Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off New Jersey and New York, 41912-41920 [2023-13764]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Notices]
[Pages 41912-41920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13764]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC903]


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

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

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

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

SUMMARY: NMFS has received a request from Atlantic Shores Offshore Wind 
Bight, LLC (Atlantic Shores) for authorization to take marine mammals 
incidental to marine site characterization surveys offshore of New 
Jersey and New York in the Bureau of Ocean Energy Management (BOEM) 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS) Lease Area OCS-A 0541 and associated 
export cable route (ECR) area. NMFS is requesting comments on its 
proposal to issue an incidental harassment authorization to 
incidentally take marine mammals during the specified activities. NMFS 
is also requesting comments on a possible one-time, 1-year renewal that 
could be issued under certain circumstances and if all requirements are 
met, as described in the Request for Public Comments at the end of this 
notice. NMFS will consider public comments prior to making any final 
decision on the issuance of the requested MMPA authorization and agency 
responses will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than July 28, 
2023.

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

FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    The activities described in Atlantic Shores' request, the overall 
survey duration, the project location, and the acoustic sources 
proposed for use are identical to what was previously analyzed in 
support of the IHA issued by NMFS to Atlantic Shores for 2022 site 
characterization surveys (2022 IHA) (87 FR 38067, June 27, 2022; 87 FR 
50293, August 16, 2022). All proposed mitigation, monitoring, and 
reporting requirements remain the same. While Atlantic Shores' planned 
activity would qualify for renewal of the 2022 IHA, due to the 
availability of updated marine mammal density data (https://seamap.env.duke.edu/models/Duke/EC/ EC/), which NMFS has determined 
represents the best available scientific data, NMFS has determined to 
proceed with a new IHA process rather than a renewal, providing a 30-
day period for

[[Page 41913]]

the public to comment on this proposed action.
    Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an IHA to allow Atlantic 
Shores to incidentally take marine mammals during the specified 
activities. NMFS is also requesting comments on a possible 1-year 
Renewal IHA that could be issued under certain circumstances and if all 
requirements are met, as described in the Request for Public Comments 
at the end of this notice. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorization and agency responses will be summarized in the final 
notice of our decision.
    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.

National Environmental Policy Act

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

Summary of Request

    On March 20, 2023, 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 areas of BOEM Commercial Lease of Submerged Lands for 
Renewable Energy Development on the OCS Lease Area OCS A-0541 and 
associated ECR area. Following NMFS' review of the application, 
Atlantic Shores submitted a revised request on April 7, 2023. The 
application (the 2023 request) was deemed adequate and complete on 
April 20, 2023. Atlantic Shores' request is for take of 15 species 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.
    NMFS has previously issued a similar IHA to Atlantic Shores. On 
April 8, 2022, NMFS received a request from Atlantic Shores for an IHA 
to take marine mammals incidental to marine site characterization 
surveys offshore of New Jersey and New York, in the area of Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Areas OCS-A 0541 and the associated ECR area. 
Atlantic Shores requested authorization to take small numbers of 15 
species (comprising 15 stocks) of marine mammals by Level B harassment 
only. NMFS published a notice of the proposed IHA in the Federal 
Register on June 27, 2022 (87 FR 30867). After a 30-day public comment 
period and consideration of all public comments received, we 
subsequently issued the 2022 IHA, which is effective from August 10, 
2022, to August 9, 2023 (87 FR 50293, August 16, 2022).
    Atlantic Shores completed a subset of the survey work under the 
2022 IHA. This request is identical to the 2022 IHA.
    However, Duke University's Marine Geospatial Ecology Laboratory 
released updated marine mammal density information for all species in 
the project area (https://seamap.env.duke.edu/models/Duke/EC/), and 
NMFS determined it would issue a proposed IHA rather than undertake the 
renewal process. In evaluating the 2023 request and to the extent 
deemed appropriate, NMFS also relies on the information presented in 
notices associated with issuance of the 2022 IHA (87 FR 38067, June 27, 
2022; 87 FR 50293, August 16, 2022).
    Atlantic Shores conducted the required marine mammal mitigation and 
monitoring and did not exceed authorized levels of take under previous 
IHAs issued for surveys offshore of New York and New Jersey (see 85 FR 
21198, April 16, 2020 and 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.

Description of the Proposed Activity and Anticipated Impacts

Overview

    Atlantic Shores proposes to conduct HRG marine site 
characterization surveys in BOEM Lease Area OCS-A 0541 and along the 
ECR off of New Jersey and New York. The purpose of the proposed surveys 
is to obtain an assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of a planned offshore wind facility development area. Surveys 
are also conducted to support engineering design and to map unexploded 
ordnance. As many as three survey vessels may operate concurrently as 
part of the proposed surveys. During survey effort, the vessels would 
operate at a maximum speed of 3.5 knots (kns) (6.5 kilometers (km)). 
Underwater sound resulting from Atlantic Shores' proposed activities 
has the potential to result in incidental take of marine mammals in the 
form of Level B harassment.

[[Page 41914]]

Dates and Duration

    The proposed activity is estimated to require up to 360 survey days 
using a maximum of three vessels operating concurrently over the course 
of the 1-year period of effectiveness of the proposed IHA (Table 1). A 
``survey day'' is defined as a 24-hour activity period in which active 
acoustic sound sources are used. This schedule is inclusive of any 
inclement weather downtime and crew transfers. It is expected that each 
vessel would cover approximately 55 km of track line per day based on 
Atlantic Shores' data acquisition efficiency expectations.

                      Table 1--Proposed Survey Days
------------------------------------------------------------------------
                                                            Number of
                      Survey areas                        active survey
                                                          days expected
------------------------------------------------------------------------
Lease Survey Area (OCS-A 541)..........................              180
ECR Survey Area........................................              180
------------------------------------------------------------------------

Specified Geographic Region

    Atlantic Shores' proposed activities would occur in the Northwest 
Atlantic Ocean within Federal and state waters offshore of New York and 
New Jersey in BOEM Lease Area OCS-A 0541 and along the associated 
potential ECR (Figure 1). Overall, the survey area is approximately 
1,375,710 acres (5,567.3 km\2\) and extends from approximately 11 
nautical miles (nm) (20 km) to 40 nm (74 km) offshore of New York and 
New Jersey. In general, the survey area spans from Sandy Hook Bay to 
Ocean City, New Jersey. No nearshore surveys are planned.
BILLING CODE 3510-22-P

[[Page 41915]]

[GRAPHIC] [TIFF OMITTED] TN28JN23.001

BILLING CODE 3510-22-C

Detailed Description of the Action

    A detailed description of the proposed survey activities can be 
found in the previous Federal Register notices (87 FR 38067, June 27, 
2022; 87 FR 50293, August 16, 2022) and supplementary documents, 
available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llc-marine-site. 
The specific geographic region; duration (360 total survey days); and 
nature of specified activities, including the types of HRG equipment 
planned for use (sparkers and CHIRPs), daily trackline distances (55 km 
per day), and number of survey vessels (up to three operating 
concurrently) are identical to those described in the previous notices.
    Atlantic Shores plans to conduct geotechnical surveys, which 
consists of identical activities (i.e., drilling of sample boreholes, 
deep cone penetration tests (CPTs), and shallow CPTs) previously 
described in its application for the 2022 IHA (87 FR 38067, June 27, 
2022; 87 FR 50293, August 16, 2022). Consistent with NMFS' previous 
analysis of these activities, no take of marine mammals is expected to 
occur as a result of geotechnical survey activities. As a result, these 
activities will not be discussed further herein.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
can be found in the previous documents and notices

[[Page 41916]]

for the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293, August 16, 
2022), which remain applicable to this proposed IHA. NMFS reviewed the 
most recent draft Stock Assessment Reports (SARs, found on NMFS' 
website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), up-to-date information on 
relevant Unusual Mortality Events (UMEs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events), and recent scientific literature and 
determined that no new information affects our original analysis of 
impacts under the 2022 IHA.
    NMFS notes that, since issuance of the 2022 IHA, a new SAR is 
available for the North Atlantic right whale (NARW). Estimated 
abundance for the species declined from 368 to 338. However, this 
change does not affect our analysis of impacts, as described under the 
2022 IHA.

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 38067, June 27, 2022; 87 FR 50293, 
August 16, 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 38067, June 27, 2022; 87 FR 50293, 
August 16, 2022). The methods of estimating take are identical to those 
used in the 2022 IHA. Atlantic Shores 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 6 in Atlantic Shores' 2023 IHA 
request for specific density values used in the analysis. The IHA 
request is available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The take that NMFS proposes to authorize can be found in Table 2, 
which presents the results of Atlantic Shores' density-based 
calculations for the survey area. For comparative purposes, we have 
provided the 2022 IHA authorized take (87 FR 50293, August 16, 2022). 
NMFS notes that take by Level A harassment was not requested nor does 
NMFS anticipate that it could occur. Therefore, NMFS has not proposed 
to authorize any take by Level A harassment. Mortality or serious 
injury is neither anticipated to occur nor proposed for authorization.

                                               Table 2--Summary of Take Numbers Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             2023 Proposed
                                                                                                                   2022         IHA take
                 Species                        Scientific name                   Stock              Abundance  Authorized    proposed for   Max percent
                                                                                                                   take      authorization    population
                                                                                                                                  \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..............  Eubalaena glacialis........  Western Atlantic...........         338          24                5          1.5
Humpback whale..........................  Megaptera novaeangliae.....  Gulf of Maine..............       1,396           8       \6\ 8 (16)          1.2
Fin whale...............................  Balaenoptera physalus......  Western North Atlantic.....       6,802          16                9           <1
Sei whale \2\...........................  Balaenoptera borealis......  Nova Scotia................       6,292           2                4           <1
Minke whale.............................  Balaenoptera acutorostrata.  Canadian East Coastal......      21,968           8               46           <1
Sperm whale \2\.........................  Physeter macrocephalus.....  Western Atlantic...........       4,349           3                2           <1
Long-finned pilot whale \3\.............  Globicephala melas.........  Western North Atlantic.....      39,215          20           8 (20)           <1
Bottlenose dolphin......................  Tursiops truncatus.........  Western North Atlantic           62,851         232              179           <1
                                                                        Offshore Stock.
Common dolphin..........................  Delphinus delphis..........  Western North Atlantic.....     172,974         911              588           <1
Atlantic white-sided dolphin............  Lagenorhynchus acutus......  Western North Atlantic.....      93,233         108               63           <1
Atlantic spotted dolphin................  Stenella frontalis.........  Western North Atlantic.....      39,921         100         42 (100)           <1
Risso's dolphin.........................  Grampus griseus............  Western North Atlantic.....      35,215          30           7 (30)           <1
Harbor porpoise.........................  Phocoena phocoena..........  Gulf of Maine/Bay of Fundy.      95,543         357              281           <1
Harbor seal \4\.........................  Phoca vitulina.............  Western North Atlantic.....      61,336         263              374           <1
Gray seal \4\ \5\.......................  Halichoerus grypus.........  Western North Atlantic.....      27,300         263              374         1.37
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote proposed take authorization where different from calculated take estimates. Increases from calculated values are based on average
  group size for the following species: humpback whale, King et al., 2021; long-finned pilot whale and Risso's dolphin, NOAA, 2022; and Atlantic spotted
  dolphin, Jefferson et al., 2008.
\2\ Where calculated takes for a species in a given survey area were less than 1 individual, the number was rounded up to 1 take in each survey area.
\3\ Roberts et al. (2023) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
  of long-finned pilot whales.
\4\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
  equally in the survey area; therefore, density values were split evenly between the 2 species, i.e., total estimated take for ``seals'' is 748.
\5\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,600.
\6\ According to recent findings that humpback whales were the most commonly sighted species in the New York Bight (King et al., 2021), the number of
  modeled exposures (4) for each of the lease area and ECR is multiplied by an average whale size of 2 for a total of 8 estimated takes in the lease
  area and 8 estimated takes in the ECR. The total request (16) represents the sum of estimated take in the lease area (8) and ECR (8).

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures proposed here 
are identical to those included in the Federal Register notice 
announcing the final 2022 IHA and the discussion of the least 
practicable adverse impact included in that document remains accurate. 
As described in the previous Federal Register notices (87 FR 38067, 
June 27, 2022; 87 FR 50293, August 16, 2022), NMFS determined that 
issuance of the 2022 IHA to Atlantic Shores was within the scope of the 
NOAA Fisheries Greater Atlantic Regional Office (GARFO) programmatic 
consultation regarding geophysical surveys along the U.S. Atlantic 
coast in the three Atlantic Renewable Energy Regions (NOAA GARFO, 2021; 
https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation). NMFS similarly concludes that the currently proposed 
survey activities are within scope of the consultation, and thus will

[[Page 41917]]

require adherence to the relevant Project Design Criteria (PDC) 
(specifically PDCs 4, 5, and 7).
    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, August 1, 2023). 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.
    Establishment of Shutdown Zones (SZ)--Marine mammal SZs would be 
established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSOs) during HRG surveys as 
follows:
     A 500-m SZ for North Atlantic right whales during use of 
specified acoustic sources (impulsive: Sparkers; non-impulsive: Non-
parametric sub-bottom profilers); and,
     100-m SZ for all other marine mammals (excluding North 
Atlantic right whales) during use of specified acoustic sources (except 
as specified below). The only exception for this is for pinnipeds 
(seals) and small delphinids (i.e., those from the genera Delphinus, 
Lagenorhynchus, Stenella or Tursiops).
    If a marine mammal is detected approaching or entering the SZs 
during the HRG survey, the vessel operator would adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
During use of acoustic sources with the potential to result in marine 
mammal harassment (sparkers and non-parametric sub-bottom profilers; 
i.e., anytime the acoustic source is active, including ramp-up), 
occurrences of marine mammals within the monitoring zone (but outside 
the SZs) must be communicated to the vessel operator to prepare for 
potential shutdown of the acoustic source.
    Visual Monitoring--Monitoring must be conducted by qualified PSOs 
who are trained biologists, with minimum qualifications described in 
the Federal Register notices for the 2022 project (87 FR 38067, June 
27, 2022; 87 FR 50293, August 16, 2022). Atlantic Shores must have one 
PSO on duty during the day and a minimum of two NMFS-approved PSOs must 
be on duty and conducting visual observations when HRG equipment is in 
use at night. Visual monitoring must begin no less than 30 minutes 
prior to ramp-up of HRG equipment and continue until 30 minutes after 
use of the acoustic source. PSOs must establish and monitor the 
applicable clearance zones, SZs, and vessel separation distances as 
described in the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293, 
August 16, 2022). PSOs must coordinate to ensure 360-degree visual 
coverage around the vessel from the most appropriate observation posts, 
and must conduct observations while free from distractions and in a 
consistent, systematic, and diligent manner. PSOs are required to 
estimate distances to observed marine mammals. It is the responsibility 
of the Lead PSO on duty to communicate the presence of marine mammals 
as well as to communicate action(s) that are necessary to ensure 
mitigation and monitoring requirements are implemented as appropriate.
    Pre-Start Clearance--Marine mammal clearance zones (CZs) would be 
established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSOs) prior to use of sparkers 
and non-parametric sub-bottom profilers as follows:
     500-m CZ for all ESA-listed species; and,
     100-m CZ for all other marine mammals.
    Prior to initiating HRG survey activities, Atlantic Shores should 
implement a 30-minute pre-start clearance period. The operator must 
notify a designated PSO of the planned start of ramp-up where the 
notification time should not be less than 60 minutes prior to the 
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes 
prior to the initiation of ramp-up. Prior to ramp-up beginning, 
Atlantic Shores would receive confirmation from the PSO that the CZs 
are clear prior to preceding. Any PSO on duty has the authority to 
delay the start of survey operations if a marine mammal is detected 
within the applicable pre-start clearance zones.
    During this 30-minute period, the entire CZ must be visible. The 
exception to this would be in situations where ramp-up must occur 
during periods of poor visibility (inclusive of nighttime) as long as 
appropriate visual monitoring has occurred with no detections of marine 
mammals in 30 minutes prior to the beginning of ramp-up. Acoustic 
source activation must only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If a marine mammal is observed within the relevant CZs during the 
pre-start clearance period, initiation of HRG survey equipment must not 
begin until the animal(s) has been observed exiting the respective 
clearance zone, or until an additional period has elapsed with no 
further sighting (i.e., minimum 15 minutes for small odontocetes and 
seals; 30 minutes for all other species). The pre-start clearance 
requirement includes small delphinids. PSOs must also continue to 
monitor the zone for 30 minutes after survey equipment is shut down or 
survey activity has concluded.
    Ramp-Up of Survey Equipment--When technically feasible, a ramp-up 
procedure must be used for geophysical survey equipment capable of 
adjusting energy levels at the start or re-start of survey activities. 
The ramp-up procedure must be used at the beginning of HRG survey 
activities in order to provide additional protection to marine mammals 
near the project area by allowing them to detect the presence of the 
survey and vacate the area prior to the commencement of survey 
equipment operation at full power. Ramp-up of the survey equipment must 
not begin until the relevant SZs has been cleared by the PSOs, as 
described above. HRG equipment operators must ramp up acoustic sources 
to half power for 5 minutes and then proceed to full power. If any 
marine mammals are detected within the SZs prior to or during ramp-up, 
the HRG equipment must be shut down (as described below).
    Shutdown Procedures--If an HRG source is active and a marine mammal 
is observed within or entering a relevant SZ (as described above), an 
immediate shutdown of the HRG survey equipment is required. When 
shutdown is called for by a PSO, the acoustic source must

[[Page 41918]]

be immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty has the authority to delay the start of 
survey operations or to call for shutdown of the acoustic source if a 
marine mammal is detected within the applicable SZ. The vessel operator 
must establish and maintain clear lines of communication directly 
between PSOs on duty and crew controlling the HRG source(s) to ensure 
that shutdown commands are conveyed swiftly while allowing PSOs to 
maintain watch. Subsequent restart of the HRG equipment may only occur 
after the marine mammal has been observed exiting the relevant SZ, or, 
until an additional period has elapsed with no further sighting of the 
animal within the relevant SZ.
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable SZ or, following a clearance period of 15 
minutes for small odontocetes and seals and 30 minutes for all other 
species with no further observation of the marine mammal(s) within the 
relevant SZ. If the HRG equipment is shut down for brief periods (i.e., 
less than 30 minutes) for reasons other than mitigation (e.g., 
mechanical or electronic failure), the equipment may be re-activated as 
soon as is practicable at full operational level, without 30 minutes of 
pre-clearance, only if PSOs have maintained constant visual observation 
during the shutdown and no visual detections of marine mammals occurred 
within the applicable SZs during that time. For a shutdown of 30 
minutes or longer, or if visual observation was not continued 
diligently during the pause, pre-clearance observation is required, as 
described above. The 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.
    The shutdown requirement is waived for pinnipeds (seals) and 
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) under certain circumstances. If a delphinid(s) 
from these genera is visually detected within the SZ, shutdown would 
not be required. If there is uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which shutdown is waived), 
PSOs must use best professional judgment in making the decision to call 
for a shutdown.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
area encompassing the Level B harassment isopleth (141 m), shutdown 
must occur.
    Vessel Strike Avoidance--Atlantic Shores must comply with vessel 
strike avoidance measures as described in the Federal Register notice 
for the 2022 IHA (87 FR 50293, August 16, 2022). This includes speed 
restrictions (10 kn (5.14 m/s) or less) when mother/calf pairs, pods, 
or large assemblages of cetaceans are spotted near a vessel; species-
specific vessel separation distances; appropriate vessel actions when a 
marine mammal is sighted (e.g., avoid excessive speed, remain parallel 
to animal's course, etc.); and monitoring of the NMFS North Atlantic 
Right Whale reporting system and WhaleAlert daily.
    Throughout all phases of the survey activities, Atlantic Shores 
must monitor NOAA Fisheries North Atlantic right whale reporting 
systems for the establishment of a dynamic management area (DMA). If 
NMFS establishes a DMA in the surrounding area, including the project 
area or export cable routes being surveyed, Atlantic Shores is required 
to abide by the 10-kn speed restriction.
    Seasonal Operating Requirements--Atlantic Shores will conduct HRG 
survey activities in the vicinity of a North Atlantic right whale Mid-
Atlantic seasonal management area (SMA). Activities must comply with 
the seasonal mandatory speed restriction period for this SMA (November 
1 through April 30) for any survey work or transit within this area.
    Training--Project-specific training is required for all vessel crew 
prior to the start of survey activities.
    Reporting--PSOs must record specific information as described in 
the Federal Register notice of the issuance of the 2022 IHA (87 FR 
50293, August 16, 2022). Within 90 days after completion of survey 
activities, Atlantic Shores must provide NMFS with a monitoring report, 
which must include summaries of recorded takes and estimates of the 
number of marine mammals that may have been harassed.
    In the event of a ship strike or discovery of an injured or dead 
marine mammal, Atlantic Shores must report the incident to the Office 
of Protected Resources (OPR), NMFS and to the New England/Mid-Atlantic 
Regional Stranding Coordinator as soon as feasible. The report must 
include the information listed in the Federal Register notice of the 
issuance of the initial IHA (87 FR 50293, August 16, 2022).

Preliminary Determinations

    Atlantic Shores' HRG survey activities are unchanged from those 
analyzed in support of the 2022 IHA. The effects of the activity, 
taking into consideration the proposed mitigation and related 
monitoring measures, remain unchanged from those evaluated in support 
of the 2022 IHA, regardless of the minor increases in estimated take 
for two marine mammal species (humpback whale and minke whale). NMFS 
expects that all potential takes would be short-term Level B behavioral 
harassment in the form of temporary avoidance of the area or decreased 
foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007). In addition to being 
temporary, the maximum expected harassment zone around a survey vessel 
is 141 m from use of the AA Dura-spark sparker. Although this distance 
is assumed for all survey activity evaluated here and in estimating 
take numbers proposed for authorization, in reality, much of the survey 
activity would involve use of non-impulsive acoustic sources with a 
reduced acoustic harassment zone of up to 56 m, producing expected 
effects of particularly low severity. The ensonified area surrounding 
each vessel is extremely small compared to the overall distribution of 
the animals in the area and the available habitat.
    Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the survey 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations. Even 
considering the increased estimated take for some species, the impacts 
of these lower severity exposures are not expected to accrue to a 
degree that the fitness of any individuals would be impacted and, 
therefore, no impacts on the annual rates of recruitment or survival 
would result.
    As previously discussed in the 2022 IHA (87 FR 50293, August 16, 
2022),

[[Page 41919]]

impacts from the survey are expected to be localized to the specific 
area of activity and only during periods when Atlantic Shores' acoustic 
sources are active. There are no rookeries, mating or calving grounds, 
or any feeding areas known to be biologically important to marine 
mammals within the proposed survey area. There is no designated 
critical habitat for any marine mammals listed under the Endangered 
Species Act (ESA) in the survey area.
    As noted for the 2022 IHA (87 FR 50293, August 16, 2022), the 
survey area overlaps a migratory corridor biologically important area 
(BIA) and migratory route seasonal management area (SMA) (Port of New 
Jersey/New York) for North Atlantic right whales. As the survey 
activities would be temporary and the spatial acoustic footprint 
produced by the survey would be very small relative to the spatial 
extent of the available migratory habitat in the BIA (269,448 km\2\), 
NMFS does not expect North Atlantic right whale migration to be 
impacted by the survey. Required vessel strike avoidance measures would 
also decrease risk of ship strike during migration; no ship strike is 
expected to occur during Atlantic Shores' proposed activities. Atlantic 
Shores would be required to comply with seasonal speed restrictions of 
these SMAs, and in any dynamic management area (DMA), should NMFS 
establish one (or more) in the proposed survey area. Additionally, 
Atlantic Shores requested, and NMFS proposes, to authorize only five 
takes by Level B harassment of North Atlantic right whales. This amount 
is less than the 24 Level B harassment takes authorized in the 2022 IHA 
due to the updated Duke University density data (Roberts et al., 2023).
    Although take by Level B harassment of North Atlantic right whales 
has been proposed for authorization by NMFS, we anticipate such take 
may not actually occur, and should it occur, we anticipate a very low 
level of harassment because Atlantic Shores is required to maintain a 
shutdown zone of 500 m if a North Atlantic right whale is observed. The 
takes proposed for authorization account for any missed animals wherein 
the survey equipment is not shut down immediately. As shutdown would be 
called for immediately upon detection (if the whale is within 500 m), 
it is likely the exposure time would be very limited and received 
levels would not be much above the harassment threshold. Further, the 
500-m SZ for North Atlantic right whales is conservative, considering 
the Level B harassment isopleth for the most impactful acoustic source 
(i.e., AA Dura-spark sparker) is estimated to be 141 m, and thereby 
minimizes the potential for behavioral harassment of this species. As 
noted previously, Level A harassment is not expected due to the small 
permanent threshold shift (PTS) zones associated with HRG equipment 
types proposed for use. NMFS does not anticipate North Atlantic right 
whale takes that would result from Atlantic Shores' activities would 
impact annual rates of recruitment or survival. Thus, any takes that 
occur would not result in population level impacts.
    We also note that our findings for other species with active UMEs 
that were previously described for the 2022 IHA remain applicable to 
this project. Therefore, in conclusion, there is no new information 
suggesting that our analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) the 
required mitigation measures would effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes would have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed authorized takes represent 
small numbers of marine mammals relative to the affected stock 
abundances; (4) Atlantic Shores' activities would 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 consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS is proposing to authorize the incidental take of four species 
of marine mammals which are listed under the ESA, the North Atlantic 
right, fin, sei, and sperm whale, and has determined that this activity 
falls within the scope of activities analyzed in NMFS Greater Atlantic 
Regional Fisheries Office's programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021).

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Atlantic Shores for conducting high-resolution 
geophysical site characterization surveys off New Jersey and New York 
for a period of 1 year, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. A draft of the 
proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses (included in both this document 
and the referenced documents supporting the 2022 IHA (ITA application; 
issued IHA; and Federal Register notices including 87 FR 38067, June 
27, 2022; 87 FR 50293, August 16, 2022)), the proposed authorization, 
and any other aspect of this notice of proposed IHA for the HRG marine 
site characterization surveys. We also request comment on the potential 
for renewal of this proposed IHA as described in the paragraph below. 
Please include with your comments any supporting data or literature 
citations to help inform our final decision on the request for MMPA 
authorization.
    On a case-by-case basis, NMFS may issue a one-time, 1-year renewal 
IHA following notice to the public providing an additional 15 days for 
public comments when (1) up to another year of identical or nearly 
identical activities as described in the Description of the Proposed 
Activity and Anticipated Impacts section of this notice is planned, or 
(2) the activities as described in the Description of the Proposed 
Activity and Anticipated Impacts section of this notice would not be 
completed by the time the IHA expires and a renewal would allow for 
completion of the activities beyond that described in the Dates and 
Duration section of this notice, provided all of the following 
conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed renewal IHA effective date (recognizing that the 
renewal IHA expiration date cannot extend beyond 1 year from expiration 
of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial

[[Page 41920]]

IHA, are a subset of the activities, or include changes so minor (e.g., 
reduction in pile size) that the changes do not affect the previous 
analyses, mitigation and monitoring requirements, or take estimates 
(with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: June 23, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-13764 Filed 6-27-23; 8:45 am]
BILLING CODE 3510-22-P