best scientific evidence 
available, and NMFS does not consider it to be a credible analysis. 
Separately, it appears that SaveLBI equates Level A harassment with 
serious injury and mortality in suggesting that Incidental Take 
Regulations are required. As discussed herein, Level A harassment is 
not an expected outcome of the specified activity. However, we clarify 
that section 101(a)(5)(D) of the MMPA, which governs the issuance of 
IHAs, indicates that the ``the Secretary shall authorize . . . . taking 
by harassment [. . . .]'' The definition of ``harassment'' in the MMPA 
clearly includes both Level A harassment and Level B harassment.
    SaveLBI further suggested that NMFS should promulgate programmatic 
Incidental Take Regulations for site characterization activities. 
Although NMFS is open to this approach, we have not received a request 
for such regulations from the applicant, and NMFS reminds SaveLBI that 
the MMPA only allows for the development of Incidental Take Regulations 
upon request. SaveLBI states that this would be necessary based on the 
potential for serious injury or mortality that was assumed in SaveLBI's 
letter. However, as discussed previously, NMFS does not expect any 
serious injury or mortality, even absent mitigation efforts, because of 
the nature of the activities described in the proposed Federal Register 
notice. Furthermore, NMFS included a vessel strike analysis in the 
proposed notice (87 FR 4200, January 27, 2022) under the referenced 
Potential Effects on Marine Mammals and Their Habitat section. We 
identified that at average transit speed for geophysical survey 
vessels, the probability of serious injury or mortality resulting from 
a strike is low enough to be discountable. However, the likelihood of a 
strike actually happening is again low given the smaller size of these 
vessels and generally slower speeds during transit. Further, Atlantic 
Shores is required to implement monitoring and mitigation measures 
during transit, including observing for marine mammals and maintaining 
defined separation distances between the vessel and any

[[Page 38833]]

marine mammal (see the Mitigation and Monitoring and Reporting 
sections). Finally, despite several years of marine site 
characterization surveys occurring off the U.S. east coast, NMFS has no 
reports of any vessels supporting offshore wind development having 
struck a marine mammal either in transit or during surveying. Because 
vessel strikes are not reasonably expected to occur, no such take is 
authorized. The mitigation measures in the IHA related to vessel strike 
avoidance are not limited to vessels operating within the survey area 
or cable corridors and therefore, apply to transiting vessels. Because 
of these reasons and the addition of mitigation efforts, including 
required vessel separation distances to further reduce any risk, we do 
not find that a rulemaking is necessary for Atlantic Shores' HRG 
surveys.
    Comment: SaveLBI again asserts that NMFS has not been sufficiently 
clear with regard to its use of density data, and expresses concern 
that the density data used may not be sufficiently conservative.
    Response: As discussed in greater detail in the notice of proposed 
IHA (87 FR 4200, January 27, 2022) and notice of final IHA (87 FR 
24103, April 22, 2022) for the 2022 survey, NMFS relied upon the best 
available scientific information in assessing the likelihood of 
occurrence for all potentially impacted marine mammal species, 
including the NARW. The Duke University Marine Geospatial Ecology 
Laboratory (Roberts et al., 2023) habitat-based density models, 
recently updated in 2022, represent the best available information 
regarding marine mammal densities in the survey area. Density data for 
all taxa are available for 5 km x 5 km grid cells over the entire 
survey area and for most species (including NARW; version 12), are 
available for each of 12 months. For the exposure analysis, these 
density data were mapped using a geographic information system (GIS) 
for each of the survey areas (i.e., Lease Areas and relevant Export 
Cable Routes). Densities of each species were then averaged by season; 
thus, a density was calculated for each species for spring, summer, 
fall and winter. To be conservative, the greatest seasonal density 
calculated for each species was then carried forward in the exposure 
analysis. All density information used by NMFS is publicly available 
through Duke University's OBIS-SEAMAP website: https://seamap.env.duke.edu/models/Duke/EC/.
    We note that SaveLBI again does not discuss what it means by 
stating that the analysis may not be ``conservative,'' and does not 
connect this concern to the relevant requirements of the MMPA. However, 
NMFS believes that its approach using the density information, which 
was referenced in full based on information from the 2022 notice of 
proposed IHA (87 FR 4200, January 27, 2022), addresses any such 
concerns.
    Comment: SaveLBI again asserts that the potential for Level A 
harassment, serious injury and/or death impacts have been 
insufficiently addressed in NMFS' analysis. SaveLBI also suggests that 
NMFS must perform a ``cumulative permanent threshold shift (PTS) 
analysis.'' They further go on to state that ``NMFS' assurance that 
Atlantic Shores is required to not approach any right whale within 500 
m or operate the sparker unit within 500 m of the whale does not 
inspire confidence'' as NMFS only requires visual detection of animals 
and not requiring passive acoustic monitoring to supplement human 
observation. SaveLBI provided recommendations that NMFS should require 
Passive Acoustic Monitoring (PAM) at all times, both day and night, to 
maximize the probability of detection for NARWs, as well as other 
species and stocks.
    Response: As previously stated, the commenter still appears to 
mistakenly reference NMFS' historical Level A harassment threshold of 
180 dB rms SPL received level in addressing this issue. However, in 
2018, NMFS published Technical Guidance for Assessing the Effects of 
Anthropogenic Sound on Marine Mammal Hearing, which updated the 180 dB 
SPL Level A harassment threshold. Since that time, NMFS has been 
applying dual threshold criteria based on both peak pressure and 
cumulative sound exposure level thresholds. This dual criteria approach 
requires that the more conservative of the two hearing group-specific 
threshold criteria be applied in evaluating the potential for Level A 
harassment. Therefore, NMFS has considered the potential for Level A 
harassment on the basis of cumulative sound exposure level (as well as 
peak pressure) in the way suggested by SaveLBI.
    As described in the Estimated Take section, NMFS has established a 
PTS (Level A harassment) threshold of 183 dB cumulative sound exposure 
level (SEL) for low frequency specialists. In support of a previous IHA 
request (see the final 2020 notice (85 FR 21198, April 16, 2020), the 
2022 renewal notice (86 FR 21289, April 22, 2021), and the 2022 notice 
(87 FR 24103, April 22, 2022)), Atlantic Shores provided estimated 
Level A harassment zones for similar equipment (i.e., the Applied 
Acoustics Dura-Spark 240 sparker). Despite assuming a higher source 
level than is used herein, the result of this analysis shows that a 
NARW would have to come within 1 m of the sparker to potentially incur 
PTS. NMFS has reviewed the analysis found in Atlantic Shores' 2020, 
2021, and 2022 HRG IHA applications and confirmed that these are 
accurate and similar to this action. These applications can be found on 
NMFS' website.
    Not only are NARWs migrating through the area, meaning that their 
occurrence in the area is expected to be of relatively brief duration 
and the likelihood of exposures of longer duration or at closer range 
minimized, Atlantic Shores is also required to not approach any NARW 
within 500 m or operate the sparker within 500 m of a NARW (88 FR 
19075, March 30, 2023). As such, there is essentially no potential for 
a NARW to experience PTS (i.e., Level A harassment) from the described 
surveys.
    Regarding use of PAM, the commenters fail to explain why they 
expect that PAM would be effective in detecting vocalizing mysticetes, 
and NMFS does not agree that this measure is warranted as it is not 
expected to be effective for use in detecting the species of concern. 
It is generally accepted that, even in the absence of additional 
acoustic sources, using a towed passive acoustic sensor to detect 
baleen whales (including NARWs) is not typically effective because the 
noise from the vessel, the flow noise, and the cable noise are in the 
same frequency band and will mask the vast majority of baleen whale 
calls. Vessels produce low-frequency noise, primarily through propeller 
cavitation, with main energy in the 5-300 Hertz (Hz) frequency range. 
Source levels range from about 140 to 195 decibel (dB) re 1 [mu]Pa 
(micropascal) at 1 m (National Research Council (NRC), 2003; 
Hildebrand, 2009), depending on factors such as ship type, load, and 
speed, and ship hull and propeller design. Studies of vessel noise show 
that it appears to increase background noise levels in the 71-224 Hz 
range by 10-13 dB (Hatch et al., 2012; McKenna et al., 2012; Rolland et 
al., 2012). PAM systems employ hydrophones towed in streamer cables 
approximately 500 m behind a vessel. Noise from water flow around the 
cables and from strumming of the cables themselves is also low-
frequency and typically masks signals in the same range. Experienced 
PAM operators participating in a workshop (Thode et al., 2017) 
emphasized that a PAM operation could easily report no acoustic 
encounters, depending on species present, simply because

[[Page 38834]]

background noise levels rendered any acoustic detection impossible. The 
same workshop report stated that a typical eight-element array towed 
500 m behind a vessel could be expected to detect delphinids, sperm 
whales, and beaked whales at the required range but not baleen whales 
due to expected background noise levels (including seismic noise, 
vessel noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (a maximum of 141 m); this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low. Together, these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for NARWs and other low frequency cetaceans species for 
which PAM has limited efficacy), and the cost and impracticability of 
implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat. NMFS has previously provided discussions on why PAM is not a 
required monitoring measure during HRG survey IHAs in past Federal 
Register notices (see 86 FR 21289, April 22, 2021, and 87 FR 13975, 
March 11, 2022, for examples).
    Regarding monitoring for species that may be present yet go 
unobserved, NMFS recognizes that visual detection based mitigation 
approaches are not 100 percent effective. Animals are missed because 
they are underwater (availability bias) or because they are available 
to be seen but are missed by observers (perception and detection 
biases) (e.g., Marsh and Sinclair, 1989). However, visual observation 
remains one of the best available methods for marine mammal detection. 
Although it is likely that some marine mammals may be present yet 
unobserved within the harassment zone, all expected take of marine 
mammals has been appropriately authorized. For mysticete species in 
general, it is unlikely that an individual would occur within the 
estimated 141 m harassment zone and remain undetected. For NARW in 
particular, the required Exclusion Zone is 500 m, and therefore, it is 
even less likely that an individual would approach the harassment zone 
undetected.
    Comment: SaveLBI asserts that the potential for Level B harassment 
and/or masking to lead to serious injury and/or death impacts have been 
insufficiently addressed in NMFS' analysis.
    Response: The best available science indicates that Level B 
harassment (i.e., 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, 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, including 
for NARWs. We emphasize that an estimate of take numbers alone is not 
sufficient to assess impacts to a marine mammal population. Take 
numbers must be viewed contextually with other factors as explained in 
the Determinations section of this Federal Register notice.
    Furthermore, SaveLBI's comment is founded again on the presumption, 
absent evidence, that serious injury or mortality is a reasonably 
anticipated outcome of Atlantic Shores' specified activity. 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, and SaveLBI provides no information to 
the contrary. We also refer SaveLBI 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.
    Comment: SaveLBI asserts that reactions to noise exposure that do 
not meet the definition of Level B harassment under the MMPA may yet 
cause delayed injury or mortality to affected marine mammals and states 
that NMFS should assess this possibility. SaveLBI further states that 
masking effects may impact migratory activities.
    Response: We acknowledge that masking may impact marine mammals, 
particularly baleen whales, and particularly when considered in the 
context of the full suite of regulated and unregulated anthropogenic 
sound contributions overlaying an animal's acoustic habitat. However, 
we do not agree that masking effects from the incremental noise 
contributions of individual activities or sound sources necessarily or 
typically rise to the level of a take. While it is possible that 
masking from a particular activity may be so intense as to result in 
take by Level B harassment, we have no information suggesting that 
masking of such intensity and duration would occur as a result of the 
specified activity. Potential effects of a specified activity must be 
accounted for in a negligible impact analysis, but not all responses or 
effects result in take nor are those that do always readily quantified. 
In this case, while masking is considered in the analysis, we do not 
believe it will rise to the level of take in the vast majority of 
exposures. However, in the unanticipated event that any small number of 
masking incidents did rise to the level of a take, we would expect them 
to be accounted for in the quantified exposures above 160 dB. Given the 
short duration of expected noise exposures, any take by

[[Page 38835]]

masking in the case of these surveys would be most likely to be 
incurred by individuals either exposed briefly to notably higher levels 
or those that are generally in the wider vicinity of the source for 
comparatively longer times. Both of these situations would be captured 
in the enumeration of takes by Level B harassment, which is based on 
exposure at or above 160 dB, which also means the individual 
necessarily spent a comparatively longer time in the adjacent area 
ensonified below 160 dB, but in which masking might occur if the 
exposure was notably longer. All of these potential outcomes are of 
notably lower likelihood in this circumstance, where the estimated 
harassment zone is no greater than 141 m. There is no evidence that 
these lower-level potential impacts could lead to more severe impacts, 
such as mortality or serious injury, and SaveLBI provides no such 
evidence.
    Similarly, NMFS disagrees with SaveLBI's contention that such 
impacts could meaningfully affect whale migratory behavior. Given the 
vessel transiting, any whales also transiting (as animals are not 
stationary but mobile) may only have a brief moment of masking which 
should not be expected to extend for a long period of time. SaveLBI 
provides no evidence in support of its speculative suggestions.
    Comment: SaveLBI states that to properly make a negligible impact 
determination, NMFS should develop/provide criteria to avoid 
jeopardizing the existence and survival of the NARW. SaveLBI states 
that this would ideally include no instances of fatality or serious 
injury from survey noise and meet that strict criterion with high 
statistical confidence. SaveLBI notes that they believe the current 
proposed notice for Atlantic Shores' surveys does not meet this 
criteria.
    Response: As we previously stated in a previous Federal Register 
notice for Atlantic Shores' 2022 HRG surveys (87 FR 24103, April 22, 
2022), SaveLBI's comment is founded on the presumption, absent 
evidence, that serious injury or mortality is a reasonably anticipated 
outcome of Atlantic Shores' specified activity. As NMFS has emphasized, 
there is no credible scientific evidence available suggesting that 
mortality and/or serious injury is a potential outcome of the planned 
survey activity, and SaveLBI provides no information to the contrary. 
We also refer SaveLBI 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.
    Comment: SaveLBI states that use of the 120-dB harassment criterion 
is more appropriate for use in evaluating potential effects of non-
impulsive, intermittent sources than is the 160-dB criterion.
    Response: First, we clarify that the primary source to which take 
is attributed here (the sparker) is in fact an impulsive source, and 
therefore, the 160-dB harassment criterion is appropriate. However, we 
further address the commenter's suggestion that the 120-dB continuous 
noise criterion should be used for evaluation of non-impulsive, 
intermittent sources.
    First, we provide some necessary background on implementation of 
acoustic thresholds. NMFS has historically used generalized acoustic 
thresholds based on received levels to predict the occurrence of 
behavioral harassment, given the practical need to use a relatively 
simple threshold based on information that is available for most 
activities. Thresholds were selected in consideration largely of 
measured avoidance responses of mysticete whales to airgun signals and 
to industrial noise sources, such as drilling. The selected thresholds 
of 160 dB rms SPL and 120 dB rms SPL, respectively, have been extended 
for use since then for estimation of behavioral harassment associated 
with noise exposure from sources associated with other common 
activities as well.
    Sound sources can be divided into broad categories based on various 
criteria or for various purposes. As discussed by Richardson et al. 
(1995), source characteristics include strength of signal amplitude, 
distribution of sound frequency and, importantly in context of these 
thresholds, variability over time. With regard to temporal properties, 
sounds are generally considered to be either continuous or transient 
(i.e., intermittent). Continuous sounds, which are produced by the 
industrial noise sources for which the 120-dB behavioral harassment 
threshold was selected, are simply those whose sound pressure level 
remains above ambient sound during the observation period (American 
National Standards Institute (ANSI), 2005). Intermittent sounds are 
defined as sounds with interrupted levels of low or no sound (National 
Institute for Occupational Safety and Health (NIOSH), 1998). Simply 
put, a continuous noise source produces a signal that continues over 
time while an intermittent source produces signals of relatively short 
duration having an obvious start and end with predictable patterns of 
bursts of sound and silent periods (i.e., duty cycle) (Richardson and 
Malme, 1993). It is this fundamental temporal distinction that is most 
important for categorizing sound types in terms of their potential to 
cause a behavioral response. For example, Gomez et al. (2016) found a 
significant relationship between source type and marine mammal 
behavioral response when sources were split into continuous (e.g., 
shipping, icebreaking, drilling) versus intermittent (e.g., sonar, 
seismic, explosives) types. In addition, there have been various 
studies noting differences in responses to intermittent and continuous 
sound sources for other species (e.g., Neo et al., 2014; Radford et 
al., 2016; Nichols et al., 2015).
    Sound sources may also be categorized based on their potential to 
cause physical damage to auditory structures and/or result in threshold 
shifts. In contrast to the temporal distinction discussed above, the 
most important factor for understanding the differing potential for 
these outcomes across source types is simply whether the sound is 
impulsive or not. Impulsive sounds, such as those produced by airguns, 
are defined as sounds which are typically transient, brief (<1 sec), 
broadband, and consist of a high peak pressure with rapid rise time and 
rapid decay (ANSI, 1986; NIOSH, 1998). These sounds are generally 
considered to have greater potential to cause auditory injury and/or 
result in threshold shifts. Non-impulsive sounds can be broadband, 
narrowband or tonal, brief or prolonged, continuous or intermittent, 
and typically do not have the high peak pressure with rapid rise/decay 
time that impulsive sounds do (ANSI, 1995; NIOSH, 1998). Because the 
selection of the 160-dB behavioral threshold was focused largely on 
airgun signals, it has historically been commonly referred to as the 
``impulse noise'' threshold (including by NMFS). However, this 
longstanding confusion in terminology--i.e., the erroneous impulsive/
continuous dichotomy--presents a narrow view of the sound sources to 
which the thresholds apply and inappropriately implies a limitation in 
scope of applicability for the 160-dB behavioral threshold in 
particular.
    An impulsive sound is by definition intermittent; however, not all

[[Page 38836]]

intermittent sounds are impulsive. Many sound sources for which it is 
generally appropriate to consider the authorization of incidental take 
are in fact either impulsive (and intermittent) (e.g., impact pile 
driving) or continuous (and non-impulsive) (e.g., vibratory pile 
driving). However, non-impulsive, intermittent acoustic sources present 
a less common case where the sound produced is considered intermittent 
but non-impulsive. The simple argument presented by commenters 
regarding non-impulsive, intermittent sources has been that, because 
such sources are not impulsive sound sources, they must be assessed 
using the 120-dB behavioral threshold appropriate for continuous noise 
sources. However, given the existing paradigm--dichotomous thresholds 
appropriate for generic use in evaluating the potential for behavioral 
harassment resulting from exposure to continuous or intermittent sound 
sources--the comments do not adequately explain why potential 
harassment from an intermittent sound source should be evaluated using 
a threshold developed for use with continuous sound sources. 
Consideration of the preceding factors leads to a conclusion that the 
160-dB threshold is more appropriate for use than is the 120-dB 
threshold in evaluation of potential effects due to use of non-
impulsive, intermittent sound sources.
    Comment: SaveLBI suggests that NMFS should use more conservative 
information related to the acoustic output of the sources planned for 
use (i.e., a higher source level and a lower transmission loss 
coefficient) and perform its own analysis of these alternative 
scenarios. SaveLBI notes that these changes would increase the size of 
the estimated Level B harassment zone and as a result, increase the 
expected take numbers. Based on their reanalysis, SaveLBI asserts that 
NMFS' negligible impact and small numbers determinations are not 
accurate.
    Response: As previously stated in the 2022 Federal Register notice 
(87 FR 24103, April 22, 2022), NMFS continues to disagree with 
SaveLBI's suggested changes and does not believe they are appropriate. 
We have addressed use of the alternate source level and the 
recommendation of lower assumed propagation loss in previous responses 
to comments herein. While NMFS acknowledges that if one assumes the 
most conservative values at every opportunity, the analysis will 
produce higher estimates of harassment zone size and of incidental 
take. However, SaveLBI's assumptions are not realistic, and SaveLBI 
does not adequately justify the assumptions made in its overly 
conservative analysis. As such, NMFS finds its analysis, findings, and 
determinations to be accurate and based on the best available 
scientific information.
    Comment: SaveLBI recommended increasing the Exclusion Zone to 2,500 
m, respectively, for NARWs, based on their reanalysis.
    Response: NMFS notes that the 500 m Exclusion Zone for NARWs 
exceeds the modeled distance to the largest 160 dB Level B harassment 
isopleth distance (141 m during sparker use) by a substantial margin. 
The commenter does not provide a compelling rationale for why the 
Exclusion Zone should be even larger beyond their described reanalysis, 
which NMFS has already stated it considers flawed and not realistic. 
Given that these surveys are relatively low impact and that, 
regardless, NMFS has prescribed a NARW Exclusion Zone that is 
significantly larger (500 m) than the conservatively estimated largest 
harassment zone (141 m), NMFS has determined that the Exclusion Zone is 
appropriate. Further, no Level A harassment is expected to result even 
in the absence of mitigation, given the characteristics of the sources 
planned for use. 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. As such, we are not adopting SaveLBI's recommendation.
    Comment: SaveLBI suggests Atlantic Shores' survey activities should 
be prohibited from January through April as well as in November. 
Furthermore, SaveLBI suggests that an annual Seasonal Management Area 
(SMA) be established in and adjacent to the survey area to mitigate 
against any vessel strike.
    Response: NMFS assumes this is regarding the NARW and shares 
concern with SaveLBI regarding the status of the NARW, given that a UME 
has been in effect for this species since June 2017 and that there have 
been 6 counts of NARW UME mortality, serious injury, and morbidity 
cases in 2023. Five of these cases have been from entanglement and 
vessel strike, and one case was perinatal. NMFS appreciates the value 
of seasonal restrictions under some circumstances. However, in this 
case, we have determined seasonal restrictions are not warranted, and 
reiterate that only Level B harassment has been authorized in this 
case. NARW occurrence in this area is generally low most of the year. 
Furthermore, NMFS has already stated that this area consists only of 
migratory habitat for the NARW, consisting of no primary foraging 
habitat (which is found much further north off the New England region), 
which further reduces the risks of exposure and impacts. Further, NMFS 
is requiring Atlantic Shores to comply with restrictions associated 
with identified SMAs, and they must comply with DMAs if any DMAs are 
established near the survey area. Finally, significantly shortening 
Atlantic Shores work season is impracticable given the number of survey 
days planned for the specified activity for this IHA.
    NMFS wishes to clarify that existing and permanent SMAs have been 
previously established under a different rulemaking (73 FR 60173) and 
can also be found on NMFS' website at https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#speedlimit).
    Comment: SaveLBI asserts that the notice of proposed IHA does not 
address compliance with the ESA and goes on to provide a number of 
concerns regarding NMFS GARFO's 2021 programmatic consultation 
regarding geophysical surveys along the U.S. Atlantic coast in the 
three Atlantic Renewable Energy Regions.
    Response: NMFS refers the commenter to page 19088 of the notice of 
proposed IHA (88 FR 19075), in which NMFS' compliance with the ESA is 
discussed. NMFS determined that this activity falls within the scope of 
activities analyzed in the 2021 GARFO programmatic consultation and 
therefore, this action is compliant with the ESA.
    Comment: SaveLBI states that the proposed survey may not be 
consistent with the New Jersey Coastal Zone Management (CZM) rules, 
specifically NJAC 7:E-3.38, the provision that protects against adverse 
impacts occurring to New Jersey coastal resources, including endangered 
wildlife habitats. They state that NMFS should have sought a CZM 
consistency determination from New Jersey.
    Response: SaveLBI's contention that the proposed survey may not be 
consistent with the New Jersey Coastal Zone Management is rejected 
because, as explained herein, Atlantic Shores' IHA was and is not 
subject to Federal consistency review. NMFS was not required to submit 
a Federal consistency determination to the State of New Jersey because 
this is not a ``Federal Agency activity'' proposed by NMFS, as that 
term is defined in 15 CFR 930.31. Therefore, section 307(c)(1)(A) of 
the Coastal Zone Management Act (CZMA), 16 U.S.C. 1456(c)(1)(A), and 
the implementing regulations codified at

[[Page 38837]]

15 CFR part 930, subpart C, are not applicable.
    NMFS was an agency reviewing an application for an IHA relevant to 
Atlantic Shores' survey activities. As such, whether Federal 
consistency review is required is determined by section 307(c)(3)(A) of 
the CZMA, 16 U.S.C. 1456 (c)(3)(A) and the implementing regulations at 
15 CFR part 930, subpart D, which authorizes states with federally 
approved coastal management programs to review applications for Federal 
licenses or permits to conduct activities in, or outside of, the 
coastal zone that has reasonably foreseeable effects on coastal use 
(land or water) or natural resources within the coastal zone to ensure 
the activity is fully consistent with the enforceable policies of the 
state's approved management program. In this instance, Atlantic Shores 
was not required to submit a CZMA Federal consistency certification to 
the State of New Jersey under 15 CFR part 930, subpart D, of the 
implementing regulations, because the NMFS MMPA IHA is not, pursuant to 
15 CFR 930.53, listed in the State's federally-approved coastal 
management program, the State of New Jersey has not described a 
geographic location in Federal waters where Federal effects from the 
NMFS MMPA IHA are reasonably foreseeable, and the State of New Jersey 
has not submitted and the Director of NOAA's Office of Coastal 
Management has not approved an unlisted activity review request.
    Under the regulations governing the CZMA Federal consistency review 
of unlisted activities, an unlisted activity (such as the one described 
herein) is only subject to Federal consistency review if the state 
timely requests review within thirty days after publication of the 
notice of proposed IHA in the Federal Register and the Director of 
NOAA's Office for Coastal Management approves such request (15 CFR 
930.54). Here, NMFS published the Federal Register notice for Atlantic 
Shores' MMPA IHA application on March 30, 2023 (88 FR 19075). The State 
of New Jersey then had 30 days from the date of that publication to 
notify Atlantic Shores, NMFS and the Director of NOAA's Office for 
Coastal Management that the State was seeking approval to review the 
activity as an unlisted activity. The State of New Jersey did not make 
such a request, the 30-day period ended on April 29, 2023, and the time 
period to make an unlisted activity review request has expired. 
Accordingly, Atlantic Shores' IHA application is not subject to Federal 
consistency review under the CZMA.

Description of Marine Mammals in the Areas of Specified Activities

    A description of the marine mammals in the area of the activities 
can be found in the previous documents and notices for the 2022 IHA (87 
FR 4200, January 27, 2022; 87 FR 24103, April 22, 2022), which remains 
applicable to this 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 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. More general information about these 
species (e.g., physical and behavioral descriptions) may be found on 
NMFS's website (https://www.fisheries.noaa.gov/find-species).
    NMFS notes that, since issuance of the 2022 IHA, a new SAR was made 
available with new information presented for the NARW (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). We note that the 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 Atlantic Shores 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.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 2.

[[Page 38838]]



                  Table 2--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
                                                    Generalized hearing
                  Hearing group                           range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales)....  7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins, toothed   150 Hz to 160 kHz.
 whales, beaked whales, bottlenose whales).
High-frequency (HF) cetaceans (true porpoises,    275 Hz to 160 kHz.
 Kogia, river dolphins, cephalorhynchid,
 Lagenorhynchus cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true seals).  50 Hz to 86 kHz.
Otariid pinnipeds (OW) (underwater) (sea lions    60 Hz to 39 kHz.
 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, 2013). 
For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.
    Fifteen marine mammal species (comprising 16 total stocks; 13 
cetacean (14 stocks) and 2 pinniped (both phocid) species) have the 
reasonable potential to co-occur with the survey activities. Of the 
cetacean species that may be present, five are classified as low-
frequency cetaceans (i.e., all mysticete species), seven are classified 
as mid-frequency cetaceans (i.e., all delphinid species and the sperm 
whale), and one is classified as a high-frequency cetacean (i.e., 
harbor porpoise).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103, 
April 22, 2022). At present, there is no new information on potential 
effects that would impact 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 4200, January 27, 2022; 87 FR 24103, 
April 22, 2022). The methods of estimating take are identical to those 
used in the 2022 IHA. We updated the marine mammal densities based on 
new information (Roberts et al., 2016; Roberts et al., 2023), available 
online at: https://seamap.env.duke.edu/models/Duke/EC/. We refer the 
reader to Table 4 in the ITA Request from Atlantic Shores for specific 
density values used in the analysis. The ITA 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 has authorized can be found in Table 3 below. 
Table 3 presents the results of Atlantic Shores' density-based 
calculations for the combined Lease Area (0499 and 0549) and the two 
ECRs (North and South). For comparative purposes, we have provided the 
2022 IHA authorized take (87 FR 24103, April 22, 2022; 87 FR 26726, May 
5, 2022). NMFS notes that take by Level A harassment was not requested 
nor does NMFS anticipate that it could occur. Therefore, NMFS has not 
authorized any take by Level A harassment. Mortality or serious injury 
is neither anticipated to occur nor authorized.

                                         Table 3--Total Estimated Take, By Level B Harassment Only, Relative to Population Size for the 2023 HRG Surveys
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Location-specific                                           Authorized 2023 IHA
                                                                                                                calculated take                                Take    -------------------------
                                                                                                            ----------------------    Total       AMAPPS    authorized               Percentage
         Marine mammal species                 Scientific name                  Stock             Estimated                        calculated   group size     under                     of
                                                                                                 population  Lease    ECR    ECR      take     adjustments   previous   Authorized   population
                                                                                                              area   north  south                            2022 IHA      take      authorized
                                                                                                                                                                                     to be taken
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Mysticetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.............  Eubalaena glacialis.......  Western North Atlantic....         338    1.1     1.3    0.7         3.1            2          17           3          0.89
Humpback whale.........................  Megaptera novaeangliae....  Gulf of Maine.............       1,396    1.8     2.8    0.8         5.4            2           8           5          0.36
Fin whale..............................  Balaenoptera physalus.....  Western North Atlantic....       6,802    2.8     2.5    0.7           6            1           5           6          0.09
Sei whale..............................  Balaenoptera borealis.....  Nova Scotia...............       6,292    0.9     0.8    0.2         1.9            1           2           2          0.03
Minke whale............................  Balaenoptera acutorostrata  Canadian East Coast.......      21,968   10.4    11.5    2.0        23.9            1           2          24          0.11
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Odontocetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale............................  Physeter macrocephalus....  North Atlantic............       4,349    0.1     0.1    0.0     \a\ 0.2            2           1           2          0.05
Long-finned pilot whale \b\............  Globicephala melas........  Western North Atlantic....      39,215    0.3     0.1    0.0         0.4        \f\ 8          20          20          0.05
Bottlenose dolphin \c\.................  Tursiops truncatus........  Western North Atlantic,          6,639  154.2   359.5  714.2     1,227.9           10         385       1,228          18.5
                                                                      Northern Migratory
                                                                      Coastal.

[[Page 38839]]

 
                                                                     Western North Atlantic,         62,851   15.2   359.5  714.2     1,088.9                    1,175       1,089          1.73
                                                                      Offshore.
Common dolphin.........................  Delphinus delphis.........  Western North Atlantic....     172,974   48.1    46.4    5.2        99.7           30         560         100          0.06
Atlantic white-sided dolphin...........  Lagenorhynchus acutus.....  Western North Atlantic....      93,233    9.0     6.8    0.8        16.6           12          17          17          0.02
Atlantic spotted dolphin...............  Stenella frontalis........  Western North Atlantic....      39,921    1.0     1.0    0.2         2.2           24         100          50          0.06
Risso's dolphin........................  Grampus griseus...........  Western North Atlantic....      35,215    0.6     0.4    0.0         1.0            7          30          30          0.09
Harbor porpoise........................  Phocoena phocoena.........  Gulf of Maine/Bay of Fundy      95,543   67.3    61.2   13.7       142.2            3         282         142          0.15
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Phocid pinniped
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal..............................  Halichoerus grypus........  Western North Atlantic....  \e\ 27,300  277.2   333.9  124.7       735.8      \d\ n/a         426         736          0.16
Harbor seal............................  Phoca vitulina............  Western North Atlantic....      61,336  277.2   333.9  124.7       735.8      \d\ n/a         426         736           1.2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Although the calculated take rounds to zero, to be conservative in the event a lone sperm whale is observed in the area, NMFS has authorized take assuming a group size of 2 animals.
\b\ All pilot whales that may be encountered are assumed to be long finned. Roberts et al. (2023) density information does not distinguish between species. However, pilot whales encountered
  off of New Jersey and points north are likely to be long finned, as the species has a more northerly distribution.
\c\ Takes of bottlenose dolphins were attributed to stock based on the 20-m isobath. All animals shoreward of the 20-m isobath were assumed to belong to the coastal stock and all bottlenose
  dolphins seaward of the 20-m isobath were assumed to be from the offshore stock.
\d\ No AMAPPS data was available for seals.
\e\ 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. This value was used
  in the percentage of stock abundance estimated to be taken by the proposed project.
\f\ A group size adjustments for long-finned pilot whales (n=20) used sighting data collected by Atlantic Shores during past surveys (Atlantic Shores Offshore Wind, 2021). This value was used
  instead of the AMAPPS data.

Mitigation

    The required mitigation measures are identical to those included in 
the Federal Register notice announcing the final 2022 IHA (87 FR 24103, 
April 22, 2022; 87 FR 26726, May 5, 2022) and the discussion of the 
least practicable adverse impact included in that document remains 
accurate. The measures are found below.
    Atlantic Shores must also abide by all the marine mammal relevant 
conditions in the GARFO programmatic consultation (specifically Project 
Design Criteria (PDC) 4, 5, and 7) 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), pursuant to Section 7 of the 
Endangered Species Act.

Marine Mammal Exclusion Zones and Level B Harassment Zones

    Marine mammal Exclusion Zones will be established around the HRG 
survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive: 
sparkers; non-impulsive: non-parametric sub-bottom profilers), a 
minimum of one PSO must be on duty, per source vessel, during daylight 
hours and two PSOs must be on duty, per source vessel, during nighttime 
hours. These PSO will monitor Exclusion Zones based upon the radial 
distance from the acoustic source rather than being based around the 
vessel itself. The Exclusion Zone distances are as follows:
     A 500 m Exclusion Zone for NARWs during use of specified 
acoustic sources (impulsive: sparkers; non-impulsive: non-parametric 
sub-bottom profilers).
     A 100 m Exclusion Zone for all other marine mammals 
(excluding NARWs) during use of specified acoustic sources (except as 
specified below).
    All visual monitoring must begin no less than 30 minutes prior to 
the initiation of the specified acoustic source and must continue until 
30 minutes after use of specified acoustic sources ceases.
    If a marine mammal were detected approaching or entering the 
Exclusion Zones during the HRG survey, the vessel operator will adhere 
to the shutdown procedures described below to minimize noise impacts on 
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.

Ramp-Up of Survey Equipment and Pre-Clearance of the Exclusion Zones

    When technically feasible, a ramp-up procedure will be used for HRG 
survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. A ramp-up of sources will begin with the 
powering up of the smallest acoustic HRG equipment at half power for 5 
minutes and then proceed to full power. The ramp-up procedure will be 
used in order to provide additional protection to marine mammals near 
the survey area by allowing them to vacate the area prior to the 
commencement of survey equipment operation at full power. When 
technically feasible, the power will then be gradually turned up and 
other acoustic sources would be added. All ramp-ups shall be scheduled 
so as to minimize the time spent with the source being activated.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective Exclusion Zone. Ramp-up will continue if the animal has been 
observed exiting its respective Exclusion Zone or until an additional

[[Page 38840]]

time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals; 30 minutes for all other species).
    Atlantic Shores will implement a 30 minute pre-clearance period of 
the Exclusion Zones prior to the initiation of ramp-up of HRG 
equipment. 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. This will allow the PSOs to 
monitor the Exclusion Zones for 30 minutes prior to the initiation of 
ramp-up. Prior to ramp-up beginning, Atlantic Shores must receive 
confirmation from the PSO that the Exclusion Zone is clear prior to 
proceeding. During this 30 minute pre-start clearance period, the 
entire applicable Exclusion Zones must be visible. The exception to 
this would be in situations where ramp-up may 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 
may only occur at night where operational planning cannot reasonably 
avoid such circumstances.
    During this period, the Exclusion Zone will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective Exclusion 
Zone. If a marine mammal is observed within an Exclusion Zone during 
the pre-clearance period, ramp-up may not begin until the animal(s) has 
been observed exiting its respective Exclusion Zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and pinnipeds; 30 minutes for all other 
species). If a marine mammal enters the Exclusion Zone during ramp-up, 
ramp-up activities must cease and the source must be shut down. 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.
    The pre-clearance zones will be:
     500 m for all ESA-listed species (North Atlantic right, 
sei, fin, sperm whales); and
     100 m for all other marine mammals.
    If any marine mammal species that are listed under the ESA are 
observed within the clearance zones, the 30 minute clock must be 
paused. If the PSO confirms the animal has exited the zone and headed 
away from the survey vessel, the 30 minute clock that was paused may 
resume. The pre-clearance clock will reset to 30 minutes if the animal 
dives or visual contact is otherwise lost.
    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 
Exclusion Zone. For any longer shutdown, pre-start clearance 
observation and ramp-up are required.
    Activation of survey equipment through ramp-up procedures may not 
occur when visual detection of marine mammals within the pre-clearance 
zone is not expected to be effective (e.g., during inclement conditions 
such as heavy rain or fog).
    The acoustic source(s) must be deactivated when not acquiring data 
or preparing to acquire data, except as necessary for testing. 
Unnecessary use of the acoustic source shall be avoided.

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment will be 
required if a marine mammal is sighted entering or within its 
respective Exclusion Zone(s). Any PSO on duty has the authority to call 
for a shutdown of the acoustic source if a marine mammal is detected 
within the applicable Exclusion Zones. Any disagreement between the PSO 
and vessel operator should be discussed only after shutdown has 
occurred. The vessel operator would 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.
    The shutdown requirement is waived for small delphinids (belonging 
to the genera of the Family Delpinidae: Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) and pinnipeds if they are visually detected 
within the applicable Exclusion Zones. 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 applicable Level B 
harassment zone, shutdown will occur. In the event of uncertainty 
regarding the identification of a marine mammal species (i.e., such as 
whether the observed marine mammal belongs to Delphinus, 
Lagenorhynchus, Stenella, or Tursiops for which shutdown is waived, 
PSOs must use their best professional judgment in making the decision 
to call for a shutdown.
    Specifically, if a delphinid from the specified genera or a 
pinniped is visually detected approaching the vessel (i.e., to bow 
ride) or towed equipment, shutdown is not required.
    Upon implementation of a shutdown, the source may be reactivated 
after the marine mammal has been observed exiting the applicable 
Exclusion Zone or following a clearance period of 15 minutes for harbor 
porpoises and 30 minutes for all other species where there are no 
further detections of the marine mammal.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., parametric sub-bottom profilers) other than non-parametric sub-
bottom profilers (e.g., compressed high-intensity radiated pulses 
(CHIRPs)). Pre-clearance and ramp-up, but not shutdown, are required 
when using non-impulsive, non-parametric sub-bottom profilers.

Seasonal Operating Requirements

    As described in the Federal Register notice announcing the final 
2022 IHA (87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022), a 
section of the survey area partially overlaps with a portion of a NARW 
seasonal management area (SMA) off the port of New York/New Jersey. 
This SMA is active from November 1 through April 30 of each year. All 
survey vessels, regardless of length, would be required to adhere to 
vessel speed restrictions (<10 knots) when operating within the SMA 
during times when the SMA is active. In addition, between watch shifts, 
members of the monitoring team would consult NMFS' NARW reporting 
systems for the presence of NARWs throughout survey operations. Members 
of the monitoring team would also monitor the NMFS NARW reporting 
systems for the establishment of Dynamic Management Areas (DMA). NMFS 
may also establish voluntary right whale Slow Zones any time a right 
whale (or whales) is acoustically detected. Atlantic Shores should be 
aware of this possibility and remain attentive in the event a Slow Zone 
is established nearby or overlapping the survey area (Table 4).

[[Page 38841]]



      Table 4--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          N/A.
                                   right whale         Atlantic Shores' vessels will abide
                                   (Eubalaena          by the described restrictions.
                                   glacialis).
ECR North.                                                                                    November 1 through
                                                                                               July 31 (Raritan
                                                                                               Bay).
ECR South.                                                                                    N/A.
----------------------------------------------------------------------------------------------------------------
Note: More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS'
  website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales.

    There are no known marine mammal rookeries or mating or calving 
grounds in the survey area that would otherwise potentially warrant 
increased mitigation measures for marine mammals or their habitat (or 
both). The survey activities would occur in an area that has been 
identified as a biologically important area (BIAs) for migration for 
NARWs. However, given the small spatial extent of the survey area 
relative to the substantially larger spatial extent of the right whale 
migratory area and the relatively low amount of noise generated by the 
survey, the survey is not expected to appreciably reduce the quality of 
migratory habitat nor to negatively impact the migration of NARWs, thus 
mitigation to address the survey's occurrence in NARW migratory habitat 
is not warranted.

Vessel Strike Avoidance

    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 is 
restricted in its ability to maneuver and, because of the restriction, 
cannot comply.
    Survey vessel crewmembers responsible for navigation duties will 
receive site-specific training on marine mammals sighting/reporting and 
vessel strike avoidance measures. Vessel strike avoidance measures 
would include the following, except under circumstances when complying 
with these requirements would put the safety of the vessel or crew at 
risk:
     Atlantic Shores will ensure that vessel operators and crew 
maintain a vigilant watch for cetaceans and pinnipeds and slow down, 
stop their vessels, or alter course, as appropriate and regardless of 
vessel size, to avoid striking any marine mammal. A single marine 
mammal at the surface may indicate the presence of additional 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 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 right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammals. All vessels, regardless of size, must observe a 
10-knot speed restriction in specific areas designated by NMFS for the 
protection of NARWs from vessel strikes, including seasonal management 
areas (SMAs) and dynamic management areas (DMAs) when in effect. 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 their speed to 10-knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m (1,640 ft) from right whales and other ESA-listed species. If an 
ESA-listed species is sighted within the relevant separation distance, 
the vessel must steer a course away at 10-knots or less until the 500 m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species that is not ESA-listed, the vessel 
operator must assume that it is an ESA-listed species and take 
appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m (328 ft) from non-ESA-listed baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m (164 ft) from 
all other marine mammals, with an understanding that, at times, this 
may not be possible (e.g., for animals that approach the vessel, bow-
riding species).
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area, 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 monitoring team will consult NMFS NARW reporting 
system and WhaleAlert, daily and as able, for the presence of NARWs 
throughout survey operations, and for the establishment of a DMA. If 
NMFS should establish a DMA in the survey area during the survey, the 
vessels will abide by speed restrictions in the DMA.

Training

    All PSOs must have completed a PSO training program and received 
NMFS approval to act as a PSO for geophysical surveys. Documentation of 
NMFS approval and most recent training certificates of individual PSOs' 
successful completion of a commercial PSO training course must be 
provided upon request. Further information can be found at 
www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers.
    Atlantic Shores shall instruct relevant vessel personnel with 
regard to the authority of the marine mammal monitoring team, and shall 
ensure that relevant vessel personnel and the marine mammal monitoring 
team participate in a joint onboard briefing (hereafter PSO briefing), 
led by the vessel operator and lead PSO, prior to beginning survey 
activities to ensure that responsibilities, communication procedures, 
marine mammal monitoring protocols, safety and operational procedures, 
and IHA requirements are clearly understood. This PSO briefing

[[Page 38842]]

must be repeated when relevant new personnel (e.g., PSOs, acoustic 
source operator) join the survey operations before their 
responsibilities and work commences.
    Survey-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. All vessel crew members must be 
briefed in the identification of protected species that may occur in 
the survey area and in regulations and best practices for avoiding 
vessel collisions. Reference materials must be available aboard all 
survey vessels for identification of listed species. The expectation 
and process for reporting of protected species sighted during surveys 
must be clearly communicated and posted in highly visible locations 
aboard all survey vessels, so that there is an expectation for 
reporting to the designated vessel contact (such as the lookout or the 
vessel captain), as well as a communication channel and process for 
crew members to do so. Prior to implementation with vessel crews, the 
training program will be provided to NMFS for review and approval. 
Confirmation of the training and understanding of the requirements will 
be documented on a training course log sheet. Signing the log sheet 
will certify that the crew member understands and will comply with the 
necessary requirements throughout the survey activities.

Monitoring and Reporting

    The monitoring and reporting requirements are identical to those 
included in the Federal Register notice announcing the final 2022 IHA 
(87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022). The measures 
are described below.

Monitoring Measures

    Atlantic Shores 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, 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.
    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).
    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 coordinate to ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and shall conduct 
visual observations using binoculars or night-vision equipment and the 
naked eye while free from distractions and in a consistent, systematic, 
and diligent manner.
    PSOs may be on watch for a maximum of 4 consecutive hours followed 
by a break of at least 2 hours between watches and may conduct a 
maximum of 12 hours of observation per 24-hour period.
    Any observations of marine mammal by crew members aboard any vessel 
associated with the survey shall be relayed to the PSO team.
    Atlantic Shores 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 
millimeter (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-part PSO provider, or the operator, but Atlantic Shores is 
responsible for ensuring PSOs have the proper

[[Page 38843]]

equipment required to perform the duties specified in the IHA.
    During good conditions (e.g., daylight hours; Beaufort sea state 3 
or less), PSOs shall conduct observations when the specified acoustic 
sources are not operating for comparison of sighting rates and behavior 
with and without use of the specified acoustic sources and between 
acquisition periods, to the maximum extent practicable.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including Exclusion Zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established Exclusion Zones 
during survey activities. It will be the responsibility of the 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.
    Atlantic Shores plans to utilize 6 PSOs across each vessel to 
account for shift changes, with a total of 18 during these surveys (6 
PSOs per vessel x 3 vessels). At a minimum, during all HRG survey 
operations (e.g., any day on which use of an HRG source is planned to 
occur), one PSO must be on duty during daylight operations on each 
survey vessel, conducting visual observations at all times on all 
active survey vessels during daylight hours (i.e., from 30 minutes 
prior to sunrise through 30 minutes following sunset) and two PSOs will 
be on watch during nighttime operations. The PSO(s) would ensure 
360[deg] visual coverage around the vessel from the most appropriate 
observation posts and would conduct visual observations using 
binoculars and/or night vision goggles and the naked eye while free 
from distractions and in a consistent, systematic, and diligent manner. 
PSOs may be on watch for a maximum of 4 consecutive hours followed by a 
break of at least 2 hours between watches and may conduct a maximum of 
12 hours of observation per 24-hr period. In cases where multiple 
vessels are surveying concurrently, any observations of marine mammals 
would be communicated to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Exclusion Zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements (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).

Reporting Measures

    Atlantic Shores shall submit a draft comprehensive report 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 
submitted in interim monthly reports (if required) as well as 
additional data collected. A final report must be submitted within 30 
days following resolution of any comments on the draft report. All 
draft and final marine mammal and acoustic monitoring reports must be 
submitted to [email protected] and 
[email protected].
    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 and other vessels associated with 
survey), vessel size and type, maximum speed capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. The lease number;
    4. PSO names and affiliations;
    5. Date and participants of PSO briefings;
    6. Visual monitoring equipment used;
    7. PSO location on vessel and height of observation location above 
water surface;
    8. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    9. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    10. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval;
    11. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    12. Water depth (if obtainable from data collection software);
    13. 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;
    14. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g.,

[[Page 38844]]

vessel traffic, equipment malfunctions); and
    15. 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.).
    Upon visual observation of any marine mammal, the following 
information must be recorded:
    1. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    2. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    3. PSO who sighted the animal;
    4. Time of sighting;
    5. Initial detection method;
    6. Sightings cue;
    7. Vessel location at time of sighting (decimal degrees);
    8. Direction of vessel's travel (compass direction);
    9. Speed of the vessel(s) from which the observation was made;
    10. 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;
    11. Species reliability (an indicator of confidence in 
identification);
    12. Estimated distance to the animal and method of estimating 
distance;
    13. Estimated number of animals (high/low/best);
    14. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    15. 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);
    16. 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);
    17. 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;
    18. Equipment operating during sighting;
    19. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and
    20. 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 NARW is observed at any time by PSOs or personnel on any 
survey vessels, during surveys or during vessel transit, Atlantic 
Shores must report the sighting information to the NMFS North Atlantic 
Right Whale Sighting Advisory System (866-755-6622) within 2 hours of 
occurrence, when practicable, or no later than 24 hours after 
occurrence. NARW 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, Atlantic Shores must report 
the incident to NMFS as soon as feasible by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]) as soon as feasible. 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 unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Atlantic 
Shores 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).

Determinations

    When issuing the 2022 IHA (87 FR 24103, April 22, 2022), NMFS found 
Atlantic Shores' HRG surveys would have a negligible impact to species 
or stocks annual rates of recruitment and survival and the amount of 
taking would be small relative to the population size of such species 
or stocks (less than 6 percent). Atlantic Shores' 2023 HRG survey 
activities are identical to those analyzed in support of the 2022 IHA. 
Additionally, the potential effects of the activity, taking into 
consideration the required mitigation and related required monitoring 
and reporting measures, are identical to those evaluated in support of 
the 2022 IHA. NMFS notes that there is a minor increase in estimated 
take numbers for six marine mammal species and/or stocks (refer back to 
Table 3). However, the total amount of takes authorized is small 
relative to the best available population size of each species or stock 
(less than 1 percent for 13 stocks; less than 2 percent for 2 stocks; 
and less than 19 percent for the remaining stock (Western North 
Atlantic Migratory Coastal stock of common bottlenose dolphins)). 
Additionally, only Level B harassment is authorized, which NMFS expects 
would be of a lower severity, predominantly in the form of avoidance of 
the sound sources that may cause a temporary abandonment of the 
location during active source use that may result in a temporary 
interruption of foraging activities for some species. NMFS does not 
expect that the 2023 survey activities will have long-term or permanent 
impacts as the acoustic source would be mobile and would leave the area 
within a specific amount of time for which the animals could return to 
the area. Even considering the increased estimated take for some 
species, the impacts of these lower severity exposures are not expected 
to

[[Page 38845]]

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 are expected to result.
    As previously discussed in the 2022 IHA (87 FR 24103, April 22, 
2022), impacts from the survey are expected to be localized to the 
specific area of activity and only during periods of time where 
Atlantic Shores' acoustic sources are active. While areas of biological 
importance to fin whales, humpback whales, and harbor seals can be 
found off the coast of New Jersey and New York, NMFS does not expect 
these activities to affect these specific areas. This is due to the 
combination of the mitigation and monitoring measures being required of 
Atlantic Shores, as well as the location of these biologically 
important areas. All of these important areas are found outside of the 
range of this survey area, as is the case with fin whales and humpback 
whales (BIAs found further north), and, therefore, are not expected to 
be impacted by Atlantic Shores' 2023 survey activities. Three major 
haulout sites exist for harbor seals within ECR North along New Jersey, 
including at Great Bay, Sandy Hook, and Barnegat Inlet (Conserve 
Wildlife Foundation of New Jersey (CWFNJ), 2015). As hauled out seals 
would be out of the water, no in-water effects are expected.
    Atlantic Shores' project would occur in a small fraction of the 
migratory corridor for the NARW and impacts are expected to be limited 
to low levels of behavioral harassment, resulting in temporary and 
minor behavioral changes during any brief period of exposure. As noted 
for the 2022 IHA (87 FR 24103, April 22, 2022), the size of the survey 
area (5,868 km\2\) in comparison with the entire migratory habitat for 
the NARW (BIA of 269,448 km\2\) is small, representing 2.11 percent of 
the entire migratory corridor. Given the transitory nature of NARWs in 
this area and due to the lack of year-round ``core'' NARW foraging 
habitat (Oleson et al., 2020) (such habitat is located much further 
north in the southern area of Martha's Vineyard and Nantucket Islands 
where both visual and acoustic detections of NARWs indicate a nearly 
year-round presence), it is unlikely for any exposure to cause chronic 
effects as any exposure would be short and intermittent. Furthermore, 
given the small size of the Level B harassment zones (141 m) and the 
robust suite of required mitigation and monitoring measures, with 
specific note on the mitigation zones for NARWs (exclusion zone; 500 
m), NMFS does not expect adverse impacts on this species. Lastly, NMFS 
notes the reduction in requested take from the 2022 IHA (87 FR 4200, 
January 27, 2022; 87 FR 24103, April 22, 2022) due to the revised Duke 
University density data (Roberts et al., 2023). Under the 2022 IHA, 
NMFS authorized 17 instances of take for NARWs. Here, NMFS has 
authorized only three takes by Level B harassment representing less 
than 1 percent of the overall species abundance. Given the updates to 
the density for this species in particular during the periods where 
project activities are expected to be ongoing, NMFS expects low-level 
impacts (e.g., temporary avoidance of the area) from the 2023 project 
on NARWs.
    We also note that our findings for other species with active UMEs 
or species where BIAs or haulouts have been previously described in the 
2022 IHA remain applicable to this project. 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 determined the following: (1) the required 
mitigation measures will effect the least practicable adverse impact on 
marine mammal species or stocks and their habitat; (2) the authorized 
takes will have a negligible impact on the affected marine mammal 
species or stocks; (3) the authorized takes represent small numbers of 
marine mammals relative to the affected stock abundances; (4) Atlantic 
Shores' 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

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS 
must review our 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 
final IHA qualifies to be categorically excluded from further NEPA 
review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Atlantic Shores for conducting site characterization surveys off New 
Jersey and New York from June 9, 2023 through June 8, 2024, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. The final IHA and Atlantic Shores' IHA 
application can be found on NMFS' website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

    Dated: June 7, 2023.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2023-12532 Filed 6-9-23; 8:45 am]
BILLING CODE 3510-22-P