Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of New Jersey, 48196-48209 [2023-15817]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Notices]
[Pages 48196-48209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15817]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD163]


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

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

ACTION: Notice; 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 
Ocean Wind II, LLC (Ocean Wind II) to incidentally harass marine 
mammals during marine characterization surveys off New Jersey.

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

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

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

History of Request

    On October 1, 2021, NMFS received a request from Ocean Wind II for 
an IHA to take marine mammals incidental to high-resolution geophysical 
(HRG) marine site characterization surveys offshore of New Jersey in 
the area of the Bureau of Ocean Energy Management's (BOEM) Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Area (OCS-A) 0532 and associated Export Cable 
Route (ECR) area. Ocean Wind II requested authorization to take small 
numbers of 16 species (comprising 17 stocks) of marine mammals by Level 
B harassment only. NMFS published a notice of the proposed IHA in the 
Federal Register on March 16, 2022 (87 FR 14823). After a 30-day public 
comment period and consideration of all public comments received, we 
subsequently issued the IHA on May 19, 2022 (87 FR 30453), which was 
effective from May 10, 2022 through May 9, 2023.
    Ocean Wind II conducted the required marine mammal mitigation and 
monitoring and did not exceed the authorized levels of take under 
previous IHAs issued for surveys offshore of New Jersey (see 87 FR 
30452, May 19, 2022). These previous monitoring results are available 
to the public on our website: https://www.fisheries.noaa.gov/action/

[[Page 48197]]

incidental-take-authorization-ocean-wind-ii-llc-marine-site-
characterization-surveys-new.
    On March 3, 2023, NMFS received a request from Ocean Wind II for an 
IHA to take marine mammals incidental to HRG marine site 
characterization surveys offshore of New Jersey in BOEM Lease Area OCS-
A 0532 and associated ECR area. Following NMFS' review of the 
application, Ocean Wind II submitted a revised request on April 30, 
2023. The application (the 2023 request) was deemed adequate and 
complete on May 2, 2023. Ocean Wind II's request is for take of 16 
species (comprising 17 stocks) of marine mammals, by Level B harassment 
only. Neither Ocean Wind II nor NMFS expects serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.
    The activities described in Ocean Wind II's 2023 IHA request, the 
overall survey duration, the project location, and the acoustic sources 
Ocean Wind II will use are identical to what was previously analyzed in 
support of the previously issued 2022 IHA. All mitigation, monitoring, 
and reporting requirements remain the same. However, NMFS determined a 
renewal of the 2022 IHA is not appropriate in this case because, after 
issuance of the 2022 IHA, Duke University's Marine Geospatial Ecology 
Laboratory released updated marine mammal density information (June 20, 
2022) for all species in the project area (https://seamap.env.duke.edu/models/Duke/EC), which NMFS determined represents the best available 
scientific data. In evaluating the 2023 request, which incorporates the 
updated density information, and to the extent deemed appropriate, NMFS 
relied substantially on the information presented in notices associated 
with issuance of the 2022 IHA (87 FR 14823, March 16, 2022; 87 FR 
30453, May 19, 2022).
    No changes were made from the proposed to the final IHA.

Description of the Activity and Anticipated Impacts

Overview

    Ocean Wind II will conduct HRG marine site characterization surveys 
in the BOEM Lease Area OCS-A 0532 and along potential submarine ECRs to 
landfall locations in New Jersey. As compared to the 2022 IHA (87 FR 
14823, March 16, 2022; 87 FR 30453, May 19, 2022), Ocean Wind II 
revised their project area map (see Figure 1 in 88 FR 38491, June 13, 
2023) to be more representative of the actual area in which HRG surveys 
will occur. The Lease Area is approximately 344 square kilometers 
(km\2\) and is within the New Jersey Wind Energy Area (WEA) of BOEM's 
Mid-Atlantic planning area. The total survey area depicted encompasses 
3,801 km\2\. Water depths in the Lease Area range from 14 meters (m) to 
38 m, and the potential ECRs extend from the shoreline to approximately 
30 m depth.
    The purpose of these surveys is to support the site 
characterization, siting, and engineering design of offshore wind 
project facilities, including wind turbine generators, offshore 
substations, and submarine cables within the Lease Areas and along the 
ECRs. Survey equipment will be deployed from multiple vessels or 
remotely operated vehicles (ROVs) during site characterization 
activities in the project area; however, only one vessel will operate 
at a time in the Lease Area and ECR area (two vessels total). During 
survey effort, vessels will operate at a maximum speed of 4 knots (4.6 
miles or 7.4 km per hour). Up to 275 survey days will occur, where a 
``survey day'' is defined as a 24-hour activity period in which active 
HRG acoustic sound sources with expected potential to result in take of 
marine mammals are used.
    Underwater sound resulting from Ocean Wind II's survey activities 
during use of specific active acoustic sources has the potential to 
result in incidental take of marine mammals in the form of behavioral 
harassment (Level B harassment). Geophysical activities were discussed 
previously for 2022 IHA NMFS issued to Ocean Wind II (see 87 FR 14823, 
March 16, 2022; 87 FR 30453, May 19, 2022) and, as no new information 
has been presented that changed our determinations on these activities, 
this information will not be reiterated here. The mitigation, 
monitoring, and reporting measures are described in more detail later 
in this document (please see Mitigation and Monitoring and Reporting).
    A detailed description of Ocean Wind II's planned surveys is 
provided in the Federal Register notice of the proposed IHA (88 FR 
38491, June 13, 2023) and the 2022 IHA Federal Register notice (87 FR 
14823, March 16, 2022). Since that time, no changes have been made to 
the survey activities. Therefore, a detailed description is not 
provided here. Please refer to those Federal Register notices for the 
description of the specified activities.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Ocean Wind II was 
published in the Federal Register on June 13, 2023 (88 FR 38491), 
beginning a 30-day comment period. That notice described Ocean Wind 
II's proposed activities, the marine mammal species that may be 
affected by these activities, and the anticipated effects on marine 
mammals. We requested public input on the request for authorization 
described therein, our analyses, and the proposed authorization, and 
requested that interested persons submit relevant information, 
suggestions, and comments.
    NMFS received 144 comment letters. Three of these comment letters 
were from non-governmental organizations: the Responsible Offshore 
Development Alliance (RODA), Clean Ocean Action (COA), and Green 
Oceans, and one was from Warwick Group Consultants on behalf of Cape 
May County in New Jersey. The remaining 140 comment letters were from 
private citizens. The majority of these expressed general opposition to 
issuance of the IHA or to the underlying associated activities, but 
without providing specific information relevant to NMFS' request for 
public comment. Seven of the letters from private citizens provided 
substantive comments that are addressed below.
    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 or 
to wind energy development more generally. 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 to 
authorize take incidental to Ocean Wind II's survey activities. We do 
not specifically address comments expressing general opposition to 
activities related to wind energy development or respond to comments 
not relevant to the scope of the proposed IHA (88 FR 38491; June 13, 
2023), such as comments on other Federal agency processes and 
activities not authorized under this IHA (e.g., seismic surveys, 
offshore wind construction, installation of wind turbines, other marine 
site characterization surveys).
    All substantive comments and NMFS' responses are provided below, 
and all substantive comments are available online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please see the comment letters for full 
details regarding the comments and associated rationale.
    Comment: Green Oceans claims that the proposed IHA did not address 
how

[[Page 48198]]

increasing ocean noise will impact masking of ``interspecies 
cooperation and communication,'' and their ``survival,'' as a result.
    Response: NMFS agrees that noise pollution in marine waters is an 
issue with the potential to affect marine mammals, including their 
ability to communicate when noise reaches certain thresholds. NMFS 
disagrees that the potential impacts of masking were not properly 
considered. NMFS acknowledges our understanding of the scientific 
literature that Green Oceans cited but, fundamentally, the masking 
effects to any one individual whale from one survey are expected to be 
minimal. Masking is referred to as a chronic effect because one of the 
key harmful components of masking is its duration--the fact that an 
animal would have reduced ability to hear or interpret critical cues 
becomes much more likely to cause a problem the longer it is occurring. 
Also, inherent in the concept of masking is the fact that the potential 
for the effect is only present during the times that the animal and the 
source are in close enough proximity for the effect to occur (and 
further this time period would need to coincide with a time that the 
animal was utilizing sounds at the masked frequency) and, as our 
analysis (both quantitative and qualitative components) indicates, 
because of the relative movement of whales and vessels, we do not 
expect these exposures with the potential for masking to be of a long 
duration within a given day. Further, because of the relatively low 
density of mysticetes, and relatively large area over which the vessels 
travel, we do not expect any individual whales to be exposed to 
potentially masking levels from these surveys for more than a few days 
in a year.
    As noted above, any masking effects of this survey are expected to 
be limited and brief, if present. Given the likelihood of significantly 
reduced received levels beyond even short distances from the survey 
vessel, combined with the short duration of potential masking and the 
lower likelihood of extensive additional contributors to background 
noise offshore and within these short exposure periods, we believe that 
the incremental addition of the survey vessel is unlikely to result in 
more than minor and short-term masking effects, likely occurring to 
some small number of the same individuals captured in the estimate of 
behavioral harassment.
    Comment: 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. RODA specifically noted concern regarding 
existing fishery restrictions as a result of other North Atlantic right 
whale (NARW) protections.
    Response: Neither the MMPA nor our implementing regulations require 
NMFS to analyze impacts to other industries (e.g., fisheries) or 
coastal communities from issuance of an incidental take authorization 
(ITA). Moreover, NMFS has determined that no serious injury or 
mortality is anticipated to result from Ocean Wind II'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 species. For NARW in 
particular, it is considered unlikely, as a result of the required 
precautionary shutdown zone (i.e., 500 m versus the estimated maximum 
Level B harassment zone of 141 m), that the authorized take would occur 
at all.
    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 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. Green Oceans claims that NMFS failed to accurately define the 
environmental baseline, provides a ``deficient accounting of relevant 
ongoing stressors,'' and does not ``properly consider the cumulative 
and interaction effects of this project with other projects in the 
area,'' including cumulative incidental take across projects. In 
addition, Green Oceans claims that NMFS failed to consider the 
``additive and adverse synergistic effects'' of the potential exposure 
of marine mammals to multiple wind development activities in the same 
region.
    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. In this case, this IHA, as well as 
other IHAs currently in effect or proposed within the specified 
geographic region, are appropriately considered an unrelated activity 
relative to the others. The IHAs are unrelated in the sense that they 
are discrete actions under section 101(a)(5)(D), issued to discrete 
applicants. 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. Here, Ocean Wind II was the applicant for 
the IHA, and we are responding to the specified activity as described 
in that application and making the necessary findings on that basis. 
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

[[Page 48199]]

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 Ocean Wind 
II 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 Ocean Wind II'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 Ocean Wind 
II 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: 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 and that Ocean Wind II's surveys could 
lead to marine mammal mortalities. However, the commenters did not 
provide any specific information supporting these concerns.
    Green Oceans suggests that the surveys may result in acute injury 
of whales as a result of rectified diffusion, i.e., bubble growth 
caused by acoustic exposure.
    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 
on the basis of unsupported speculation.
    NMFS reiterates that there is no evidence that noise resulting from 
offshore wind development-related site characterization surveys could 
potentially cause marine mammal strandings, and there is no evidence 
linking recent large whale mortalities and currently ongoing surveys. 
The commenters offer no such evidence. NMFS will continue to gather 
data to help us determine the cause of death for these stranded whales. 
We note the Marine Mammal Commission's recent statement: ``There 
continues to be no evidence to link these large whale strandings to 
offshore wind energy development, including no evidence to link them to 
sound emitted during wind development-related site characterization 
surveys, known as HRG surveys. Although HRG surveys have been occurring 
off New England and the mid-Atlantic coast, HRG devices have never been 
implicated or causatively-associated with baleen whale strandings.'' 
(Marine Mammal Commission Newsletter, Spring 2023).
    There is an ongoing Unusual Mortality Event (UME) for humpback 
whales along the Atlantic coast from Maine to Florida, which includes 
animals stranded since 2016. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Necropsies were not 
conducted on other carcasses because they were too decomposed, not 
brought to land, or stranded on protected lands (e.g., national and 
state parks) with limited or no access. Of the whales examined (roughly 
90), about 40 percent had evidence of human interaction, either ship 
strike or entanglement. Vessel strikes and entanglement in fishing gear 
are the greatest human threats to large whales. The remaining 50 
necropsied whales either had an undetermined cause of death (due to a 
limited examination or decomposition of the carcass), or had other 
causes of death including parasite-caused organ damage and starvation.
    With regard to Green Oceans' suggestion that acute injury of whales 
could occur as a result of bubble formation, this effect is extremely 
unlikely to occur in the circumstances considered here, i.e., 
relatively low-level sound exposure in shallow waters. We acknowledge 
that non-auditory physiological effects or injuries can theoretically 
occur in marine mammals exposed to high level underwater sound or as a 
secondary effect of extreme behavioral reactions (e.g., change in dive 
profile as a result of an avoidance reaction) caused by exposure to 
sound. These include neurological effects, resonance effects, and other 
types of organ or tissue damage (Cox et al., 2006; Southall et al., 
2007; Zimmer and Tyack, 2007). The bubble formation, or rectified 
diffusion, referenced by Green Oceans is another such effect (e.g., 
Houser et al., 2001; Tal et al., 2015). However, the survey activities 
considered here do not involve the use of devices such as explosives or 
mid-frequency tactical sonar that produce the high-intensity sounds 
that are associated with these types of effects. While these bubble 
formation effects remain a theoretical potential cause of marine mammal 
stranding, it is important to note that theoretical analysis of this 
potential considers as necessary precedent the condition of deep diving 
and slow ascent/descent speed, which contributes to increased gas-
tissue saturation, prior to high-intensity sound exposure. The survey 
conditions here, aside from the absence of the high-intensity sound 
that would be expected to be necessary to cause this effect, preclude 
the deep diving conditions in which gas supersaturation and the 
potential for bubble growth might occur--as noted previously, the 
maximum survey depth is 38 m. Houser et al. (2001) emphasize the 
importance of dive depth to the rectified diffusion concept in marine 
mammals, stating that beaked whales and sperm whales (species not 
expected to be impacted by the proposed survey) may be at greatest 
risk, with other odontocete species at

[[Page 48200]]

lesser potential risk. Green Oceans focused its concern on ``whales,'' 
which we presume to mean mysticete species, which would be at even 
lower risk due to typically shallow dive patterns. In summary, the 
concern raised by Green Oceans regarding potential injury resulting 
from rectified diffusion is unwarranted due to the shallow survey 
depths, which preclude the gas-tissue saturation conditions necessary 
to potentially lead to bubble formation, and the lack of high-intensity 
sounds necessary to cause bubble expansion.
    Acoustic sources used in these HRG surveys are very different from 
seismic airguns used in oil and gas surveys and produce much smaller 
impact zones because, in general, they have lower source levels and 
produce output at higher frequencies. The area within which HRG sources 
might behaviorally disturb a marine mammal is orders of magnitude 
smaller than the impact areas for seismic airguns or military sonar. 
Any marine mammal exposure would be at significantly lower levels and 
shorter duration, which is associated with less severe impacts to 
marine mammals.
    The best available science indicates that only Level B harassment, 
or disruption of behavioral patterns (e.g., avoidance), may occur as a 
result of Ocean Wind II's HRG surveys. NMFS emphasizes that there is no 
credible scientific evidence available suggesting that mortality and/or 
serious injury is a potential outcome of the planned survey activity. 
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.
    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 ESA-listed 
marine mammal species (i.e., GARFO's analysis conducted pursuant to the 
ESA finds that marine mammals are not likely to be taken at all (as 
that term is defined under the ESA), much less be taken by serious 
injury or mortality). That document is found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation.
    Comment: Green Oceans claims that the proposed IHA does not 
properly value biodiversity in its assessment of harm and that 
``impacts to the abundance or distribution of marine mammals can 
disrupt vital systems that regulate the ocean and the climate.''
    Response: Green Oceans provides no further development of this 
comment, e.g., in what way it believes that the MMPA requires that 
``biodiversity'' be accounted for in the analyses required under the 
MMPA, how it believes that these surveys would be likely to impact the 
abundance or distribution of marine mammals, or how such impacts might 
be likely to disrupt unspecified ``vital systems.'' However, we 
reiterate that the magnitude of behavioral harassment authorized is 
very low and the severity of any behavioral responses are expected to 
be primarily limited to temporary displacement and avoidance of the 
area when some activities that have the potential to result in 
harassment are occurring (see Negligible Impact Determinations section 
for our full analysis). NMFS does not anticipate that marine mammals 
would be permanently displaced or displaced for extended periods of 
time from the area where Ocean Wind II marine site characterization 
surveys would occur, and commenters do not provide evidence that this 
effect should be a reasonably anticipated outcome of the specified 
activity. We expect temporary avoidance to occur, at worst, but that is 
distinctly different from displacement, which suggests longer-term, 
reduced usage of habitat. Similarly, NMFS is not aware of any 
scientific information suggesting that the survey activity would cause 
meaningful shifts in abundance and distribution of marine mammals and 
disagrees that this would be a reasonably anticipated effect of the 
specified activities. The authorized take of NARWs by Level B 
harassment is precautionary but considered unlikely as NMFS' take 
estimation analysis does not account for the use of mitigation and 
monitoring measures (e.g., the requirement for Ocean Wind II to 
implement a shutdown zone for NARWs (500 m) that is more than three 
times as large as the estimated harassment zone (141 m)). These 
requirements are expected to largely eliminate the actual occurrence of 
Level B harassment events and to the extent that harassment does occur, 
would minimize the duration and severity of any such events. Level B 
harassment authorized by this IHA is not expected to negatively impact 
abundance or distribution of other marine mammal species particularly 
given that it does not account for the suite of mitigation and 
monitoring measures NMFS has prescribed, and would be comprised of 
temporary low severity impacts, with no lasting biological 
consequences. Therefore, even if marine mammals are in the area of the 
specified activities, a displacement impact is not anticipated.
    Comment: RODA expressed concern regarding increased vessel traffic 
associated with OSW development generally and asserted that vessel 
speed restrictions are not ``fully mandated or enforced for OSW 
vessels.''
    Response: NMFS appreciates the commenter's concern regarding the 
potential for an overall increase in vessel traffic at the regional 
scale. However, we also note that concerns regarding the potential 
impacts of wind energy development in general are outside the scope of 
this specific action (i.e., issuance of an IHA associated with a 
specific HRG survey). NMFS takes seriously the risk of vessel strike 
and has prescribed measures to avoid the potential for vessel strike, 
despite a very low likelihood, to the extent practicable. The full list 
of mitigation measures can be found in Condition 4(m) of the IHA and in 
the Mitigation section of this notice. In addition, vessels towing 
survey gear travel at very slow speeds (4 kn) (4.6 miles or 7.4 km per 
hour) (reducing the already low likelihood of strike), and vessels 
associated with the survey activity will add a discountable amount of 
vessel traffic to the specific geographic region. We have determined 
that the IHA's vessel strike avoidance measures are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. Furthermore, NMFS is unaware of any vessel strikes 
related to marine site characterization surveys.
    RODA's reference to vessel speed restrictions being ``not fully 
mandated'' is unclear. NMFS refers again to its required vessel strike 
avoidance measures (see Condition 4(m)(ii) of the issued IHA), which 
requires that all vessels, regardless of size, observe a 10-knot (11.5 
miles or 18.5 km per hour) speed restriction in Seasonal Management 
Areas (SMAs), Dynamic Management Areas (DMAs), and Slow Zones. 
Similarly, RODA does not provide a rationale for its suggestion that 
vessel speed restrictions are not enforced. We note that NMFS maintains 
an Enforcement Hotline for members of the public to report violations 
of vessel speed restrictions. Further, the IHA states that the IHA may 
be modified, suspended, or revoked if the holder fails to abide by the 
conditions prescribed therein.
    Comment: Commenters stated that NMFS was not utilizing the best 
available science when assessing

[[Page 48201]]

impacts to marine mammals. Green Oceans asserted that NMFS had not 
fully considered the effect of the project on NARWs, claiming that 
``90% of the population could be affected'' by the proposed survey.
    Response: NMFS relied upon the best scientific evidence available, 
including, but not limited to, the most recent Stock Assessment Report 
(SAR) data, scientific literature, and Duke University's density models 
(Roberts et al., 2022), in analyzing the impacts of Ocean Wind II's 
specified activities on marine mammals. While commenters suggest 
generally that NMFS consider the best scientific evidence available, 
none of the commenters provided additional relevant scientific 
information for NMFS to consider.
    NMFS determined that Ocean Wind II's surveys have the potential to 
take marine mammals by Level B harassment and does not anticipate or 
authorize mortality (death), serious injury, or Level A harassment of 
any marine mammal species, including NARW. Ocean Wind II requested and 
NMFS is authorizing only two takes of NARWs by Level B harassment, 
which is less than 1 percent of the population. Further, NMFS does not 
expect that the generally short-term, intermittent, and transitory 
nature of Ocean Wind II' s marine site characterization survey 
activities will create conditions of acute or chronic acoustic exposure 
leading to long-term physiological stress responses in marine mammals.
    Comment: RODA stated that, to their knowledge, there are no 
resources easily accessible to the public to understand what 
authorizations are required for each of these activities (pre-
construction surveys, construction, operations, monitoring surveys, 
etc.). RODA recommends that NMFS improve the transparency of this 
process, and both RODA and Green Oceans recommend that NMFS move away 
from what it refers to as a ``segmented phase-by-phase and project-by-
project approach to IHAs,'' which then leads to a ``segmented 
understanding'' of overall impacts. In addition, Green Oceans asserts 
that NMFS must conduct a programmatic analysis of the impacts of 
offshore wind development. RODA also requested a ``comprehensive list/
table of all Level A and Level B takes under currently approved 
authorizations per project, as well as Level A and Level B takes per 
project being requested in all authorization applications currently 
under review.''
    Response: The MMPA and its implementing regulations allow for the 
authorization, upon request, of incidental take of small numbers of 
marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographic region. 
NMFS authorizes the requested incidental take of marine mammals if it 
finds that the taking would be of small numbers, have no more than a 
``negligible impact'' on the marine mammal species or stock, and not 
have an ``unmitigable adverse impact'' on the availability of the 
species or stock for subsistence use. NMFS refers RODA to its website 
for more information on the marine mammal incidental take authorization 
process and timelines: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    NMFS emphasizes that an IHA does not authorize the activity itself 
but authorizes the take of marine mammals incidental to the ``specified 
activity'' for which incidental take coverage is being sought. In this 
case, NMFS is responding to Ocean Wind II's request to incidentally 
take marine mammals while engaged in marine site characterization 
surveys and determining whether the necessary findings can be made 
based on Ocean Wind II's application. Green Ocean's assertion that NMFS 
must conduct a programmatic analysis of the impacts of offshore wind 
development is outside the scope of this IHA. The authorization of 
Ocean Wind II's survey activities is not within NMFS' jurisdiction. 
NMFS refers RODA to BOEM's website: https://www.boem.gov/renewable-energy.
    A list of all proposed and issued IHAs for renewable energy 
activities, such as Ocean Wind II's marine site characterization 
surveys, including the requested, proposed, and/or authorized take is 
available on the agency website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    Comment: Green Oceans states that the ``precautionary principle'' 
does not allow NMFS to authorize the ``introduction of stressors'' to 
populations undergoing an Unusual Mortality Event (UME), that 
authorization of take for such species ``violates the spirit and intent 
of the MMPA,'' and that NMFS is ``precluded from authorizing wind 
energy development'' in habitat utilized by relevant species for which 
there are active UMEs (i.e., humpback, minke, and North Atlantic right 
whales).
    Response: Green Oceans refers to supposed standards that do not 
exist in the MMPA, e.g., the MMPA contains no reference to the 
``precautionary principle,'' and fails to adequately explain its 
supposition that NMFS has violated the ``spirit and intent'' of the 
MMPA. As described previously, an IHA does not authorize or allow the 
activity itself but authorizes the take of marine mammals incidental to 
the ``specified activity'' for which incidental take coverage is being 
sought. In this case, NMFS is responding to Ocean Wind II's request to 
incidentally take marine mammals while engaged in marine site 
characterization surveys and determining whether the necessary findings 
can be made based on Ocean Wind II's application. The authorization of 
Ocean Wind II' s survey activities, or any other activities that 
introduce stressors, is not within NMFS' jurisdiction.
    Regarding UMEs, the MMPA does not preclude authorization of take 
for species or stocks with ongoing UMEs. Rather, NMFS considers the 
ongoing UME as part of the environmental baseline for the affected 
species or stock as part of its negligible impact analyses. Elevated 
NARW mortalities began in June 2017 and there is an active UME. 
Overall, preliminary findings support 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 for NARWs. Due to the fact that the survey 
activities are temporary and the spatial extent of sound produced by 
the survey would be very small relative to the spatial extent of the 
available migratory habitat in the BIA, NARW migration is not expected 
to be impacted by the survey. Given the relatively small size of the 
ensonified area, it is unlikely that prey availability would be 
adversely affected by HRG survey operations. Required vessel strike 
avoidance measures will also decrease risk of ship strike during 
migration; no ship strike is expected to occur during Ocean Wind II's 
planned activities. Additionally, only very limited take by Level B 
harassment of NARWs has been requested and has been authorized by NMFS 
as HRG survey operations are required to maintain a 500 m EZ and 
shutdown if a NARW is sighted at or within the EZ. The 500 m shutdown 
zone for NARWs is conservative, considering the Level B harassment 
isopleth for the most impactful acoustic source (i.e., sparker) is 
estimated to be 141 m, and thereby minimizes the potential for 
behavioral harassment of this species. As noted previously, Level A 
harassment is not expected due to the small PTS zones associated with 
HRG equipment types proposed for use. NMFS does not anticipate NARWs 
takes

[[Page 48202]]

that would result from Ocean Wind II's activities would impact annual 
rates of recruitment or survival. Thus, any takes that occur would not 
result in population level impacts.
    Elevated humpback whale mortalities have occurred along the 
Atlantic coast from Maine through Florida since January 2016. Of the 
cases examined, approximately half had evidence of human interaction 
(ship strike or entanglement). The UME does not yet provide cause for 
concern regarding population-level impacts. Despite the UME, the 
relevant population of humpback whales (the West Indies breeding 
population, or DPS) remains stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales. The 
minke whale UME is currently non-active, with closure pending.
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species in Table 2, 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 throughout the survey area before HRG survey equipment 
reaches full energy, thus preventing them from being exposed to sound 
levels that have the potential to cause injury (Level A harassment) or 
more severe Level B harassment. 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 
behavioral 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.
    Comment: RODA expressed concern regarding the potential for 
increased uncertainty in estimates of marine mammal abundance resulting 
from wind turbine presence during aerial surveys and potential effects 
on NMFS' ability to continue using current aerial survey methods to 
fulfill its mission of precisely and accurately assessing protected 
species.
    Response: NMFS has determined that OSW development projects may 
impact several Northeast Fisheries Science Center (NEFSC) surveys, 
including aerial surveys for protected species. NEFSC has developed a 
Federal survey mitigation program to mitigate the impacts to these 
surveys and is in the early stages of implementing this program. 
However, this impact is outside the scope of analysis related to the 
authorization of take incidental to Ocean Wind II's specified activity 
under the MMPA.
    Comment: RODA commented that additional clarification should be 
added to the IHA that explicitly states if weather or other conditions 
that limit the range of observation occurs, shutdown will be initiated. 
RODA also 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 Ocean Wind II exceeds 
their authorized take levels, any further take 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 Ocean Wind II, 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), Ocean Wind II 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 measures' 
effectiveness. Additionally, the mitigation measures included in Ocean 
Wind II'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: Some commenters objected to NMFS' ``small numbers'' 
determination for the numbers of marine mammals, particularly NARWs, 
taken by Level B harassment under Ocean Wind II's planned activities. 
Green Oceans claims that NMFS' determination is ``arbitrary and 
capricious,'' in part because it fails to account for the total amount 
of take for a given species across all current wind development 
activities for which NMFS has issued ITAs. Green Oceans also claims 
that, for Ocean Wind II, NMFS is violating the ``intent of the MMPA'' 
by proposing to authorize incidental take for ``over 12 percent of the 
stock for over 8 species.'' Green Oceans also states that NMFS' small 
numbers finding ``fails to consider the conservation status of the 
[NARW].''
    Response: NMFS disagrees with the commenters' arguments on the 
topic of small numbers. Ocean Wind II requested, and NMFS proposed to 
authorize, incidental take that amounts to less than 22 percent for 
Western North Atlantic, Northern Migratory Coastal stock of bottlenose 
dolphins, less than 3 percent for the Western North Atlantic Offshore 
stock of bottlenose dolphins, and less than 1 percent of all other 
stocks (including the NARW), values which do not align with those 
presented by Green Oceans--which do not appear to relate to the 
proposed action.
    Although there is limited legislative history available to guide 
NMFS and an apparent lack of biological underpinning to the concept, we 
have worked to develop a reasoned approach to small numbers. NMFS 
explains the concept of ``small numbers'' in recognition that there 
could also be quantities of individuals taken that would correspond 
with ``medium'' and ``large'' numbers. As such, for an individual 
incidental take authorization, 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

[[Page 48203]]

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)). As noted above, there is no 
biological significance associated with ``small numbers'' and, as such, 
NMFS appropriately does not consider ``conservation status'' or other 
issues related to the status of a species or stock in making its small 
numbers finding. Instead, these concepts are appropriately considered 
as part of the negligible impact analysis--consideration of 
``conservation status'' as part of the small numbers finding, as Green 
Oceans suggests, would inappropriately conflate these two independent 
findings. NMFS has made the necessary small numbers finding for all 
affected species and stocks specifically for the issuance of the Ocean 
Wind II IHA.
    Comment: Green Oceans noted that chronic stressors, including 
anthropogenic noise, are an emerging concern for NARW conservation and 
recovery, and stated that chronic stress may result in energetic 
effects for NARWs. Green Oceans suggested that NMFS has not fully 
considered both the use of the area and the effects of acute and 
chronic stressors from all offshore wind development activities on the 
health and fitness of NARWs, as disturbance responses in NARWs could 
lead to chronic stress or habitat displacement and/or abandonment, 
leading to an overall decline in their health and fitness.
    Response: NMFS agrees with Green Oceans 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, 
reproductive, etc. impacts at the population-level scale. NMFS has 
carefully reviewed the best available scientific information in 
assessing impacts to marine mammals, and recognizes that Ocean Wind 
II's 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 
Ocean Wind II will create conditions of acute or chronic acoustic 
exposure leading to long-term physiological stress responses in marine 
mammals. NMFS has 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. Although 
Green Oceans correctly states that Ocean Wind II's surveys would occur 
in the NARW migratory corridor, they incorrectly claim that the project 
area is a known feeding habitat for NARWs and that any displacement 
would have ``devastating effects on the species.'' NMFS does not 
anticipate that NARWs would be displaced from the area where Ocean Wind 
II's marine site characterization surveys would occur, and Green Oceans 
does not provide evidence that this effect should be a reasonably 
anticipated outcome of the specified activity.
    Similarly, NMFS is not aware of any scientific information 
suggesting that the survey activity would drive marine mammals out of 
the survey area, and disagrees that this would be a reasonably 
anticipated effect of the specified activities. The take by Level B 
harassment authorized by NMFS is precautionary and also considered 
unlikely to actually occur, as NMFS' take estimation process does not 
account for the use of extremely precautionary mitigation measures, 
e.g., the requirement for Ocean Wind II to implement a Shutdown Zone 
that is more than 3 times as large as the estimated harassment zone. 
These requirements are expected to largely eliminate the actual 
occurrence of Level B harassment events and, to the extent that 
harassment does occur, would minimize the duration and severity of any 
such events. Therefore, even if a NARW was in the area of Ocean Wind 
II's surveys, a displacement impact is not anticipated.
    Because NARW generally use this location in a transitory manner, 
specifically for migration, any potential impacts from these surveys 
are lessened for other behaviors due to the brief periods where 
exposure is possible. Thus, the transitory nature of occurrence of 
NARWs as they migrate means it is unlikely for any exposure to cause 
chronic effects, as Ocean Wind II's planned survey area and ensonified 
zones are small relative to the overall migratory corridor. As such, 
NMFS does not expect acute or cumulative stress to be a detrimental 
factor to NARWs from Ocean Wind II's described survey activities. The 
potential for impacts related to an overall increase in the amount of 
other OSW development activities is separate from the aforementioned 
analysis of potential for impacts from the specified survey activities 
and is not discussed further as it is outside the scope of this 
specific action.
    Comment: RODA expressed interest in understanding the outcome if 
the number of actual takes exceed the number authorized during 
construction of an offshore wind project (i.e., would the project be 
stopped mid-construction or operation), and how offshore wind 
developers will be held accountable for impacts to protected species 
such that impacts are not inadvertently assigned to fishermen, should 
they occur. Lastly, RODA maintains that the OSW industry must be 
accountable for incidental takes from construction and operations 
separately from the take authorizations for managed commercial fish 
stocks.
    Response: NMFS reiterates that the IHA authorizes incidental take 
of marine mammals during marine site characterization survey activities 
and not offshore wind project construction and operation activities. 
Therefore, these comments are outside the scope of the proposed IHA. 
Fishing impacts generally center on entanglement in fishing gear, which 
is a very acute, visible, and severe impact. In contrast, the impacts 
incidental to Ocean Wind II's site characterization survey activities 
are primarily acoustic in nature resulting in behavioral disturbance. 
Because of the difference in potential impacts (i.e., physical versus 
auditory), any impacts resulting from Ocean Wind II's survey activities 
would not be assigned to fishermen. The impacts of commercial fisheries 
on marine mammals and incidental take for said fishing activities are 
managed separately from those of non-commercial fishing activities such 
as offshore wind site characterization surveys, under MMPA section 118.
    Comment: Warwick Group Consultants, on behalf of Cape May County in 
New Jersey, expressed concern regarding ocean noise and the 
interference it has on communication between whales. Green Oceans 
claims that NMFS failed to ``meaningfully consider'' the potential for 
Ocean Wind II's HRG survey activities to mask marine mammal 
communication.
    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

[[Page 48204]]

marine mammals, including their ability to communicate when noise 
reaches certain thresholds.
    Fundamentally, the masking effects to any one individual whale from 
one survey are expected to be minimal. Masking is referred to as a 
chronic effect because one of the key harmful components of masking is 
its duration--the fact that an animal would have reduced ability to 
hear or interpret critical cues becomes much more likely to cause a 
problem the longer it is occurring. Also, inherent in the concept of 
masking is the fact that the potential for the effect is only present 
during the times that the animal and the source are in close enough 
proximity for the effect to occur (and further this time period would 
need to coincide with a time that the animal was utilizing sounds at 
the masked frequency) and, as our analysis (both quantitative and 
qualitative components) indicates, because of the relative movement of 
whales and vessels, we do not expect these exposures with the potential 
for masking to be of a long duration within a given day. Further, 
because of the relatively low density of mysticetes, and relatively 
large area over which the vessels travel, we do not expect any 
individual whales to be exposed to potentially masking levels from 
these surveys for more than a few days in a year.
    As noted above, any masking effects of this survey are expected to 
be limited and brief, if present. Given the likelihood of significantly 
reduced received levels beyond even short distances from the survey 
vessel, combined with the short duration of potential masking and the 
lower likelihood of extensive additional contributors to background 
noise offshore and within these short exposure periods, we believe that 
the incremental addition of the survey vessel is unlikely to result in 
more than minor and short-term masking effects, likely occurring to 
some small number of the same individuals captured in the estimate of 
behavioral harassment.
    NMFS does not expect that the generally short-term, intermittent, 
and transitory marine site characterization survey activities planned 
by Ocean Wind II 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: Green Oceans criticized NMFS's use of the 160-dB rms Level 
B harassment threshold, stating that the threshold is based on outdated 
information and that the best available science shows that behavioral 
impacts can occur at levels below the threshold. Criticism of our use 
of this threshold also focused on its nature as a step function, i.e., 
it assumes animals don't respond to received noise levels below the 
threshold but always do respond at higher received levels. Green Oceans 
also suggests that reliance on this threshold results in consistent 
underestimation of impacts because it is ``not sufficiently 
conservative'' and that any determination that relies on this threshold 
is ``arbitrary and capricious.'' Green Oceans implied that NMFS should 
revise its generalized behavioral take thresholds to mirror linear risk 
functions to account for intraspecific and contextual variability, and 
potential impacts at lower received levels (particularly for baleen 
whales).
    Response: NMFS acknowledges that the 160-dB rms step-function 
approach is simplistic, and that an approach reflecting a more complex 
probabilistic function may more effectively represent the known 
variation in responses at different levels due to differences in the 
receivers, the context of the exposure, and other factors. Green Oceans 
suggested that our use of the 160-dB threshold implies that we do not 
recognize the science indicating that animals may react in ways 
constituting behavioral harassment when exposed to lower received 
levels. However, we do recognize the potential for Level B harassment 
at exposures to received levels below 160 dB rms, in addition to the 
potential that animals exposed to received levels above 160 dB rms will 
not respond in ways constituting behavioral harassment. These comments 
appear to evidence a misconception regarding the concept of the 160-dB 
threshold. While it is correct that in practice it works as a step-
function, i.e., animals exposed to received levels above the threshold 
are considered to be ``taken'' and those exposed to levels below the 
threshold are not, it is in fact intended as a sort of mid-point of 
likely behavioral responses (which are extremely complex depending on 
many factors including species, noise source, individual experience, 
and behavioral context). What this means is that, conceptually, the 
function recognizes that some animals exposed to levels below the 
threshold will in fact react in ways that are appropriately considered 
take, while others that are exposed to levels above the threshold will 
not. Use of the 160-dB threshold allows for a simple quantitative 
estimate of take, while we can qualitatively address the variation in 
responses across different received levels in our discussion and 
analysis.
    We also note Green Oceans' statement that the 160-dB threshold is 
``not sufficiently conservative.'' Green Oceans does not further 
describe the standard of conservatism that it believes NMFS must 
attain, or how that standard relates to the legal requirements of the 
MMPA. Green Oceans goes on to imply that use of the 160-dB threshold is 
inappropriate because it addresses only exposures that cause 
disturbance, versus those exposures that present the potential to 
disturb through disruption of behavioral patterns. Green Oceans does 
not further develop this comment or offer any justification for this 
contention. NMFS affirms that use of the 160-dB criterion is expected 
to be inclusive of acoustic exposures presenting the potential to 
disturb through disruption of behavioral patterns, as required through 
the MMPA's definition.
    Green Oceans cites reports of changes in vocalization, typically 
for baleen whales, as evidence in support of a lower threshold than the 
160-dB threshold currently in use. A mere reaction to noise exposure 
does not, however, mean that a take by Level B harassment, as defined 
by the MMPA, has occurred. For a take to occur requires that an act 
have ``the potential to disturb by causing disruption of behavioral 
patterns,'' not simply result in a detectable change in motion or 
vocalization. Even a moderate cessation or modification of vocalization 
might not appropriately be considered as being of sufficient severity 
to result in take (Ellison et al., 2012). Green Oceans claims these 
reactions result in biological consequences indicating that the 
reaction was indeed a take but does not provide a well-supported link 
between the reported reactions at lower received levels and the claimed 
consequences.
    Overall, there is a lack of scientific consensus regarding what 
criteria might be more appropriate. Defining sound levels that disrupt 
behavioral patterns is difficult because responses depend on the 
context in which the animal receives the sound, including an animal's 
behavioral mode when it hears sounds (e.g., feeding, resting, or 
migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily

[[Page 48205]]

consistent and can be difficult to predict (Southall et al., 2007, 
2019; Ellison et al., 2012; Bain and Williams, 2006; Gomez et al., 
2016).
    Green Ocean references linear risk functions developed for use 
specifically in evaluating the potential impacts of Navy tactical 
sonar. However, Green Oceans provides no suggestion regarding a risk 
function that it believes would be appropriate for use in this case. 
There is currently no agreement on these complex issues, and this 
threshold has remained in use in part because of the practical need to 
use a relatively simple threshold based on available information that 
is both predictable and measurable for most activities.
    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 refer the reader to our findings below in the Negligible Impact 
Analysis and Determination section.

Detailed Description of Marine Mammals in the Area of Specified 
Activities

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

Potential Effects on Marine Mammals and Their Habitat

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

Estimated Take

    A detailed description of the methods used to estimate take 
anticipated to occur incidental to the project is found in the previous 
Federal Register notices (87 FR 14823, March 16, 2022; 87 FR 30453, May 
19, 2022). The methods of estimating take are identical to those used 
in the 2022 IHA. Ocean Wind II updated the marine mammal densities 
based on new information (Roberts et al., 2016; Roberts and Halpin, 
2022), available online at: https://seamap.env.duke.edu/models/Duke/EC. 
We refer the reader to Table 2 in Ocean Wind II's 2023 IHA request for 
the specific density values used in the analysis. The IHA request is 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The take that NMFS has authorized can be found in Table 1 below, 
which presents the results of Ocean Wind II's density-based 
calculations for the survey area. For comparative purposes, we have 
provided the 2022 IHA authorized Level B harassment take (87 FR 30453, 
May 19, 2022). NMFS notes that take by Level A harassment was not 
requested, nor does NMFS anticipate that it could occur. Therefore, 
NMFS has not authorized any take by Level A harassment. Mortality or 
serious injury is neither anticipated to occur nor authorized.

                                 Table 1--Total Authorized Take, by Level B Harassment Only, Relative to Population Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                       2023 IHA
                                                                                                                2022 IHA    ----------------------------
                Species                        Scientific name                 Stock             Abundance     authorized     Authorized    Max percent
                                                                                                                take \1\       take \1\     population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.............  Eubalaena glacialis.......  Western North Atlantic...          338              11            2              <1
Fin whale..............................  Balaenoptera physalus.....  Western North Atlantic...        6,802               4            4              <1
Sei whale..............................  Balaenoptera borealis.....  Nova Scotia..............        6,292           0 (1)            1              <1
Minke whale............................  Balaenoptera acutorostrata  Canadian East Coast......       21,968               1            8              <1
Humpback whale.........................  Megaptera novaeangliae....  Gulf of Maine............        1,396               2            4              <1

[[Page 48206]]

 
Sperm whale............................  Physeter macrocephalus....  North Atlantic...........        4,349           0 (3)        0 (3)              <1
Atlantic white-sided dolphin...........  Lagenorhynchus acutus.....  Western North Atlantic...       93,233          6 (50)      12 (50)              <1
Atlantic spotted dolphin...............  Stenella frontalis........  Western North Atlantic...       39,921          2 (15)       1 (15)              <1
Common bottlenose dolphin \2\..........  Tursiops truncatus........  Western North Atlantic,         62,851           1,842        2,221             2.3
                                                                      Offshore.
                                                                     Western North Atlantic,          6,639                                         21.4
                                                                      Northern Migratory
                                                                      Coastal.
Long-finned pilot whale \3\............  Globicephala melas........  Western North Atlantic...       39,215          1 (20)       1 (20)              <1
Risso's dolphin........................  Grampu griseus............  Western North Atlantic...       35,215          0 (30)       1 (30)              <1
Common dolphin.........................  Delphinu delphis..........  Western North Atlantic...      172,974        54 (400)     67 (400)              <1
Harbor porpoise........................  Phocoena phocoena.........  Gulf of Maine/Bay of            95,543              90           72              <1
                                                                      Fundy.
Seals: \4\
    Gray seal..........................  Halichoerus grypus........  Western North Atlantic...   \5\ 27,300              25           13              <1
 
    Harbor seal........................  Phoca vitulina............  Western North Atlantic...       61,336              25           13              <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote authorized take where different from calculated take estimates. Increases from calculated values are based on average group size
  for the following species: sei whale and pilot whales, Kenney and Vigness-Raposa, 2010; sperm whale and Risso's dolphin, Barkaszi and Kelly, 2018;
  Atlantic white-sided dolphins, NMFS 2022a; and Atlantic spotted dolphins, NMFS 2022b.The amount of common dolphin take is based on the number of
  individuals observed in previous HRG surveys in the area, and is identical to the amount of take authorized in the 2022 IHA.
\2\ At this time, Ocean Wind II is not able to identify how much work will occur inshore and offshore of the 20 m isobaths, a common delineation between
  offshore and coastal bottlenose dolphin stocks. Because Roberts et al., (2018) does not provide density estimates for individual stocks of common
  bottlenose dolphins, the take presented here is the total estimated take for both stocks. Although unlikely, for our analysis, we assume all takes
  could be allocated to either stock.
\3\ Roberts et al. (2018) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
  of long-finned pilot whales.
\4\ Roberts et al. (2018) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
  equally in the survey area; therefore, density values were split evenly between the 2 species, i.e., total authorized take for ``seals'' is 24.
\5\ NMFS' stock abundance estimate applies to U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,600.

Description of Mitigation, Monitoring, and Reporting Measures

    The required mitigation measures are identical to those included in 
the Federal Register notice announcing the final 2022 IHA (87 FR 30453, 
May 19, 2022) and the discussion of the least practicable adverse 
impact included in that document remains accurate. The measures are 
found below.
    Ocean Wind II must also abide by all the marine mammal relevant 
conditions in the GARFO programmatic consultation (specifically Project 
Design Criteria (PDC) 4, 5, and 7) regarding geophysical surveys along 
the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions 
(NOAA GARFO, 2021; https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation), pursuant to Section 7 of the 
Endangered Species Act.

Marine Mammal Shutdown Zones and Level B Harassment Zones

    Establishment of Shutdown Zones (SZ)--Marine mammal SZs must be 
established around the HRG survey equipment and monitored by NMFS-
approved PSOs. Based upon the acoustic source in use (impulsive: 
sparkers; non-impulsive: non-parametric sub-bottom profilers), a 
minimum of one PSO must be on duty, per source vessel, during daylight 
hours and two PSOs must be on duty, per source vessel, during nighttime 
hours. These PSO will monitor SZs based upon the radial distance from 
the acoustic source rather than being based around the vessel itself. 
The SZs distances are as follows:
     500-m SZ for NARWs during use of specified acoustic 
sources (impulsive: sparkers and boomers; non-impulsive: non-parametric 
sub-bottom profilers); and,
     100-m SZ for all other marine mammals (excluding NARWs) 
during operation of the sparker and boomer. The only exception to this 
is for pinnipeds (seals) and small delphinids (i.e., those from the 
genera Delphinus, Lagenorhynchus, Stenella or Tursiops).
    If a marine mammal is detected approaching or entering the SZs 
during the HRG survey, the vessel operator must adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
During use of acoustic sources with the potential to result in marine 
mammal harassment (sparkers, boomers, and non-parametric sub-bottom 
profilers; i.e., anytime the acoustic source is active, including ramp-
up), occurrences of marine mammals within the monitoring zone (but 
outside the SZs) must be communicated to the vessel operator to prepare 
for potential shutdown of the acoustic source.
    Visual Monitoring--Monitoring must be conducted by qualified PSOs 
who are trained biologists, with minimum qualifications described in 
the Federal Register notices for the 2022 project (87 FR 14823, March 
16, 2022; 87 FR 30453, May 19, 2022). Ocean Wind II must have one PSO 
on duty during the day and a minimum of two NMFS-approved PSOs must be 
on duty and conducting visual observations when HRG equipment is in use 
at night. Visual monitoring must begin no less than 30 minutes prior to 
ramp-up of HRG equipment and continue until 30 minutes after use of the 
acoustic source. PSOs must establish and monitor the applicable 
clearance zones, SZs, and vessel separation distances as described in 
the 2022 IHA (87 FR 30453, May 19, 2022). PSOs must coordinate to 
ensure 360-degree visual coverage around the vessel from the most 
appropriate observation posts, and must conduct observations while free 
from distractions and in a consistent, systematic, and diligent manner. 
PSOs are required to estimate distances to observed marine mammals. It 
is the responsibility of the Lead PSO on duty to communicate the 
presence of marine mammals as well as to communicate action(s) that are 
necessary to ensure mitigation and monitoring requirements are 
implemented as appropriate.
    Pre-Start Clearance--Marine mammal clearance zones (CZs) must be 
established around the HRG survey equipment and monitored by NMFS-
approved PSOs prior to use of boomers, sparkers, and non-parametric 
sib-bottom profilers as follow:
     500-m CZ for all ESA-listed species; and,

[[Page 48207]]

     100-m CZ for all other marine mammals.
    Prior to initiating HRG survey activities, Ocean Wind II must 
implement a 30-minute pre-start clearance period. The operator must 
notify a designated PSO of the planned start of ramp-up where the 
notification time should not be less than 60 minutes prior to the 
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes 
prior to the initiation of ramp-up. Prior to ramp-up beginning, Ocean 
Wind II must receive confirmation from the PSO that the CZs are clear 
prior to preceding. Any PSO on duty has the authority to delay the 
start of survey operations if a marine mammal is detected within the 
applicable pre-start clearance zones.
    During this 30-minute period, the entire CZ must be visible. The 
exception to this will be in situations where ramp-up must occur during 
periods of poor visibility (inclusive of nighttime) as long as 
appropriate visual monitoring has occurred with no detections of marine 
mammals in 30 minutes prior to the beginning of ramp-up. Acoustic 
source activation must only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If a marine mammal is observed within the relevant CZs during the 
pre-start clearance period, initiation of HRG survey equipment must not 
begin until the animal(s) has been observed exiting the respective CZ, 
or, until an additional period has elapsed with no further sighting 
(i.e., minimum 15 minutes for small odontocetes and seals; 30 minutes 
for all other species). The pre-start clearance requirement includes 
small delphinids. PSOs must also continue to monitor the zone for 30 
minutes after survey equipment is shut down or survey activity has 
concluded.
     Ramp-Up of Survey Equipment--When technically feasible, a 
ramp-up procedure must be used for geophysical survey equipment capable 
of adjusting energy levels at the start or re-start of survey 
activities. The ramp-up procedure must be used at the beginning of HRG 
survey activities in order to provide additional protection to marine 
mammals near the project area by allowing them to detect the presence 
of the survey and vacate the area prior to the commencement of survey 
equipment operation at full power. Ramp-up of the survey equipment must 
not begin until the relevant SZs has been cleared by the PSOs, as 
described above. HRG equipment operators must ramp up acoustic sources 
to half power for 5 minutes and then proceed to full power. If any 
marine mammals are detected within the SZs prior to or during ramp-up, 
the HRG equipment must be shut down (as described below).
     Shutdown Procedures--If an HRG source is active and a 
marine mammal is observed within or entering a relevant SZ (as 
described above), an immediate shutdown of the HRG survey equipment is 
required. When shutdown is called for by a PSO, the acoustic source 
must be immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty has the authority to delay the start of 
survey operations or to call for shutdown of the acoustic source if a 
marine mammal is detected within the applicable SZ. The vessel operator 
must establish and maintain clear lines of communication directly 
between PSOs on duty and crew controlling the HRG source(s) to ensure 
that shutdown commands are conveyed swiftly while allowing PSOs to 
maintain watch. Subsequent restart of the HRG equipment may only occur 
after the marine mammal has been observed exiting the relevant SZ, or, 
until an additional period has elapsed with no further sighting of the 
animal within the relevant SZ.
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable SZ or, following a clearance period of 15 
minutes for small odontocetes (i.e., harbor porpoise) and 30 minutes 
for all other species with no further observation of the marine 
mammal(s) within the relevant SZ. If the HRG equipment is shut down for 
brief periods (i.e., less than 30 minutes) for reasons other than 
mitigation (e.g., mechanical or electronic failure) the equipment may 
be re-activated as soon as is practicable at full operational level, 
without 30 minutes of pre-clearance, only if PSOs have maintained 
constant visual observation during the shutdown and no visual 
detections of marine mammals occurred within the applicable SZs during 
that time. For a shutdown of 30 minutes or longer, or if visual 
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
    The shutdown requirement is waived for pinnipeds (seals) and 
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) under certain circumstances. If a delphinid(s) 
from these genera is visually detected within the SZ, shutdown will not 
be required. If there is uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which shutdown is waived), 
PSOs must use best professional judgment in making the decision to call 
for a shutdown.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
area encompassing the Level B harassment isopleth (141 m), shutdown 
must occur.
     Vessel Strike Avoidance--Ocean Wind II must comply with 
vessel strike avoidance measures as described in the Federal Register 
notice for the 2022 IHA (87 FR 30453, May 19, 2022). This includes 
speed restrictions (10 knots (11.5 miles or 18.5 km per hour) or less) 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
spotted near a vessel; species-specific vessel separation distances; 
appropriate vessel actions when a marine mammal is sighted (e.g., avoid 
excessive speed, remain parallel to animal's course, etc.); and 
monitoring of the NMFS North Atlantic Right Whale reporting system and 
WhaleAlert daily.
     Seasonal Operating Requirements--Ocean Wind II will 
conduct HRG survey activities in the vicinity of a North Atlantic right 
whale Mid-Atlantic SMA. Activities must comply with the seasonal 
mandatory speed restriction period for this SMA (November 1 through 
April 30) for any survey work or transit within this area.
    Throughout all phases of the survey activities, Ocean Wind II must 
monitor NOAA Fisheries North Atlantic right whale reporting systems for 
the establishment of a DMA. If NMFS establishes a DMA in the 
surrounding area, including the project area or export cable routes 
being surveyed, Ocean Wind II is required to abide by the 10-knot (4.6 
miles or 7.4 km per hour) speed restriction.
     Training--Project-specific training is required for all 
vessel crew and personnel prior to the start of survey activities.
     Reporting--PSOs must record specific information as 
described in the Federal Register notice of the issuance of the 2022 
IHA (87 FR 30453, May 19, 2022). Within 90 days after completion of 
survey activities, Ocean Wind II must provide NMFS with a monitoring 
report, which must include summaries of recorded takes and estimates of 
the number of marine mammals that may have been harassed.
    In the event of a vessel strike or discovery of an injured or dead 
marine mammal, Ocean Wind II must report the incident to the Office of 
Protected Resources (OPR), NMFS and to the New England/Mid-Atlantic 
Regional

[[Page 48208]]

Stranding Coordinator as soon as feasible. The report must include the 
information listed in the Federal Register notice of the issuance of 
the 2022 (initial) IHA (87 FR 30453, May 19, 2022).

Determinations

    When issuing the 2022 IHA (87 FR 30453, May 19, 2022), NMFS found 
Ocean Wind II's HRG surveys would have a negligible impact to species 
or stocks annual rates of recruitment and survival and the amount of 
taking would be small relative to the population size of such species 
or stocks (less than 22 percent for the northern coastal migratory 
stock of bottlenose dolphins, less than 3 percent for the NARW, and 
less than 1 percent for all other species and stocks). Ocean Wind II's 
2023 HRG survey activities are identical to those analyzed in support 
of the 2022 IHA. Additionally, the potential effects of the activity, 
taking into consideration the mitigation and related monitoring 
measures, are identical to those evaluated in support of the 2022 IHA, 
regardless of the minor increases (based on updated densities) in 
estimated take numbers for some marine mammal species and/or stocks. 
However, the total amount of takes authorized is small relative to the 
best available population size of each species or stock (less than 22 
percent for the Western North Atlantic Migratory Coastal stock of 
bottlenose dolphins; less than 3 percent for the Western North Atlantic 
Migratory Offshore stock of bottlenose dolphins; and less than 1 
percent for all other species and stocks).
    NMFS expects that all potential takes would be short-term Level B 
behavioral harassment in the form of temporary avoidance of the area or 
decreased foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007). In addition to being 
temporary, the maximum expected harassment zone around a survey vessel 
is 141 m. Although this distance is assumed for all survey activity 
evaluated here and in estimating take numbers for authorization, in 
reality, much of the survey activity will involve use of non-impulsive 
acoustic sources with a reduced acoustic harassment zone of up to 48 m, 
producing expected effects of particularly low severity. Therefore, the 
ensonified area surrounding each vessel is relatively small compared to 
the overall distribution of the animals in the area and the available 
habitat. Feeding behavior is not likely to be significantly impacted as 
prey species are mobile and are broadly distributed throughout the 
survey area; therefore, marine mammals that may be temporarily 
displaced during survey activities are expected to be able to resume 
foraging once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations. Even 
considering the increased estimated take for some species, the impacts 
of these lower severity exposures are not expected to accrue to a 
degree that the fitness of any individuals will be impacted and, 
therefore, no impacts on the annual rates of recruitment or survival 
will result.
    As previously discussed in the 2022 IHA (87 FR 30453, May 19, 
2022), impacts from the survey are expected to be localized to the 
specific area of activity and only during periods when Ocean Wind II's 
acoustic sources are active. There are no rookeries, mating or calving 
grounds, or any feeding areas known to be biologically important to 
marine mammals within the survey area. There is no designated critical 
habitat for any ESA-listed marine mammals in the survey area.
    While areas of importance to fin whales, humpback whales, and 
harbor seals can be found off the coast of New Jersey, there are no 
Biologically Important Areas (BIAs) as defined by Van Parjis et al., 
2015. All of these BIAs for the species that might be impacted by Ocean 
Wind II's activities are located outside of the range of the survey 
area and, therefore, they are not expected to be impacted by Ocean Wind 
II's 2023 survey activities. There are three major harbor seal haulout 
sites along New Jersey's coast, including at Great Bay, Sandy Hook, and 
Barnegat Inlet (CWFNJ, 2015). As hauled out seals would be out of the 
water, no in-water effects resulting from Ocean Wind II's survey 
activities are expected.
    Ocean Wind II's project will occur in a small fraction of the NARW 
migratory corridor. As noted for the 2022 IHA (87 FR 30453, May 19, 
2022), impacts are expected to be limited to low levels of behavioral 
harassment, resulting in temporary and minor behavioral changes during 
any brief period of exposure.
    Because the survey activities are temporary and the spatial extent 
of sound produced by the survey will be very small relative to the 
spatial extent of the available migratory habitat in the BIA (269,448 
km\2\), NMFS does not expect NARW migration to be impacted by the 
survey. Due to the transitory nature of NARWs in this area and the lack 
of ``core'' NARW foraging habitat (Oleson et al., 2020) (such habitat 
is located much further north in the southern area of Martha's Vineyard 
and Nantucket Islands where both visual and acoustic detections of 
NARWs indicate a nearly year-round presence), it is unlikely for any 
exposure in the survey area to cause chronic effects, as any exposure 
will be brief and intermittent. Given the relatively small size of the 
ensonified area, it is unlikely that marine mammal prey availability 
will be adversely affected by HRG survey operations. Required vessel 
strike avoidance measures will also decrease risk of vessel strike 
during NARW migration; no vessel strike is expected to occur during 
Ocean Wind II's planned activities. Additionally, Ocean Wind II 
requested and NMFS has authorized only two takes by Level B harassment 
of NARWs. This amount is reduced from the 11 Level B harassment takes 
authorized in the 2022 IHA due to the revised Duke University density 
data (Roberts and Halpin, 2022). HRG survey operations are required to 
maintain a 500-m SZ, and shutdown if a NARW is sighted at or within the 
SZ. The 500-m SZ for NARWs is conservative, considering the Level B 
harassment isopleth for the most impactful acoustic source (i.e., 
sparker) is estimated to be 141 m, and thereby minimizes the potential 
for behavioral harassment of this species. As noted previously, Level A 
harassment is not expected due to the small permanent threshold shift 
(PTS) zones associated with the specified HRG equipment types. NMFS 
does not anticipate NARW takes that could result from Ocean Wind II's 
activities would impact annual rates of recruitment or survival. Thus, 
any takes that occur will not result in population level impacts.
    We also note that our findings for other species with active UMEs 
that were previously described for the 2022 IHA remain applicable to 
this project. There is no new information suggesting that our analysis 
or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) the required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes

[[Page 48209]]

represent small numbers of marine mammals relative to the affected 
stock abundances; (4) Ocean Wind II's activities will not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA 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 OPR consults 
internally whenever we propose to authorize take for endangered or 
threatened species.
    NMFS OPR is authorizing the incidental take of four species of 
marine mammals which are listed under the ESA, including the North 
Atlantic right, fin, sei, and sperm whale and has determined that these 
activities fall within the scope of activities analyzed in GARFO's 
programmatic consultation regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021). The consultation 
concluded that NMFS' issuance of incidental take authorization related 
to these activities is not likely to adversely affect ESA-listed marine 
mammals.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS 
must review our action (i.e., the issuance of an IHA) with respect to 
potential impacts on the human environment. This action is consistent 
with categories of activities identified in Categorical Exclusion B4 
(IHAs with no anticipated serious injury or mortality) of the Companion 
Manual for 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 the final IHA 
qualifies to be categorically excluded from further NEPA review.

Authorization

    NMFS has issued an IHA to Ocean Wind II for the potential 
harassment of small numbers of 16 marine mammal species incidental to 
marine site characterization surveys offshore of New Jersey, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are followed.

    Dated: July 21, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-15817 Filed 7-25-23; 8:45 am]
BILLING CODE 3510-22-P