Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight, 47846-47865 [2023-15718]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 141 (Tuesday, July 25, 2023)]
[Notices]
[Pages 47846-47865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15718]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD092]


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Invenergy Wind Offshore, LLC (IWO) to incidentally harass marine 
mammals during marine site characterization surveys in waters off of 
New Jersey and New York in the New York Bight.

DATES: This authorization is effective from July 31, 2023, through July 
30, 2024.

ADDRESSES: Electronic copies of the application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, 
please call the contact listed below.

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

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

[[Page 47847]]

(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are proposed or, if the taking is limited to 
harassment, a notice of a proposed IHA is provided to the public for 
review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    On February 3, 2023, NMFS received a request from IWO for an IHA to 
take marine mammals incidental to conducting marine site 
characterization surveys in waters off of New Jersey and New York in 
the New York Bight, specifically within the Bureau of Ocean Energy 
Management (BOEM) Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-
A 0542 (Lease Area) and associated Export Cable Route survey area (ECR 
Area). Following NMFS' review of the application, IWO submitted a 
revised request on March 29, 2023. NMFS deemed the application adequate 
and complete on April 25, 2023. IWO's request is for take of small 
numbers of 15 species (16 stocks) of marine mammals by Level B 
harassment only. Neither IWO nor NMFS expect serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of the Specified Activity

Overview

    IWO plans to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) surveys, in waters off of 
New Jersey and New York in the New York Bight, specifically within BOEM 
Lease Area OCS-A 0542 and associated ECR Area, collectively considered 
the Survey Area.
    The planned marine site characterization surveys are designed to 
obtain data sufficient to meet BOEM guidelines for providing 
geophysical, geotechnical, and geohazard information for site 
assessment plan surveys and/or construction and operations plan 
development. The objective of the surveys is to support the site 
characterization, siting, and engineering design of offshore wind 
project facilities including wind turbine generators, offshore 
substations, and submarine cables within the Survey Area. Up to three 
vessels may conduct survey efforts concurrently. Underwater sound 
resulting from IWO's marine site characterization survey activities, 
specifically HRG surveys, has the potential to result in incidental 
take of marine mammals in the form of Level B harassment.

Dates and Duration

    The surveys are planned to begin no earlier than July 31, 2023 and 
are estimated to require a maximum of 274 survey days within a single 
year across a maximum of three vessels operating concurrently, which 
includes up to two vessels operating offshore (greater than 20 meters 
(m); 65 feet (ft) depth) and one vessel operating nearshore (less than 
20 m (65 ft) depth). The survey days may occur in any month throughout 
the year as the exact timing of the surveys during the year is not yet 
certain. A ``survey day'' is defined as a 24-hour (hr) activity period 
in which active acoustic sound sources are used offshore and a 12-hr 
activity period when a vessel is operating nearshore. It is expected 
that each offshore vessel will cover approximately 80 km of trackline 
per day surveyed at a speed of approximately 3.8 knots (kn; 7.0 
kilometer (km) per hr (km/hr)), and the nearshore vessel would cover 
25-30 km of trackline per day (inclusive of infills and line-turns), 
based on IWO's expectations regarding data acquisition efficiency. 
There is up to 12,818 km of trackline survey effort planned: a maximum 
trackline length of 7,460 km is planned for the Lease Area and 5,358 km 
for the ECR Area. The IHA would be effective for 1 year from the date 
of issuance.

Specific Geographic Region

    IWO's survey activities will occur in waters off of New Jersey and 
New York in the New York Bight, specifically within BOEM Lease Area 
OCS-A 0542 and associated ECR Area (Figure 1). The Survey Area (9,470 
square km (km\2\)) includes both the Lease Area (569 km\2\; 40-50 m 
depth) and ECR Area (8,901 km\2\; 1-55 m depth).
BILLING CODE 3510-22-P

[[Page 47848]]

[GRAPHIC] [TIFF OMITTED] TN25JY23.004

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

    IWO's marine site characterization surveys within the Survey Area 
include geotechnical and geophysical surveys, including depth sounding 
to determine water depth, site bathymetry, and general seafloor 
topography using a multibeam echosounder (MBES); seafloor imaging using 
a side-scan sonar; magnetic intensity measurements using a gradiometer; 
shallow penetration sub-bottom profilers (SBPs; compressed high-
intensity radiated pulse (CHIRP) and parametric); and medium 
penetration SBPs (sparkers).

[[Page 47849]]

    NMFS does not expect geotechnical survey activities or HRG survey 
activities using MBES, side-scan sonar, gradiometer, or shallow SBP to 
present a reasonably anticipated risk of causing incidental take of 
marine mammals, so these activities are not discussed further in this 
notice.
    The only acoustic sources planned for use during IWO's planned HRG 
surveys with the potential to cause incidental take of marine mammals 
are the sparkers. There are three sparker systems planned for use: 
Applied Acoustics Dura-Spark 240/400 (400 tip/500 joules (J)), Applied 
Acoustics Dura-Spark UHD 400+400 Seismic Sound Source (400 tip/500-800 
J), and the Geo-Source 200-400 Marine Multi-Tip Sparker System (400 
tip/400-500 J).
    A detailed description of IWO's planned HRG surveys is provided in 
the Federal Register notice for the proposed IHA (88 FR 32735, May 22, 
2023). Since that time, no changes have been made to the planned HRG 
survey activities. Therefore, a detailed description is not provided 
here. Please refer to that Federal Register notice for the detailed 
description of the specified activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to IWO was published in 
the Federal Register on May 22, 2023 (88 FR 32735), beginning a 30-day 
public comment period. That notice described, in detail, IWO's proposed 
activities, the marine mammal species that may be affected by the 
activities, and the anticipated effects on marine mammals. In that 
notice, we requested public input on the request for authorization 
described therein, our analyses, the proposed authorization, and any 
other aspect of the notice of proposed IHA, and requested that 
interested persons submit relevant information, suggestions, and 
comments.
    NMFS received 34 comment letters. Two of these comment letters were 
from non-governmental organizations: Clean Ocean Action (COA) and 
Oceana, and one from a private company (URN Surf Co.). The remaining 31 
comment letters were from private citizens.
    All comments from private citizens and the private company 
expressed general opposition to issuance of the IHA or to the 
underlying associated activities. We reiterate here that NMFS' action 
concerns only the authorization of marine mammal take incidental to the 
planned surveys--NMFS' authority under the MMPA does not extend to the 
surveys themselves, including the size of a survey area, or to wind 
energy development more generally. We reiterate here that no mortality 
is anticipated or authorized. Many of the comments requested that NMFS 
not issue any IHAs related to wind energy development and/or expressed 
opposition for wind energy development generally without providing 
information relevant to NMFS' decision. We do not specifically address 
comments expressing general opposition to activities related to wind 
energy development or respond to comments that are out of scope of the 
proposed IHA (88 FR 32735), such as comments on other Federal agency 
processes and activities not planned under this IHA.
    All substantive comments and NMFS' responses are provided below, 
and all comment letters are available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-invenergy-wind-offshore-llcs-site-characterization-surveys-new. Please review the 
comment letters for full details regarding the comments and associated 
rationale.
    Comment: Oceana raised objections to NMFS' proposed renewal process 
for potential extension of the 1-year IHA with an abbreviated 15-day 
public comment period. Oceana recommended that an additional 30-day 
public comment period is necessary for any IHA renewal request.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about IHA renewals (e.g., 
84 FR 52464, October 2, 2019; 85 FR 53342, August 28, 2020), NMFS 
explained the IHA renewal process is consistent with the statutory 
requirements contained in section 101(a)(5)(D) of the MMPA, and 
further, promotes NMFS' goals of improving conservation of marine 
mammals and increasing efficiency in the MMPA compliance process. 
Therefore, we intend to continue to implement the existing renewal 
process.
    All IHAs issued, whether an initial IHA or a renewal, are valid for 
a period of not more than 1 year. The public has 30 days to comment on 
proposed IHAs, with a cumulative total of 45 days for IHA renewals. The 
notice of the proposed IHA published in the Federal Register on May 22, 
2023 (88 FR 32735) provided a 30-day public comment period and made 
clear that NMFS was seeking comment on the proposed IHA and the 
potential issuance of an IHA renewal for this survey. As detailed in 
the Federal Register notice for the proposed IHA and on the agency's 
website, eligibility for renewal is determined on a case-by-case basis, 
renewals are subject to an additional 15-day public comment period, and 
the renewal is limited to up to another year of identical or nearly 
identical activities as described in the Description of Proposed 
Activities section of the proposed IHA notice or the activities 
described in the Description of Proposed Activities section of the 
proposed IHA 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. NMFS' 
analysis of the anticipated impacts on marine mammals caused by the 
applicant's activities covers both the initial IHA period and the 
possibility of a 1-year renewal. Therefore, a member of the public 
considering commenting on a proposed initial IHA also knows exactly 
what activities (or subset of activities) would be included in a 
proposed renewal IHA, the potential impacts of those activities, the 
maximum amount and type of take that could be caused by those 
activities, the mitigation and monitoring measures that would be 
required, and the basis for the agency's negligible impact 
determinations, least practicable adverse impact findings, small 
numbers findings, and (if applicable) the no unmitigable adverse impact 
on subsistence use finding--all the information needed to provide 
complete and meaningful comments on a possible renewal at the time of 
considering the proposed initial IHA. Reviewers have the information 
needed to meaningfully comment on both the immediate proposed IHA and a 
possible 1-year renewal, should the IHA holder choose to request one.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-

[[Page 47850]]

day public comment period, which includes NMFS' direct notice to anyone 
who commented on the proposed initial IHA, provides the public an 
opportunity to review these few documents, provide any additional 
pertinent information, and comment on whether they think the criteria 
for a renewal have been met. Combined together, the 30-day public 
comment period on the initial IHA and the additional 15-day public 
comment period on the renewal of the same or nearly identical 
activities, provides the public with a total of 45 days to comment on 
the potential for renewal of the IHA.
    In addition to the IHA renewal process being consistent with all 
requirements under section 101(a)(5)(D) of the MMPA, it is also 
consistent with Congress' intent for issuance of IHAs to the extent 
reflected in statements in the legislative history of the MMPA. Through 
the description of the process and express invitation to comment on 
specific potential renewals in the Request for Public Comments section 
of each proposed IHA, the description of the process on NMFS' website, 
further elaboration on the process through responses to comments such 
as these, posting of substantive documents on the agency's website, and 
provision of 30 or 45 days for public review and comment on all 
proposed initial IHAs and renewals respectively, NMFS has ensured that 
the public is ``invited and encouraged to participate fully in the 
agency's decision-making process,'' as Congress intended.
    Comment: Multiple commenters expressed concern that negative 
impacts to the local fishing industry 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 or 
evaluated in this IHA.
    Response: NMFS has determined that no serious injury or mortality 
is anticipated to result from IWO's specified activities and as 
discussed in the Negligible Impact Analysis and Determination section 
in this notice, only low-level behavioral harassment is expected for 
any affected marine mammal species. Furthermore, 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 
incidental take authorization (ITA).
    Comment: COA and Oceana stated that NMFS must utilize the best 
available science and suggested that NMFS has not done so, specifically 
referencing information regarding the North Atlantic right whale (NARW) 
such as updated population estimates, habitat usage in the survey area, 
and seasonality information. COA and Oceana specifically assert that 
NMFS is not using the best available science with regards to the NARW 
population estimate.
    Response: NMFS agrees that the best available science must be used 
in determining whether a request for incidental take of marine mammals 
will have a negligible impact on species or stocks of marine mammals 
and, where appropriate, will not have an unmitigable adverse impact on 
the availability of such species or stock for subsistence uses. NMFS 
considered all relevant information regarding NARW abundance estimates, 
including the commenter's cited information, and determined that the 
abundance estimate (338; 95 percent with a confidence interval of 325-
350) included in the 2022 draft Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), is the best available NARW abundance 
estimate (88 FR 32735, May 22, 2023).
    NMFS also considered the best available science regarding both 
recent habitat usage patterns for the study area and up-to-date 
seasonality information in the notice of the proposed IHA, including 
consideration of existing Biologically Important Areas (BIAs) and 
densities provided by Roberts et al. (2022). While the commenters 
suggest that NMFS consider best available information for recent 
habitat usage patterns and seasonality, they did not offer any 
additional information for NMFS to consider in place of what NMFS 
considered the best available science in its notice of proposed IHA (88 
FR 32735, May 22, 2023).
    Comment: Oceana noted that chronic stressors are an emerging 
concern for NARW conservation and recovery and stated that chronic 
stress may result in energetic effects for NARW. Oceana suggested that 
NMFS has not fully considered both the use of the area and the effects 
of both acute and chronic stressors on the health and fitness of NARW, 
as disturbance responses in NARW could lead to chronic stress or 
habitat displacement, leading to an overall decline in their health and 
fitness.
    Response: NMFS agrees with Oceana that both acute and chronic 
stressors are of concern for NARW conservation and recovery. We 
recognize that acute stress from acoustic exposure is one potential 
impact of these surveys, and that chronic stress can have fitness and 
reproductive impacts at the population-level scale. NMFS has carefully 
reviewed the best available scientific information in assessing impacts 
to marine mammals and recognizes that the surveys have the potential to 
impact marine mammals through behavioral effects, stress responses, and 
auditory masking. However, NMFS does not expect that the generally 
short-term, intermittent, and transitory marine site characterization 
survey activities planned by IWO will create conditions of acute or 
chronic acoustic exposure leading to long-term physiological stress 
responses in marine mammals. NMFS has also prescribed a robust suite of 
mitigation measures, including extended distance shutdowns for NARW, 
that are expected to further reduce the duration and intensity of 
acoustic exposure while limiting the potential severity of any possible 
behavioral disruption. The potential for chronic stress was evaluated 
in making the determinations presented in NMFS' negligible impact 
analyses. NARW generally use this location in a transitory manner, 
specifically for migration, and any potential impacts from these 
surveys are lessened for other behaviors due to the brief periods where 
exposure is possible. In context of these expected low-level impacts, 
which are not expected to meaningfully affect important behavior, we 
refer to the large size of the migratory corridor (269, 488 km2) 
compared with the approximately 3,615 km\2\ of total estimated Level B 
harassment ensonified area associated with the Survey Area. Thus, the 
transitory nature of NARW at this location means it is unlikely for any 
exposure to cause chronic effects, as IWO's planned survey area and 
ensonified zones are much smaller than the overall migratory corridor. 
As such, NMFS does not expect acute or cumulative stress to be a 
detrimental factor to NARW from IWO's described survey activities.
    Lastly, NMFS does not find that the effects of IWO's survey may 
contribute to stunted growth rates as suggested by Oceana's comments. 
The activities associated with IWO's survey are outside the scope of 
activities described in the Stewart et al. (2021) paper, which finds 
that entanglements in fishing gear are associated with shorter whales. 
There is no evidence suggesting that the survey activities considered 
herein could have energetic effects similar to those caused by 
entanglement in fishing gear. Therefore, NMFS does not expect stunted 
growth rates to result from IWO's described survey activities.
    Comment: COA states that there is no legal authority for permitting 
offshore geotechnical and geophysical survey

[[Page 47851]]

activities under BOEM, 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.
    Response: NMFS' statutory authority for this particular action is 
limited to authorizing incidental take of marine mammals. 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: Multiple commenters alleged that incidental take 
authorizations are in direct violation of the MMPA because they have 
not been demonstrated to do no harm and asserted that ``numerous 
studies'' or ``the scientific consensus'' exist that indicate survey 
activities are harmful.
    Response: The MMPA directs NMFS to authorize the incidental, but 
not intentional, taking by harassment of small numbers of marine 
mammals by U.S. citizens engaged in a specified activity within a 
specific geographic region if NMFS finds, based on the best scientific 
evidence available, that the taking by harassment will have a 
negligible impact on species or stock of marine mammal(s) and where 
applicable, will not have an unmitigable adverse impact on the 
availability of such species or stock for taking for subsistence uses. 
We incorporate by reference our findings below in the Negligible Impact 
Analysis and Determination section.
    Additionally, the commenters did not offer any additional 
scientific information for NMFS to consider in place of what NMFS 
considered the best available science in its notice of proposed IHA (88 
FR 32735, May 22, 2023).
    Comment: Multiple commenters urged NMFS to deny the proposed 
project and/or postpone any offshore wind (OSW) activities until NMFS 
determines effects of all OSW activities on marine mammals in the 
region and determines that the recent whale deaths are not related to 
OSW activities. Similarly, some commenters provided general concerns 
regarding recent whale stranding events on the Atlantic Coast, 
including speculation that the strandings may be related to wind energy 
development-related activities. However, the commenters did not provide 
any specific information supporting these concerns.
    Response: NMFS authorizes take of marine mammals incidental to 
marine site characterization surveys but does not authorize the surveys 
themselves. Therefore, while NMFS has the authority to modify, suspend, 
or revoke an IHA if the IHA holder fails to abide by the conditions 
prescribed therein (including, but not limited to, failure to comply 
with monitoring or reporting requirements), or if NMFS determines that 
(1) the authorized taking is having or is likely to have more than a 
negligible impact on the species or stocks of affected marine mammals, 
or (2) the prescribed measures are likely not or are not effecting the 
least practicable adverse impact on the affected species or stocks and 
their habitat, it is not within NMFS' jurisdiction to impose a 
moratorium on offshore wind development or to require surveys to cease.
    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 vessel 
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.
    As discussed herein, HRG sources may behaviorally disturb marine 
mammals (e.g., avoidance of 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 to HRG surveys would be at significantly lower levels 
and shorter duration compared to seismic airguns or military sonar, 
which is associated with less severe impacts to marine mammals.
    Comment: Several commenters expressed concern that the proposed IHA 
and its associated specified activities would lead to mortality (death) 
of marine mammals.
    Response: 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. Additionally, NMFS 
cannot authorize mortality or serious injury via an IHA, and such 
taking is prohibited under Condition 3(c) of the IHA and may result in 
modification, suspension, or revocation of the IHA. NMFS notes there 
has never been a report of any serious injuries or mortalities of a 
marine mammal associated with site characterization surveys.
    The best available science indicates that Level B harassment, or 
disruption of behavioral patterns, may occur as a result of IWO's 
specified activities. We also refer to the Greater Atlantic Regional 
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds 
that these survey activities are in general not likely to adversely 
affect marine mammal species listed under the Endangered Species Act 
(ESA) (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 at https://www.fisheries.noaa.gov/
new-england-mid-atlantic/consultations/section-7-take-reporting-
programmatics-

[[Page 47852]]

greater-atlantic#offshore-wind-site-assessment-and-site-
characterization-activities-programmatic-consultation.
    Comment: Two commenters asserted that NMFS must deny all actions 
until the cumulative impacts of every incidental take authorization on 
marine mammals are considered. COA and Oceana asserted that NMFS must 
fully consider the discrete effects of each activity and the cumulative 
effects of the suite of approved, proposed, and potential OSW 
activities on marine mammals and NARW, in particular, and ensure that 
the cumulative effects are not excessive before issuing or renewing an 
IHA.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the incidental take by harassment of small numbers of 
marine mammals by U.S. citizens ``while engaging in that [specified] 
activity'' within a specified geographic region will have a negligible 
impact on such species or stock and where appropriate, will not have an 
unmitigable adverse impact on the availability of such species or stock 
for subsistence uses. 16 U.S.C. 1371(a)(5)(D). Negligible impact is 
defined as ``an impact resulting from the specified activity that 
cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effect on annual rates of 
recruitment or survival. 50 CFR 216.103. Neither the MMPA nor NMFS' 
implementing regulations require consideration of other unrelated 
activities and their impacts on marine mammal populations in the 
negligible impact determination. Additionally, 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. Consistent with the preamble of 
NMFS' implementing regulations (54 FR 40338, September 29, 1989), the 
impacts from other past and ongoing anthropogenic activities are 
factored into the baseline, which is used in the negligible impact 
analysis. Here, 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 preamble of NMFS' implementing regulations (54 FR 40338, 
September 29, 1989) also addresses cumulative effects from future, 
unrelated activities. Such effects are not considered in making the 
negligible impact determination under MMPA section 101(a)(5). NMFS 
considers 1) cumulative effects that are reasonably foreseeable when 
preparing a National Environmental Policy Act (NEPA) analysis, and (2) 
reasonably foreseeable cumulative effects under section 7 of the ESA 
for ESA-listed species, as appropriate. Accordingly, NMFS has written 
Environmental Assessments (EA) that addressed cumulative impacts 
related to substantially similar activities in similar locations (e.g., 
the 2019 Avangrid EA for survey activities offshore North Carolina and 
Virginia; the 2017 Ocean Wind, LLC EA for site characterization surveys 
off New Jersey; and the 2018 Deepwater Wind EA for survey activities 
offshore Delaware, Massachusetts, and Rhode Island). Cumulative impacts 
regarding issuance of IHAs for site characterization survey activities 
such as those planned by IWO 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 IWO's IHA, which included consideration 
of extraordinary circumstances.
    Separately, the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New 
York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562, July 7, 
2017; 83 FR 28808, June 21, 2018; 83 FR 36539, July 30, 2018; and 86 FR 
26465, May 10, 2021), which are similar to those planned by IWO under 
this current IHA request. This Biological Opinion (BiOp) determined 
that NMFS' issuance of IHAs for site characterization survey activities 
associated with leasing, individually and cumulatively, are not likely 
to adversely affect listed marine mammals. NMFS notes that, while 
issuance of this IHA is covered under a different consultation, this 
BiOp remains valid.
    Comment: COA provided concerns related to the required mitigation 
measures, assessing the effectiveness of the mitigation measures, and 
reporting the use of the mitigation measures in real-time, and 
questioned the feasibility of the shutdown mitigation requirements in 
real-world conditions and what would occur if the authorized take 
levels were exceeded.
    Response: In regards to a scenario where IWO exceeds their 
authorized take level for a particular species, any further take of 
that species would be unauthorized and, therefore, prohibited under the 
MMPA. All mitigation measures stated in this notice and in the issued 
IHA are considered feasible. NMFS works with each ITA applicant, 
including IWO, to ensure that project-specific mitigation measures are 
possible in real-world conditions. This includes shutdown zones when 
there is reduced visibility. As stated in the IHA condition 5(d), IWO 
must ensure certain equipment is provided to protected species 
observers (PSOs), such as thermal (infrared) cameras, to allow PSOs to 
adequately complete their duties, including in reduced-visibility 
conditions. NMFS does not agree that additional wording is necessary 
within the IHA to further describe the requirement and implementation 
of shutdown zones. If NMFS determines during the effective period of 
the IHA that the prescribed measures are likely not or are not 
effecting the least practicable adverse impact on the affected species 
or stocks and their habitat, NMFS may modify, suspend, or revoke the 
IHA. NMFS disagrees that the IHA's mitigation measures are 
insufficient.
    NMFS reviews required reporting (see Monitoring and Reporting) and 
uses the information to evaluate the mitigation measure effectiveness. 
Additionally, the mitigation measures included in IWO's IHA are not 
unique, and data from prior IHAs support the effectiveness of these 
mitigation measures. NMFS finds the level of reporting currently 
required is sufficient for managing the issued IHA and monitoring the 
affected stocks of marine mammals.
    Comment: COA objected to NMFS' ``small numbers'' determination for 
the numbers of marine mammals taken by Level B harassment under IWO's 
planned activities.
    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

[[Page 47853]]

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)). NMFS has made the necessary small 
numbers finding for all affected species and stocks in this case.
    Comment: Oceana recommended that NMFS restrict all vessels of all 
sizes associated with the proposed survey activities to speeds less 
than 10 kn at all times due to the risk of vessel strikes to NARW and 
other large whales.
    Response: While NMFS acknowledges that vessel strikes can result in 
serious injury or mortality of marine mammals, we have analyzed the 
potential for vessel strike resulting from IWO's activity and have 
determined that based on the nature of the activity (i.e., survey 
vessel speed is typically 4-5 kn while towing gear, smaller size of 
vessels, generally slower speeds during transit), the potential for 
vessel strike is so low as to be discountable. We also determined that 
the vessel strike avoidance measures (Condition 4(m)), along with all 
other mitigation and monitoring measures, in the IHA are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. Furthermore, no documented vessel strikes have occurred 
for any marine site characterization surveys which were issued IHAs 
from NMFS during HRG survey activities themselves or while transiting 
to and from survey sites.
    Comment: COA expressed concern regarding ocean noise and the 
interference it has on communication between whales.
    Response: NMFS has carefully reviewed the best available scientific 
information in assessing impacts to marine mammals and determined that 
the surveys have the potential to impact marine mammals through 
behavioral effects and auditory masking. NMFS agrees that noise 
pollution in marine waters is an issue and is affecting marine mammals, 
including their ability to communicate when noise reaches certain 
thresholds. However, NMFS does not expect that the generally short-
term, intermittent, and transitory marine site characterization survey 
activities planned by IWO will create conditions of acute or chronic 
acoustic exposure leading to long-term physiological impacts in marine 
mammals. NMFS' prescribed mitigation measures are expected to further 
reduce the duration and intensity of acoustic exposure while limiting 
the potential severity of any possible behavioral disruption.
    Comment: One commenter claims NMFS failed to include Level B 
harassment impacts in its NEPA analysis.
    Response: NMFS has determined that the issuance of this IHA 
qualifies to be categorically excluded from further NEPA review because 
it 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 (NAO) 
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.

Changes From the Proposed IHA to Final IHA

    One change was made from the proposed IHA as a result of 
consultation with GARFO: an addition to the Monitoring and Reporting 
section specifying requirements relating to the use of a ``trained 
lookout'' in lieu of a PSO during required breaks for the approved PSO 
on duty on space-limited nearshore vessels.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' SARs (www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is authorized 
for this activity and summarizes information related to the species or 
stock, including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. PBR is defined by the MMPA as 
the maximum number of animals, not including natural mortalities, that 
may be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS' SARs). While no serious injury or mortality is authorized here, 
PBR and annual serious injury and mortality from anthropogenic sources 
are included here as gross indicators of the status of the species or 
stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All MMPA managed stocks in this region are assessed 
in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
Table 1 are the most recent available at the time of publication 
(including from the draft 2022 SARs) and are available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

[[Page 47854]]



                                       Table 1--Species and Stocks Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     ESA/MMP A status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           Strategic (Y/N)      Nmin, most recent        PBR       Annual  M/
                                                                                            \2\          abundance survey) \3\                  SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale.....  Eubalaena glacialis...  Western North Atlantic  E/D; Y             338 (0; 332; 2020)....          0.7          8.1
Family Balaenopteridae (rorquals):
    Fin whale......................  Balaenoptera physalus.  Western North Atlantic  E/D; Y             6,802 (0.24; 5,573,              11          1.8
                                                                                                         2016).
    Humpback whale.................  Megaptera novaeangliae  Gulf of Maine.........  -/-; Y             1,396 (0; 1,380; 2016)           22        12.15
    Minke whale....................  Balaenoptera            Canadian East Coastal.  -/-; N             21,968 (0.31; 17,002;           170         10.6
                                      acutrostrata.                                                      2016).
    Sei whale......................  Balaenoptera borealis.  Nova Scotia...........  E/D; Y             6,292 (1.02; 3,098;             6.2          0.8
                                                                                                         2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale....................  Physeter macrocephalus  North Atlantic........  E/D; Y             4,349 (0.28; 3,451;             3.9            0
                                                                                                         2016).
Family Delphinidae:
    Atlantic spotted dolphin.......  Stenella frontalis....  Western North Atlantic  -/-; N             39,921 (0.27; 32,032;           320            0
                                                                                                         2016).
    Atlantic white-sided dolphin...  Lagenorhynchus acutus.  Western North Atlantic  -/-; N             93,233 (0.71; 54,443;           544           27
                                                                                                         2016).
    Bottlenose dolphin.............  Tursiops truncatus....  Western North           -/-; N             62,851 (0.23; 51,914;           519           28
                                                              Atlantic, Offshore.                        2016).
    Bottlenose dolphin.............  Tursiops truncatus....  Western North           -/D; Y             6,639 (0.41; 4,759;              48    12.2-21.5
                                                              Atlantic, Northern                         2016).
                                                              Migratory Coastal.
    Long-finned pilot whale........  Globicephala melas....  Western North Atlantic  -/-; N             39,215 (0.3; 30,627;            306            9
                                                                                                         2016).
    Risso's dolphin................  Grampus griseus.......  Western North Atlantic  -/-; N             35,215 (0.19; 30,051;           301           34
                                                                                                         2016).
    Common dolphin.................  Delphinus delphis.....  Western North Atlantic  -/-; N             172,974 (0.21;                1,452          390
                                                                                                         145,216; 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise................  Phocoena phocoena.....  Gulf of Maine/Bay of    -/-; N             95,543 (0.31; 74,034;           851          164
                                                              Fundy.                                     2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \5\..................  Halichoerus grypus....  Western North Atlantic  -/-; N             27,300 (0.22; 22,785;         1,389        4,453
                                                                                                         2016).
    Harbor seal....................  Phoca vitulina........  Western North Atlantic  -/-; N             61,336 (0.08; 57,637;         1,729          329
                                                                                                         2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g.,
  commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A
  CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,600. The annual M/SI given is for the total stock.

    A detailed description of the species likely to be affected by this 
project, including brief introductions to the species and relevant 
stocks, population trends and threats, and local occurrence, were 
provided in the Federal Register notice for the proposed IHA (88 FR 
32735, May 22, 2023). Since that time, we are not aware of any changes 
in the status of these species and stocks; therefore, detailed 
descriptions are not provided here. Please refer to the Federal 
Register notice (88 FR 32735, May 22, 2023) for these descriptions. 
Please also refer to the NMFS website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 2005, Wartzok and 
Ketten, 1999, Au and Hastings, 2008). To reflect this, Southall et al. 
(2007), Southall et al. (2019) recommended that marine mammals be 
divided into hearing groups based on directly measured (behavioral or 
auditory evoked potential techniques) or estimated hearing ranges 
(behavioral response data, anatomical modeling, etc.). Note that no 
direct measurements of hearing ability have been successfully completed 
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS 
(2018) described generalized hearing ranges for these marine mammal 
hearing groups. Generalized hearing ranges were chosen based on the

[[Page 47855]]

approximately 65 decibel (dB) threshold from the normalized composite 
audiograms, with the exception for lower limits for low-frequency 
cetaceans where the lower bound was deemed to be biologically 
implausible and the lower bound from Southall et al. (2007) retained. 
Marine mammal hearing groups and their associated hearing ranges are 
provided in Table 2.

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

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat can be found in the Federal 
Register notice for the proposed IHA (88 FR 32735, May 22, 2023). There 
is no new information on the potential effects of the specified 
activities on marine mammals. Therefore, that information is not 
repeated here; please refer to the Federal Register notice (88 FR 
32735, May 22, 2023).

Estimated Take

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

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Ellison et al., 2012; Southall et al., 2007; Southall et 
al., 2021). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS generally predicts that marine 
mammals are likely to be behaviorally harassed in a manner considered 
to be Level B harassment when exposed to underwater anthropogenic noise 
above root mean squared (RMS) sound pressure level (SPL) of 120 dB 
(referenced to 1 microPascal (re 1 [mu]Pa)) for continuous (e.g., 
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources.

[[Page 47856]]

    Generally speaking, Level B harassment take estimates based on 
these behavioral harassment thresholds are expected to include any 
likely takes by temporary threshold shift (TTS) as, in most cases, the 
likelihood of TTS occurs at distances from the source less than those 
at which behavioral harassment is likely. TTS of a sufficient degree 
can manifest as behavioral harassment, as reduced hearing sensitivity 
and the potential reduced opportunities to detect important signals 
(conspecific communication, predators, prey) may result in changes in 
behavior patterns that would not otherwise occur.
    IWO's marine site characterization surveys include the use of 
impulsive (i.e., sparker) sources, and therefore the RMS SPL threshold 
of 160 dB re 1 [mu]Pa is applicable.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance; NMFS, 2018) identifies dual criteria to assess 
auditory injury (Level A harassment) to five different marine mammal 
groups (based on hearing sensitivity) as a result of exposure to noise 
from two different types of sources (impulsive or non-impulsive).
    The references, analysis, and methodology used in the development 
of the thresholds are described in NMFS (2018) Technical Guidance, 
which may be accessed at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    IWO's marine site characterization surveys include the use of 
impulsive (i.e., sparker) sources. However, as discussed above, NMFS 
has concluded that Level A harassment is not a reasonably likely 
outcome for marine mammals exposed to noise through use of the sources 
planned for use here, and the potential for Level A harassment is not 
evaluated further in this document. Please see IWO's application for 
details of a quantitative exposure analysis exercise (i.e., calculated 
Level A harassment isopleths and estimated Level A harassment 
exposures). IWO did not request authorization of take by Level A 
harassment, and no take by Level A harassment is authorized by NMFS.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality (when relevant) to refine estimated ensonified 
zones. For acoustic sources that operate with different beamwidths, the 
maximum beamwidth was used, and the lowest frequency of the source was 
used when calculating the frequency-dependent absorption coefficient. 
IWO used 180-degree beamwidth in the calculation for the sparker 
systems as is appropriate for an omnidirectional source.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases where the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends either the source levels provided by the manufacturer be 
used, or, in instances where source levels provided by the manufacturer 
are unavailable or unreliable, a proxy from Crocker and Fratantonio 
(2016) be used instead. Table 1 in the Federal Register notice for the 
proposed IHA (88 FR 32735, May 22, 2023) shows the HRG equipment type 
used during the planned surveys and the source levels associated with 
those HRG equipment types.
    IWO plans to use the Applied Acoustics Dura-Spark 240/400 (400 tip/
500 Joules (J)), Applied Acoustics Dura-Spark UHD 400+400 (400 tip/500-
800 J), and the Geo-Source 200-400 Marine Multi-tip Sparker System (400 
tip/400-500 J). For the two Applied Acoustics source configurations 
(Table 1 in the Federal Register notice for the proposed IHA (88 FR 
32735, May 22, 2023)), the maximum power expected to be discharged is 
800 J. However, Crocker and Fratantonio (2016) did not measure the 
Dura-Spark with an energy of 800 J, only 500 J, 2,000 J, and 2,400 J, 
so the source level values for 500 J (provided in Table 10 of Crocker 
and Fratantonio, 2016) were used as a proxy, as this setting was 
anticipated to be more representative of the application of the 
equipment than the next level reported for 2,000 J. The Applied 
Acoustics Dura-Spark was also used as a proxy for the Geo-Source 200-
400 Marine Multi-tip Sparker System (400 tip/400-500 J). Using the 
measured source level of 203 dB RMS SPL of the proxy, results of 
modeling indicated that all three sparkers would produce an estimated 
distance of 141 m to the Level B harassment isopleth.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment proposed for use by the applicant 
(Table 1 in the Federal Register notice for the proposed IHA (88 FR 
32735, May 22, 2023)) that has the potential to result in Level B 
harassment of marine mammals, all three systems would produce the same 
distance to the Level B harassment isopleth (141 m). More detail is 
provided on the acoustic sources and methodology in the Federal 
Register notice for the proposed IHA; please refer to the Federal 
Register notice (88 FR 32735, May 22, 2023).

Marine Mammal Occurrence

    In this section, we provide information about the occurrence of 
marine mammals, including density or other relevant information that 
will inform the take calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, Roberts et al., 
2023) represent the best available information regarding marine mammal 
densities in the planned survey area. These density data incorporate 
aerial and shipboard line-transect survey data from NMFS and other 
organizations and incorporate data from numerous physiographic and 
dynamic oceanographic and biological covariates, and controls for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. These density models were 
originally developed for all cetacean taxa in the U.S. Atlantic in 2016 
and models for all taxa were updated in 2022 (Roberts et al., 2016, 
Roberts et al., 2023). More information is available online at https://seamap.env.duke.edu/models/Duke/EC/ EC/. Marine mammal density estimates 
in the survey area (animals/km\2\) were obtained using the most recent 
model results for all taxa.
    For the exposure analysis, density data from Roberts et al. (2023) 
were mapped using a geographic information system (GIS). For the survey 
area, the monthly densities of each species as reported by Roberts et 
al. (2023) were averaged by season; thus, a density was calculated for 
each species for spring, summer, fall, and winter. Density seasonal 
averages were calculated for both the Lease Area and the ECR Area for 
each species to assess the greatest average seasonal densities for each

[[Page 47857]]

species. To be conservative since the exact timing for the survey 
during the year is uncertain, the greatest average seasonal density 
calculated for each species was carried forward in the exposure 
analysis, with exceptions noted later in this discussion. Estimated 
greatest average seasonal densities (animals/km\2\) of marine mammal 
species that may be taken incidental to the planned survey can be found 
in Tables 6-1 and 6-2 of IWO's IHA application. Below, we discuss how 
densities were assumed to apply to specific species for which the 
Roberts et al. (2023) models provide results at the genus or guild 
level.
    There are two stocks of bottlenose dolphins that may be impacted by 
the surveys (Western North Atlantic Northern Migratory Coastal Stock 
(Coastal Stock) and Western North Atlantic Offshore Stock (Offshore 
Stock)), however, Roberts et al. (2023) do not differentiate by stock. 
The Coastal Stock is assumed to generally occur in waters less than 20 
m (65 ft) and the Offshore Stock in waters greater than 20 m (65 ft) 
isobath. The Lease Area is in waters greater than 20 m (65 ft) depth 
and only the Offshore Stock would occur and potentially be taken by 
survey effort in that area. Both stocks could occur in the ECR Area, so 
IWO calculated separate mean seasonal densities for the portion that is 
less than 20 m depth and for the portion that is greater than 20 m 
depth to use for estimating take of the Coastal and Offshore Stocks of 
bottlenose dolphins, respectively.
    Furthermore, the Roberts et al. (2023) density model does not 
differentiate between the different pinniped species. For seals, given 
their size and behavior when in the water, seasonality, and feeding 
preferences, there is limited information available on species-specific 
distribution. Density estimates from Roberts et al. (2023) include all 
seal species that may occur in the Western North Atlantic combined 
(i.e., gray, harbor, harp, hooded). For this IHA, only gray seals and 
harbor seals are reasonably expected to occur in the survey area; 
densities of seals were split evenly between these two species.
    Finally, the Roberts et al. (2023) density model does not 
differentiate between pilot whale species. While the exact latitudinal 
ranges of the two species are uncertain, only long-finned pilot whales 
are expected to occur in this project area due to their more northerly 
distribution and tolerance of shallower, colder shelf waters (Hayes et 
al., 2022). We assume that all pilot whales near the project area would 
be long-finned pilot whales due to their range overlapping and short-
finned pilot whales are not anticipated to occur as far north as the 
survey area (Garrison and Rosel, 2017). For this IHA, densities of 
pilot whales are assumed to be only long-finned pilot whale.

Take Estimation

    Here, we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and authorized.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to Level B harassment 
thresholds were calculated, as described above. The distance (i.e., 141 
m distance associated with the sparker systems) to the Level B 
harassment criterion and the total length of the survey trackline were 
then used to calculate the total ensonified area, or harassment zone, 
around the survey vessel.
    IWO plans to conduct HRG surveys for a maximum total of 12,818 km 
trackline length, of which 7,460 km are in the Lease Area and 5,358 km 
are in the ECR Area. Of the ECR Area trackline, 1,600 km are in waters 
less than 20 m depth. Based on the maximum estimated distance to the 
Level B harassment threshold (141 m) for all three sparker systems and 
maximum total survey length, the total ensonified area is 3,615 km\2\ 
(2,104 km\2\ Lease Area and 1,511 km\2\ ECR Area (452 km\2\ in waters 
less than 20 m depth; 1,059 km\2\ in waters greater than 20 m depth)), 
based on the following formula, where the total estimated trackline 
length (L) in each area was used and buffered with the horizontal 
distance to the Level B harassment threshold (R) to determine the total 
area ensonified to 160 dB SPL.

Harassment Zone = (L x 2R) + [pi]R2

    The number of marine mammals expected to be incidentally taken 
during the total survey was then calculated by estimating the number of 
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the greatest seasonal estimated marine mammal 
densities as described above. The product is then rounded to generate 
an estimate of the total number of instances of harassment expected for 
each species over the duration of the survey (up to 274 days). A 
summary of this method is illustrated in the following formula, where 
the Harassment Zone is multiplied by the highest seasonal mean density 
(D) of each species or stock (animals/km\2\; except for pilot whales 
where annual density was used based on data availability).

Estimated Take = Harassment Zone x D

    The resulting take of marine mammals (Level B harassment only) is 
shown in Table 3.

                                                Table 3--Estimated Take Numbers and Total Take Authorized
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Ensonified area   Density (animals/                    Total take      Percent of
                              Species                                    (km\2\)             km\2\)       Estimated take    authorized     abundance \A\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale........................................              3,615           0.001748               6               6            1.87
Humpback whale....................................................              3,615           0.003657              13              13            0.95
Fin whale.........................................................              3,615           0.004856              18              18            0.26
Sei whale.........................................................              3,615           0.001813               7               7            0.10
Minke whale.......................................................              3,615           0.025476              92              92            0.42
Sperm whale.......................................................              3,615           0.000371               1      [dagger] 2            0.03
Risso's dolphin...................................................              3,615           0.002841              10              10            0.03
Long-finned pilot whale...........................................              3,615           0.003363              12     [dagger] 15            0.03
Atlantic white-sided dolphin......................................              3,615           0.027836             101             101            0.11
Common dolphin....................................................              3,615           0.245719             888             888            0.51
Atlantic spotted dolphin..........................................              3,615           0.011683              42              42            0.11
Harbor porpoise...................................................              3,615           0.262904             950             950            0.99
Common bottlenose dolphin (Offshore Stock) \B\....................              3,164           0.193127             611             611            0.97
Common bottlenose dolphin (Northern Migratory Coastal Stock) \C\..                452           1.758553             795             795           11.97
Gray seal.........................................................              3,615       \D\ 0.262904             950             950            0.21

[[Page 47858]]

 
Harbor seal.......................................................              3,615       \D\ 0.262904             950             950        \E\ 1.55
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Take request based on average group size using sightings data from (CETAP, 1982, Palka et al., 2017, Palka et al., 2021) (see Attachment 3 of
  application).
\A\ Based on the 2022 draft marine mammal stock assessment reports (SAR).
\B\ The ensonified area for the offshore stock is for greater than 20 m water depth includes all the lease area and portions of the ECR.
\C\ The ensonified area for the migratory coastal stock is only the areas of less than 20 m water depth (found only in portions of the ECR).
\D\ These each represent 50 percent of a generic seal density value.
\E\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock abundance estimate for U.S. population
  is only 27,300.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, NMFS considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and,
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    The following mitigation measures must be implemented during IWO's 
planned marine site characterization surveys. Pursuant to section 7 of 
the ESA, IWO would also be required to adhere to relevant Project 
Design Criteria (PDC) of the NMFS' GARFO programmatic consultation 
(specifically PDCs 4, 5, and 7) regarding geophysical surveys along the 
U.S. Atlantic coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Visual Monitoring and Shutdown Zones

    IWO must employ independent, dedicated, trained PSOs, meaning that 
the PSOs must (1) be employed by a third-party observer provider, (2) 
have no tasks other than to conduct observational effort, collect data, 
and communicate with and instruct relevant vessel crew with regard to 
the presence of marine mammals and mitigation requirements (including 
brief alerts regarding maritime hazards), and (3) have successfully 
completed an approved PSO training course appropriate for geophysical 
surveys. Visual monitoring must be performed by qualified, NMFS-
approved PSOs. PSO resumes must be provided to NMFS for review and 
approval prior to the start of survey activities.
    During survey operations (e.g., any day in which use of the sparker 
system is planned to occur, and whenever the sparker system is in the 
water, whether activated or not), a minimum of one visual PSO must be 
on duty on each source vessel and conducting visual observations at all 
times during daylight hours (i.e., from 30 minutes (min) prior to 
sunrise through 30 min following sunset). A minimum of two PSOs must be 
on duty on each source vessel during nighttime hours. Visual monitoring 
must begin no less than 30 min prior to ramp-up (described below) and 
must continue until 30 min after use of the sparker system ceases.
    Visual PSOs shall coordinate to ensure 360-degree visual coverage 
around the vessel from the most appropriate observation posts and shall 
conduct visual observations using binoculars and the naked eye while 
free from distractions and in a consistent, systematic, and diligent 
manner. PSOs shall establish and monitor applicable shutdown zones (see 
below). These zones shall be based upon the radial distance from the 
sparker system (rather than being based around the vessel itself).
    Two shutdown zones are defined, depending on the species and 
context. Here, an extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 m from the sparker system 
(0-500 m) is defined for NARW. For all other marine mammals, the 
shutdown zone encompasses a standard distance of 100 m (0-100 m) during 
the use of the sparker. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey shall be relayed 
to the PSO team.
    Visual PSOs may be on watch for a maximum of 4 consecutive hours 
followed by a break of at least 1 hr between watches and may conduct a 
maximum of 12 hr of observation per 24-hr period.

Pre-Start Clearance and Ramp-Up

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
sparker system when technically feasible. Operators should ramp up 
sparker to half power for 5 min and then proceed to full power. A 30 
min pre-start clearance observation period of the shutdown zones must 
occur prior to the start of ramp-up. The intent of the pre-start 
clearance observation period (30 min) is to ensure no marine mammals 
are within the shutdown zones prior to the beginning of ramp-up. The 
intent of the ramp-up is to warn marine mammals of pending operations 
and to allow sufficient time for those animals to leave the immediate 
vicinity. All operators must adhere to the following pre-start 
clearance and ramp-up requirements:
     The operator must notify a designated PSO of the planned 
start of ramp-up as agreed upon with the lead

[[Page 47859]]

PSO; the notification time should not be less than 60 min prior to the 
planned ramp-up in order to allow the PSOs time to monitor the shutdown 
zones for 30 min prior to the initiation of ramp-up (pre-start 
clearance). During this 30 min pre-start clearance period the entire 
shutdown zone must be visible, except as indicated below.
     Ramp-ups shall be scheduled so as to minimize the time 
spent with the source activated.
     A visual PSO conducting pre-start clearance observations 
must be notified again immediately prior to initiating ramp-up 
procedures and the operator must receive confirmation from the PSO to 
proceed.
     Any PSO on duty has the authority to delay the start of 
survey operations if a marine mammal is detected within the applicable 
pre-start clearance zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that mitigation commands are conveyed swiftly 
while allowing PSOs to maintain watch.
    The pre-start clearance requirement is waived for small delphinids 
and pinnipeds. Detection of a small delphinid (individual belonging to 
the following genera of the Family Delphinidae: Steno, Delphinus, 
Lagenorhynchus, Stenella, and Tursiops) or pinniped within the shutdown 
zone does not preclude beginning of ramp-up, unless the PSO confirms 
the individual to be of a genus other than those listed, in which case 
normal pre-clearance requirements apply.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which the pre-clearance requirement is 
waived), PSOs may use best professional judgment in making the decision 
to call for a shutdown.
     Ramp-up may not be initiated if any marine mammal to which 
the pre-start clearance requirement applies is within the shutdown 
zone. If a marine mammal is observed within the shutdown zone during 
the 30 min pre-start clearance period, ramp-up may not begin until the 
animal(s) has been observed exiting the zones or until an additional 
time period has elapsed with no further sightings (30 min for all 
baleen whale species and sperm whales, 15 min for all other species).
     PSOs must monitor the shutdown zones 30 min before and 
during ramp-up, and ramp-up must cease and the source must be shut down 
upon observation of a marine mammal within the applicable shutdown 
zone.
     Ramp-up may occur at times of poor visibility, including 
nighttime, if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 min prior to beginning ramp-up. 
Sparker activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If the acoustic source is shut down for brief periods (i.e., less 
than 30 min) for reasons other than implementation of prescribed 
mitigation (e.g., mechanical difficulty), it may be activated again 
without ramp-up if PSOs have maintained constant visual observation and 
no detections of marine mammals have occurred within the applicable 
shutdown zone. For any longer shutdown, pre-start clearance observation 
and ramp-up are required.

Shutdown Procedures

    All operators must adhere to the following shutdown requirements:
     Any PSO on duty has the authority to call for shutdown of 
the sparker system if a marine mammal is detected within the applicable 
shutdown zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
source to ensure that shutdown commands are conveyed swiftly while 
allowing PSOs to maintain watch.
     When the sparker system is active and a marine mammal 
appears within or enters the applicable shutdown zone, the source must 
be shut down. When shutdown is instructed by a PSO, the sparker system 
must be immediately deactivated and any dispute resolved only following 
deactivation.
     Two shutdown zones are defined, depending on the species 
and context. An extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 m from the sparker system 
(0-500 m) is defined for NARW. For all other marine mammals, the 
shutdown zone encompasses a standard distance of 100 m (0-100 m) during 
the use of the sparker.
    The shutdown requirement is waived for small delphinids and 
pinnipeds. If a small delphinid (individual belonging to the following 
genera of the Family Delphinidae: Steno, Delphinus, Lagenorhynchus, 
Stenella, and Tursiops) or pinniped is visually detected within the 
shutdown zone, no shutdown is required unless the PSO confirms the 
individual to be of a genus other than those listed, in which case a 
shutdown is required.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived or one of the species 
with a larger shutdown zone), PSOs may use best professional judgment 
in making the decision to call for a shutdown.
    Upon implementation of shutdown, the source may be reactivated 
after the marine mammal has been observed exiting the applicable 
shutdown zone or following a clearance period (30 min for all baleen 
whale species and sperm whales, 15 min for all other species) with no 
further detection of the marine mammal.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (141 m), shutdown must occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel must use an appropriate reference 
guide that includes identifying information on all marine mammals that 
may be encountered. Vessel operators must comply with the below 
measures except under extraordinary circumstances when the safety of 
the vessel or crew is in doubt or the safety of life at sea is in 
question. These requirements do not apply in any case where compliance 
would create an imminent and serious threat to a person or vessel or to 
the extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.
    Vessel operators and crews must maintain a vigilant watch for all 
marine mammals and slow down, stop their vessel(s), or alter course, as 
appropriate and regardless of vessel size, to avoid striking any marine 
mammals. A single marine mammal at the surface may indicate the 
presence of submerged animals in the vicinity of the vessel; therefore, 
precautionary measures should always be exercised. A visual observer 
aboard the vessel must monitor a vessel strike avoidance zone around 
the vessel (species-specific distances are detailed below). Visual 
observers monitoring the vessel strike avoidance zone may be third-
party observers (i.e., PSOs) or crew members, but crew members 
responsible for these duties must be provided sufficient training to 
(1) distinguish marine mammal from other phenomena, and (2) broadly to 
identify a marine mammal as a NARW, other whale (defined in this 
context as sperm whales or baleen whales other

[[Page 47860]]

than NARWs), or other marine mammals.
    All survey vessels, regardless of size, must observe a 10-kn (18.52 
km/hr) speed restriction in specific areas designated by NMFS for the 
protection of NARWs from vessel strikes. These include all SMAs 
established under 50 CFR 224.105 (when in effect), any DMAs (when in 
effect), and Slow Zones. See www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail regarding these areas.
     All vessels must reduce speed to 10 kn (18.52 km/hr) or 
less when mother/calf pairs, pods, or large assemblages of cetaceans 
are observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from NARWs, baleen whales (except humpback and minke), sperm 
whales, and any unidentified large whales. If a NARW, baleen whale 
(except humpback and minke), sperm whale, and any unidentified large 
whale is sighted within the relevant separation distance, the vessel 
must steer a course away at 10 kn (18.52 km/hr) or less until the 500-m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species other than a NARW, the vessel operator 
must assume that it is a NARW and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from all humpback and minke whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel).
     When marine mammals are sighted while a vessel is 
underway, the vessel must take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area, reduce speed and shift 
the engine to neutral). This does not apply to any vessel towing gear 
or any vessel that is navigationally constrained.
    Members of the PSO team will consult the NMFS NARW reporting system 
and Whale Alert, daily and as able, for the presence of NARWs 
throughout survey operations, and for the establishment of DMAs and/or 
Slow Zones. It is IWO's responsibility to maintain awareness of the 
establishment and location of any such areas and to abide by these 
requirements accordingly.

Seasonal Operating Requirements

    As described above, a section of the Survey Area partially overlaps 
with a portion of a NARW SMA off the port of New York/New Jersey. This 
SMA is active from November 1 through April 30 of each year. The survey 
vessel, regardless of length, would be required to adhere to vessel 
speed restrictions (less than 10 kn (18.52 km/hr)) when operating 
within the SMA during times when the SMA is active (Table 4).

               Table 4--North Atlantic Right Whale DMA and SMA Restrictions Within the Survey Area
----------------------------------------------------------------------------------------------------------------
           Survey area                  Species        DMA restrictions       Slow zones       SMA  restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area......................  North Atlantic      If established by   If established by   N/A.
                                   right whale.        NMFS, all of        NMFS, all of
                                                       IWO's vessel will   IWO's vessel will
                                                       abide by the        abide by the
                                                       described           described
                                                       restrictions.       restrictions.
ECR Area (within SMA)...........  North Atlantic      If established by   If established by   November 1 through
                                   right whale.        NMFS, all of        NMFS, all of        April 31 (Ports
                                                       IWO's vessel will   IWO's vessel will   of New York/New
                                                       abide by the        abide by the        Jersey).
                                                       described           described
                                                       restrictions.       restrictions.
ECR Area (outside SMA)..........  North Atlantic      If established by   If established by   N/A.
                                   right whale.        NMFS, all of        NMFS, all of
                                                       IWO's vessel will   IWO's vessel will
                                                       abide by the        abide by the
                                                       described           described
                                                       restrictions.       restrictions.
----------------------------------------------------------------------------------------------------------------
More information on Vessel Strike Reduction for the NARW can be found at NMFS' website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales whales.

    Based on our evaluation of the applicant's planned measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
planned mitigation measures provide the means of effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

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

[[Page 47861]]

     Mitigation and monitoring effectiveness.

Monitoring Measures

    Visual monitoring must be performed by qualified, NMFS-approved 
PSOs. IWO must submit PSO resumes for NMFS review and approval prior to 
commencement of the survey. Resumes should include dates of training 
and any prior NMFS approval, as well as dates and description of last 
experience, and must be accompanied by information documenting 
successful completion of an acceptable training course.
    For prospective PSOs not previously approved, or for PSOs whose 
approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, who would coordinate 
duty schedules and roles for the PSO team and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.
    A ``trained lookout'' may be used on a space-limited nearshore 
vessel (generally operating in water less than 20 m (65 ft) depth for 
no more than 12 hr/day) during required breaks for the approved PSO on 
duty. Project-specific training must be conducted for all vessel crew 
with ``lookout'' responsibilities prior to the start of a survey and 
during any changes in crew such that all relevant survey personnel are 
fully aware and understand the mitigation, monitoring, and reporting 
requirements. All vessel crew members operating as a trained lookout 
must be briefed in the identification of protected species that may 
occur in the survey area and in relevant mitigation requirements. 
Reference materials must be available aboard all project vessels for 
identification of protected species. Should a mitigation action be 
taken, the Trained Lookout will immediately notify the off-watch PSO to 
ensure that the appropriate response was taken and sightings and 
mitigation measures are properly documented (i.e., if shutdown was 
called for or avoidance measures for large whales/vessel strike 
avoidance taken, the Trained Lookout immediately notifies the off-watch 
PSO). If the survey is operating within a DMA or Slow Zone, the survey 
may only operate with a PSO on-watch.
    At least one PSO aboard each acoustic source vessel must have a 
minimum of 90 days at-sea experience working in the role, with no more 
than 18 months elapsed since the conclusion of the at-sea experience. 
One PSO with such experience must be designated as the lead for the 
entire PSO team and serve as the primary point of contact for the 
vessel operator. (Note that the responsibility of coordinating duty 
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the 
lead PSO must devise the duty schedule such that experienced PSOs are 
on duty with those PSOs with appropriate training but who have not yet 
gained relevant experience.
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or more) 
a written and/or oral examination developed for the training program.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    IWO must work with the selected third-party PSO provider to ensure 
PSOs have all equipment (including backup equipment) needed to 
adequately perform necessary tasks, including accurate determination of 
distance and bearing to observed marine mammals, and to ensure that 
PSOs are capable of calibrating equipment as necessary for accurate 
distance estimates and species identification. Such equipment, at a 
minimum, shall include:
     At least one thermal (infrared) imagine device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global positioning units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex, also known as 
SLR (at least one plus backups). The camera or lens should also have an 
image stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and,
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-party PSO provider, or the operator, but IWO is responsible 
for ensuring PSOs have the proper equipment required to perform the 
duties specified in the IHA.
    The PSOs will be responsible for monitoring the waters surrounding 
the survey vessel to the farthest extent permitted by sighting 
conditions, including Shutdown Zones, during all HRG survey operations. 
PSOs will visually monitor and identify marine mammals, including those 
approaching or entering the established Shutdown Zones during survey 
activities. It will be the responsibility of the PSO(s) on duty to 
communicate the presence of marine mammals as well as to communicate 
the action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Shutdown Zones. Reticulated binoculars must also be

[[Page 47862]]

available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, appropriate night-vision devices (e.g., 
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 must 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 and between acquisition periods, to the maximum 
extent practicable. Any observations of marine mammals by crew members 
aboard the vessel associated with the survey would be relayed to the 
PSO team.
    Data on all PSO observations would be recorded based on standard 
PSO collection requirements (see Reporting Measures). This would 
include dates, times, and locations of survey operations; dates and 
times of observations, location and weather; details of marine mammal 
sightings (e.g., species, numbers, behavior); and details of any 
observed marine mammal behavior that occurs (e.g., noted behavioral 
disturbances). Members of the PSO team shall consult the NMFS NARW 
reporting system and Whale Alert, daily and as able, for the presence 
of NARWs throughout survey operations.

Reporting Measures

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

[[Page 47863]]

the sighting (e.g., delays, shutdowns, ramp-up, speed or course 
alteration, etc.) and time and location of the action;
    r. Equipment operating during sighting;
    s. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and,
    t. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a NARW is observed at any time by PSOs or personnel on the 
project vessel, during surveys or during vessel transit, IWO must 
report the sighting information to the NMFS NARW Sighting Advisory 
System (866-755-6622) within 2 hr of occurrence, when practicable, or 
no later than 24 hr after occurrence. NARW sightings in any location 
may also be reported to the U.S. Coast Guard via channel 16 and through 
the Whale Alert app (https://www.whalealert.org).
    In the event that personnel involved in the survey activities 
discover an injured or dead marine mammal, the incident must be 
reported to NMFS as soon as feasible by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]). The report must include the 
following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the event of a vessel strike of a marine mammal by any vessel 
involved in the activities, IWO must report the incident to NMFS by 
phone (866-755-6622) and by email ([email protected] 
and [email protected]) as soon as feasible. The report 
would include the following information:
    1. Time, date, and location (latitude/longitude) of the incident;
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Vessel's speed during and leading up to the incident;
    4. Vessel's course/heading and what operations were being conducted 
(if applicable);
    5. Status of all sound sources in use;
    6. Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    7. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    8. Estimated size and length of animal that was struck;
    9. Description of the behavior of the marine mammal immediately 
preceding and/or following the strike;
    10. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    11. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    12. To the extent practicable, photographs or video footage of the 
animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Table 1, given that some of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are included as separate sub-sections. Specifically, 
we provide additional discussion related to NARW and to other species 
currently experiencing UMEs.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result from HRG surveys, even in the absence of mitigation, 
and no serious injury or mortality is authorized. As discussed in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat section, non-auditory physical effects, auditory physical 
effects, and vessel strike are not expected to occur. NMFS expects that 
all potential takes would be in the form of Level B harassment in the 
form of temporary avoidance of the area or decreased foraging (if such 
activity was occurring), reactions that are considered to be of low 
severity and with no lasting biological consequences (e.g., Southall et 
al., 2007; Ellison et al., 2012).
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the survey 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating, or calving grounds known to be 
biologically important to marine mammals within the planned survey

[[Page 47864]]

area and there are no feeding areas known to be biologically important 
to marine mammals within the survey area. There is no designated 
critical habitat for any ESA-listed marine mammals in the survey area.

North Atlantic Right Whales

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW mortalities began in June 2017 and there is an active UME. 
Overall, preliminary findings attribute human interactions, 
specifically vessel strikes and entanglements, as the cause of death 
for the majority of NARWs. As noted previously, the survey area 
overlaps a migratory corridor BIA for NARWs that extends from 
Massachusetts to Florida and from the coast to beyond the shelf break. 
Due to the fact that the planned survey activities are temporary (will 
occur for up to 1 year) and the spatial extent of sound produced by the 
survey would be small relative to the spatial extent of the available 
migratory habitat in the BIA, NARW migration is not expected to be 
impacted by the survey. This important migratory area is approximately 
269,488 km\2\ in size (compared with the approximately 3,615 km\2\ of 
total estimated Level B harassment ensonified area associated with the 
Survey Area) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts.
    Given the relatively small size of the ensonified area, it is 
unlikely that prey availability would be adversely affected by HRG 
survey operations. Required vessel strike avoidance measures will also 
decrease risk of vessel strike during migration; no vessel strike is 
expected to occur during IWO's planned activities. Additionally, only 
very limited take by Level B harassment of NARWs has been requested and 
is authorized by NMFS as HRG survey operations are required to maintain 
and implement a 500-m shutdown zone. The 500-m shutdown zone for NARWs 
is conservative, considering the Level B harassment zone for the most 
impactful acoustic source (i.e., sparker) is estimated to be 141 m, and 
thereby minimizes the intensity and duration of any potential incidents 
of behavioral harassment for this species. As noted previously, Level A 
harassment is not expected due to the small estimated zones in 
conjunction with the aforementioned shutdown requirements. NMFS does 
not anticipate NARW takes that would result from IWO's planned 
activities would impact annual rates of recruitment or survival. Thus, 
any takes that occur would not result in population level impacts.

Other Marine Mammal Species With Active UMEs

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

[[Page 47865]]

consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS authorizes incidental take by Level B harassment only of 15 
marine mammal species with 16 managed stocks. The total amount of takes 
authorized relative to the best available population abundance is less 
than 2 percent for 15 of the 16 managed stocks (less than 12 percent 
for the Western North Atlantic Northern Migratory Coastal Stock of 
bottlenose dolphins) (Table 3). The take numbers authorized are 
considered conservative estimates for purposes of the small numbers 
determination as they assume all takes represent different individual 
animals, which is unlikely to be the case.
    Based on the analysis contained herein of the planned activity 
(including the planned mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals would be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and NAO 216-6A, NMFS must review our proposed 
action (i.e., the issuance of an IHA) and alternatives 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 NAO 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 this IHA qualifies to be categorically excluded from 
further NEPA review.

Authorization

    NMFS has issued an IHA to IWO for the potential harassment of small 
numbers of 15 marine mammal species (16 stocks) incidental to 
conducting marine site characterization surveys in waters off of New 
Jersey and New York in the New York Bight for a period of 1 year, that 
includes the previously explained mitigation, monitoring, and reporting 
requirements. The IHA can be found at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-invenergy-wind-offshore-llcs-site-characterization-surveys-new.

    Dated: July 20, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-15718 Filed 7-24-23; 8:45 am]
BILLING CODE 3510-22-P