Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off New York, New Jersey, Delaware, and Maryland, 753-772 [2024-00008]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Notices]
[Pages 753-772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00008]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD557]


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

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

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

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SUMMARY: NMFS has received a request from Atlantic Shores Offshore 
Wind, LLC (Atlantic Shores) for authorization to take marine mammals 
incidental to marine site characterization surveys in waters off of New 
York, New Jersey, Delaware, and Maryland, including in the Bureau of 
Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease 
Areas OCS-A 0499, OCS-A 0541, OCS-A 0549, and associated export cable 
corridor (ECC) areas. Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to incidentally take marine 
mammals during the specified activities. NMFS is also requesting 
comments on a possible one-time, 1-year renewal that could be issued 
under certain circumstances and if all requirements are met, as 
described in Request for Public Comments at the end of this notice. 
NMFS will consider public comments prior to making any final decision 
on the issuance of the requested MMPA authorization and agency 
responses will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than February 
5, 2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service and should be submitted via email to 
[email protected]. Electronic copies of the application and 
supporting documents, as well as a list of the references cited

[[Page 754]]

in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
below.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable without change. 
All personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

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

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are proposed or, if the taking is limited to harassment, a notice of a 
proposed IHA is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for 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 preliminarily determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On August 31, 2023, NMFS received a request from Atlantic Shores 
for an IHA to take marine mammals incidental to conducting marine site 
characterization surveys in waters off of New York, New Jersey, 
Delaware, and Maryland, specifically within BOEM Lease Areas OCS-A 
0499, OCS-A 0541, OCS-A 0549, and associated ECC areas. Following NMFS' 
review of the application, Atlantic Shores submitted revised versions 
on October 11 and November 17, 2023. The application was deemed 
adequate and complete on November 20, 2023. Atlantic Shores' request is 
for take of small numbers of 14 species (15 stocks) of marine mammals 
by Level B harassment. Neither Atlantic Shores nor NMFS expect serious 
injury or mortality to result from this activity and, therefore, an IHA 
is appropriate.
    NMFS previously issued IHAs to Atlantic Shores for similar work (85 
FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021; 87 FR 24103, 
April 20, 2022; 87 FR 50293, August 10, 2022; 88 FR 38821, June 9, 
2023; 88 FR 54575, August 10, 2023). Atlantic Shores complied with all 
the requirements (e.g., mitigation, monitoring, and reporting) of the 
previous IHAs and did not exceed authorized levels of take under 
previous IHAs issued for surveys offshore of New York and New Jersey. 
These previous monitoring results are available to the public on our 
website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization and https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llcs-marine-site.

Description of Proposed Activity

Overview

    Atlantic Shores proposes to conduct marine site characterization 
surveys, including high-resolution geophysical (HRG) surveys, in waters 
off of New York, New Jersey, Delaware, and Maryland, specifically 
within BOEM Lease Areas OCS-A 0499, OCS-A 0541, OCS-A 0549, and 
associated ECC areas, collectively considered the Survey Area.
    Atlantic Shores currently has two active IHAs associated with 
ongoing HRG survey activities: one in BOEM Lease Areas OCS-A 0499 and 
OCS-A 0549 effective June 9, 2023 through June 8, 2024 (88 FR 38821) 
and another in BOEM Lease Area OCS-A 0541 effective August 10, 2023 
through August 9, 2024 (88 FR 54575). The purpose of the IHA request 
addressed herein is to combine all ongoing HRG survey activities, 
including remaining survey activity associated with the two existing 
IHAs as well as new activity, under a single IHA. The new activity 
includes additional areas not currently covered under either currently 
active Atlantic Shores HRG survey IHAs. If NMFS ultimately makes the 
required determinations and issues the requested IHA, NMFS will 
concurrently modify the effective dates of the two active IHAs to 
reflect an end date that is one day earlier in time than the start date 
of the requested IHA.
    The proposed marine site characterization surveys are designed to 
obtain data sufficient to meet BOEM guidelines for providing 
geophysical, geotechnical, and geohazard information for site 
assessment plan surveys and/or construction and operations plan 
development. The objective of the surveys is to support the site 
characterization, siting, and engineering design of offshore wind 
project facilities including wind turbine generators, offshore 
substations, and submarine cables within the Survey Area. Up to two 
vessels may conduct survey efforts concurrently. Underwater sound 
resulting from Atlantic Shores'

[[Page 755]]

marine site characterization survey activities, specifically HRG 
surveys, have the potential to result in incidental take of marine 
mammals in the form of Level B harassment.

Dates and Duration

    The proposed activity is planned to begin on April 1, 2024. The 
proposed surveys are estimated to require a maximum of 300 survey days 
within a single year across a maximum of two vessels, which would 
include one vessel operating nearshore (less than 10 meters (m; 33 feet 
(ft)) depth) and one vessel operating offshore (greater than 10 m (33 
ft) depth). The survey days are proposed to occur any month throughout 
the year as the exact timing of the surveys during the year is not yet 
certain. A ``survey day'' is defined as a 24-hour (hr) activity period 
in which an active acoustic sound source is used offshore and a 12-hr 
activity period when a vessel is operating nearshore. Surveyed at a 
speed of approximately 3.5 knots (kn; 6.5 kilometer (km) per hr (km/
hr)), it is expected that the nearshore vessel would cover 
approximately 30 km (18.6 miles (mi)) of trackline per day, and the 
offshore vessel would cover approximately 140 km (87 mi) of trackline 
per day, based on Atlantic Shores' data acquisition efficiency 
expectations.

                                          Table 1--Proposed Survey Days
----------------------------------------------------------------------------------------------------------------
                                                       Number of active
                     Survey area                          survey days       Survey distance      Annual survey
                                                           expected          per day (km)        distance (km)
----------------------------------------------------------------------------------------------------------------
Nearshore...........................................                 120                  30               3,600
Offshore............................................                 180                 140              25,200
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Specific Geographic Region

    Atlantic Shores' proposed activities would occur in the Northwest 
Atlantic Ocean within Federal and State waters off of New York, New 
Jersey, Delaware, and Maryland in BOEM Lease Areas OCS-A 0499, OCS-A 
0541, OCS-A 0549, and along the associated ECC areas (Figure 1). 
Overall, the Survey Area is approximately 20,251 square kilometers 
(km2; 7,819 mi2) and extends from the shoreline 
to approximately 74 km (46 mi) offshore and a maximum depth of 
approximately 60 m (197 ft).
BILLING CODE 3510-22-P

[[Page 756]]

[GRAPHIC] [TIFF OMITTED] TN05JA24.000

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

    Atlantic Shores' marine site characterization surveys within the 
Survey Area include geotechnical and geophysical surveys, including 
depth sounding to determine water depth, site bathymetry, and general 
seafloor topography using a single beam and multibeam echosounder 
(MBES); magnetic intensity measurements using a gradiometer; seafloor 
imaging using a side scan sonar; shallow penetration sub-bottom 
profilers (SBPs; parametric); and a medium penetration SBP (sparker). 
NMFS does not expect the following acoustic sources to present a 
reasonably anticipated risk of causing incidental take of marine 
mammals, and these activities are not discussed further in this notice:
     Single and MBES and side-scan sonars are used to determine 
water depths and general seafloor topography. The proposed MBES and 
side-scan sonar both have operating frequencies greater than 180 
kilohertz (kHz) and are,

[[Page 757]]

therefore, outside the general hearing range of marine mammals.
     Gradiometers are used to detect local variations in 
regional magnetic field from geological strata and potential ferrous 
objects on and below the seafloor. The proposed gradiometer has an 
operating frequency greater than 180 kHz and is, therefore, outside the 
general hearing range of marine mammals.
     Parametric SBPs are shallow penetration non-impulsive 
sources used to map the near-surface stratigraphy (soil down to 5 m) of 
sediment below seabed and can provide high data density in subsurface 
profiles that are typically required for cable routes, very shallow 
water, and archaeological surveys. These sources generate short, very 
narrow-beam (1 to 3.5 degrees ([deg])) signals at high frequencies 
(generally around 85-115 kHz). The narrow beamwidth significantly 
reduces the potential that a marine mammal could be exposed to the 
signal while the high frequency of operation means that the signal is 
rapidly attenuated in seawater (and cannot be heard by mysticetes). 
These sources are typically deployed on a pole rather than towed behind 
the vessel.
    Atlantic Shores proposes to use a sparker during HRG survey 
activities that has the potential to cause incidental take of marine 
mammals. Sparkers are medium penetration impulsive sources used to map 
deep subsurface stratigraphy (soils down to at least 100 m (328 ft) 
below the seabed in sand and at least 125 m (410 ft) below the seabed 
in mixed sediments). Sparkers create omnidirectional acoustic pulses 
from 50 hertz (Hz) to 4 kHz, are typically towed behind the vessel, and 
may be operated with different numbers of electrode tips to allow 
tuning of the acoustic waveform for specific applications. There is one 
sparker system planned for use: GeoMarine Geo-Source 400, which would 
collect two-dimensional (2D) single-channel ultra-high resolution 
seismic (SUHRS) data while operating 400 tips at a power level of 400 
Joules (J; table 2).

                                  Table 2--Representative Survey Equipment Expected To Result in Take of Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Operational                 Typical pulse     Pulse
   HRG survey equipment (sub-bottom      Representative equipment   Operating frequency ranges   source level    Beamwidth   duration RMS90   repetition
               profiler)                           type                       (kHz)                 (dBRMS)       (degree)        (ms)        rate (Hz)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker...............................  Geo Marine Survey System   0.2 to 5...................             195          180             7.2         0.41
                                         2D SUHRS.
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Note: Atlantic Shores proposes to use the data provided for the SIG ELC 820 operating at a power of 400 J using 100 electrode tips as a proxy for the
  sparker system listed above (see Estimated Take section for additional discussion).

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

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

                                       Table 3--Species and Stocks Likely Impacted by the Specified Activities \1\
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
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                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    N Atlantic Right Whale \5\......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             338 (0, 332, 2020)....        0.7       31.2
Family Balaenopteridae (rorquals):
    Fin Whale.......................  Balaenoptera physalus..  Western N Atlantic.....  E, D, Y             6,802 (0.24, 5,573,            11        1.8
                                                                                                             2016).
    Humpback Whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, N             1,396 (0, 1380, 2016).         22      12.15
    Minke Whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31, 17,002,         170       10.6
                                       acutorostrata.           Coastal.                                     2016).

[[Page 758]]

 
    Sei Whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02, 3,098,           6.2        0.8
                                                                                                             2016).
Family Delphinidae:
    Long-Finned Pilot Whale.........  Globicephala melas.....  Western N Atlantic.....  -, -, N             39,215 (0.30, 30,627,         306          9
                                                                                                             2016).
    Atlantic Spotted Dolphin........  Stenella frontalis.....  Western N Atlantic.....  -, -, N             39,921 (0.27, 32,032,         320          0
                                                                                                             2016).
    Atlantic White-Sided Dolphin....  Lagenorhynchus acutus..  Western N Atlantic.....  -, -, N             93,233 (0.71, 54,443,         544         27
                                                                                                             2016).
    Bottlenose Dolphin..............  Tursiops truncatus.....  Northern Migratory       -, -, Y             6,639 (0.41, 4,759,            48      12.2-
                                                                Coastal.                                     2016).                                 21.5
    Bottlenose Dolphin..............  Tursiops truncatus.....  Western N Atlantic       -, -, N             62,851 (0.23, 51,914,         519         28
                                                                Offshore.                                    2016).
    Risso's Dolphin.................  Grampus griseus........  Western N Atlantic.....  -, -, N             35,215 (0.19, 30,051,         301         34
                                                                                                             2016).
    Common Dolphin..................  Delphinus delphis......  Western N Atlantic.....  -, -, N             172,974 (0.21,              1,452        390
                                                                                                             145,216, 2016).
Family Phocoenidae (porpoises):
    Harbor Porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31, 74,034,         851        164
                                                                Fundy.                                       2016).
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                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray Seal \6\...................  Halichoerus grypus.....  Western N Atlantic.....  -, -, N             27,300 (0.22, 22,785,       1,458      4,453
                                                                                                             2016).
    Harbor Seal.....................  Phoca vitulina.........  Western N Atlantic.....  -, -, N             61,336 (0.08, 57,637,       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.
  CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\5\ Linden (2023) estimated the population size in 2022 as 356 individuals, with a 95 percent credible interval ranging from 346 to 363. NMFS
  acknowledges this most recent estimation in addition to the 2022 SAR stock abundance estimate.
\6\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,600. The annual M/SI given is for the total stock.

    As indicated above, all 14 species (15 managed stocks) in table 3 
temporally and spatially co-occur with the proposed activity to the 
degree that take is reasonably likely to occur. While other species 
have been documented in the area (see table 3-1 of the IHA 
application), the temporal and/or spatial occurrence of these species 
is such that take is not expected to occur, and they are not discussed 
further.

North Atlantic Right Whale

    North Atlantic right whales (NARW) range from calving grounds in 
the southeastern United States to feeding grounds in New England waters 
and into Canadian waters (Hayes et al., 2023). They are observed year 
round in the Mid-Atlantic Bight, and surveys have demonstrated the 
existence of seven areas where NARW congregate seasonally in Georges 
Bank, off Cape Cod, and in Massachusetts Bay (Hayes et al., 2023). In 
the late fall months (e.g., October), NARW are generally thought to 
depart from the feeding grounds in the North Atlantic and move south to 
their calving grounds off Georgia and Florida. However, recent research 
indicates our understanding of their movement patterns remains 
incomplete (Davis et al., 2017). A review of passive acoustic 
monitoring data from 2004 to 2014 throughout the western North Atlantic 
demonstrated nearly continuous year-round NARW presence across their 
entire habitat range (for at least some individuals), including in 
locations previously thought of as migratory corridors, suggesting that 
not all of the population undergoes a consistent annual migration 
(Davis et al., 2017). Given that Atlantic Shores' surveys would be 
concentrated in the New York Bight and Mid-Atlantic Bight, some NARW 
may be present year round. However, the majority of NARW in the 
vicinity of the Survey Area are likely to be transient, migrating 
through the area.
    Recent aerial surveys in the New York Bight showed NARW in the 
proposed Survey Area in the winter and spring, preferring deeper waters 
near the shelf break (NARW observed in depths ranging from 33-1,041 m) 
but were observed throughout the aerial survey area (Zoidis et al., 
2021, Robinson et al., 2021). Similarly, passive acoustic data 
collected from 2018 to 2020 in the New York Bight showed detections of 
NARW throughout the year (Estabrook et al., 2021). Seasonally, NARW 
acoustic presence was highest in the fall. NARW can be anticipated to 
occur in the proposed Survey Area year-round but with lower levels in 
the summer from July-September.
    Since 2010, the NARW population has been in decline (Pace III et 
al., 2017), with a 40 percent decrease in calving rate (Kraus et al., 
2016). In 2018, no new NARW calves were documented in their calving 
grounds; this represented the first time since annual NOAA aerial 
surveys began in 1989 that no new NARW calves were observed. Calf 
numbers have increased since 2018 with 20 NARW calves documented in 
2021 and 15 in 2022.
    Elevated NARW mortalities have occurred since June 7, 2017, along 
the U.S. and Canadian coast. This event has been declared an unusual 
mortality event (UME), with human interactions, including entanglement 
in fixed fishing gear and vessel strikes, implicated in at least 60 of 
the mortalities or serious injuries thus far. As of October 4, 2023, a 
total of 121 confirmed cases of mortality, serious injury, or morbidity 
(sublethal injury or illness) have been documented. The preliminary 
cause of most of these cases is from rope entanglements or vessel 
strikes. More information is available online at: https://
www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-

[[Page 759]]

north-atlantic-right-whale-unusual-mortality-event.
    The proposed Survey Area is within a migratory corridor 
biologically important area (BIA) for NARW that extends from 
Massachusetts to Florida (LaBrecque et al., 2015). There is possible 
migratory behavior that could occur in this area between November and 
April. Off the coast of New Jersey, the migratory BIA extends from the 
coast to beyond the shelf break.
    NMFS' regulations at 50 CFR 224.105 designated nearshore waters of 
the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas 
(SMA) for NARW in 2008. SMAs were developed to reduce the threat of 
collisions between ships and NARW around their migratory route and 
calving grounds. The New York/New Jersey SMA, which occurs in the New 
York Bight, is in the proposed Survey Area and is active from November 
1 through April 30 of each year. Within SMAs, the regulations require a 
mandatory vessel speed (less than 10 kn (18.52 km/hr)) or 5.14 m/sec 
for all vessels longer than 19.8 m (65 ft).
    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 right whales from vessel 
collisions, which are a leading cause of the species' decline and a 
primary factor in an ongoing Unusual Mortality Event (87 FR 46921, 
August 1, 2022). 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. These changes would 
become effective immediately upon the effective date of any final 
vessel speed rule and would not require any further action on NMFS's 
part.

Fin Whale

    Fin whales are present north of 35[deg] N latitude in every season 
and are broadly distributed throughout the western North Atlantic for 
most of the year (Hayes et al., 2022). They are typically found in 
small groups of up to five individuals (Brueggeman et al., 1987). The 
main threats to fin whales are fishery interactions and vessel 
collisions (Hayes et al., 2022).
    The western North Atlantic stock of fin whales includes the area 
from central Virginia to Newfoundland/Labrador, Canada. This region is 
primarily a feeding ground for this migratory species that tend to 
calve and breed in lower latitudes or offshore. There is currently no 
critical habitat designated for this species.
    Aerial surveys in the New York Bight observed fin whales year-round 
throughout the proposed Survey Area, but they preferred deeper waters 
near the shelf break (Robinson et al., 2021). Passive acoustic data 
from 2018-2020 also detected fin whales throughout the year (Estabrook 
et al., 2021).

Humpback Whale

    On September 8, 2016, NMFS divided the once single species of 
humpback whales into 14 distinct population segments (DPSs), removed 
the current species-level listing, and, instead, listed four DPSs as 
endangered and one DPS as threatened (81 FR 62259, September 8, 2016). 
The remaining nine DPSs were not listed. The West Indies DPS, which is 
not listed under the ESA, is the only DPS of humpback whale that is 
expected to occur in the Survey Area. Members of the West Indies DPS 
disperse to multiple western North Atlantic feeding populations, 
including the Gulf of Maine stock designated under the MMPA. Whales 
occurring in the proposed survey area are considered to be from the 
West Indies DPS but are not necessarily from the Gulf of Maine stock. 
Barco et al. (2002) estimated that, based on photo-identification, only 
39 percent of individual humpback whales observed along the mid- and 
south Atlantic U.S. coast are from the Gulf of Maine stock. Bettridge 
et al. (2015) estimated the size of this population at 12,312 (95 
percent confidence interval (CI) 8,688-15,954) whales in 2004-2005, 
which is consistent with previous population estimates of approximately 
10,000-11,000 whales (Stevick et al., 2003, Smith et al., 1999) and the 
increasing trend for the West Indies DPS (Bettridge et al., 2015).
    Humpback whales utilize the mid-Atlantic as a migration pathway 
between calving/mating grounds to the south and feeding grounds in the 
north (Waring et al., 2007a, Waring et al., 2007b). A key question with 
regard to humpback whales off the Mid-Atlantic States is to which 
feeding population whales in these waters belong.
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. Partial or 
full necropsy examinations have been conducted on approximately half of 
the 209 known cases (as of November 2, 2023). Of the whales examined, 
about 40 percent had evidence of human interaction, either vessel 
strike or entanglement. While a portion of the whales have shown 
evidence of pre-mortem vessel strike, this finding is not consistent 
across all whales examined and more research is needed. NOAA is 
consulting with researchers that are conducting studies on the humpback 
whale populations, and these efforts may provide information on changes 
in whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude 
waters. The Canadian East Coast stock can be found in the area from the 
western half of the Davis Strait (45[deg] W longitude) to the Gulf of 
Mexico (Hayes et al., 2022). This species generally occupies waters 
less than 100 m deep on the continental shelf. There appears to be a 
strong seasonal component to minke whale distribution in the Survey 
Area, in which spring to fall are times of relatively widespread and 
common occurrence while during winter the species appears to be largely 
absent (Hayes et al., 2022). Aerial surveys in the New York Bight area 
found that minke whales were observed throughout the proposed Survey 
Area with highest numbers sighting in the spring months (Robinson et 
al., 2021).
    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 160 strandings (as of September 26, 2023). This event has been 
declared a UME; as of 2023, it is pending closure. Full or partial 
necropsy examinations were conducted on more than 60 percent of the 
stranded whales. Preliminary findings in several of the whales have 
shown evidence of human interactions or infectious disease, but these 
findings are not consistent across all of the whales examined, so more 
research is needed. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.

[[Page 760]]

Sei Whale

    The Nova Scotia stock of sei whales can be found in deeper waters 
of the continental shelf edge waters of the northeastern U.S. and 
northeastward to south of Newfoundland. Sei whales occur in shallower 
waters to feed. Currently there is no critical habitat for sei whales, 
though they can be observed along the shelf edge of the continental 
shelf. The main threats to this stock are interactions with fisheries 
and vessel collisions.
    Aerial surveys conducted in the New York Bight observed sei whales 
in both winter and spring, though they preferred deeper waters near the 
shelf break (Robinson et al., 2021). Passive acoustic data in the 
proposed Survey Area detected sei whales throughout the year except 
January and July with highest detections in March and April (Estabrook 
et al., 2021).

Long-Finned Pilot Whale

    Only long-finned pilot whales are expected to occur in this project 
area due to their more northerly distribution and association with 
colder water compared to short-finned pilot whales (Garrison and Rosel, 
2017). Long-finned pilot whales are found from North Carolina to 
Iceland, Greenland, and the Barents Sea (Hayes et al., 2022). In U.S. 
Atlantic waters, the Western North Atlantic stock is distributed 
principally along the continental shelf edge off the northeastern U.S. 
coast in winter and early spring. In late spring, pilot whales move 
onto Georges Bank and into the Gulf of Maine and more northern waters 
and remain in these areas through late autumn (Hayes et al., 2022).

Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate 
waters ranging from southern New England, south to the Gulf of Mexico 
and the Caribbean to Venezuela (Hayes et al., 2020). The Western North 
Atlantic stock regularly occurs in continental shelf waters south of 
Cape Hatteras, North Carolina and in continental shelf edge and 
continental slope waters north of this region (Hayes et al., 2020).

Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of 
the North Atlantic, primarily in continental shelf waters to the 100-m 
depth contour from central west Greenland to North Carolina (Hayes et 
al., 2022). The Gulf of Maine stock is most common in continental shelf 
waters from Hudson Canyon to Georges Bank and in the Gulf of Maine and 
lower Bay of Fundy. Sighting data indicate seasonal shifts in 
distribution (Northridge et al., 1997). During January to May, low 
numbers of white-sided dolphins are found from Georges Bank to Jeffreys 
Ledge (off New Hampshire) with even lower numbers south of Georges Bank 
as documented by a few strandings collected on beaches of Virginia to 
South Carolina. From June through September, large numbers of white-
sided dolphins are found from Georges Bank to the lower Bay of Fundy. 
From October to December, white-sided dolphins occur at intermediate 
densities from southern Georges Bank to southern Gulf of Maine (Payne 
and Heinemann, 1990). Sightings south of Georges Bank, particularly 
around Hudson Canyon, occur year round but at low densities. Aerial 
studies confirmed observations in fall and winter in the New York Bight 
area with preference for deep water at the shelf break throughout the 
year (Robinson et al., 2021).

Bottlenose Dolphin

    There are two distinct bottlenose dolphin morphotypes in the 
Western North Atlantic: coastal and offshore (Hayes et al., 2020, Hayes 
et al., 2021). Coastal morphotype dolphins generally reside in waters 
along the inner continental shelf (within 7.5 km (4.6 mi) of shore), 
around islands, and are continuously distributed south of Long Island, 
New York, into the Gulf of Mexico. Coastal dolphins in this area are 
expected to belong to the Northern Migratory Coastal Stock. Torres et 
al. (2003) found a statistically significant break in the distribution 
of the morphotypes at 34 km from shore based upon the genetic analysis 
of tissue samples collected in nearshore and offshore waters from New 
York to central Florida. Both morphotypes are likely to occur in the 
proposed Survey Area. The offshore stock is distributed primarily along 
the outer continental shelf and continental slope in the Northwest 
Atlantic Ocean from Georges Bank to the Florida Keys.

Risso's Dolphin

    The Western North Atlantic stock of Risso's dolphin occurs from 
Florida to eastern Newfoundland. They are common on the northwest 
Atlantic continental shelf in summer and fall with lower abundances in 
winter and spring. Aerial surveys in the New York Bight area sighted 
Risso's dolphins throughout the year at the shelf break with highest 
abundances in spring and summer (Robinson et al., 2021).

Common Dolphin

    Common dolphins within the U.S. Atlantic Exclusive Economic Zone 
(EEZ) belong to the Western North Atlantic stock, generally occurring 
from Cape Hatteras to the Scotian Shelf (Hayes et al., 2022). Common 
dolphins are a highly seasonal, migratory species. Within the U.S. 
Atlantic EEZ, this species is distributed along the continental shelf 
and typically associated with Gulf Stream features (Cetacean and Turtle 
Assessment Program, 1982, Hamazaki, 2002, Selzer and Payne, 1988, Hayes 
et al., 2022). They are commonly found over the continental shelf 
between the 100-m and 2,000-m isobaths and over prominent underwater 
topography and east to the mid-Atlantic Ridge (Hayes et al., 2022). 
Common dolphins occur from Cape Hatteras northeast to Georges Bank 
(35[deg] N to 42[deg] N latitude) during mid-January to May and move as 
far north as the Scotian Shelf from mid-summer to fall (Selzer and 
Payne, 1988). Migration onto the Scotian Shelf and continental shelf 
off Newfoundland occurs when water temperatures exceed 51.8 [deg]F 
(11[deg] Celsius; (Sergeant et al., 1970, Gowans and Whitehead, 1995). 
Breeding usually takes place between June and September (Hayes et al., 
2022). Summer surveys included observations of the most individuals 
followed by fall, winter, and then spring.

Harbor Porpoise

    In the project area, only the Gulf of Maine/Bay of Fundy stock of 
harbor porpoises may be present in the fall and winter. This stock is 
found in U.S. and Canadian Atlantic waters and is concentrated in the 
northern Gulf of Maine and southern Bay of Fundy region, generally in 
waters less than 150 m deep (Hayes et al., 2022). During fall (October-
December) and spring (April-June), they are more widely dispersed from 
New Jersey to Maine with lower densities farther north and south. In 
winter (January-March), intermediate densities of harbor porpoises can 
be found in waters off New Jersey to North Carolina with lower 
densities found in waters off New York to New Brunswick, Canada (Hayes 
et al., 2022). They are seen from the coastline to deep waters (greater 
than 1,800 m; (Westgate and Read, 1998), although the majority of the 
population is found over the continental shelf (Hayes et al., 2022). 
The main threat to the species is interactions with fisheries, with 
documented take in the U.S. northeast sink gillnet, mid-Atlantic 
gillnet, and northeast bottom trawl fisheries and in the Canadian 
herring weir fisheries (Hayes et al., 2022).

[[Page 761]]

Pinnipeds (Gray Seal and Harbor Seal)

    Gray seals have been observed in the proposed Survey Area and these 
seals belong to the western North Atlantic stock. The range for this 
stock is thought to be from New Jersey to Labrador Sea. Current 
population trends show that gray seal abundance is likely increasing in 
the U.S. Atlantic EEZ (Hayes et al., 2021). Although the rate of 
increase is unknown, surveys conducted since their arrival in the 1980s 
indicate a steady increase in abundance in both Maine and Massachusetts 
(Hayes et al., 2021). It is believed that recolonization by Canadian 
gray seals is the source of the U.S. population increase (Hayes et al., 
2021). Documented haulouts for gray seals exist in the Long Island 
area, with a possible rookery on Little Gull Island.
    Since June 2022, elevated numbers of sick and dead harbor seals and 
gray seals have been documented along the southern and central coast of 
Maine. This event has also been declared a UME; as of late 2023, it is 
pending closure. Preliminary testing of samples found that some harbor 
and gray seals were positive for the highly pathogenic avian influenza. 
NMFS and other partners are working on an ongoing investigation of this 
UME. From June 1, 2022-July 16, 2023, there have been 492 seal 
strandings. Information on these UMEs are available online at: https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995, Wartzok and 
Ketten, 1999, Au and Hastings, 2008). To reflect this, Southall et al. 
(2007), Southall et al. (2019) recommended that marine mammals be 
divided into hearing groups based on directly measured (behavioral or 
auditory evoked potential techniques) or estimated hearing ranges 
(behavioral response data, anatomical modeling, etc.). Note that no 
direct measurements of hearing ability have been successfully completed 
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS 
(2018) described generalized hearing ranges for these marine mammal 
hearing groups. Generalized hearing ranges were chosen based on the 
approximately 65 dB threshold from the normalized composite audiograms, 
with the exception for lower limits for low-frequency cetaceans where 
the lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in table 4.

                  Table 4--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen        7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,     150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true         275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus cruciger
 & L. australis).
Phocid pinnipeds (PW) (underwater) (true    50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea    60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
Detailed descriptions of the potential effects of similar specified 
activities have been provided in other recent Federal Register notices, 
including for survey activities using the same methodology by Atlantic 
Shores (87 FR 4200, January 27, 2022; 87 FR 24103, April 22, 2022; 87 
FR 38067, June 27, 2022; 87 FR 50293, August 16, 2022). At present, 
there is no new information on potential effects that would impact our 
analysis and we incorporate by reference the detailed discussions in 
those documents rather than repeating the details here.
    The Estimated Take section later in this document includes a 
quantitative analysis of the number of individuals that are expected to 
be taken by this activity. The Negligible Impact Analysis and 
Determination section considers the content of this section, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and whether those 
impacts are reasonably expected to, or reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.

Summary on Specific Potential Effects of Acoustic Sound Sources

    For general information on sound, its interaction with the marine 
environment, and a description of acoustic terminology, please see, 
e.g., (Institute, 1986, Institute, 1995, Au and Hastings, 2008, 
Hastings and Popper, 2005, Mitson, 1995, Health, 1998, Southall et al., 
2007, Urick, 1983). Underwater sound from active acoustic sources can 
cause one or more of the following: temporary or permanent hearing 
impairment, behavioral disturbance, masking, stress, and non-auditory 
physical effects. The degree of effect is intrinsically related to the 
signal characteristics, received level, distance from the source, and 
duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for

[[Page 762]]

prolonged periods, can experience hearing threshold shift (TS), which 
is the loss of hearing sensitivity at certain frequency ranges 
(Finneran, 2015). TS can be permanent (PTS; permanent threshold shift), 
in which case the loss of hearing sensitivity is not fully recoverable, 
or temporary (TTS; temporary threshold shift), in which case the 
animal's hearing threshold would recover over time (Southall et al., 
2007).
    When PTS occurs, there is physical damage to the sound receptors in 
the ear (i.e., tissue damage), whereas TTS represents primarily tissue 
fatigue and is reversible (Southall et al., 2007). In addition, other 
investigators have suggested that TTS is within the normal bounds of 
physiological variability and tolerance and does not represent physical 
injury (e.g., Ward, 1997). Therefore, NMFS does not consider TTS to 
constitute auditory injury.
    Animals in the vicinity of Atlantic Shores' proposed HRG survey 
activities are unlikely to incur even TTS due to the characteristics of 
the sound source, which include generally very short pulses and 
potential duration of exposure. These characteristics mean that 
instantaneous exposure is unlikely to cause TTS because it is unlikely 
that exposure would occur close enough to the vessel for received 
levels to exceed peak pressure TTS criteria, and the cumulative 
duration of exposure would be insufficient to exceed cumulative sound 
exposure level (SEL) criteria. Even for high-frequency cetacean species 
(e.g., harbor porpoises), which have the greatest sensitivity to 
potential TTS, individuals would have to make a very close approach and 
remain very close to the vessel operating the source in order to 
receive multiple exposures at relatively high levels as would be 
necessary to cause TTS. Intermittent exposures--as would occur due to 
the brief, transient signals produced by these sources--require a 
higher cumulative SEL to induce TTS than would continuous exposures of 
the same duration (i.e., intermittent exposure results in lower levels 
of TTS). Moreover, most marine mammals would more likely avoid a loud 
sound source rather than swim in such close proximity as to result in 
TTS. Kremser et al. (2005) noted that the probability of a cetacean 
swimming through the area of exposure when a sub-bottom profiler emits 
a pulse is small--because if the animal was in the area, it would have 
to pass the transducer at close range in order to be subjected to sound 
levels that could cause TTS and would likely exhibit avoidance behavior 
to the area near the transducer rather than swim through at such a 
close range.
    Behavioral disturbance to marine mammals from sound may include a 
variety of effects, including subtle changes in behavior (e.g., minor 
or brief avoidance of an area or changes in vocalizations), more 
conspicuous changes in similar behavioral activities, and more 
sustained and/or potentially severe reactions, such as displacement 
from or abandonment of high-quality habitat. Behavioral responses to 
sound are highly variable and context-specific and any reactions depend 
on numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors. 
Available studies show wide variation in response to underwater sound; 
therefore, it is difficult to predict specifically how any given sound 
in a particular instance might affect marine mammals perceiving the 
signal.
    In addition, sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, navigation). Masking occurs when the receipt of a 
sound is interfered with by another coincident sound at similar 
frequencies and at similar or higher intensity, and may occur whether 
the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., shipping, sonar, seismic 
exploration) in origin. Marine mammal communications would not likely 
be masked appreciably by the acoustic signals given the directionality 
of the signals for the HRG survey equipment planned for use (table 2) 
and the brief period for when an individual mammal would likely be 
exposed.
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, zooplankton) (i.e., effects to marine mammal 
habitat). Prey species exposed to sound might move away from the sound 
source, experience TTS, experience masking of biologically relevant 
sounds, or show no obvious direct effects. The most likely impacts, if 
any, for most prey species in a given area would be temporary avoidance 
of the area. Surveys using active acoustic sound sources move through 
an area, limiting exposure to multiple pulses. In all cases, sound 
levels would return to ambient once a survey ends and the noise source 
is shut down and, when exposure to sound ends, behavioral and/or 
physiological responses are expected to end relatively quickly. 
Finally, the HRG survey equipment will not have significant impacts to 
the seafloor and does not represent a source of pollution.

Vessel Strike

    Vessel collisions with marine mammals, or vessel strikes, can 
result in death or serious injury of the animal. These interactions are 
typically associated with large whales, which are less maneuverable 
than are smaller cetaceans or pinnipeds in relation to large vessels. 
Vessel strikes generally involve commercial shipping vessels, which are 
normally larger and of which there is much more traffic in the ocean 
than geophysical survey vessels. Jensen et al. (2003) summarized vessel 
strikes of large whales worldwide from 1975-2003 and found that most 
collisions occurred in the open ocean and involved large vessels (e.g., 
commercial shipping). For vessels used in geophysical survey 
activities, vessel speed while towing gear is typically only 4-5 kn 
(2.1-2.6 m/s). At these speeds, both the possibility of striking a 
marine mammal and the possibility of a strike resulting in serious 
injury or mortality are so low as to be discountable. At average 
transit speed for geophysical survey vessels, the probability of 
serious injury or mortality resulting from a strike is less than 50 
percent. However, the likelihood of a strike actually happening is 
again low given the smaller size of these vessels proposed for use and 
generally slower speeds. Notably in the Jensen and Silber study, no 
strike incidents were reported for geophysical survey vessels during 
that time period.
    The potential effects of Atlantic Shores' specified survey activity 
are expected to be limited to Level B behavioral harassment. No 
permanent or temporary auditory effects or significant impacts to 
marine mammal habitat, including prey, are expected.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through the IHA, which will inform both 
NMFS' consideration of ``small numbers,'' and the negligible impact 
determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment);

[[Page 763]]

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

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, Southall et al., 2021, Ellison et 
al., 2012). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS generally predicts that marine 
mammals are likely to be behaviorally harassed in a manner considered 
to be Level B harassment when exposed to underwater anthropogenic noise 
above RMS pressure received levels (RMS SPL) of 120 dB (referenced to 1 
microPascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile 
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources.
    Generally speaking, Level B harassment take estimates based on 
these behavioral harassment thresholds are expected to include any 
likely takes by TTS as, in most cases, the likelihood of TTS occurs at 
distances from the source less than those at which behavioral 
harassment is likely. TTS of a sufficient degree can manifest as 
behavioral harassment, as reduced hearing sensitivity and the potential 
reduced opportunities to detect important signals (e.g., conspecific 
communication, predators, prey) may result in changes in behavior 
patterns that would not otherwise occur.
    Atlantic Shores' marine site characterization surveys include the 
use of an impulsive (i.e., sparker) source, and therefore the SPL 
threshold of 160 dB re 1 [mu]Pa is applicable.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0; 
(NMFS, 2018)) identifies dual criteria to assess auditory injury (Level 
A harassment) to five different marine mammal groups (based on hearing 
sensitivity) as a result of exposure to noise from two different types 
of sources (impulsive or non-impulsive).
    The references, analysis, and methodology used in the development 
of the thresholds are described in NMFS' 2018 Technical Guidance, which 
may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality (when relevant) to refine estimated ensonified 
zones. For acoustic sources that operate with different beamwidths, the 
maximum beamwidth was used, and the lowest frequency of the source was 
used when calculating the frequency-dependent absorption coefficient 
(table 2). Atlantic Shores used 180[deg] beamwidth in the calculation 
for the proposed sparker system as is appropriate for an 
omnidirectional source.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases where the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that, in instances where data from a suitable proxy is 
presented, Crocker and Fratantonio (2016) be used, or, alternatively, 
when no suitable proxy is available, source levels provided by the 
manufacturer may be used instead. Table 2 shows the HRG equipment type 
used during the proposed surveys and the source levels associated with 
the HRG equipment type.
    Atlantic Shores proposes to use the GeoMarine Geo-Source 400 Marine 
Multi-tip Sparker System (400 tip/400 J). No data are provided by 
Crocker and Fratantonio (2016) for the GeoMarine Geo-Source sparker 
system, therefore, Atlantic Shores proposes to use the data provided 
for the SIG ELC 820 operating at 400 J with 100 electrode tips as a 
proxy for the GeoMarine Geo-Source operating at 400 J with 400 
electrode tips. Crocker and Fratantonio (2016) indicates an operational 
source level of 195 dBRMS for the SIG ELC 820 while 
operating at a power of 400 J using 100 electrode tips, and Atlantic 
Shores has determined that an increase in the number of electrode tips 
decreases the overall peak source pressure translating to a lower 
operational source level. NMFS concurs with this selection, which is 
described in table 2. Using the proxy source level of 195 dB RMS SPL

[[Page 764]]

results in an estimated distance of 56 m to the Level B harassment 
isopleth.

Marine Mammal Occurrence

    In this section, we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2023) represent the best 
available information regarding marine mammal densities in the proposed 
Survey Area. These density data incorporate aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporate 
data from numerous physiographic and dynamic oceanographic and 
biological covariates, and controls for the influence of sea state, 
group size, availability bias, and perception bias on the probability 
of making a sighting. These density models were originally developed 
for all cetacean taxa in the U.S. Atlantic in 2016 and models for all 
taxa were updated in 2022 (Roberts et al., 2023). More information is 
available online at: https://seamap.env.duke.edu/models/Duke/EC/. 
Marine mammal density estimates in the proposed Survey Area (animals/
km\2\) were obtained using the most recent model results for all taxa.
    For the exposure analysis, density data from Roberts et al. (2023) 
were mapped using a geographic information system (GIS). For the 
proposed Survey Area, the monthly densities of each species as reported 
by Roberts et al. (2023) were averaged by season; thus, a density was 
calculated for each species for spring, summer, fall, and winter. 
Density seasonal averages were calculated for both the nearshore and 
offshore areas (i.e., inside and outside the 10-m isobath) for each 
species to assess the greatest average seasonal densities for each 
species. To be conservative since the exact timing for the survey 
during the year is uncertain, the greatest average seasonal density 
calculated for each species was carried forward in the exposure 
analysis, with exceptions noted later in this discussion. Estimated 
greatest average seasonal densities (animals/km\2\) of marine mammal 
species that may be taken incidental to the proposed survey can be 
found in tables C-1 and C-2 of Atlantic Shores' IHA application. Below, 
we discuss how densities were assumed to apply to specific species for 
which the Roberts et al. (2023) models provide results at the genus or 
guild level.
    There are two stocks of bottlenose dolphins that may be impacted by 
the surveys (Western North Atlantic Northern Migratory Coastal Stock 
(coastal stock) and Western North Atlantic Offshore Stock (offshore 
stock)), however, Roberts et al. (2023) do not differentiate by stock. 
These two stocks are considered geographically separated and multiple 
isobaths, including the 20-m (Hayes et al. 2021) and 25-m (Hayes et al. 
2020), have been considered as the delineation between the two. 
Atlantic Shores used the 25-m isobath in their calculation and NMFS has 
accepted this interpretation. The nearshore area of the proposed Survey 
Area is considered waters less than 10 m depth and only the coastal 
stock would occur and potentially be taken by survey effort in that 
area. Both stocks could occur in the offshore area (greater than 10 m 
depth), so Atlantic Shores calculated separate mean seasonal densities 
to use for estimating take of the coastal and offshore stocks of 
bottlenose dolphins, respectively.
    In addition, the Roberts et al. (2023) density model does not 
differentiate between the different pinniped species. For seals, given 
their size and behavior when in the water, seasonality, and feeding 
preferences, there is limited information available on species-specific 
distribution. Density estimates from Roberts et al. (2023) include all 
seal species that may occur in the Western North Atlantic combined 
(i.e., gray, harbor, harp, hooded). For this IHA, only gray seals and 
harbor seals are reasonably expected to occur in the proposed Survey 
Area; densities of seals were split evenly between these two species.
    Finally, the Roberts et al. (2023) density model does not 
differentiate between pilot whale species. While the exact latitudinal 
ranges of the two species are uncertain, only long-finned pilot whales 
are expected to occur in this project area due to their more northerly 
distribution and tolerance of shallower, colder shelf waters (Hayes et 
al., 2022). Short-finned pilot whales are not anticipated to occur as 
far north as the Survey Area so we assume that all pilot whales near 
the project area would be long-finned pilot whales (Garrison and Rosel, 
2017). For this IHA, densities of pilot whales are assumed to be only 
long-finned pilot whale.

Take Estimation

    Here, we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and proposed for authorization.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to Level B harassment 
thresholds were calculated, as described above. The distance (i.e., 56 
m distance associated with the sparker system) to the Level B 
harassment criterion and the total length of the survey trackline were 
then used to calculate the total ensonified area, or harassment zone, 
around the survey vessel. Atlantic Shores proposes to conduct HRG 
surveys for a maximum total of 28,800 km trackline length, of which 
25,200 km are in the offshore area and 3,600 km are in the nearshore 
area. Based on the maximum estimated distance to the Level B harassment 
threshold (56 m) for the sparker system and maximum total survey 
length, the total ensonified area is 3,228 km\2\ (2,824 km\2\ offshore 
area and 404 km\2\ nearshore area), based on the following formula, 
where the total estimated trackline length (Distance/day) in each area 
was used and buffered with the horizontal distance to the Level B 
harassment threshold (r) to determine the total area ensonified to 160 
dB SPL.

Harassment Zone = (Distance/day x 2r) + [pi]r\2\

    The number of marine mammals expected to be incidentally taken 
during the total survey is then calculated by estimating the number of 
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the greatest seasonal estimated marine mammal 
densities as described above. The product is then rounded to generate 
an estimate of the total number of instances of harassment expected for 
each species over the duration of the survey (up to 300 days). A 
summary of this method is illustrated in the following formula, where 
the Harassment Zone is multiplied by the highest seasonal mean density 
(D) of each species or stock (animals/km\2\; except for pilot whales 
where annual density was used based on data availability).

    Estimated Take = Harassment Zone x D x number of days

    The resulting take of marine mammals (Level B harassment) is shown 
in table 5.

[[Page 765]]



                                        Table 5--Estimated Take Numbers and Total Take Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Nearshore survey                  Offshore survey
                                                         area maximum       Nearshore      area maximum      Offshore     Total adjusted     Estimated
                       Species                         seasonal density    survey area   seasonal density   survey area   estimated take    takes as a
                                                        (No./100 km\2\)    calculated    (No./100 km\2\)    calculated   requested (No.)   percentage of
                                                              \a\             take             \a\             take                         population
--------------------------------------------------------------------------------------------------------------------------------------------------------
N Atlantic right whale..............................               0.058             0              0.075             2                2              <1
Fin whale...........................................               0.004             0              0.135             4                4              <1
Humpback whale......................................               0.058             0              0.105             3                3              <1
Minke whale.........................................                0.04             0              0.585            17               17              <1
Sei whale...........................................               0.004             0              0.046             1            \d\ 2              <1
Long-finned pilot whale \b\.........................                   0             0              0.071             2            \d\ 9              <1
Atlantic spotted dolphin............................               0.002             0              0.657            19           \d\ 25              <1
Atlantic white-sided dolphin........................               0.009             0              0.731            21               21              <1
Bottlenose dolphin Northern migratory coastal stock.              64.596           261             17.155       \e\ 194              455             6.9
Bottlenose dolphin offshore stock...................                  NA            NA             17.155       \e\ 291              291              <1
Risso's dolphin.....................................                   0             0              0.078             2            \d\ 8              <1
Common dolphin......................................               0.128           0.5              6.517           184              185              <1
Harbor porpoise.....................................               0.393             2              3.374            95               97              <1
Gray seal \c\.......................................              10.022            41              5.886           166              207              <1
Harbor seal \c\.....................................              10.022            41              5.886           166              207              <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The nearshore survey area is delineated as waters less than 10 m depth while the offshore survey area is delineated as waters greater than 10 m
  depth.
\a\ Cetacean density values from Duke University (Roberts et al., 2023).
\b\ Pilot whale density models from Duke University (Roberts et al., 2023) represent pilot whales as a `guild' rather than by species. However, since
  the Survey Area is only expected to contain long-finned pilot whales, it is assumed that pilot whale densities modeled by Roberts et al. (2023) in the
  Survey Area only reflect the presence of long-finned pilot whales.
\c\ Pinniped density models from Duke University (Roberts et al., 2023) represent `seals' as a guild rather than by species. These each represent 50
  percent of a generic seal density value.
\d\ The number of authorized takes (Level B harassment only) for these species has been increased from the calculated take to consider the mean group
  size. Source for Atlantic spotted dolphin, long-finned pilot whale, Risso's dolphin, and sei whale group size estimates is Annual Report of a
  Comprehensive Assessment of Marine Mammal, Marine Turtle, and Seabird Abundance and Spatial Distribution in U.S. waters of the Western North Atlantic
  Ocean (AMAPPS; NEFSC and SEFSC, 2022).
\e\ Density and take numbers were proportioned per stock as a function of depth. More information provided in Section 6.3 of the IHA application.

Proposed Mitigation

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

Visual Monitoring and Shutdown Zones

    Atlantic Shores must employ independent, dedicated, trained 
protected species observers (PSOs), meaning that the PSOs must (1) be 
employed by a third-party observer provider, (2) have no tasks other 
than to conduct observational effort, collect data, and communicate 
with and instruct relevant vessel crew with regard to the presence of 
marine mammals and mitigation requirements (including brief alerts 
regarding maritime hazards), and (3) have successfully completed an 
approved PSO training course appropriate for geophysical surveys. 
Visual monitoring must be performed by qualified, NMFS-approved PSOs. 
PSO resumes must be provided to NMFS for review and approval prior to 
the start of survey activities.
    During survey operations (e.g., any day in which use of the sparker 
system is planned to occur, and whenever the sparker system is in the 
water, whether activated or not), a minimum of one visual marine mammal 
observer (PSO) must be on duty on each source vessel and conducting 
visual observations at all times during daylight hours (i.e., from 30 
minutes (min) prior to sunrise through 30 min following sunset). A 
minimum of two PSOs must be on duty on each source vessel during 
nighttime hours. Visual monitoring must begin no less than 30 min prior 
to ramp-up (described below) and must continue until 30 min after use 
of the sparker system ceases.
    Visual PSOs shall coordinate to ensure 360[deg] visual coverage 
around the vessel from the most appropriate observation posts and shall 
conduct visual observations using binoculars and the naked eye while 
free from distractions and in a consistent, systematic, and diligent 
manner. PSOs shall establish and monitor applicable pre-start clearance 
and shutdown zones (see below). These zones shall be based upon the 
radial distance from the

[[Page 766]]

sparker system (rather than being based around the vessel itself).
    Two pre-start clearance and shutdown zones are defined, depending 
on the species and context. Here, an extended pre-start clearance and 
shutdown zone encompassing the area at and below the sea surface out to 
a radius of 500 m from the sparker system (0-500 m) is defined for 
NARW. For all other marine mammals, the pre-start clearance and 
shutdown zone encompasses a standard distance of 100 m (0-100 m) during 
the use of the sparker. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey shall be relayed 
to the PSO team.
    Visual PSOs may be on watch for a maximum of 4 consecutive hours 
followed by a break of at least 1 hr between watches and may conduct a 
maximum of 12 hr of observation per 24-hr period.

Pre-Start Clearance and Ramp-Up Procedures

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
sparker system when technically feasible. If technically feasible, 
operators must ramp up sparker to half power for 5 min and then proceed 
to full power. A 30 min pre-start clearance observation period of the 
pre-start clearance zones must occur prior to the start of ramp-up. The 
intent of the pre-start clearance observation period (30 min) is to 
ensure no marine mammals are within the pre-start clearance zones prior 
to the beginning of ramp-up. The intent of the ramp-up is to warn 
marine mammals of pending operations and to allow sufficient time for 
those animals to leave the immediate vicinity. All operators must 
adhere to the following pre-start clearance and ramp-up requirements:
     The operator must notify a designated PSO of the planned 
start of ramp-up as agreed upon with the lead PSO; the notification 
time should not be less than 60 min prior to the planned ramp-up in 
order to allow the PSOs time to monitor the pre-start clearance zones 
for 30 min prior to the initiation of ramp-up (pre-start clearance). 
During this 30 min pre-start clearance period the entire pre-start 
clearance zone must be visible, except as indicated below.
     Ramp-ups shall be scheduled so as to minimize the time 
spent with the sparker activated.
     A visual PSO conducting pre-start clearance observations 
must be notified again immediately prior to initiating ramp-up 
procedures and the operator must receive confirmation from the PSO to 
proceed.
     Any PSO on duty has the authority to delay the start of 
survey operations if a marine mammal is detected within the applicable 
pre-start clearance zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that mitigation commands are conveyed swiftly 
while allowing PSOs to maintain watch.
    If there is uncertainty regarding identification of a marine mammal 
species, PSOs may use best professional judgment in making the decision 
to call for a shutdown.
     Ramp-up may not be initiated if any marine mammal to which 
the pre-start clearance requirement applies is within the pre-start 
clearance zone. If a marine mammal is observed within the pre-start 
clearance zone during the 30 min pre-start clearance period, ramp-up 
may not begin until the animal(s) has been observed exiting the zones 
or until an additional time period has elapsed with no further 
sightings.
     PSOs must monitor the pre-start clearance zones 30 min 
before and during ramp-up, and ramp-up must cease and the sparker must 
be shut down upon observation of a marine mammal within the applicable 
pre-start clearance zone.
     Ramp-up may occur at times of poor visibility, including 
nighttime, if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 min prior to beginning ramp-up. 
Sparker activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If the sparker is shut down for brief periods (i.e., less than 30 
min) for reasons other than implementation of prescribed mitigation 
(e.g., mechanical difficulty), it may be activated again without ramp-
up if PSOs have maintained constant visual observation and no 
detections of marine mammals have occurred within the applicable pre-
start clearance zone. For any longer shutdown, pre-start clearance 
observation and ramp-up are required.

Shutdown Procedures

    All operators must adhere to the following shutdown requirements:
     Any PSO on duty has the authority to call for shutdown of 
the sparker system if a marine mammal is detected within the applicable 
shutdown zones.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
source to ensure that shutdown commands are conveyed swiftly while 
allowing PSOs to maintain watch.
     When the sparker system is active and a marine mammal 
appears within or enters the applicable shutdown zones, the sparker 
must be shut down. When shutdown is instructed by a PSO, the sparker 
system must be immediately deactivated and any dispute resolved only 
following deactivation.
     Two shutdown zones are defined, depending on the species 
and context. An extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 m from the sparker system 
(0-500 m) is defined for NARW. For all other marine mammals, the 
shutdown zone encompasses a standard distance of 100 m (0-100 m) during 
the use of the sparker.
    The shutdown requirement is waived for small delphinids and 
pinnipeds. If a small delphinid (individual belonging to the following 
genera of the Family Delphinidae: Delphinus, Lagenorhynchus, Stenella, 
and Tursiops) or pinniped is visually detected within the shutdown 
zones, no shutdown is required unless the PSO confirms the individual 
to be of a genus other than those listed, in which case a shutdown is 
required.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived or one of the species 
with a larger shutdown zone), PSOs may use best professional judgment 
in making the decision to call for a shutdown.
    Upon implementation of shutdown, the sparker may be reactivated 
after the marine mammal has been observed exiting the applicable 
shutdown zone or following a clearance period (30 min for all baleen 
whale species, long-finned pilot whales, and Risso's dolphins; 15 min 
for harbor porpoises) with no further detection of the marine mammal.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (56 m), shutdown must occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel must use an appropriate reference 
guide that includes identifying information on all marine mammals that 
may be encountered. Vessel operators must comply with the below 
measures except under extraordinary circumstances when the safety of 
the vessel or crew is in doubt or the safety of life at sea is in

[[Page 767]]

question. These requirements do not apply in any case where compliance 
would create an imminent and serious threat to a person or vessel or to 
the extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.
    Vessel operators and crews must maintain a vigilant watch for all 
marine mammals and slow down, stop their vessel(s), or alter course, as 
appropriate and regardless of vessel size, to avoid striking any marine 
mammals. A single marine mammal at the surface may indicate the 
presence of submerged animals in the vicinity of the vessel; therefore, 
precautionary measures should always be exercised. A visual observer 
aboard the vessel must monitor a vessel strike avoidance zone around 
the vessel (species-specific distances are detailed below). Visual 
observers monitoring the vessel strike avoidance zone may be third-
party observers (i.e., PSOs) or crew members, but crew members 
responsible for these duties must be provided sufficient training to 
(1) distinguish marine mammal from other phenomena, and (2) broadly to 
identify a marine mammal as a NARW, other whale (defined in this 
context as baleen whales other than NARWs), or other marine mammals.
    All survey vessels, regardless of size, must observe a 10-kn (18.52 
km/hr) speed restriction in specific areas designated by NMFS for the 
protection of NARWs from vessel strikes. These include all SMAs 
established under 50 CFR 224.105 (when in effect), any dynamic 
management areas (DMA) (when in effect), and Slow Zones. See https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail 
regarding these areas.
     All vessels must reduce speed to 10 kn or less when 
mother/calf pairs, pods, or large assemblages of cetaceans are observed 
near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from NARWs, other ESA-listed species, and any unidentified large 
whales. If a NARW, other ESA-listed species, and any unidentified large 
whale is sighted within the relevant separation distance, the vessel 
must steer a course away at 10 kn or less until the 500-m separation 
distance has been established. If a whale is observed but cannot be 
confirmed as a species other than a NARW, the vessel operator must 
assume that it is a NARW and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from all non-ESA-listed baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel).
     When marine mammals are sighted while a vessel is 
underway, the vessel must take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area, reduce speed and shift 
the engine to neutral). This does not apply to any vessel towing gear 
or any vessel that is navigationally constrained.
    Atlantic Shores and members of the PSO team will consult the NMFS 
NARW reporting system and Whale Alert, daily and as able, for the 
presence of NARWs throughout survey operations, and for the 
establishment of DMAs and/or Slow Zones. It is Atlantic Shores' 
responsibility to maintain awareness of the establishment and location 
of any such areas and to abide by these requirements accordingly.

Seasonal Operating Requirements

    As described above, a section of the proposed Survey Area partially 
overlaps with portions of two NARW SMAs off the ports of New York/New 
Jersey and the entrance to Delaware Bay. These SMAs are active from 
November 1 through April 30 of each year. The survey vessels, 
regardless of length, would be required to adhere to vessel speed 
restrictions (less than 10 kn) when operating within the SMAs during 
times when the SMAs are active (table 6).

      Table 6--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                       Restrictions Within the Survey Area
----------------------------------------------------------------------------------------------------------------
           Survey area                  Species        DMA restrictions       Slow zones       SMA restrictions
----------------------------------------------------------------------------------------------------------------
Survey Area (outside SMA).......  North Atlantic      If established by   If established by   N/A.
                                   right whale.        NMFS, all of        NMFS, all of
                                                       Atlantic Shores'    Atlantic Shores'
                                                       vessel will abide   vessel will abide
                                                       by the described    by the described
                                                       restrictions.       restrictions.
Survey Area (within SMA)........  North Atlantic      If established by   If established by   November 1 through
                                   right whale.        NMFS, all of        NMFS, all of        April 30 (Ports
                                                       Atlantic Shores'    Atlantic Shores'    of New York/New
                                                       vessel will abide   vessel will abide   Jersey and
                                                       by the described    by the described    entrance to the
                                                       restrictions.       restrictions.       Delaware Bay).
----------------------------------------------------------------------------------------------------------------
Note: More information on Vessel Strike Reduction for the NARW can be found at NMFS' website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales whales.

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

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient

[[Page 768]]

noise); (2) affected species (e.g., life history, dive patterns); (3) 
co-occurrence of marine mammal species with the activity; or (4) 
biological or behavioral context of exposure (e.g., age, calving or 
feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Proposed Monitoring Measures

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

[[Page 769]]

technology) would be used. Position data would be recorded using hand-
held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs must also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources and between acquisition periods. Any 
observations of marine mammals by crew members aboard the vessel 
associated with the survey would be relayed to the PSO team.
    Data on all PSO observations would be recorded based on standard 
PSO collection requirements (see Proposed Reporting Measures). This 
would include dates, times, and locations of survey operations; dates 
and times of observations, location and weather; details of marine 
mammal sightings (e.g., species, numbers, behavior); and details of any 
observed marine mammal behavior that occurs (e.g., noted behavioral 
disturbances). Members of the PSO team shall consult the NMFS NARW 
reporting system and Whale Alert, daily and as able, for the presence 
of NARWs throughout survey operations.

Proposed Reporting Measures

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

[[Page 770]]

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

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the discussion of our analysis applies to all 
the species listed in table 3, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar in nature. Where there are meaningful differences between 
species or stocks, or groups of species, in anticipated individual 
responses to activities, impact of expected take on the population due 
to differences in population status, or impacts on habitat, they are 
included as separate sub-sections below. Specifically, we provide 
additional discussion related to NARW and to other species currently 
experiencing UMEs.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result from HRG surveys, even in the absence of mitigation, 
and no serious injury or mortality is proposed to be authorized. As 
discussed in the Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat section, non-auditory physical effects, 
auditory physical effects, and vessel strike are not expected to occur. 
NMFS expects that all potential takes would be in the form of Level B 
harassment in the form of temporary avoidance of the area or decreased 
foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007, Ellison et al., 2012).
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 56 m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the proposed 
Survey Area; therefore, marine mammals that may be temporarily 
displaced during survey activities are expected to be able to resume 
foraging once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the proposed Survey 
Area and there are no feeding areas known to be biologically important 
to marine mammals within the Survey Area. There is no designated 
critical habitat for any ESA-listed marine mammals in the Survey Area.

[[Page 771]]

North Atlantic Right Whales

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW mortalities began in June 2017 and there is an active UME. 
Overall, preliminary findings attribute human interactions, 
specifically vessel strikes and entanglements, as the cause of death 
for the majority of NARWs. As noted previously, the Survey Area 
overlaps a migratory corridor BIA for NARWs that extends from 
Massachusetts to Florida and from the coast to beyond the shelf break. 
Due to the fact that the proposed survey activities are temporary (will 
occur for up to 1 year) and the spatial extent of sound produced by the 
survey would be small relative to the spatial extent of the available 
migratory habitat in the BIA, NARW migration is not expected to be 
impacted by the survey. This important migratory area is approximately 
269,488 km\2\ in size (compared with the approximately 3,228 km\2\ of 
total estimated Level B harassment ensonified area associated with the 
Survey Area) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts.
    Given the relatively small size of the ensonified area, it is 
unlikely that prey availability would be adversely affected by HRG 
survey operations. Required vessel strike avoidance measures will also 
decrease risk of vessel strike during migration; no vessel strike is 
expected to occur during Atlantic Shores' proposed activities. 
Additionally, only very limited take by Level B harassment of NARWs has 
been requested and is being proposed for authorization by NMFS as HRG 
survey operations are required to maintain and implement a 500-m 
shutdown zone. The 500-m shutdown zone for NARWs is conservative, 
considering the Level B harassment zone for the acoustic source (i.e., 
sparker) is estimated to be 56 m, and thereby minimizes the intensity 
and duration of any potential incidents of behavioral harassment for 
this species. As noted previously, Level A harassment is not expected 
due to the small estimated zones in conjunction with the aforementioned 
shutdown requirements. NMFS does not anticipate NARW takes that would 
result from Atlantic Shores' proposed activities would impact annual 
rates of recruitment or survival. Thus, any takes that occur would not 
result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Atlantic Shores' Survey Area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (i.e., vessel strike, entanglement). 
The UME does not yet provide cause for concern regarding population-
level impacts. Despite the UME, the relevant population of humpback 
whales (the West Indies breeding population, or 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.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed from 2018-2020 and, as part of a separate UME, again in 
2022. These have occurred across Maine, New Hampshire, and 
Massachusetts. Based on tests conducted so far, the main pathogen found 
in the seals is phocine distemper virus (2018-2020) and avian influenza 
(2022), although additional testing to identify other factors that may 
be involved in the UMEs is underway. The UMEs do not provide cause for 
concern regarding population-level impacts to any of these stocks. For 
harbor seals, the population abundance is over 60,000 and annual M/SI 
(339) is well below PBR (1,729) (Hayes et al., 2022). The population 
abundance for gray seals in the United States is over 27,000, with an 
estimated abundance, including seals in Canada, of approximately 
450,000. In addition, the abundance of gray seals is likely increasing 
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021, Hayes et 
al., 2022).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in table 3, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular, they would provide animals the opportunity to 
move away from the sound source before HRG survey equipment reaches 
full energy, thus preventing them from being exposed to sound levels 
that have the potential to cause injury. No Level A harassment is 
anticipated, even in the absence of mitigation measures, or proposed 
for authorization.
    NMFS expects that takes would be in the form of short-term Level B 
harassment by way of brief startling reactions and/or temporary 
vacating of the area, or decreased foraging (if such activity was 
occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect any of the species 
or stocks through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or proposed 
to be authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed to be authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the ensonified areas 
during the proposed survey to avoid exposure to sounds from the 
activity;
     Take is anticipated to be by Level B harassment only 
consisting of brief startling reactions and/or temporary avoidance of 
the ensonified area;
     Survey activities would occur in such a comparatively 
small portion of the BIA for the NARW migration that any avoidance of 
the area due to survey activities would not affect migration. In 
addition, mitigation measures require shutdown at 500 m (over eight 
times the size of the Level B harassment zone of 56 m) to minimize the 
effects of any Level B harassment take of the species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into

[[Page 772]]

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

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take by Level B harassment 
only of 14 marine mammal species with 15 managed stocks. The total 
amount of takes proposed for authorization relative to the best 
available population abundance is less than 1 percent for 14 of the 15 
managed stocks (less than 7 percent for the Western North Atlantic 
Northern Migratory Coastal Stock of bottlenose dolphins; table 5). The 
take numbers proposed for authorization are considered conservative 
estimates for purposes of the small numbers determination as they 
assume all takes represent different individual animals, which is 
unlikely to be the case.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the 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 consults 
internally whenever we propose to authorize take for endangered or 
threatened species.
    NMFS' Office of Protected Resources is proposing to authorize take 
of three species of marine mammals which are listed under the ESA 
(i.e., NARW, fin whale, and sei whale) and has determined these 
activities fall within the scope of activities analyzed in the NMFS 
GARFO programmatic consultation regarding geophysical surveys along the 
U.S. Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021).

Proposed Authorization

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

Request for Public Comments

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

    Dated: December 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-00008 Filed 1-4-24; 8:45 am]
BILLING CODE 3510-22-P