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Notice2022-02573

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Kitty Hawk Wind Marine Site Characterization Surveys, North Carolina and Virginia

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Published

February 8, 2022

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS has received a request from Kitty Hawk Wind for authorization to take marine mammals incidental to marine site characterization surveys offshore and in state waters of North Carolina. 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, one-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 authorizations and agency responses will be summarized in the final notice of our decision.

Full Text

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<title>Federal Register, Volume 87 Issue 26 (Tuesday, February 8, 2022)</title>
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[Federal Register Volume 87, Number 26 (Tuesday, February 8, 2022)]
[Notices]
[Pages 7139-7155]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02573]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB757]

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Kitty Hawk Wind Marine Site
Characterization Surveys, North Carolina and Virginia

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 Kitty Hawk Wind for
authorization to take marine mammals incidental to marine site
characterization surveys offshore and in state waters of North
Carolina. 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, one-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 authorizations and agency responses will be
summarized in the final notice of our decision.

DATES: Comments and information must be received no later than March
10, 2022.

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
<a href="/cdn-cgi/l/email-protection#1c55484c32587d70655c72737d7d327b736a">[email&#160;protected]</a>.
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
<a href="http://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> 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: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the

[[Page 7140]]

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 16, 2021, NMFS received a request from Kitty Hawk Wind, a
subsidiary of Avangrid Renewables (Avangrid), for an IHA to take marine
mammals incidental to conducting marine site characterization surveys
off of the Atlantic Coast. Kitty Hawk Wind's overall lease area (OCS-A
0508) is located approximately 44 kilometers (km) offshore of Corolla,
North Carolina, in Federal waters. The proposed survey activities will
occur within the wind development area (WDA) and along the electric
cable corridor (ECC) to landfall locations in North Carolina and
Virginia. The application was deemed adequate and complete on January
13, 2022. Kitty Hawk Wind's request is for take of a small number of
seventeen species of marine mammals, by Level B harassment only.
Neither Kitty Hawk Wind nor NMFS expects serious injury or mortality to
result from this activity and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to Avangrid for similar work in the
same geographic area on June 3, 2019 (84 FR 31032) with effectives
dates from June 1, 2019 through May 31, 2020. Avangrid complied with
all the requirements (e.g., mitigation, monitoring, and reporting) of
the previous IHA and information regarding their monitoring results may
be found in the Estimated Take section. Avangrid's final marine mammal
monitoring report, dated January 7, 2021, submitted pursuant to that
IHA can be found at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-avangrid-renewables-llc-marine-site-characterization-surveys">https://www.fisheries.noaa.gov/action/incidental-take-authorization-avangrid-renewables-llc-marine-site-characterization-surveys</a>.
On July 21, 2021, NMFS issued another IHA to Kitty Hawk Wind for a
short survey duration which was effective from July 23, 2021 through
October 31, 2021. The reporting for that IHA will be submitted to NMFS
prior to us making a final decision on the newly requested IHA.

Description of Proposed Activity

Overview

Kitty Hawk Wind is requesting an IHA authorizing the take, by Level
B harassment only, of 17 species of marine mammals incidental to marine
site characterization surveys, specifically in association with the use
of high-resolution geophysical (HRG) survey equipment in the Atlantic
Ocean off of North Carolina and Virginia (we note survey work extending
into Virginia is very limited). Kitty Hawk will also conduct surveys in
the inshore sounds of North Carolina, include Bogue, Pamlico,
Albemarle, and Currituck Sounds (as part of the ECC); however, those
surveys will use equipment operating at frequencies above 180 kHz
(outside marine mammal hearing range) and therefore will not result in
harassment to marine mammals. For this reasons, survey work in inshore
sounds is not further analyzed in this notice.
The surveys will support offshore wind development in 60 percent of
the Kitty Hawk South lease area (OCS-A 0508) in the northwest corner
closest to the North Carolina shoreline (approximately 198 square
kilometers (km\2\)). Exposure to noise from the surveys may cause
behavioral changes in marine mammals (e.g., avoidance, increased swim
speeds, etc.) rising to the level of take (Level B harassment) as
defined under the MMPA.
In addition to Kitty Hawk South surveys, there will be a small
amount of residual survey effort from the Kitty Hawk North WDA and ECC
included in this survey effort due to previous inability to complete
previous surveys as a result of unsuitable weather (Figure 1).

Dates and Duration

Kitty Hawk Wind plans to commence the surveys in April 2021 and
continue for one year. Based on 24-hour operations, the estimated
duration of the HRG survey activities (excluding those in inshore
sounds) will be 273 vessel days which represents the sum of the total
number of days each vessel operates (not calendar days). Kitty Hawk
intends to complete the surveys prior to November 2022 to minimize
impacts to migrating North Atlantic right whales; however, the analysis
in the application and this proposed IHA considers the potential for
work to occur year-round.

Specific Geographic Region

The majority of Kitty Hawk Wind's survey activities will occur
within the Kitty Hawk South WDA (approximately 297 km2 of
the approximately 495 km2 Lease Area) and along the offshore
ECC (Figure 1). Kitty Hawk will also complete surveys along the Kitty
Hawk North ECC (Figure 1) as poor weather prohibited completion of this
work under the 2021 IHA. Water depths across the Survey Area range from
shallow water areas (0 m) near the offshore ECC landfall to
approximately 20 to 50 meters (m) in the Lease Area.

[[Page 7141]]

[GRAPHIC] [TIFF OMITTED] TN08FE22.047

Detailed Description of Specific Activity

Kitty Hawk Wind intends to eventually develop 60 percent of the
southeast portion on the WDA. The purpose of Kitty Hawk Wind's marine
site characterization surveys is to support the siting of the proposed
wind turbine generators and offshore export cables, providing a more
detailed understanding of the seabed and sub-surface conditions in the
WDA and export cable corridor, support the development of the
Construction and Operations Plan, and meet the Bureau of Ocean Energy
Management's (BOEM) data quality guidelines for the HRG,
archaeological, and benthic resources surveys.
HRG surveys are anticipated to commence no earlier than April 1,
2022, and finish in 273 vessel days, not including non-noise-generating
days likely needed for weather down time. The survey activities will be
supported simultaneously by three vessels, all capable of maintaining a
survey speed of approximately 4 knots (7.4 kilometers per hour [km/hr])
while transiting survey lines. Vessels will maintain at least 2 km
separation from each other at all times. Kitty Hawk Wind anticipates
the surveys will be completed prior to November 2022; however, they
have requested the IHA be effective for the entire year in case
unexpected circumstances arise that necessitate surveying beyond
November.
The surveys will cover approximately 50,211 line kms between the
WDA, ECC, overlapping areas, and within several inshore sounds,
including Bogue, Pamlico, Albemarle, and Currituck Sounds. During the
surveys, Vessel A would initially collect data using the Multi-channel
sparker (MCS) within the WDA. Two MCS options are currently under
consideration, as noted in Table 1. Vessel A would then demobilize the
MCS and remobilize data collection within both the WDA and ECC using
the Triple Plate Boomer (boomer). Vessel A would also employ other
equipment including the ultra-short baseline positioning system (USBL),
sidescan sonar (SSS), shallow penetration parametric sub-bottom
profiler (Innomar), and multibeam echo sounder (MBES). However, this
equipment has a smaller disturbance zone than the MCS or boomer or has
frequency ranges above 180 kHz, outside of the hearing range of marine
mammals. Vessels B and C would perform data collection within both the
WDA and ECC using the boomer. Table 1 provides vessel use and survey
coverage details. However, all survey equipment within inshore bays and
sounds would operate above 180 kHz which is outside of marine mammal
hearing ranges; therefore, no harassment is anticipated to occur from
these inshore surveys and this activity is not noted in Table 1 and
will not be discussed further in this notice.

Table 1--Survey Segment Details
----------------------------------------------------------------------------------------------------------------
Vessel Location and line kms Predominant HRG source Duration
----------------------------------------------------------------------------------------------------------------
Vessel A.................... WDA: 7,562 kms; ECC: 590.... Multi-channel Seismic WDA: 42 days; ECC: 4.
(Sparker).
Vessel A.................... ECC Alternative A: 3,107 kms Single Channel Seismic 17 days.
(Boomer).
Vessel A.................... Expanded OECC: 5,843........ Single Channel Seismic 33 days.
(Boomer).
Vessel B.................... WDA/ECC: 15,715 kms......... Single Channel Seismic 80 days.
(Boomer).
Vessel C.................... ECC Base Case: 16,071 kms... Single Channel Seismic 96 days.
(Boomer).
----------------------------------------------------------------------------------------------------------------

[[Page 7142]]

Total
----------------------------------------------------------------------------------------------------------------
5 vessels................... 48,888 km................... ............................ 273 days.
----------------------------------------------------------------------------------------------------------------

Acoustic sources planned for use during HRG survey activities
proposed by Kitty Hawk Wind include the following:
<bullet> Medium penetration, impulsive sources (i.e., boomers and
sparkers) are used to map deeper subsurface stratigraphy. A boomer is a
broadband source operating in the 3.5 Hz to 10 kHz frequency range.
Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 kHz.
These sources are typically towed behind the vessel.
Operation of the following survey equipment types is not expected
to present reasonable risk of marine mammal take, and will not be
discussed further beyond the brief summaries provided below.
<bullet> Non-impulsive, parametric sub-bottom profilers (SBPs) are
used for providing high data density in sub-bottom profiles that are
typically required for cable routes, very shallow water, and
archaeological surveys. These sources generate short, very narrow-beam
(1[deg] to 3.5[deg]) signals at high frequencies (generally around 85-
100 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. These sources are typically deployed on a pole rather than
towed behind the vessel.
<bullet> Ultra-short baseline (USBL) positioning systems are used
to provide high accuracy ranges by measuring the time between the
acoustic pulses transmitted by the vessel transceiver and a transponder
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several
transponders mounted on other survey equipment. USBLs are expected to
produce extremely small acoustic propagation distances in their typical
operating configuration.
<bullet> Multibeam echosounders (MBESs) are used to determine water
depths and general bottom topography. The proposed MBESs all have
operating frequencies >180 kHz and are therefore outside the general
hearing range of marine mammals.
<bullet> Side scan sonars (SSS) are used for seabed sediment
classification purposes and to identify natural and man-made acoustic
targets on the seafloor. The proposed SSSs all have operating
frequencies >180 kHz and are therefore outside the general hearing
range of marine mammals.
Table 2 identifies all representative survey equipment proposed for
use by Kitty Hawk Wind that has the potential to result in harassment
to marine mammals. The make and model of the listed geophysical
equipment may vary depending on availability and the final equipment
choices will vary depending upon the final survey design, vessel
availability, and survey contractor selection.
All decibel (dB) levels included in this notice are referenced to 1
micoPascal. The root mean square decibel level (dB<INF>rms</INF>)
represents the square root of the average of the pressure of the sound
signal over a given duration. The peak dB level (dB<INF>peak</INF>)
represents the range in pressure between zero and the greatest pressure
of the signal. Operating frequencies are presented in kilohertz (kHz).

Table 2--Kitty Hawk Wind HRG Source Characteristics
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source Source
HRG system Representative HRG Operating frequencies level level dBrms Pulse duration (ms) Beam width (degree)
survey equipment kilohertz (kHz) dBpeak
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shallow penetration subbottom EdgeTech 512i........ 0.4 to 12............ \c\ 186 \c\ 180 1.8 to 65.8.......... 51 to 80.
profiler.
Medium penetration subbottom Applied Acoustics 0.9-14............... \d\ 206 \d\ 198 0.8.................. 30 \e\.
profiler \a\. SBoom 750J (Triple
Plate Boomer).
Multi-channel Sparker (MCS) in Applied Acoustics 3.2.................. \f\ 223 \f\ 213 0.5 to 3 \f\......... 180.
flip/flop configuration \b\. Dura-Spark 1000J.
Multi-channel Sparker (MCS) in GeoMarine Geo-Source 0.05 to 5............ 215 206 5.5.................. 180.
flip/flop configuration. 800J.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ While three operational powers (500/750/1000J) were modeled for the Applied Acoustics S-Boom for comparison purposes, only the 750 joules (J)
operational power is anticipated to be used.
\b\ Although the entire MCS array would be mobilized, the sparker sources would be activated in an alternating flip/flop sequence.
\c\ The source levels are based on data from Crocker and Frantantonio (2016) for the EdgeTech 512i for 75 percent power with a bandwidth of 0.5 to 8
kHz.
\d\ The source levels are based on data from Crocker and Frantantonio (2016) for the Applied Acoustics S-Boom for source setting of 750J.
\e\ The beamwidth was provided in email correspondence with Neil MacDonald of Modulus Technology Ltd.
\f\ The source levels are based on data from Crocker and Frantantonio (2016).

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.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; https://
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-

[[Page 7143]]

mammal-stock-assessments) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS's website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 3 lists all species or stocks that may occur within the
survey area 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.
For taxonomy, we follow Committee on Taxonomy (2021). 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's SARs). While no mortality is
anticipated or proposed to be authorized here, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species 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's stock abundance estimates. For some species, this geographic
area may extend beyond U.S. waters. All managed stocks in this region
are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g.,
Hayes et al., 2019, 2020). All values presented in Table 3 are the most
recent available at the time of publication and are available in the
draft 2021 SARs (available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>).

Table 3--Summary Information of Species Within the Proposed Survey Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western North Atlantic. E/D; Y 368 (-; 356; 2020).... 0.8 18.6
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,393 (0; 1,375; 2016) 22 58
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E/D; Y 6,802 (0.24; 5,573; 11 2.35
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E/D; Y 6,292 (1.02; 3,098; 6.2 1.2
2016).
Minke whale..................... Balaenoptera Canadian East Coast.... -/-; N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Ziphiidae:
Cuvier's beaked Whale........... Ziphius cavirostris.... Western North Atlantic. -/-; N 5,744 (0.36, 4,282, 43 0.2
2016).
Blainville's beaked Whale....... Mesoplodon densirostris Western North Atlantic. -/-; N 10,107 (0.27, 8,085, 81 0
2016).
True's beaked whale............. Mesoplodon mirus....... Western North Atlantic. -/-; N 81 0
Gervais' beaked whale........... Mesoplodon europaeus... Western North Atlantic. -/-; N 81 0
Sowerby's beaked whale.......... Mesoplodon bidens...... Western North Atlantic. -/-; N 81 0
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -/-; N 39,215 (0.30; 30,627; 306 21
See SAR).
Short finned pilot whale........ Globicephala Western North Atlantic. -/-;Y 28,924 (0.24; 23,637; 236 160
macrorhynchus. 2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -/-; N 62,851 (0.23; 51,914, 519 28
Offshore. 2016).
W.N.A. Southern -/-;Y 6,639 (0.41, 4,759, 48 12.2-21.5
Migratory Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -/-; N 172,947 (0.21; 1,452 399
145,216; 2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -/-; N 39,921 (0.27; 32,032; 320 0
2012).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -/-; N 35,493 (0.19; 30,289; 303 54.3
2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 851 217
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ 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. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.

As indicated above, all 17 species (with 18 managed stocks) in
Table 3 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. In addition to what is
included in Sections 3 and 4 of the application, the SARs, and NMFS'
website, further detail informing the baseline for select species
(i.e., information regarding current Unusual Mortality Events (UME) and
important habitat areas) is provided below. We also provide a brief
summary of sighting data from Kitty Hawk.

North Atlantic Right Whale

The North Atlantic right whale is considered one of the most
critically endangered populations of large whales in the world and has
been listed as a Federal endangered species since 1970. The Western
Atlantic stock is considered depleted under the MMPA (Hayes et al.
2021). There is a recovery plan (NOAA Fisheries 2017) for the right
whale and recently there was a five-year review of the species (NOAA
Fisheries 2017). The right whale had a 2.8 percent recovery rate
between 1990 and 2011 (Hayes et al. 2021).

[[Page 7144]]

Elevated North Atlantic right whale mortalities have occurred since
June 7, 2017, along the U.S. and Canadian coast. This event has been
declared an UME, with human interactions, including entanglement in
fixed fishing gear and vessel strikes, implicated in at least 15 of the
mortalities thus far. As of January 26, 2021, a total of 34 confirmed
dead stranded whales (21 in Canada; 13 in the United States) have been
documented. The cumulative total number of animals in the North
Atlantic right whale UME has been updated to 50 individuals to include
both the confirmed mortalities (dead stranded or floaters) (n=34) and
seriously injured free-swimming whales (n=16) to better reflect the
confirmed number of whales likely removed from the population during
the UME and more accurately reflect the population impacts. More
information is available online at: <a href="http://www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event">www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event</a>.
The offshore waters of North Carolina, including waters of the
Survey Area, are used as part of the migration corridor for right
whales. Right whales occur here during seasonal movements north or
south between their feeding and breeding grounds (Firestone et al.
2008; Knowlton et al. 2002). Right whales have been observed in or near
North Carolina waters from October through December, as well as in
February and March, which coincides with the migratory timeframe for
this species (Knowlton et al. 2002). They have been acoustically
detected off Georgia and North Carolina in 7 of 11 months monitored
(Hodge et al. 2015) and other recent passive acoustic studies of right
whales off the Virginia coast demonstrate their year-round presence in
Virginia (Salisbury et al. 2018), with increased detections in fall and
late winter/early spring. They are typically most common in the spring
(late March) when they are migrating north and, in the fall (i.e.,
October and November) during their southbound migration (NOAA Fisheries
2017).
Seasonal management areas (SMA) are designated within portions of
the proposed survey area. A SMA exists from November 1 through April
30, annually, in a contiguous area 20 nautical miles (nm; 37 km) from
shore between Wilmington, North Carolina to Brunswick, Georgia. A SMA
also exists for the same time period within a 20-nm (37 km) radius of
the Ports of Hampton Roads and Morehead City/Beaufort, NC. While the
WDA does not overlap with these SMAs, vessel transit routes and
portions of the ECCs that will be surveyed do spatially overlap with
these SMAs. Kitty Hawk intends to complete the surveys before November
1, 2022. However, we assume that the surveys may extend throughout the
year in our analyses. The implementing regulations identifying SMAs (50
CFR 224.105) also establish a process under which dynamic management
areas (DMAs) can be established based on North Atlantic right whale
sightings. NMFS has established a Slow Zone program in 2020 that
notifies vessel operators of areas where maintaining speeds of 10 knots
or less can help protect right whales from vessel collisions. Right
Whale Slow Zones are established around areas where right whales have
been recently seen or heard; these areas are identical to DMAs when
triggered by right whale visual sightings but they can also be
established when right whale detections are confirmed from acoustic
receivers. More information on SMAs, DMAs, and Slow Zones can be found
at https://www.fisheries.noaa.gov/national/endangered-species-
conservation/reducing-vessel-strikes-north-atlantic-right-
whales#:~:text=Right%20Whale%20Slow%20Zones%20is,right%20whales%20have%2
0been%20detected.
In 2020, NMFS finalized a report evaluating the conservation value
and economic and navigational safety impacts of the 2008 North Atlantic
right whale vessel speed regulations. The report evaluates four aspects
of the right whale vessel speed rule: Biological efficacy, mariner
compliance, impacts to navigational safety, and economic cost to
mariners. NMFS continues to evaluate its North Atlantic right whale
vessel strike reduction programs, both regulatory and non-regulatory.
NMFS anticipates releasing a proposed rule modifying the right whale
speed regulations in Spring 2022 to further address the risk of
mortality and serious injury from vessel collisions in U.S. waters.
The proposed survey area is also recognized as a migratory corridor
Biologically Important Area (BIA) for North Atlantic right whales
(effective March-April and November-December) that extends from
Massachusetts to Florida (LeBrecque et al., 2015). This important
migratory area is approximately 269,488 km\2\ in and is comprised of
the waters of the continental shelf offshore the East Coast of the
United States, extending from Florida through Massachusetts. No
critical habitat is designated within the survey area.

Humpback Whale

Humpback whales are found worldwide in all oceans. Humpback whales
were listed as endangered under the Endangered Species Conservation Act
(ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks
continued to be listed as endangered. NMFS recently evaluated the
status of the species, and on September 8, 2016, NMFS divided the
species into 14 distinct population segments (DPS), removed the current
species-level listing, and in its place 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.
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 155 known cases. Of the whales examined, about 50 percent had
evidence of human interaction, either ship 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. Three previous UMEs involving humpback whales
have occurred since 2000, in 2003, 2005, and 2006. More information is
available at: <a href="http://www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast">www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.

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) to the Gulf of Mexico
(Hayes et al., 2020). This species generally occupies waters less than
100 m deep on the continental shelf. Little is known about minke
whales' specific movements through the mid-Atlantic region; however,
there appears to be a strong seasonal component to minke whale
distribution, with acoustic detections indicating that they migrate
south in

[[Page 7145]]

mid-October to early November, and return from wintering grounds
starting in March through early April (Hayes et al., 2020). Northward
migration appears to track the warmer waters of the Gulf Stream along
the continental shelf, while southward migration is made farther
offshore (Risch et al., 2014). During Kitty Hawk Wind's 2019 and 2020
marine site characterization surveys, one minke whale was detected,
this detection occurred while the vessel was in transit and located
north of the project area off New Jersey.
Since January 2017, elevated minke whale mortalities have occurred
along the Atlantic coast from Maine through South Carolina, with a
total of 122 strandings recorded through December 2021. This event has
been declared a UME. Full or partial necropsy examinations were
conducted on more than 60 percent of the 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: <a href="http://www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast">www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast</a>.

Marine Mammal Habitat

The survey area primarily includes waters inshore and offshore of
North Carolina with a very small amount of work extending into southern
Virginia. As described above, a migratory BIA for North Atlantic right
whales is recognized within the project area in November through
December and March through April. This BIA extends along the entire
east coast. A calving BIA is located south of the WDA and potential
cable corridors; therefore, no impacts to this BIA are anticipated.
No other BIAs are recognized nor is critical habitat designated in
the project area; however, the project area is a migratory corridor for
other large whale species (e.g., humpback whales) and offers habitat
for various activities such as socializing and foraging for smaller
cetaceans such as delphinids.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 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 150 Hz to 160 kHz.
(dolphins, 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) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea 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 and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Seventeen marine mammal species (all cetaceans) have the reasonable
potential to be taken by the survey activities (Table 5). Of the
cetacean species that may be present, 5 are classified as low-frequency
cetaceans (i.e., all mysticete species), 11 are classified as mid-
frequency cetaceans (i.e., all delphinid species), 1 is classified as a
high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

This section includes a summary of the ways that Kitty Hawk Wind's
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 and over a
similar amount of time (e.g., 85 FR 37848, June 24, 2020; 85 FR 45578,
July 29, 2020; 85 FR 48179, August 10, 2020; 86 FR 11239, February 24,
2021, 86 FR 28061, May 25, 2021). No significant new information is
available, and we refer the reader to these documents rather than
repeating the details here. The Estimated Take section includes a
quantitative analysis of the number of individuals that are expected to
be taken by Kitty Hawk Wind's activity. The Negligible Impact Analysis
and Determination section considers the potential effects of the
specified activity, 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 how those impacts

[[Page 7146]]

on individuals are likely to impact marine mammal species or stocks.

Summary on Specific Potential Effects of Acoustic Sound Sources

Underwater sound from active acoustic sources can include one or
more of the following: Temporary or permanent hearing impairment, non-
auditory physical or physiological effects, behavioral disturbance,
stress, and masking. 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 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), in which case the loss of hearing sensitivity is not
fully recoverable, or temporary (TTS), in which case the animal's
hearing threshold would recover over time (Southall et al., 2007).
Animals in the vicinity of Kitty Hawk Wind's proposed HRG survey
activity are unlikely to incur even TTS due to the characteristics of
the sound sources, which include relatively low source levels (176 to
205 dB re 1 [mu]Pa-m) and generally very short pulses and potential
duration of exposure. These characteristics mean that instantaneous
exposure is unlikely to cause TTS, as it is unlikely that exposure
would occur close enough to the vessel for received levels to exceed
peak pressure TTS criteria, and that 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 also
remain very close to vessels operating these sources 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. Further, the restricted beam shape of many of HRG survey
devices planned for use (Table 1) makes it unlikely that an animal
would be exposed more than briefly during the passage of the vessel.
Behavioral disturbance 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 most HRG survey equipment types planned for use
(Table 1) and the brief period when an individual mammal is likely to
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 relatively quickly, 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 ship 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.
Ship strikes generally involve commercial shipping vessels, which are
generally larger and of which there is much more traffic in the ocean
than geophysical survey vessels. Jensen and Silber (2004) summarized
ship 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 knots.
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 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 Kitty Hawk Wind's 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 this IHA, which will inform both
NMFS' consideration of ``small numbers'' and the negligible impact
determination.

[[Page 7147]]

Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals produced by the
acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor proposed to be authorized.
Consideration of the anticipated effectiveness of the mitigation
measures (i.e., exclusion zones and shutdown measures), discussed in
detail below in the Proposed Mitigation section, further strengthens
the conclusion that Level A harassment is not a reasonably anticipated
outcome of the survey activity. As described previously, no serious
injury or mortality is anticipated or proposed to be authorized for
this activity. Below we describe how the take is estimated.
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)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of 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 for non-explosive sources--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 (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 160 dB re 1 [mu]Pa (rms) for the impulsive sources
(i.e., sparkers and boomers) evaluated here for Kitty Hawk Wind's
proposed activity.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 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). For more
information, see NMFS' 2018 Technical Guidance, which may be accessed
at <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Kitty Hawk Wind's proposed activity includes the use of impulsive
sources. However, as discussed above, NMFS has concluded that Level A
harassment is not a reasonably likely outcome for marine mammals
exposed to noise through use of the sources proposed for use here, and
the potential for Level A harassment is not evaluated further in this
document. Please see Kitty Hawk Wind's application for details of a
quantitative exposure analysis exercise, i.e., calculated Level A
harassment isopleths and estimated Level A harassment exposures. Kitty
Hawk Wind did not request authorization of take by Level A harassment,
and no take by Level A harassment is proposed for authorization by
NMFS.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
Sources that have the potential to result in marine mammal
harassment include sparkers and boomers. These are impulsive sources.
The basis for the HRG survey take estimate is the number of marine
mammals that would be exposed to sound levels in excess of Level B
harassment criteria for impulsive and/or intermittent noise (160
dBrms). Distances to thresholds were calculated assuming a propagation
loss rate of 15logR, also known as practical spreading. The resulting
distances to NMFS Level B harassment isopleth (160 dBrms) are presented
in Table 5.
Kitty Hawk then considered track line coverage and isopleth
distance to estimate the maximum ensonified area over a 24-hr period,
also referred to as the zone of influence (ZOI). The estimated distance
of the daily vessel track line was determined using the estimated
average speed of the vessel (4 knots [7.4 km/hr]) and the 24-hour
operational period. Within each survey segment, the ZOI was calculated
using the respective maximum distance to the Level B harassment
threshold and estimated daily vessel track of 177.792 km. During the
use of the Applied Acoustics Dura-Spark 1000J MCS, estimates of take
have been based on a maximum Level B harassment distance of 445 m from
the sound source resulting in an ensonified area (i.e., ZOI) around the
survey equipment of 158.857 km\2\ per day over a projected survey
period of 45 days (Table 5). During the use of Applied Acoustics S-Boom
(boomer), estimates of take have been based on a maximum Level B
harassment distance of 13.49 m from the sound source resulting in an
ensonified area (i.e., ZOI) around the survey equipment of 4.765 km\2\
per day over a projected survey period of 273 days (Table 5).
The ZOI is a representation of the maximum extent of the ensonified
area around a sound source over a 24-hr period. The ZOI was calculated
per the following formula:

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

[[Page 7148]]

Table 5--Level B Harassment Threshold Distances and Ensonified Area
----------------------------------------------------------------------------------------------------------------
Number of Estimated Estimated
Dominant survey equipment active survey total line distance per Distance to ZOI per day
days distance (km) day (km) threshold (km\2\)
----------------------------------------------------------------------------------------------------------------
MCS............................. 47 8,152 177.792 445 158.857
Boomer.......................... 226 42,059 .............. 13.4 4.765
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020)
represent the best available information regarding marine mammal
densities in the survey area. The density data presented by Roberts et
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates
data from 8 physiographic and 16 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 (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>.
Marine mammal density estimates in the survey area (animals/km\2\) were
obtained using the most recent model results for all taxa (Roberts et
al., 2016, 2017, 2018, 2020). The updated models incorporate additional
sighting data, including sightings from NOAA's Atlantic Marine
Assessment Program for Protected Species (AMAPPS) surveys.
Monthly density grids (e.g., rasters) for each species were
overlain with the Survey Area and values from all grid cells that
overlapped the Survey Area were averaged to determine monthly mean
density values for each species. Monthly mean density values within the
Survey Area were averaged by season (Winter [December, January,
February], Spring [March, April, May], Summer [June, July, August],
Fall [September, October, November]) to provide seasonal density
estimates. Within each survey segment (WDA and offshore export cable
corridor), the highest seasonal density estimates during the duration
of the proposed survey were used to estimate take.

Take Calculation and Estimation

Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
For most species, the proposed take amount is equal to the
calculated take amount resulting from the following equation: D x ZOI x
d where d equals the number of days each source is dominant (i.e., 47
days for the sparker and 226 days for the boomer). We note the
densities provided in Table 5 represent the number of animals/100 km;
therefore, the density is normalized to 1km in the equation. However,
for some species, this equation does not reflect those species that can
travel in large groups--an important parameter to consider that is not
captured by density values. The equation also does not capture the
propensity of some delphinid species to be attracted to the vessel and
bowride. Therefore, to account for these real-world situations, the
proposed take is a product of group size. For large groups of spotted
and common dolphins knowing their affinity for bow riding (and
therefore coming very close to the vessel), Kitty Hawk Wind assumed one
group could be taken each day of sparker and/or boomer operations
(273). Based on marine mammal sighting data collected during previous
survey efforts, as described in Avangrid's previous monitoring report,
Kitty Hawk Wind assumes an average group size for spotted dolphins is
16 in the survey area. For common dolphins, the overall average
reported group size was 4 in all survey areas but the average group
size during prior geotechnical surveys was 17 individuals. For Risso's
dolphin and pilot whales, average group size for these species are 25
and 20, respectively (Reeves et al. 2002).
For bottlenose dolphin densities, Roberts et al. (2016a, 2016b,
2017, 2018, 2020) does not differentiate by individual stock. The WDA
is located within depths exceeding 20 m. Therefore, given the southern
coastal migratory stock propensity to be found shallower than the 20 m
depth isobath north of Cape Hatteras (Reeves et al. 2002; Waring et al.
2016), take of the southern coastal migratory stock would be unlikely.
Therefore, all work in the WDA was allocated to the offshore stock.
Table 6 provides the total amount of take calculated and proposed
to be authorized in the IHA. For details of take per survey segment,
please see Table 8 in Kitty Hawk's application.

Table 6--Marine Mammal Density and Take Estimates
----------------------------------------------------------------------------------------------------------------
Calculated Percent of
Species Stock take Proposed take population
----------------------------------------------------------------------------------------------------------------
N Atlantic right whale................ Western North Atlantic.. 2 2 <1
Humpback whale........................ Gulf of Maine........... 15 15 <1
Fin whale............................. Western North Atlantic.. 18 18 <1
Sei whale............................. Western North Atlantic.. 1 1 ..............
Minke whale........................... Canadian East Coast..... 22 22 <1
Pilot whales.......................... Western North Atlantic.. 32 32 <1
Cuvier's Beaked Whale................. Western North Atlantic.. 5 5 <1
Mesoplodon spp........................ Western North Atlantic.. 3 3 <1
Bottlenose dolphin.................... Western North Atlantic, 823 823 <1
offshore.
Bottlenose dolphin.................... Western North Atlantic 226 226 6.0
southern migratory
coastal.
Common dolphin \a\.................... Western North Atlantic.. 365 9,282 5.3
Atlantic spotted dolphin \a\.......... Western North Atlantic.. 418 8,736 <1

[[Page 7149]]

Risso's dolphin \a\................... Western North Atlantic.. 8 25 <1
Rough-toothed dolphin \a\............. Western North Atlantic.. 1 20 14.7
Harbor porpoise....................... Gulf of Maine/Bay of 39 39 <1
Fundy.
----------------------------------------------------------------------------------------------------------------
\a\ Multiplier applied to increase calculated take to account for two large group size, an average pod size of
16 individuals encountered in Survey Area (Milne 2019, 2021) has been included for spotted dolphin and 17
individuals have also been included for common dolphin (Milne 2019, 2021). Pod size adjustments of 25 and 20
individuals (average pod size from Reeves et al. [2002]) have been included for Risso's and rough-toothed
dolphins, respectively.

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, as well as subsistence uses where applicable, we
carefully consider 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.

Mitigation for Marine Mammals and Their Habitat

NMFS proposes that the following mitigation measures be implemented
during Kitty Hawk Wind's planned marine site characterization surveys.

Pre-Clearance of the Shutdown Zones

Kitty Hawk Wind would implement a 30-minute monitoring period of
the clearance zones prior to the initiation of ramp-up of HRG
equipment. During this period, the clearance zone will be monitored by
the protected species observers (PSOs), using the appropriate visual
technology. Ramp-up may not be initiated if any marine mammal(s) is
within its respective zone. If a marine mammal is observed within the
clearance zone during the pre-clearance period, ramp-up may not begin
until the animal(s) has been observed exiting its respective clearance
zone or until an additional time period has elapsed with no further
sighting (i.e., 15 minutes for small odontocetes and seals, and 30
minutes for all other species).

Ramp-Up

Where technically feasible (e.g., equipment is not on a binary on/
off switch), a ramp-up procedure will be used for HRG survey equipment
capable of adjusting energy levels at the start or restart of HRG
survey activities. A ramp-up would begin with the power of the smallest
acoustic equipment at its lowest practical power output appropriate for
the survey. When technically feasible the power would then be turned up
and other acoustic sources added in a way such that the source level
would increase gradually. Ramp-up activities not begin if a marine
mammal(s) enters a clearance zone(s) prior to initiating ramp-up. Ramp-
up will commence when the animal has been observed exiting the
exclusion zone or until an additional time period has elapsed with no
further sighting (i.e., 15 minutes for small dolphins and seals and 30
minutes for all other marine mammal species). The ramp-up procedure
will be used at the beginning of HRG survey activities to provide
additional protection to marine mammals near the survey area by
allowing them to vacate the area prior to the commencement of survey
equipment use.

Marine Mammal Shutdown Zones

An immediate shutdown of a sparker or boomer would be required if a
marine mammal is sighted entering or within its respective exclusion
zone. The vessel operator must comply immediately with any call for
shutdown by the Lead PSO. Any disagreement between the Lead PSO and
vessel operator should be discussed only after shutdown has occurred.
Subsequent restart of the survey equipment can be initiated if the
animal has been observed exiting its respective exclusion zone or 30
minutes has passed without subsequent detection of a large whale or 15
minutes for a smaller cetacean or seal. Table 6 provides the required
shutdown zones.

Table 6--Clearance and Shutdown Zones During Sparker and Boomer Use
------------------------------------------------------------------------
Clearance zone Shutdown zone
Species (m) (m)
------------------------------------------------------------------------
North Atlantic right whale.............. 500 500
All other ESA-listed marine mammals..... 500 450
Non-ESA marine mammals \1\.............. 100 100
------------------------------------------------------------------------
\1\ Shutdown is not required for a delphinid from specified genera
Delphinus, Stenella (frontalis only), and Tursiops.

[[Page 7150]]

Shutdown Procedures

The vessel operator must comply immediately with any call for
shutdown by the Lead PSO. Any disagreement between the Lead PSO and
vessel operator should be discussed only after shutdown has occurred.
Subsequent restart of the survey equipment can be initiated if the
animal has been observed exiting its respective shutdown zone or the
relevant time period has lapsed without re-detection (15 minutes for
small odontocetes and seals, and 30 minutes for all other species).
The shutdown requirement would be waived for small delphinids of
the following genera: Delphinus, Stenella (frontalis only), and
Tursiops. Furthermore, if there is uncertainty regarding identification
of a marine mammal species (i.e., whether the observed marine mammal(s)
belongs to one of the delphinid genera for which shutdown is waived),
PSOs must use best professional judgement in making the decision to
call for a shutdown. Additionally, shutdown is required if a delphinid
detected in the exclusion zone and belongs to a genus other than those
specified.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again only if the PSOs have maintained constant
observation and the shutdown zone is clear of marine mammals. If the
source is turned off for more than 30 minutes, it may only be restarted
after PSOs have cleared the shutdown zones for 30 minutes.
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 (445 m), shutdown would be required.

Vessel Strike Avoidance

Kitty Hawk Wind will ensure that vessel operators and crew maintain
a vigilant watch for marine mammals and slow down or stop their vessels
to avoid striking these species. All personnel responsible for
navigation and marine mammal observation duties will receive site-
specific training on marine mammals sighting/reporting and vessel
strike avoidance measures. Vessel strike avoidance measures would
include the following, except under circumstances when complying with
these requirements would put the safety of the vessel or crew at risk:
<bullet> Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated 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 protected species from other phenomena and (2) broadly to
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
<bullet> All vessel operators will monitor the North Atlantic Right
Whale Reporting Systems (e.g., the Early Warning System, Sighting
Advisory System, and Mandatory Ship Reporting System) daily throughout
the entire survey period for the presence of North Atlantic right
whales during activities conducted in support of plan submittal;
<bullet> All vessel operators will comply with the 10 knot (18.5
km/hr) or less speed restrictions when operating in any SMA from
November 1 through April 30;
<bullet> All vessels, regardless of size, must observe a 10-knot
speed restriction in a North Atlantic right whale DMA;
<bullet> All survey vessels will maintain a separation distance of
500 m or greater from any sighted North Atlantic right whale or other
ESA-listed whale;
<bullet> If underway, vessels must steer a course away from any
sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less
until the 500 m minimum separation distance has been established. If a
North Atlantic right whale is sighted in a vessel's path, or within 100
m to an underway vessel, the underway vessel must reduce speed and
shift the engine to neutral. Engines will not be engaged until the
North Atlantic right whale has moved outside of the vessel's path and
beyond 100 m. If stationary, the vessel must not engage engines until
the North Atlantic right whale has moved beyond 100 m;
<bullet> All vessels will maintain a separation distance of 100 m
or greater from any sighted non-delphinid cetacean. If sighted, the
vessel underway must reduce speed and shift the engine to neutral, and
must not engage the engines until the non-delphinid cetacean has moved
outside of the vessel's path and beyond 100 m. If a survey vessel is
stationary, the vessel will not engage engines until the non-delphinid
cetacean has moved out of the vessel's path and beyond 100 m;
<bullet> All vessel operators will comply with 10 knot (18.5 km/hr)
or less speed restrictions when mother/calf pairs, pods, or large
assemblages of non-delphinid cetaceans are observed near an underway
vessel;
<bullet> All vessels will maintain a separation distance of 50 m or
greater from any sighted delphinid cetacean and pinniped. Any vessel
underway will remain parallel to a sighted delphinid cetacean or
pinniped's course whenever possible and avoid excessive speed or abrupt
changes in direction. Any vessel underway reduces vessel speed to 10
knots (18.5 km/hr) or less when pods (including mother/calf pairs) or
large assemblages of delphinid cetaceans are observed. Vessels may not
adjust course and speed until the delphinid cetaceans have moved beyond
50 m and/or the abeam of the underway vessel;
<bullet> All vessels underway will not divert or alter course in
order to approach any marine mammal. Any vessel underway will avoid
excessive speed or abrupt changes in direction to avoid injury to the
sighted cetacean or pinniped;
<bullet> All vessels must reduce their speed to 10 knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel underway;
<bullet> All vessels must maintain a minimum separation distance of
500 m from right whales. If a whale is observed but cannot be confirmed
as a species other than a right whale, the vessel operator must assume
that it is a right whale and take appropriate action;
<bullet> All vessels must maintain a minimum separation distance of
100 m from or greater from any sighted non-delphinid cetacean;
<bullet> All vessels shall attempt to maintain a separation
distance of 50 m or greater from any sighted delphinid cetacean and
pinniped, with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel); and
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear

[[Page 7151]]

or any vessel that is navigationally constrained.
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.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities. In addition to the aforementioned measures, Kitty Hawk will
abide by all marine mammal relevant conditions in the Greater Atlantic
Regional Office's (GARFO) informal programmatic consultation, dated
June 29, 2021 (revised September 2021), pursuant to section 7 of the
ESA. These include the relevant best management practices of project
design criteria (PDCs) 4, 5, and 7.
Based on our evaluation of Kitty Hawk Wind's proposed measures,
NMFS has preliminarily determined that the proposed mitigation measures
provide the means of effecting the least practicable impact on marine
mammal 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 in the
planned survey area. 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:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.

Monitoring Measures

Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Kitty Hawk Wind would
employ independent, dedicated, trained PSOs, meaning that the PSOs must
(1) be employed by a third-party observer provider, (2) have no tasks
other than to conduct observational effort, collect data, and
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammals and mitigation requirements (including brief
alerts regarding maritime hazards), and (3) have successfully completed
an approved PSO training course appropriate for their designated task.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including exclusion zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established exclusion zones
during survey activities. It will be the responsibility of the Lead PSO
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.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) would ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and would conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
4 consecutive hours followed by a break of at least 2 hours between
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals would be communicated
to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to exclusion zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state 3
or less), to the maximum extent practicable, PSOs would also conduct
observations when the acoustic source is not operating for comparison
of sighting rates and behavior with and without use of the active
acoustic sources. Any observations of marine mammals by crew members
aboard any vessel associated with the survey would be relayed to the
PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements. This would include dates, times, and
locations of

[[Page 7152]]

survey operations; dates and times of observations, location and
weather; details of marine mammal sightings (e.g., species, numbers,
behavior); and details of any observed marine mammal behavior that
occurs (e.g., noted behavioral disturbances).

Reporting Measures

Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a final technical report will be
provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys (including what type of mitigation and the species and number
of animals that prompted the mitigation action, when known), and
provides an interpretation of the results and effectiveness of all
mitigation and monitoring. Any recommendations made by NMFS must be
addressed in the final report prior to acceptance by NMFS. All draft
and final marine mammal and acoustic monitoring reports must be
submitted to <a href="/cdn-cgi/l/email-protection#075755294e5357294a68696e7368756e696055627768757374476968666629606871">[email&#160;protected]</a> and <a href="/cdn-cgi/l/email-protection#c58c9195eb81a4a9bc85abaaa4a4eba2aab3">[email&#160;protected]</a>.
The report must contain at minimum, the following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port name;
<bullet> Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions);
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> 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;
<bullet> Estimated number of animals (high/low/best);
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> 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);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other);
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
Although not anticipated, if a North Atlantic right whale is
observed at any time by PSOs or personnel on any project vessels,
during surveys or during vessel transit, Kitty Hawk Wind must
immediately report sighting information to the NMFS North Atlantic
Right Whale Sighting Advisory System: (866) 755-6622. North Atlantic
right whale sightings in any location must also be reported to the U.S.
Coast Guard via channel 16.
In the event that Kitty Hawk Wind personnel discover an injured or
dead marine mammal, Kitty Hawk Wind would report the incident to the
NMFS Office of Protected Resources (OPR) and the NMFS Southeast Marine
Mammal Stranding Network (1-877-942-5343) if the sighting is in North
Carolina or the Northeast Stranding Network (1-866-755-6622) if the
sighting is in Virginia as soon as feasible. The report would include
the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Kitty Hawk
Wind would report the incident to the NMFS OPR and the NMFS Southeast
Marine Mammal Stranding Network (1-877-942-5343) if the sighting is in
North Carolina or the Northeast Stranding Network (1-866-755-6622) if
the sighting is in Virginia as soon as feasible but within 24 hours.
The report would include the following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
<bullet> 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;
<bullet> Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> 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

[[Page 7153]]

<bullet> 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 responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), 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's 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 environmental 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, our analysis applies to all the species listed
in Table 6, given that NMFS expects the anticipated effects of the
survey to be similar in nature. Where there are meaningful differences
between species or stocks--as is the case of the North Atlantic right
whale--they are included as separate subsections below. 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 above, non-auditory physical effects and vessel strike
are not expected to occur. NMFS expects that all potential takes would
be in the form of short-term Level B behavioral harassment in the form
of temporary avoidance of the area or decreased foraging (if such
activity was occurring), reactions that are considered to be of low
severity and with no lasting biological consequences (e.g., Southall et
al., 2007). Even repeated Level B harassment of some small subset of an
overall stock is unlikely to result in any significant realized
decrease in viability for the affected individuals, and thus would not
result in any adverse impact to the stock as a whole. As described
above, Level A harassment is not expected to occur given the nature of
the operations, the estimated size of the Level A harassment zones, and
the required shutdown zones for certain activities.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel from sparker use is 445 m and 13 m from
boomer use. 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 the impacts of the surveys are limited to
very small areas around each vessel, prey species are mobile and are
broadly distributed throughout the survey area; therefore, marine
mammals that may be temporarily displaced during survey activities are
expected to be able to resume foraging once they have moved away from
areas with disturbing levels of underwater noise. Because of the
temporary nature of the disturbance and the availability of similar
habitat and resources in the surrounding area, the impacts to marine
mammals and the food sources that they utilize are not expected to
cause significant or long-term consequences for individual marine
mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the 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.

North Atlantic Right Whales

The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits additional analysis. As
discussed in the notice of proposed IHA (86 FR 17783; April 6, 2021),
elevated North Atlantic right whale mortalities began in June 2017 and
there is an active UME. Overall, preliminary findings support human
interactions, specifically vessel strikes and entanglements, as the
cause of death for the majority of right whales. As noted previously,
the survey area overlaps a migratory corridor BIA for North Atlantic
right whales. Due to the fact that the survey activities are temporary
and the spatial extent of sound produced by the survey will be very
small relative to the spatial extent of the available migratory habitat
in the BIA, right whale migration is not expected to be impacted by the
survey. Given the relatively small size of the ensonified area, it is
unlikely that prey availability would be adversely affected by Kitty
Hawk Wind's proposed survey operations. Required vessel strike
avoidance measures would also decrease risk of ship strike during
migration; no ship strike is expected to occur during Kitty Hawk Wind's
proposed activities. Additionally, only very limited take by Level B
harassment of North Atlantic right whales has been requested and is
proposed to be authorized by NMFS as Kitty Hawk Wind's proposed survey
operations would be required to maintain a shutdown zone of 500 m if a
North Atlantic right whale is observed. The 500 m shutdown zone for
right whales is conservative, considering the Level B harassment
isopleth for the most impactful acoustic source (i.e., sparker--which
would not be used on all survey days) is estimated to be 445 m, and
thereby minimizes the potential for behavioral harassment of this
species. As noted previously, Level A harassment is not expected due to
the characteristics of the signals produced by the acoustic sources
planned for use; this finding is further enforced by the proposed
mitigation measures. NMFS does not anticipate North Atlantic right
whales takes that would result from Kitty Hawk Wind's activities would
impact annual rates of recruitment or survival. Thus, any takes that
occur will not result in population level impacts.

Other Marine Mammal Species With Active UMEs

As discussed above, there are several active UMEs occurring in the
vicinity of Kitty Hawk Wind's survey area. Elevated humpback whale
mortalities have occurred along the Atlantic coast from Maine through
Florida since January 2016. Of the cases examined, approximately half
had evidence of human interaction (ship strike or entanglement). The
UME does not yet provide cause for concern regarding population-level
impacts. Despite the UME, the relevant population of humpback whales
(the West Indies breeding population, or DPS) remains stable at
approximately 12,000 individuals.

[[Page 7154]]

Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
The proposed mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in Table 6, including
those with active UMEs, to the level of least practicable adverse
impact. In particular they would provide animals the opportunity to
move away from the sound source throughout the survey area before HRG
survey equipment reaches full energy, thus preventing them from being
exposed to sound levels that have the potential to cause injury (Level
A harassment) or more severe Level B harassment. No Level A harassment
is anticipated, even in the absence of mitigation measures, or proposed
for authorization.
NMFS expects that takes will be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals will only be exposed briefly to a small ensonified area that
might result in take. Additionally, the proposed 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
preliminarily support our determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or proposed
to be authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or proposed to be authorized;
<bullet> 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;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the survey area during
the planned survey to avoid exposure to sounds from the activity;
<bullet> Take is anticipated to be by Level B behavioral harassment
only consisting of brief startling reactions and/or temporary avoidance
of the survey area;
<bullet> While the survey area is within areas noted as a migratory
BIA for North Atlantic right whales, the activities will occur in such
a comparatively small area such that any avoidance of the survey area
due to activities will not affect migration. In addition, the
requirement to shut down at 500 m to minimize potential for Level B
behavioral harassment would limit the effects of the action on
migratory behavior of the species; and
<bullet> 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
consideration the implementation of the monitoring and mitigation
measures, NMFS preliminarily finds that the total marine mammal take
from the activity will have a negligible impact on all affected marine
mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take 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. For this IHA, take of
all species or stocks is below one third of the estimated stock
abundance (in fact, take of individuals is less than 7 percent of the
abundance for all affected stocks).
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 will 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 is proposing to authorize take, by Level B harassment only, of
North Atlantic right whales fin whales, and sei whales which are listed
under the ESA. On June 29, 2021 (revised September 2021), GARFO
completed an informal programmatic consultation on the effects of
certain site assessment and site characterization activities to be
carried out to support the siting of offshore wind energy development
projects off the U.S. Atlantic coast. Part of the activities considered
in the consultation are geophysical surveys such as those proposed by
Kitty Hawk Wind and for which we are proposing to authorize take. GARFO
concluded site assessment surveys are not likely to adversely affect
endangered species or adversely modify or destroy critical habitat.
NMFS has determined issuance of the IHA is covered under the
programmatic consultation; therefore, ESA consultation has been
satisfied.

Proposed Authorization

As a result of these preliminary determinations, NMFS proposes to
issue an IHA to Kitty Hawk Wind for conducting marine site
characterization surveys off the coast of North Carolina and Virginia,
provided the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated. A draft of the proposed IHA can be found
at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.

[[Page 7155]]

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 at this time 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, one-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, 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:
<bullet> 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);
<bullet> 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);
and
(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: February 2, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-02573 Filed 2-7-22; 8:45 am]
BILLING CODE 3510-22-P

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