Home/Federal/Federal Register/2022-13667

Notice2022-13667

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

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

June 27, 2022

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS has received a request from Attentive Energy LLC (Attentive Energy) for authorization to take marine mammals incidental to marine site characterization surveys off the coast of New Jersey and New York in the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Area OCS-A 0538. 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 authorization and agency responses will be summarized in the final notice of our decision.

Full Text

<html>
<head>
<title>Federal Register, Volume 87 Issue 122 (Monday, June 27, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 122 (Monday, June 27, 2022)]
[Notices]
[Pages 38094-38116]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13667]

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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC024]

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

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

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

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

SUMMARY: NMFS has received a request from Attentive Energy LLC
(Attentive Energy) for authorization to take marine mammals incidental
to marine site characterization surveys off the coast of New Jersey and
New York in the area of Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf Lease Area
OCS-A 0538. 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 authorization and agency responses will be
summarized in the final notice of our decision.

DATES: Comments and information must be received no later than July 27,
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#2e677a7e00464f5c424f4d464b5c6e40414f4f00494158">[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: Jenna Harlacher, 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/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</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 proposed or, if the taking is limited to

[[Page 38095]]

harassment, a notice of a proposed incidental harassment authorization
is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.

National Environmental Policy Act

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

Summary of Request

On April 11, 2022 NMFS received a request from Attentive Energy for
an IHA to take marine mammals incidental to conducting marine site
characterization surveys off the coast of New Jersey and New York in
the area of the Commercial Lease of Submerged Lands for Renewable
Energy Development on the Outer Continental Shelf Lease Area (OCS)-A
0538. The application was deemed adequate and complete on May 23, 2022.
Attentive Energy's request is for take of 15 species of marine mammals,
by Level B harassment only. Neither Attentive Energy nor NMFS expect
serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.

Description of Proposed Activity

Overview

Attentive Energy proposes to conduct marine site characterization
surveys using high-resolution geophysical (HRG) acoustic sources in the
Lease Area OCS-A 0538.
The purpose of the proposed surveys is to support the site
characterization, siting, and engineering design of offshore wind
project facilities including wind turbine generators, offshore
substations, and submarine cables within the Lease Area. One survey
vessel will operate as part of the proposed surveys. Underwater sound
resulting from Attentive Energy's proposed site characterization survey
activities, specifically HRG survey effort, has the potential to result
in incidental take of marine mammals in the form of behavioral
harassment.

Dates and Duration

The estimated duration of the surveys is expected to be up to 42 to
56 total survey days (6 to 8 weeks) within a single year in the Lease
Area. A survey day is defined as a 24-hour survey period where 200
kilometer of track line is surveyed. This schedule is based on 24-hours
of operations for up to 8-weeks. In total there are 3,028 km of track
line that would be surveyed within the Lease Area. The schedule
presented here for this proposed project has accounted for potential
down time due to inclement weather or other project-related delays,
therefor actual survey time will be less than 8 weeks. Proposed
activities would occur between August 1, 2022 and July 31, 2023.

Specific Geographic Region

Attentive Energy's proposed activities would occur in the Northwest
Atlantic Ocean within Federal and state waters (Figure 1). Surveys
would occur in the Lease Area off the coast of New York and New Jersey
in the New York bight. Proposed activities would occur within the
Commercial Lease of Submerged Lands for Renewable Energy Development in
OCS-A 0538. The OCS Lease area is approximately 577.6 km\2\ and is
located between 30 and 60 meters water depth.
BILLING CODE 3510-22-P

[[Page 38096]]

[GRAPHIC] [TIFF OMITTED] TN27JN22.002

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

Attentive Energy's proposed marine site characterization surveys
include HRG and geotechnical survey activities. These survey activities
would occur within the Lease Area off the coasts of New York and New
Jersey in the New York Bight. The proposed HRG and geotechnical survey
activities are described below.
Proposed Geotechnical Survey Activities
Attentive Energy proposed geotechnical survey activities would
include the drilling of sample boreholes, deep cone penetration tests,
and shallow cone penetration tests. The geotechnical survey activity is
not expected to result in take of marine mammals. Similar activities
were performed before in a nearby lease area by Atlantic Shores, and
considerations of the impacts produced from geotechnical activities
have been previously analyzed and included in the proposed 2020 Federal
Register notice for Atlantic Shores' HRG activities (85 FR 7926;
February 12, 2020). In that notification, NMFS determined that the
likelihood of the proposed geotechnical surveys resulting in harassment
of marine mammals was to be so low as to be discountable. As this
information remains applicable and NMFS' determination has not changed,
these activities will not be discussed further in this proposed
notification.
Proposed Geophysical Survey Activities
Attentive Energy has proposed that HRG survey operations would be
conducted continuously 24 hours a day. Based on 24-hour operations, the
estimated total duration of the proposed activities would be
approximately 8 weeks. As previously discussed above, this schedule
does include potential down time due to inclement weather or other
project-related delays. The HRG survey will be conducted with primary
track lines spaced at 150-meter (m) intervals and tie-lines spaced at
500-m intervals.
The HRG survey activities will be supported by the use of a
purpose-built survey vessel. These are designed with built-in A-frames
and davits, permanently mounted winches, and other items on the deck
specifically for survey operations. The geophysical survey activities
proposed by Attentive Energy would include the following:
<bullet> Depth sounding to determine water depth, site bathymetry,
and general bottom topography (multibeam echosounder);
<bullet> Magnetic intensity measurements (gradiometer) for
detecting local variations in regional magnetic field from geological
strata and potential ferrous objects on and below the bottom;

[[Page 38097]]

<bullet> Seafloor imaging (sidescan sonar survey) for seabed
sediment classification purposes, to identify natural and human-made
acoustic targets resting on the bottom as well as any anomalous
features;
<bullet> Shallow-bottom penetration sub-bottom profiler (SBP) to
map the near surface stratigraphy (top 0 to 10 m [33 feet] below seabed
in sand and 0 to 15 m [49 feet] in mixed sediments); and
<bullet> Medium penetration SBP (sparker) to map deeper subsurface
stratigraphy as needed (soils down to at least 100 m [328 ft] below
seabed in sand and at least 125 m [410 feet] below seabed in mixed
sediments).
The representative survey equipment that may be used in support of
planned geophysical survey activities can be found in Table 0-3 of
Attentive Energy's Application. 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. Geophysical
surveys are expected to use several equipment types concurrently in
order to collect multiple aspects of geophysical data along one
transect. Selection of equipment combinations is based on specific
survey objectives. All proposed HRG survey equipment is listed in the
application, including equipment that NMFS doesn't expect to result in
take due to their higher frequencies and extremely narrow beam widths.
Because of this, these sources were not considered when calculating the
Level B harassment isopleths and are not discussed further in this
notice. Acoustic parameters on this equipment can be found in Attentive
Energy's IHA application on NMFS' website (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>). We will only be
discussing further the equipment listed below in Table 1. For equipment
source level specifications noted in Table 1, a proxy representing the
closest match in composition and operation of the Dual Geo-Spark was
used from Crocker and Fratantonio (2016).

Table 1--Proposed Acoustic Equipment for HRG Surveys
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operating Source level
HRG equipment type Equipment make/ frequency (RMS dB re 1 Reference for Pulse duration Repetition Beam width
model (kHz) uPa @1m) source level (milliseconds) rate (Hz) (degrees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mobile, Impulsive
--------------------------------------------------------------------------------------------------------------------------------------------------------
Deep SBP........................ Dual Geo-Spark 0.3 203 Crocker and 1.1 4 180
2000X (400 tip/ Fratantonio 2016
500J). *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Applied Acoustics Dura-spark 500J to 2,000J as Proxy.
Key: RMS--Root mean square; dB--Decibel; re--referenced at; m--meters; SBP--Sub-bottom profiler; Hz--hertz; kHz--kilohertz; uPa--microPascal.

The deployment of HRG survey equipment, including the equipment
planned for use during Attentive Energy proposed activities, produces
sound in the marine environment that has the potential to result in
harassment of marine mammals. Proposed mitigation, monitoring, and
reporting measures are described in detail later in this document
(please see Proposed Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' Stock Assessment Reports
(SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species and stocks for which take is expected and
proposed to be authorized for this action and summarizes information
related to the species and stock, including regulatory status under the
MMPA and Endangered Species Act (ESA) and potential biological removal
(PBR), where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is anticipated or 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' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All species managed under the MMPA in this region
are assessed in NMFS' 2021 draft U.S. Atlantic and Gulf of Mexico Stock
Assessment Report SARs. All values presented in Table 2 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>).

[[Page 38098]]

Table 2--Marine Mammal Species and Stocks Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.......... Eubalaena glacialis.... Western Atlantic Stock. E/D, Y 368 \4\ (0; 364; 2019) 0.7 7.7
Humpback whale...................... Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,396 (0; 1,380; 2016) 22 12.15
Fin whale........................... Balaenoptera physalus.. Western North Atlantic E/D, Y 6,802 (0.24; 5,573; 11 1.8
Stock. 2016).
Sei whale........................... Balaenoptera borealis.. Nova Scotia Stock...... E/D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Minke whale......................... Balaenoptera Canadian East Coastal -/-, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale......................... Physeter macrocephalus. North Atlantic Stock... E/D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Long-finned pilot whale............. Globicephala melas..... Western North Atlantic -/-, N 39,215 (0.3; 30,627; 306 29
Stock. 2016).
Atlantic white-sided dolphin........ Lagenorhynchus acutus.. Western North Atlantic -/-, N 93,233 (0.71; 54,443; 544 227
Stock. 2016).
Bottlenose dolphin.................. Tursiops truncatus..... Western North Atlantic -/-, N 62,851 (0.23; 51,914; 519 28
Offshore Stock. 2016).
Common dolphin...................... Delphinus delphis...... Western North Atlantic -/-, N 172,974 (0.21, 1,452 390
Stock. 145,216, 2016).
Atlantic spotted dolphin............ Stenella frontalis..... Western North Atlantic -/-, N 39,921 (0.27; 32,032; 320 0
Stock. 2016).
Risso's dolphin..................... Grampus griseus........ Western North Atlantic -/-, N 35,215 (0.19; 30,051; 301 34
Stock. 2016).
Harbor porpoise..................... Phocoena phocoena...... Gulf of Maine/Bay of -/-, N 95,543 (0.31; 74,034; 851 164
Fundy Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal......................... Phoca vitulina......... Western North Atlantic -/-, N 61,336 (0.08; 57,637; 1,729 339
Stock. 2018).
Gray seal \5\....................... Halichoerus grypus..... Western North Atlantic -/-, N 27,300 (0.22; 22,785; 1,389 4,453
Stock. 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 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="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV
is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike).
\4\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>).
\5\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,431. The annual mortality and serious injury (M/SI) value given is for the total stock.

As indicated above, all 15 species listed in Table 2 temporally and
spatially co-occur with the proposed activity to the degree that take
is reasonably likely to occur.
The temporal and/or spatial occurrence of several cetacean and
pinniped species is such that take of these species is not expected to
occur either because they have very low densities in the survey area or
are known to occur further inshore or offshore than the survey area.
These include: blue whale (Balaenoptera musculus), Dwarf and pygmy
sperm whale (Kogia sima and Kogia breviceps), killer whale (Orcinus
orca), false killer whale (Pseudorca crassidens), Cuvier's beaked whale
(Ziphius cavirostris), Mesoplodont beaked whales (Mesoplodon spp.),
short finned pilot whale (Globicephala macrorhynchus), white-beaked
dolphin (Lagenorhynchus albirostris), pantropical spotted dolphin
(Stenella attenuata), striped dolphin (Stenella coeruleoalba), harp
seal (Pagophilus groenlandicus), and hooded seal (Cystophora cristata).
As harassment and subsequent take of these species is not anticipated
as a result of the proposed activities, these species are not analyzed
or discussed further.
Below is a description of the species that have the highest
likelihood of occurring in the survey area and are thus expected to
potentially be taken by the proposed activities as well as further
detail informing the status for select species (i.e., information
regarding current Unusual Mortality Events (UMEs) and important habitat
areas).

North Atlantic Right Whale

The North Atlantic right whales range from calving grounds in the
southeastern United States to feeding grounds in New England waters and
into Canadian waters (Hayes et al., 2018). They are observed year round
in the Mid-Atlantic Bight, and surveys have demonstrated the existence
of seven areas where North Atlantic right whales congregate seasonally,
including north and east of the proposed survey area in Georges Bank,
off Cape Cod, and in Massachusetts Bay (Hayes et al., 2018). In the
late fall months (e.g., October), right whales are generally thought to
depart from the feeding grounds in the North Atlantic and move south to
their calving grounds off Georgia and Florida. However, recent research
indicates our understanding of their movement patterns remains
incomplete (Davis et al., 2017). A review of passive acoustic
monitoring data from 2004 to 2014 throughout the western North Atlantic
demonstrated nearly continuous year-round right whale presence across
their entire habitat range (for at least some individuals), including
in locations previously thought of as migratory corridors, suggesting
that not all of the population undergoes a consistent annual migration
(Davis et al., 2017). Given that Attentive Energy's surveys would be
concentrated offshore in the New York Bight, some right whales may be
present year round however, the majority in the vicinity of the survey
areas are likely to be transient, migrating through the area. Some may
be present year round however, the majority migrating through
The western North Atlantic population demonstrated overall growth
of 2.8 percent per year between 1990 to 2010, despite a decline in 1993
and no growth between 1997 and 2000 (Pace et al., 2017). However, since
2010 the

[[Page 38099]]

population has been in decline, with a 99.99 percent probability of a
decline of just under 1 percent per year (Pace et al., 2017). Between
1990 and 2015, calving rates varied substantially, with low calving
rates coinciding with all three periods of decline or no growth (Pace
et al., 2017). On average, North Atlantic right whale calving rates are
estimated to be roughly half that of southern right whales (Eubalaena
australis) (Pace et al., 2017), which are increasing in abundance
(NMFS, 2015). In 2018, no new North Atlantic right whale calves were
documented in their calving grounds; this represented the first time
since annual NOAA aerial surveys began in 1989 that no new right whale
calves were observed. Eighteen right whale calves were documented in
2021. As of the end of 2021 two North Atlantic right whale calves have
documented to have been born during this calving season.
The proposed survey area is part of 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). Off the coast of New
Jersey, the migratory BIA extends from the coast to beyond the shelf
break. This important migratory area is approximately 269,488 km\2\ in
size (compared with the approximately 854 km\2\ of total estimated
Level B harassment ensonified area associated with the 8-week planned
survey) and is comprised of the waters of the continental shelf
offshore the East Coast of the United States, extending from Florida
through Massachusetts. NMFS' regulations at 50 CFR part 224.105
designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic
U.S. Seasonal Management Areas (SMA) for right whales in 2008. SMAs
were developed to reduce the threat of collisions between ships and
right whales around their migratory route and calving grounds. A
portion of one SMA, which occurs off the mouth of the New York Bight,
is close to the proposed survey area. The SMA, which occurs off the
mouth of the New York Bight, is active from November 1 through April 30
of each year. Within SMAs, the regulations require a mandatory vessel
speed (less than 10 kn) for all vessels greater than 65 ft. Attentive
Energy survey vessel, regardless of length, would be required to adhere
to a 10 knot vessel speed restriction when operating within this SMA.
In addition, Attentive Energy survey vessel, regardless of length,
would be required to adhere to a 10 knot vessel speed restriction when
operating in any Dynamic Management Area (DMA) declared by NMFS.
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 Unusual Mortality Event (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 June 2,
2022, 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 that have stranded during 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>.
Recent aerial surveys in the New York Bight showed NARW in the
proposed survey area in the winter and spring, preferring deeper waters
near the shelf break (NARW observed in depths ranging from 33-1041m),
but were observed throughout the survey area (Normandeau Associates and
APEM, 2020; Zoidis et al., 2021). Similarly, passive acoustic data
collected from 2018 to 2020 in the New York Bight showed detections of
NARW throughout the year (Estabrook et al., 2021). Seasonally, NARW
acoustic presence was highest in the fall. NARW can be anticipated to
occur in the proposed survey area year-round but with lower levels in
the summer from July-September.

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. 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. Gulf of Maine humpback whales are
designated as a stock under the MMPA and are also part of the West
Indies DPS. However, humpback whales occurring in the survey area are
not necessarily from the Gulf of Maine stock. Barco et al. (2002)
estimated that, based on photo-identification, only 39 percent of
individual humpback whales observed along the mid- and south Atlantic
U.S. coast are from the Gulf of Maine stock. Bettridge et al. (2015)
estimated the size of this population at 12,312 (95 percent CI 8,688-
15,954) whales in 2004-05, which is consistent with previous population
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003;
Smith et al., 1999) and the increasing trend for the West Indies DPS
(Bettridge et al., 2015).
Humpback whales utilize the mid-Atlantic as a migration pathway
between calving/mating grounds to the south and feeding grounds in the
north (Waring et al., 2007a; Waring et al., 2007b). A key question with
regard to humpback whales off the Mid-Atlantic states is their stock
identity. Furthermore, King et al. (2021) highlights important concerns
for humpback whales found specifically in the nearshore environment
(<10 km from shore) from various anthropogenic impacts.
Recent aerial surveys in the New York Bight observed humpback
whales in the spring and winter, but sightings were reported year round
in the area (Normandeau Associates and APEM, 2020). Humpback whales
preferred deeper waters near the shelf break, but were observed
throughout the area. Additionally, passive acoustic data recorded
humpback whales in the New York Bight throughout the year, but the
presence was highest in the fall and summer months (Estabrook et al.,
2021).
Three previous UMEs involving humpback whales have occurred since
2000, in 2003, 2005, and 2006. 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 159 known cases (as of June 2, 2022). 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

[[Page 38100]]

may provide information on changes in whale distribution and habitat
use that could provide additional insight into how these vessel
interactions occurred. More information is available at:
<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>.

Fin Whale

Fin whales are common in waters of the U. S. Atlantic Exclusive
Economic Zone (EEZ), principally from Cape Hatteras northward (Waring
et al., 2016). Fin whales are present north of 35-degree latitude in
every season and are broadly distributed throughout the western North
Atlantic for most of the year (Waring et al., 2016). They are typically
found in small groups of up to five individuals (Brueggeman et al.,
1987). The main threats to fin whales are fishery interactions and
vessel collisions (Waring et al., 2016).
The western north Atlantic stock of fin whales includes the area
from Central Virginia to Newfoundland/Labrador Canada. This region is
primarily a feeding ground for this migratory species that tends to
calve and breed in lower latitudes or offshore. There is currently no
critical habitat designated for this species.
Recent aerial surveys in the New York Bight observed fin whales
year-round throughout the survey area, but they preferred deeper waters
near the shelf break (Normandeau Associates and APEM, 2020). Passive
acoustic data from 2018 to 2020 also detected fin whales throughout the
year (Estabrook et al., 2021).

Sei Whale

The Nova Scotia stock of sei whales can be found in deeper waters
of the continental shelf edge waters of the northeastern U.S. and
northeastward to south of Newfoundland. The southern portion of the
stock's range during spring and summer includes the Gulf of Maine and
Georges Bank. Spring is the period of greatest abundance in U.S.
waters, with sightings concentrated along the eastern margin of Georges
Bank and into the Northeast Channel area, and along the southwestern
edge of Georges Bank in the area of Hydrographer Canyon (Waring et al.,
2015). Sei whales occur in shallower waters to feed. Currently there is
no critical habitat for sei whales, though they can be observed along
the shelf edge of the continental shelf. The main threats to this stock
are interactions with fisheries and vessel collisions.
Recently conducted aerial surveys in the New York Bight observed
sei whales in both winter and spring, though they preferred deeper
waters near the shelf break (Normandeau Associates and APEM, 2020).
Passive acoustic data in the survey area detected sei whales throughout
the year except January and July, with highest detections in March and
April (Estabrook et al., 2021).

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
(Waring et al., 2016). This species generally occupies waters less than
100-m deep on the continental shelf. There appears to be a strong
seasonal component to minke whale distribution in the survey areas, in
which spring to fall are times of relatively widespread and common
occurrence while during winter the species appears to be largely absent
(Waring et al., 2016). Recent aerial surveys in the New York Bight area
found that minke whales were observed throughout the survey area, with
highest numbers sighting in the spring months (Normandeau Associates
and APEM, 2020).
Since January 2017, elevated minke whale mortalities have occurred
along the Atlantic coast from Maine through South Carolina, with a
total of 122 strandings (as of June 2, 2022). This event has been
declared a UME. Full or partial necropsy examinations were conducted on
more than 60 percent of the stranded whales. Preliminary findings in
several of the whales have shown evidence of human interactions or
infectious disease, but these findings are not consistent across all of
the whales examined, so more research is needed. More information is
available at: <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>.

Sperm Whale

The distribution of the sperm whale in the U.S. EEZ occurs on the
continental shelf edge, over the continental slope, and into mid-ocean
regions (Waring et al., 2014). They are rarely found in waters less
than 300 meters deep. The basic social unit of the sperm whale appears
to be the mixed school of adult females plus their calves and some
juveniles of both sexes, normally numbering 20-40 animals in all. There
is evidence that some social bonds persist for many years (Christal et
al., 1998). This species forms stable social groups, site fidelity, and
latitudinal range limitations in groups of females and juveniles
(Whitehead, 2002). In summer, the distribution of sperm whales includes
the area east and north of Georges Bank and into the Northeast Channel
region, as well as the continental shelf (inshore of the 100-m isobath)
south of New England. In the fall, sperm whale occurrence south of New
England on the continental shelf is at its highest level, and there
remains a continental shelf edge occurrence in the mid-Atlantic bight.
In winter, sperm whales are concentrated east and northeast of Cape
Hatteras.
Recent aerial studies observed sperm whales in the highest number
in the summer, with a preference for the shelf break (Normandeau
Associates and APEM, 2020). Passive acoustic recordings of sperm whale
recorded them throughout the year, and again highest during spring and
summer (Estabrook et al., 2021).

Risso's Dolphin

The status of the Western North Atlantic stock is not well
understood. They are broadly distributed in tropical and temperate
latitudes throughout the world's oceans, and the Western North Atlantic
stock occurs from Florida to eastern Newfoundland. They are common on
the northwest Atlantic continental shelf in summer and fall with lower
abundances in winter and spring. Newer aerial surveys in the New York
Bight area sighted Risso's dolphins throughout the year at the shelf
break with highest abundances in spring and summer (Normandeau
Associates and APEM, 2020).

Long-Finned Pilot Whale

Long-finned pilot whales are found from North Carolina and north to
Iceland, Greenland and the Barents Sea (Waring et al., 2016). In U.S.
Atlantic waters the species is distributed principally along the
continental shelf edge off the northeastern U.S. coast in winter and
early spring and in late spring, pilot whales move onto Georges Bank
and into the Gulf of Maine and more northern waters and remain in these
areas through late autumn (Waring et al., 2016). Recently conducted
aerial surveys in the New York Bight area noted a preference for deeper
water at the shelf break throughout the year (Normandeau Associates and
APEM, 2020).

Atlantic White-Sided Dolphin

White-sided dolphins are found in temperate and sub-polar waters of
the North Atlantic, primarily in continental shelf waters to the 100m
depth contour from central West Greenland to North Carolina (Waring et
al., 2016). The Gulf

[[Page 38101]]

of Maine stock is most common in continental shelf waters from Hudson
Canyon to Georges Bank, and in the Gulf of Maine and lower Bay of
Fundy. Sighting data indicate seasonal shifts in distribution
(Northridge et al., 1997). During January to May, low numbers of white-
sided dolphins are found from Georges Bank to Jeffreys Ledge (off New
Hampshire), with even lower numbers south of Georges Bank, as
documented by a few strandings collected on beaches of Virginia to
South Carolina. From June through September, large numbers of white-
sided dolphins are found from Georges Bank to the lower Bay of Fundy.
From October to December, white-sided dolphins occur at intermediate
densities from southern Georges Bank to southern Gulf of Maine (Payne
and Heinemann, 1990). Sightings south of Georges Bank, particularly
around Hudson Canyon, occur year round but at low densities. Recent
aerial studies confirmed previous studies with observations in fall and
winter in the New York Bight area with preference for deep water at the
shelf break throughout the year (Normandeau Associates and APEM, 2020).

Atlantic Spotted Dolphin

Atlantic spotted dolphins are found in tropical and warm temperate
waters ranging from southern New England, south to Gulf of Mexico and
the Caribbean to Venezuela (Waring et al., 2014). This stock regularly
occurs in continental shelf waters south of Cape Hatteras and in
continental shelf edge and continental slope waters north of this
region (Waring et al., 2014). There are two forms of this species, with
the larger ecotype inhabiting the continental shelf and is usually
found inside or near the 200-m isobaths (Waring et al., 2014). They are
relatively uncommon in the survey area.

Common Dolphin

The common dolphin is found worldwide in temperate to subtropical
seas. In the North Atlantic, common dolphins are commonly found over
the continental shelf between the 100-m and 2,000-m isobaths and over
prominent underwater topography and east to the mid-Atlantic Ridge
(Waring et al., 2016). They have been observed in coastal and offshore
waters, observed migrating to mid-Atlantic waters during winter months.

Bottlenose Dolphin

There are two distinct bottlenose dolphin morphotypes in the
western North Atlantic: The coastal and offshore stocks (Waring et al.,
2016). The offshore stock is distributed primarily along the outer
continental shelf and continental slope in the Northwest Atlantic Ocean
from Georges Bank to the Florida Keys. The offshore stock is the only
stock likely to occur in the survey area due to it being limited to the
Lease area. The Western North Atlantic Offshore stock is generally
observed along the outer continental shelf and slope in waters deeper
than 34 m and over 34 km offshore (Torres et al., 2003).

Harbor Porpoise

In the Lease Area, only the Gulf of Maine/Bay of Fundy stock may be
present in the fall and winter. This stock is found in U.S. and
Canadian Atlantic waters and is concentrated in the northern Gulf of
Maine and southern Bay of Fundy region, generally in waters less than
150-m deep (Waring et al., 2016). They are seen from the coastline to
deep waters (>1,800-m; Westgate et al., 1998), although the majority of
the population is found over the continental shelf (Waring et al.,
2016). The main threat to the species is interactions with fisheries,
with documented take in the U.S. northeast sink gillnet, mid-Atlantic
gillnet, and northeast bottom trawl fisheries and in the Canadian
herring weir fisheries (Waring et al., 2016).

Pinnipeds (Harbor Seal and Gray Seal)

The harbor seal is found in all nearshore waters of the North
Atlantic and North Pacific Oceans and adjoining seas above about
30[deg] N (Burns, 2009). In the western North Atlantic, harbor seals
are distributed from the eastern Canadian Arctic and Greenland south to
southern New England and New York, and occasionally to the Carolinas
(Waring et al., 2016). Haul-out and pupping sites are located off
Manomet, MA and the Isles of Shoals, ME, but generally do not occur in
areas in southern New England (Waring et al., 2016). They seasonal
migrate down to the mid-Atlantic from fall to spring months.
There are three major populations of gray seals found in the world;
eastern Canada (western North Atlantic stock), northwestern Europe and
the Baltic Sea. Gray seals are regularly observed in the survey area in
the survey area and these seals belong to the western North Atlantic
stock. The range for this stock is thought to be from New Jersey to
Labrador. Current population trends show that gray seal abundance is
likely increasing in the U.S. Atlantic EEZ (Waring et al., 2016).
Although the rate of increase is unknown, surveys conducted since their
arrival in the 1980s indicate a steady increase in abundance in both
Maine and Massachusetts (Waring et al., 2016). It is believed that
recolonization by Canadian gray seals is the source of the U.S.
population (Waring et al., 2016). Documented haul outs for gray seas in
Long Island area, with a possible rookery on Little Gull Island.
Since July 2018, elevated numbers of harbor seal and gray seal
mortalities have occurred across Maine, New Hampshire and
Massachusetts. This event has been declared a UME. Additionally,
stranded seals have shown clinical signs (e.g., symptoms of disease) as
far south as Virginia, although not in elevated numbers, therefore the
UME investigation now encompasses all seal strandings from Maine to
Virginia. Ice seals (harp and hooded seals) have also started stranding
with clinical signs, again not in elevated numbers, and those two seal
species have also been added to the UME investigation. A total of 3,152
reported strandings (of all species) had occurred from July 1, 2018,
through March 13, 2020. Full or partial necropsy examinations have been
conducted on some of the seals and samples have been collected for
testing. Based on tests conducted thus far, the main pathogen found in
the seals is phocine distemper virus. NMFS is performing additional
testing to identify any other factors that may be involved in this UME.
Presently, this UME is non-active and is pending closure by NMFS.
Information on this UME is available online at: <a href="http://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along">www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along</a>.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.

[[Page 38102]]

Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.

Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales,
bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus cruciger
& L. australis).
Phocid pinnipeds (PW) (underwater) (true 50 Hz to 86 kHz.
seals).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).

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

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

This section includes a discussion of the ways that components of
the specified activity may impact marine mammals and their habitat. The
Estimated Take section later in this document includes a quantitative
analysis of the number of individuals that are expected to be taken by
this activity. The Negligible Impact Analysis and Determination section
considers the content of this section, the Estimated Take section, and
the Proposed Mitigation section, to draw conclusions regarding the
likely impacts of these activities on the reproductive success or
survivorship of individuals and how those impacts on individuals may or
may not impact marine mammal species.

Background on Active Acoustic Sound Sources and Acoustic Terminology

This subsection contains a brief technical background on sound, on
the characteristics of certain sound types, and on metrics used in this
proposal inasmuch as the information is relevant to the specified
activity and to the summary of the potential effects of the specified
activity on marine mammals. For general information on sound and its
interaction with the marine environment, please see, e.g., Au and
Hastings (2008); Richardson et al., (1995); Urick (1983).
Sound travels in waves, the basic components of which are
frequency, wavelength, velocity, and amplitude. Frequency is the number
of pressure waves that pass by a reference point per unit of time and
is measured in hertz or cycles per second. Wavelength is the distance
between two peaks or corresponding points of a sound wave (length of
one cycle). Higher frequency sounds have shorter wavelengths than lower
frequency sounds, and typically attenuate (decrease) more rapidly,
except in certain cases in shallower water. Amplitude is the height of
the sound pressure wave or the ``loudness'' of a sound and is typically
described using the relative unit of the decibel. A sound pressure
level (SPL) in dB is described as the ratio between a measured pressure
and a reference pressure (for underwater sound, this is 1 microPascal
([mu]Pa)), and is a logarithmic unit that accounts for large variations
in amplitude. Therefore, a relatively small change in dB corresponds to
large changes in sound pressure. The source level (SL) represents the
SPL referenced at a distance of 1-m from the source (referenced to 1
[mu]Pa), while the received level is the SPL at the listener's position
(referenced to 1 [mu]Pa).
Root mean square (rms) is the quadratic mean sound pressure over
the duration of an impulse. Root mean square is calculated by squaring
all of the sound amplitudes, averaging the squares, and then taking the
square root of the average (Urick, 1983). Root mean square accounts for
both positive and negative values; squaring the pressures makes all
values positive so that they may be accounted for in the summation of
pressure levels (Hastings and Popper, 2005). This measurement is often
used in the context of discussing behavioral effects, in part because
behavioral effects, which often result from auditory cues, may be
better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s)
represents the total energy in a stated frequency band over a stated
time interval or event and considers both intensity and duration of
exposure. The per-pulse SEL is calculated over the time window
containing the entire pulse (i.e., 100 percent of the acoustic energy).
SEL is a cumulative metric; it can be accumulated over a single pulse,
or calculated over periods containing multiple pulses. Cumulative SEL
represents the total energy accumulated by a receiver over a defined
time window or during an event. Peak sound pressure (also referred to
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous
sound pressure measurable in the water at a specified distance from the
source and is represented in the same units as the rms sound pressure.
When underwater objects vibrate or activity occurs, sound-pressure
waves are created. These waves alternately compress and decompress the
water as the sound wave travels. Underwater sound waves radiate in a
manner similar to ripples on the surface of a pond and may be directed
either in a beam or in beams or may radiate in all directions
(omnidirectional sources). The compressions and decompressions
associated with sound waves are detected as changes in pressure by
aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the
underwater environment is typically loud due to ambient sound, which is
defined as environmental background sound levels lacking a single
source or point (Richardson et al., 1995). The sound level of a region
is defined by the total acoustical energy being generated by known and
unknown sources. These sources may include physical (e.g., wind and
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds
produced by marine mammals, fish, and invertebrates), and anthropogenic
(e.g., vessels, dredging, construction) sound. A number of

[[Page 38103]]

sources contribute to ambient sound, including wind and waves, which
are a main source of naturally occurring ambient sound for frequencies
between 200 Hz and 50 kHz (Mitson, 1995). In general, ambient sound
levels tend to increase with increasing wind speed and wave height.
Precipitation can become an important component of total sound at
frequencies above 500 Hz, and possibly down to 100 Hz during quiet
times. Marine mammals can contribute significantly to ambient sound
levels, as can some fish and snapping shrimp. The frequency band for
biological contributions is from approximately 12 Hz to over 100 kHz.
Sources of ambient sound related to human activity include
transportation (surface vessels), dredging and construction, oil and
gas drilling and production, geophysical surveys, sonar, and
explosions. Vessel noise typically dominates the total ambient sound
for frequencies between 20 and 300 Hz. In general, the frequencies of
anthropogenic sounds are below 1 kHz and, if higher frequency sound
levels are created, they attenuate rapidly.
The sum of the various natural and anthropogenic sound sources that
comprise ambient sound at any given location and time depends not only
on the source levels (as determined by current weather conditions and
levels of biological and human activity) but on the ability of sound to
propagate through the environment. In turn, sound propagation is
dependent on the spatially and temporally varying properties of the
water column and sea floor, and is frequency-dependent. As a result of
the dependence on a large number of varying factors, ambient sound
levels can be expected to vary widely over both coarse and fine spatial
and temporal scales. Sound levels at a given frequency and location can
vary by 10-20 dB from day to day (Richardson et al., 1995). The result
is that, depending on the source type and its intensity, sound from the
specified activity may be a negligible addition to the local
environment or could form a distinctive signal that may affect marine
mammals. Details of source types are described in the following text.
Sounds are often considered to fall into one of two general types:
pulsed and non-pulsed (defined in the following). The distinction
between these two sound types is important because they have differing
potential to cause physical effects, particularly with regard to
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see
Southall et al. (2007) for an in-depth discussion of these concepts.
The distinction between these two sound types is not always obvious, as
certain signals share properties of both pulsed and non-pulsed sounds.
A signal near a source could be categorized as a pulse, but due to
propagation effects as it moves farther from the source, the signal
duration becomes longer (e.g., Greene and Richardson, 1988).
Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic
booms, impact pile driving) produce signals that are brief (typically
considered to be less than one second), broadband, atonal transients
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998) and occur either as
isolated events or repeated in some succession. Pulsed sounds are all
characterized by a relatively rapid rise from ambient pressure to a
maximal pressure value followed by a rapid decay period that may
include a period of diminishing, oscillating maximal and minimal
pressures, and generally have an increased capacity to induce physical
injury as compared with sounds that lack these features.
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or
prolonged, and may be either continuous or intermittent (ANSI, 1995;
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals
of short duration but without the essential properties of pulses (e.g.,
rapid rise time). Examples of non-pulsed sounds include those produced
by vessels, aircraft, machinery operations such as drilling or
dredging, vibratory pile driving, and active sonar systems. The
duration of such sounds, as received at a distance, can be greatly
extended in a highly reverberant environment.
Sparkers produce pulsed signals with energy in the frequency
ranges, 0.05-4.0 kHz. The amplitude of the acoustic wave emitted from
sparker sources is equal in all directions (i.e., omnidirectional),
while other sources planned for use during the proposed surveys have
some degree of directionality to the beam.

Summary on Specific Potential Effects of Acoustic Sound Sources

Underwater sound from active acoustic sources can cause one or more
of the following: temporary or permanent hearing impairment, behavioral
disturbance, masking, stress, and non-auditory physical effects. The
degree of effect is intrinsically related to the signal
characteristics, received level, distance from the source, and duration
of the sound exposure. Marine mammals exposed to high-intensity sound,
or to lower-intensity sound for prolonged periods, can experience
hearing threshold shift (TS), which is the loss of hearing sensitivity
at certain frequency ranges (Finneran, 2015). TS can be permanent (PTS;
permanent threshold shift), in which case the loss of hearing
sensitivity is not fully recoverable, or temporary (TTS; temporary
threshold shift), in which case the animal's hearing threshold would
recover over time (Southall et al., 2007).
Animals in the vicinity of Attentive Energy proposed HRG survey
activity are unlikely to incur even TTS due to the characteristics of
the sound sources, which include 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 the vessel 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 makes it unlikely that an animal would be
exposed more than briefly during the passage of the vessel. No
mortality, injury or Permanent Threshold Shift (PTS) are expected to
occur.
Behavioral disturbance to marine mammals from sound may include a
variety of effects, including subtle changes in behavior (e.g., minor
or brief avoidance of an area or changes in

[[Page 38104]]

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 expected from Attentive
Energy's surveys given the directionality of the signals for most HRG
survey equipment types planned for use and the brief period when an
individual mammal is likely to be exposed.
Classic stress responses begin when an animal's central nervous
system perceives a potential threat to its homeostasis. That perception
triggers stress responses regardless of whether a stimulus actually
threatens the animal; the mere perception of a threat is sufficient to
trigger a stress response (Moberg 2000; Seyle 1950). Once an animal's
central nervous system perceives a threat, it mounts a biological
response or defense that consists of a combination of the four general
biological defense responses: behavioral responses, autonomic nervous
system responses, neuroendocrine responses, or immune responses. In the
case of many stressors, an animal's first and sometimes most economical
(in terms of biotic costs) response is behavioral avoidance of the
potential stressor or avoidance of continued exposure to a stressor. An
animal's second line of defense to stressors involves the sympathetic
part of the autonomic nervous system and the classical ``fight or
flight'' response which includes the cardiovascular system, the
gastrointestinal system, the exocrine glands, and the adrenal medulla
to produce changes in heart rate, blood pressure, and gastrointestinal
activity that humans commonly associate with ``stress.'' These
responses have a relatively short duration and may or may not have
significant long-term effect on an animal's welfare. An animal's third
line of defense to stressors involves its neuroendocrine systems; the
system that has received the most study has been the hypothalamus-
pituitary-adrenal system (also known as the HPA axis in mammals).
Unlike stress responses associated with the autonomic nervous system,
virtually all neuro-endocrine functions that are affected by stress--
including immune competence, reproduction, metabolism, and behavior--
are regulated by pituitary hormones. Stress-induced changes in the
secretion of pituitary hormones have been implicated in failed
reproduction (Moberg 1987; Rivier 1995), reduced immune competence
(Blecha 2000), and behavioral disturbance. Increases in the circulation
of glucocorticosteroids (cortisol, corticosterone, and aldosterone in
marine mammals; see Romano et al., 2004) have been long been equated
with stress. The primary distinction between stress (which is adaptive
and does not normally place an animal at risk) and distress is the
biotic cost of the response. In general, there are few data on the
potential for strong, anthropogenic underwater sounds to cause non-
auditory physical effects in marine mammals. The available data do not
allow identification of a specific exposure level above which non-
auditory effects can be expected (Southall et al., 2007). There is
currently no definitive evidence that any of these effects occur even
for marine mammals in close proximity to an anthropogenic sound source.
In addition, marine mammals that show behavioral avoidance of survey
vessels and related sound sources are unlikely to incur non-auditory
impairment or other physical effects. NMFS does not expect that the
generally short-term, intermittent, and transitory HRG and geotechnical
survey activities would create conditions of long-term, continuous
noise and chronic acoustic exposure leading to long-term physiological
stress responses in marine mammals.
Sound may affect marine mammals through impacts on the abundance,
behavior, or distribution of prey species (e.g., crustaceans,
cephalopods, fish, and zooplankton) (i.e., effects to marine mammal
habitat). Prey species exposed to sound might move away from the sound
source, experience TTS, experience masking of biologically relevant
sounds, or show no obvious direct effects. The most likely impacts (if
any) for most prey species in a given area would be temporary avoidance
of the area. Surveys using active acoustic sound sources move through
an area, limiting exposure to multiple pulses. In all cases, sound
levels would return to ambient once a survey ends and the noise source
is shut down and, when exposure to sound ends, behavioral and/or
physiological responses are expected to end relatively quickly.

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.

Marine Mammal Habitat

The HRG survey equipment will not contact the seafloor and does not
represent a source of pollution. We are not aware of any available
literature on impacts to marine mammal prey from sound produced by HRG
survey equipment. However, as the HRG survey equipment introduces noise
to the marine environment, there is the potential for it to result in
avoidance of the area around the HRG survey

[[Page 38105]]

activities on the part of marine mammal prey. Any avoidance of the area
on the part of marine mammal prey would be expected to be short term
and temporary.
Because of the temporary nature of the disturbance, and the
availability of similar habitat and resources (e.g., prey species) 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. Impacts on marine mammal habitat from the proposed
activities will be temporary, insignificant, and discountable.
The potential effects of Attentive Energy'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
determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes 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 on the nature of the activity, Level A harassment is neither
anticipated nor proposed to be authorized. Take by Level A harassment
(injury) is considered unlikely, even absent mitigation, based on the
characteristics of the signals produced by the acoustic sources planned
for use, and is not proposed for authorization. Implementation of
required mitigation further reduces this potential. Furthermore and as
described previously, no serious injury or mortality is anticipated or
proposed to be authorized for this activity. Below we describe how the
proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels;
and, (3) the density or occurrence of marine mammals within these
ensonified areas. We note that while these factors can contribute to a
basic calculation to provide an initial prediction of potential takes,
additional information that can qualitatively inform take estimates is
also sometimes available (e.g., previous monitoring results or average
group size). Below, we describe the factors considered here in more
detail and present the proposed take estimates.

Acoustic Thresholds

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

Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.

[[Page 38106]]

Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
proposed survey activity that are used in estimating the area
ensonified above the acoustic thresholds, including source levels and
transmission loss coefficient.
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS 2020). This methodology incorporates frequency
and directionality to refine estimated ensonified zones. For acoustic
sources that operate with different beamwidths, the maximum beamwidth
was used, and the lowest frequency of the source was used when
calculating the frequency-dependent absorption coefficient (Table 1).
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG survey equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases when the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends that either the source levels provided by the manufacturer
be used, or, in instances where source levels provided by the
manufacturer are unavailable or unreliable, a proxy from Crocker and
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment
types used during the proposed surveys and the source levels associated
with those HRG equipment types.
The results of the Level B harassment ensonified area analysis
using the methodology described indicated that, of the HRG survey
equipment planned for use by Attentive Energy the only one that has the
potential to result in Level B harassment of marine mammals, the Dual
Geo-Spark, has a Level B harassment isopleth of 141-m.

Marine Mammal Occurrence

In this section we provide information about the occurrence of
marine mammals, including density or other relevant information that
will inform the take calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory and the Marine-life Data and Analysis
Team, based on the best available marine mammal data from 1992-2021
obtained in a collaboration between Duke University, the Northeast
Regional Planning Body, the University of North Carolina Wilmington,
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et
al., 2016a; Curtice et al., 2018), represent the best available
information regarding marine mammal densities in the proposed survey
area. More recently, these data have been updated with new modeling
results and include density estimates for pinnipeds (Roberts et al.,
2016b, 2017, 2018).
The density data presented by Roberts et al., (2016b, 2017, 2018,
2021) incorporates aerial and shipboard line-transect survey data from
NMFS and other organizations and incorporates data from eight
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., 2016a). In subsequent years, certain
models have been updated based on additional data as well as certain
methodological improvements. More information is available online at
https://<a href="http://seamap.env.duke.edu/models/Duke/EC/">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., 2016b, 2017, 2018, 2020). The updated models incorporate
additional sighting data, including sightings from NOAA's Atlantic
Marine Assessment Program for Protected Species (AMAPPS) surveys.
For the exposure analysis, density data from Roberts et al.,
(2016b, 2017, 2018, 2021) were mapped using a geographic information
system (GIS). For the survey area, the monthly densities of each
species as reported by Roberts et al. (2016b, 2017, 2018, 2021) were
averaged by season; thus, a density was calculated for each species for
spring, summer, fall and winter. To be conservative, the greatest
seasonal density calculated for each species was then carried forward
in the exposure analysis, with a few exceptions noted later. Estimated
seasonal densities (animals/km\2\) of marine mammal species that may be
taken by the proposed survey are in Table 5 below. The maximum seasonal
density values used to estimate take numbers are shown in Table 6
below. Below, we discuss how densities were assumed to apply to
specific species for which the Roberts et al. (2016b, 2017, 2018, 2021)
models provide results at the genus or guild level.
For bottlenose dolphin densities, Roberts et al., (2016b, 2017,
2018) do not differentiate by stock. The Western North Atlantic
northern migratory coastal stock is generally expected to occur only in
coastal waters from the shoreline to approximately the 20-m (65-ft)
isobath (Hayes et al., 2018). As the Lease Area is located within
depths exceeding 20-m, where the offshore stock would generally be
expected to occur, all calculated bottlenose dolphin

[[Page 38107]]

exposures within the survey area were assigned to the offshore stock.
Bottlenose dolphins densities were also calculated using the single
month with the highest density to account for recent observations from
IHAs issued in the New York Bight area, which documented more dolphins
than the output of the Roberts' model predicted (86 FR 26465, May 10,
2021 and 85 FR 21198, April 16, 2020).
For long-finned pilot whales, the Roberts et al. (2016, 2017) data
only provide a single raster grid containing annual density estimate
for Globicephala species (i.e., short-finned and long-finned pilot
whales combined). The annual density raster grid was used to estimate
density in the survey area and assumed it applies only to long-finned
pilot whales, as short-finned pilot whales are not anticipated to occur
as far north as the survey area.
Furthermore, the Roberts et al. (2016b, 2017, 2018) density model
does not differentiate between the different pinniped species. For
seals, given their size and behavior when in the water, seasonality,
and feeding preferences, there is limited information available on
species-specific distribution. Density estimates of Roberts et al.
(2016, 2018) include all seal species that may occur in the Western
North Atlantic combined (i.e., harbor, gray, hooded, and harp). For
this IHA, only the harbor seals and gray seals are reasonably expected
to occur in the survey area; densities of seals were split evenly
between these two species.

Table 5--Estimated Marine Mammal Densities (Animals per km\2\) for Lease Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Spring Summer Fall Winter Monthly max Annual mean
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale.............................. 0.00352 0.00004 0.00011 0.00172 0.00515 0.00135
Humpback Whale.......................................... 0.00062 0.00022 0.00036 0.00012 0.00076 0.00033
Fin Whale............................................... 0.00258 0.00314 0.00227 0.00162 0.00444 0.00240
Sei Whale............................................... 0.00016 0.00003 0.00003 0.00002 0.00025 0.00006
Common Minke Whale...................................... 0.00190 0.00075 0.00054 0.00066 0.00286 0.00096
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontocetes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm Whale............................................. 0.00004 0.00054 0.00037 0.00002 0.00104 0.00024
Risso's Dolphin......................................... 0.00018 0.00108 0.00034 0.00046 0.00179 0.00052
Long-finned Pilot Whale................................. N/A N/A N/A N/A N/A 0.00471
Atlantic White-sided Dolphin............................ 0.03038 0.01714 0.01310 0.02069 0.05016 0.02033
Short-beaked Common Dolphin............................. 0.05495 0.04535 0.05959 0.13725 0.18987 0.07428
Atlantic Spotted Dolphin................................ 0.00054 0.00599 0.00516 0.00024 0.00843 0.00298
Harbor Porpoise......................................... 0.07644 0.00042 0.00175 0.03952 0.12475 0.02953
Common Bottlenose Dolphin............................... 0.01265 0.01828 0.04450 0.02509 0.05284 0.02513
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray Seal............................................... 0.01540 0.00021 0.00015 0.00837 0.01961 0.00604
Harbor Seal............................................. 0.01540 0.00021 0.00015 0.00837 0.01961 0.00604
--------------------------------------------------------------------------------------------------------------------------------------------------------

Take Estimation

Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and proposed for authorization.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that would result in harassment, radial
distances to predicted isopleths corresponding to Level B harassment
thresholds are calculated, as described above. The maximum distance
(i.e., 141-m distance associated with the Dual Geo-Spark 2000X) to the
Level B harassment criterion and the total length of the survey
trackline are then used to calculate the total ensonified area, or zone
of influence (ZOI) around the survey vessel.
Attentive Energy estimates that proposed surveys will complete a
total of 3,028 km survey trackline during proposed HRG surveys. Based
on the maximum estimated distance to the Level B harassment threshold
of 141-m (Table 5) and the total survey length, the total ensonified
area is therefore 854 km\2\ based on the following formula:

Mobile Source ZOI = (Total survey length x 2r) + [pi]r\2\

Where:

total survey length= the total distance of the survey track lines
within the lease area; and
r = the maximum radial distance from a given sound source to the
Level B harassment threshold.

As described above, this is a conservative estimate as it assumes
the HRG source that results in the greatest isopleth distance to the
Level B harassment threshold would be operated at all times during the
entire survey, which may not ultimately occur.
The number of marine mammals expected to be incidentally taken
during the total survey is then calculated by estimating the number of
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the maximum seasonal estimated marine mammal
densities as described above. The product is then rounded, to generate
an estimate of the total number of instances of harassment expected for
each species over the duration of the survey. A summary of this method
is illustrated in the following formula with the resulting proposed
take of marine mammals is shown below in Table 6:

Estimated Take = D x ZOI

Where:

D = average species density (per km\2\); and
ZOI = maximum daily ensonified area to relevant thresholds.

[[Page 38108]]

Table 6--Numbers of Potential Incidental Take of Marine Mammals Proposed for Authorization and Proposed Takes as
a Percentage of Population
----------------------------------------------------------------------------------------------------------------
Total
-------------------------------
Species Abundance * Estimated Level B takes
level B takes proposed for Percent of
authorization abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 368 3 3 0.82
Humpback whale.................................. 1,396 1 [dagger] 2 0.14
Fin whale....................................... 6,802 3 3 <0.1
Sei whale....................................... 6,292 0 [dagger] 2 <0.1
Minke whale..................................... 21,968 2 2 <0.1
Sperm whale..................................... 4,349 0 [dagger] 2 <0.1
Long-finned pilot whale......................... 39,215 4 [dagger] 15 <0.1
Bottlenose dolphin (W.N. Atlantic Offshore) \a\. 62,851 38 38 <0.1
Common dolphin.................................. 172,974 162 162 <0.1
Atlantic white-sided dolphin.................... 93,233 26 26 <0.1
Atlantic spotted dolphin........................ 39,921 5 [dagger] 31 <0.1
Risso's dolphin................................. 32,215 1 [dagger] 9 <0.1
Harbor porpoise................................. 95,543 65 65 <0.1
Harbor seal..................................... 61,336 13 13 <0.1
Gray seal \a\................................... 451,431 13 13 <0.1
----------------------------------------------------------------------------------------------------------------
* The abundances in this column are based on the NMFS draft 2021 SAR.
[dagger] Take request based on average group size using sightings data from Palka et al. (2017, 2021) and CETAP
(1982). See Appendix C for data.
\a\ This abundance estimate is the total stock abundance (including animals in Canada). The NMFS stock abundance
estimate for US population only is 27,300.

The take numbers proposed for authorization in Table 6 are
consistent with those requested by Attentive Energy. NMFS concurs with
Attentive Energy's method of revising take estimates to reflect mean
group size where the estimated takes were less than a typical group
size (Palka et al., 2017, 2021; CETAP 1982).

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, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.

Proposed Mitigation Measures

NMFS proposes that the following mitigation measures be implemented
during Attentive Energy's planned marine site characterization surveys.
Pursuant to section 7 of the ESA, Attentive Energy is also required to
adhere to relevant Project Design Criteria (PDC) of the NMFS' Greater
Atlantic Regional Fisheries Office (GARFO) programmatic consultation
(specifically PDCs 4, 5, and 7) regarding geophysical surveys along the
U.S. Atlantic coast (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>).
Marine Mammal Exclusion Zones and Level B Harassment Zones
Marine mammal Exclusion Zones would be established around the HRG
survey equipment and monitored by protected species observers (PSOs).
These PSOs will be NMFS-approved visual PSOs. Based upon the acoustic
source in use (impulsive: sparkers), a minimum of one PSO must be on
duty on the source vessel during daylight hours and two PSOs must be on
duty on the source vessel during nighttime hours. These PSO will
monitor Exclusion Zones based upon the radial distance from the
acoustic source rather than being based around the vessel itself. The
Exclusion Zone distances are as follows:
<bullet> A 500-m Exclusion Zone for North Atlantic right whales
during use of specified acoustic sources (impulsive: sparkers).
<bullet> A 100-m Exclusion Zone for all other marine mammals
(excluding NARWs) during use of specified acoustic sources (except as
specified below).
All visual monitoring must begin no less than 30 minutes prior to
the initiation of the specified acoustic source and must continue until
30 minutes after use of specified acoustic sources ceases.
If a marine mammal were detected approaching or entering the
Exclusion Zones during the HRG survey, the vessel operator would adhere
to the shutdown procedures described below to minimize noise impacts on
the animals. These stated requirements will be

[[Page 38109]]

included in the site-specific training to be provided to the survey
team.
Ramp-Up of Survey Equipment and Pre-Clearance of the Exclusion Zones
When technically feasible, a ramp-up procedure would be used for
HRG survey equipment capable of adjusting energy levels at the start or
restart of survey activities. A ramp-up would begin with the powering
up of the smallest acoustic HRG equipment at its lowest practical power
output appropriate for the survey. The ramp-up procedure would be used
in order 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 operation at full power. When
technically feasible, the power would then be gradually turned up and
other acoustic sources would be added. All ramp-ups shall be scheduled
so as to minimize the time spent with the source being activated.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective Exclusion Zone. Ramp-up will continue if the animal has been
observed exiting its respective Exclusion Zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
harbor porpoise and 30 minutes for all other species).
Attentive Energy would implement a 30 minute pre-clearance period
of the Exclusion Zones prior to the initiation of ramp-up of HRG
equipment. The operator must notify a designated PSO of the planned
start of ramp-up not less than 60 minutes prior to the planned ramp-up.
This would allow the PSOs to monitor the Exclusion Zones for 30 minutes
prior to the initiation of ramp-up. Prior to ramp-up beginning,
Attentive Energy must receive confirmation from the PSO that the
Exclusion Zone is clear prior to proceeding. During this 30 minute pre-
start clearance period, the entire applicable Exclusion Zones must be
visible. The exception to this would be in situations where ramp-up may
occur during periods of poor visibility (inclusive of nighttime) as
long as appropriate visual monitoring has occurred with no detections
of marine mammals in 30 minutes prior to the beginning of ramp-up.
Acoustic source activation may occur at night only where operational
planning cannot reasonably avoid such circumstances.
During this period, the Exclusion Zone will be monitored by the
PSOs, using the appropriate visual technology. Ramp-up may not be
initiated if any marine mammal(s) is within its respective Exclusion
Zone. If a marine mammal is observed within an Exclusion Zone during
the pre-clearance period, ramp-up may not begin until the animal(s) has
been observed exiting its respective Exclusion Zone or until an
additional time period has elapsed with no further sighting (i.e., 15
minutes for harbor porpoise and 30 minutes for all other species). If a
marine mammal enters the Exclusion Zone during ramp-up, ramp-up
activities must cease and the source must be shut down. Any PSO on duty
has the authority to delay the start of survey operations if a marine
mammal is detected within the applicable pre-start clearance zones. The
prestart clearance requirement does not include small delphinids
(genera Stenella, Lagenorhynchus, Delphinus, or Tursiops) or seals.
The pre-clearance zones would be:
<bullet> 500-m for all ESA-listed species (North Atlantic right,
sei, fin, sperm whales); and
<bullet> 100-m for all other marine mammals.
If any marine mammal species that are listed under the ESA are
observed within the clearance zones, the clock must be paused. If the
PSO confirms the animal has exited the zone and headed away from the
survey vessel, the clock that was paused may resume. The pre-clearance
clock will reset if the animal dives or visual contact is otherwise
lost.
If the acoustic source is shut down for brief periods (i.e., less
than 30 minutes) for reasons other than implementation of prescribed
mitigation (e.g., mechanical difficulty), it may be activated again
without ramp-up if PSOs have maintained constant visual observation and
no detections of marine mammals have occurred within the applicable
Exclusion Zone. For any longer shutdown, pre-start clearance
observation and ramp-up are required.
Activation of survey equipment through ramp-up procedures may not
occur when visual detection of marine mammals within the pre-clearance
zone is not expected to be effective (e.g., during inclement conditions
such as heavy rain or fog).
The acoustic source(s) must be deactivated when not acquiring data
or preparing to acquire data, except as necessary for testing.
Unnecessary use of the acoustic source shall be avoided.
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment (Table
5) would be required if a marine mammal is sighted entering or within
its respective Exclusion Zone(s). Any PSO on duty has the authority to
call for a shutdown of the acoustic source if a marine mammal is
detected within the applicable Exclusion Zones. Any disagreement
between the PSO and vessel operator should be discussed only after
shutdown has occurred. The vessel operator would establish and maintain
clear lines of communication directly between PSOs on duty and crew
controlling the HRG source(s) to ensure that shutdown commands are
conveyed swiftly while allowing PSOs to maintain watch.
The shutdown requirement is waived for small delphinids (belonging
to the genera of the Family Delpinidae: Delphinus, Lagenorhynchus,
Stenella, or Tursiops) and pinnipeds if they are visually detected
within the applicable Exclusion Zones. 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 applicable Exclusion Zone,
shutdown would occur. In the event of uncertainty regarding the
identification of a marine mammal species (i.e., such as whether the
observed marine mammal belongs to Delphinus, Lagenorhynchus, Stenella,
or Tursiops for which shutdown is waived), PSOs must use their best
professional judgement in making the decision to call for a shutdown.
Upon implementation of a shutdown, the sound source may be
reactivated after the marine mammal has been observed exiting the
applicable Exclusion Zone or following a clearance period of 15 minutes
for harbor porpoise and 30 minutes for all other species where there
are no further detections of the marine mammal.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., parametric sub-bottom profilers, sonar, Echosounder, etc.).
Seasonal Operating Requirements
As described above, a section of the proposed survey area partially
overlaps with a portion of a North Atlantic right whale SMA off the
port of New York/New Jersey. This SMA is active from November 1 through
April 30 of each year. The survey vessel, regardless of length, would
be required to adhere to vessel speed restrictions (<10 knots) when
operating within the SMA during times when the SMA is active. In
addition, between watch shifts, members of the monitoring team would
consult NMFS' North Atlantic right whale reporting systems for the
presence of North Atlantic right whales throughout survey operations.
Members of the monitoring team would also

[[Page 38110]]

monitor the NMFS North Atlantic right whale reporting systems for the
establishment of Dynamic Management Areas (DMA). NMFS may also
establish voluntary right whale Slow Zones any time a right whale (or
whales) is acoustically detected. Attentive Energy should be aware of
this possibility and remain attentive in the event a Slow Zone is
established nearby or overlapping the survey area (Table 7).

Table 7--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within the Survey Areas
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by NMFS, all of N/A.
ECR North....................... right whale Attentive Energy's vessel will abide November 1 through
ECR South....................... (Eubalaena by the described restrictions July 31 (Raritan
glacialis). Bay).
N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS' website:
<a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales</a>.
----------------------------------------------------------------------------------------------------------------

There are no known marine mammal rookeries or mating or calving
grounds in the survey area that would otherwise potentially warrant
increased mitigation measures for marine mammals or their habitat (or
both). The proposed survey would occur in an area that has been
identified as a biologically important area for migration for North
Atlantic right whales. However, given the small spatial extent of the
survey area relative to the substantially larger spatial extent of the
right whale migratory area and the relatively low amount of noise
generated by the survey, the survey is not expected to appreciably
reduce the quality of migratory habitat or to negatively impact the
migration of North Atlantic right whales, thus additional mitigation to
address the proposed survey's occurrence in North Atlantic right whale
migratory habitat is not warranted.
Vessel Strike Avoidance
Vessel operators must comply with the below measures except under
extraordinary circumstances when the safety of the vessel or crew is in
doubt or the safety of life at sea is in question. These requirements
do not apply in any case where compliance would create an imminent and
serious threat to a person or vessel or to the extent that a vessel is
restricted in its ability to maneuver and, because of the restriction,
cannot comply.
Survey vessel crewmembers responsible for navigation 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> Attentive Energy will ensure that vessel operators and
crew maintain a vigilant watch for cetaceans and pinnipeds and slow
down, stop their vessel, or alter course, as appropriate and regardless
of vessel size, to avoid striking any marine mammal. A single marine
mammal at the surface may indicate the presence of additional submerged
animals in the vicinity of the vessel; therefore, precautionary
measures should always be exercised. A visual observer aboard the
vessel must monitor a vessel strike avoidance zone around the vessel
(species-specific distances detailed below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to 1) distinguish
marine mammal from other phenomena, and 2) broadly to identify a marine
mammal as a right whale, other whale (defined in this context as sperm
whales or baleen whales other than right whales), or other marine
mammals. The vessel, regardless of size, must observe a 10-knot speed
restriction in specific areas designated by NMFS for the protection of
North Atlantic right whales from vessel strikes, including seasonal
management areas (SMAs) and dynamic management areas (DMAs) when in
effect. See <a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a> for
specific detail regarding these areas.
<bullet> The vessel must reduce speed to 10-knots or less when
mother/calf pairs, pods, or large assemblages of cetaceans are observed
near a vessel;
<bullet> The vessel must maintain a minimum separation distance of
500-m (1,640-ft) from right whales and other ESA-listed species. If an
ESA-listed species is sighted within the relevant separation distance,
the vessel must steer a course away at 10-knots or less until the 500-m
separation distance has been established. If a whale is observed but
cannot be confirmed as a species that is not ESA-listed, the vessel
operator must assume that it is an ESA-listed species and take
appropriate action.
<bullet> The vessel must maintain a minimum separation distance of
100-m (328-ft) from non-ESA-listed baleen whales.
<bullet> The vessel must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50-m (164-ft) from
all other marine mammals, with an understanding that, at times, this
may not be possible (e.g., for animals that approach the vessel, bow-
riding species).
<bullet> When marine mammal 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, reduce speed and shift the engine
to neutral). This does not apply to any vessel towing gear or any
vessel that is navigationally constrained.
Members of the monitoring team will consult NMFS North Atlantic
right whale reporting system and Whale Alert, daily and as able, for
the presence of North Atlantic right whales throughout survey
operations, and for the establishment of a DMA. If NMFS should
establish a DMA in the survey area during the survey, the vessel will
abide by speed restrictions in the DMA.
Training
All PSOs must have completed a PSO training program and received
NMFS approval to act as a PSO for geophysical surveys. Documentation of
NMFS approval and most recent training certificates of individual PSOs'
successful completion of a commercial PSO training course must be
provided upon request. Further information can

[[Page 38111]]

be found at <a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers">www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers</a>. In the event where third-
party PSOs are not required, crew members serving as lookouts must
receive training on protected species identification, vessel strike
minimization procedures, how and when to communicate with the vessel
captain, and reporting requirements.
Attentive Energy shall instruct relevant vessel personnel with
regard to the authority of the marine mammal monitoring team, and shall
ensure that relevant vessel personnel and the marine mammal monitoring
team participate in a joint onboard briefing (hereafter PSO briefing),
led by the vessel operator and lead PSO, prior to beginning survey
activities to ensure that responsibilities, communication procedures,
marine mammal monitoring protocols, safety and operational procedures,
and IHA requirements are clearly understood. This PSO briefing must be
repeated when relevant new personnel (e.g., PSOs, acoustic source
operator) join the survey operations before their responsibilities and
work commences.
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. All vessel crew members must be
briefed in the identification of protected species that may occur in
the survey area and in regulations and best practices for avoiding
vessel collisions. Reference materials must be available aboard the
project vessel for identification of listed species. The expectation
and process for reporting of protected species sighted during surveys
must be clearly communicated and posted in highly visible locations
aboard the project vessel, so that there is an expectation for
reporting to the designated vessel contact (such as the lookout or the
vessel captain), as well as a communication channel and process for
crew members to do so. 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.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has preliminarily
determined that the proposed mitigation measures provide the means of
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<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 activity; 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, and/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.

Proposed Monitoring Measures

Attentive Energy must use independent, dedicated, trained PSOs,
meaning that the PSOs must be employed by a third-party observer
provider, must 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 mammal and mitigation
requirements (including brief alerts regarding maritime hazards), and
must have successfully completed an approved PSO training course for
geophysical surveys. Visual monitoring must be performed by qualified,
NMFS-approved PSOs. PSO resumes must be provided to NMFS for review and
approval prior to the start of survey activities.
PSO names must be provided to NMFS by the operator for review and
confirmation of their approval for specific roles prior to commencement
of the survey. For prospective PSOs not previously approved, or for
PSOs whose approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, who would coordinate
duty schedules and roles for the PSO team and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.

[[Page 38112]]

PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or
greater) a written and/or oral examination developed for the training
program.
PSOs must coordinate to ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and shall conduct
visual observations using binoculars or night-vision equipment 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 four consecutive hours
followed by a break of at least two hours between watches and may
conduct a maximum of 12 hours of observation per 24-hour period.
Any observations of marine mammals by crew members aboard any
vessel associated with the survey shall be relayed to the PSO team.
Attentive Energy must work with the selected third-party PSO
provider to ensure PSOs have all equipment (including backup equipment)
needed to adequately perform necessary tasks, including accurate
determination of distance and bearing to observed marine mammals, and
to ensure that PSOs are capable of calibrating equipment as necessary
for accurate distance estimates and species identification. Such
equipment, at a minimum, shall include:
<bullet> At least one thermal (infrared) imagine device suited for
the marine environment;
<bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
<bullet> Global Positioning Units (GPS) (at least one plus
backups);
<bullet> Digital cameras with a telephoto lens that is at least
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least
one plus backups). The camera or lens should also have an image
stabilization system;
<bullet> Equipment necessary for accurate measurement of distances
to marine mammal;
<bullet> Compasses (at least one plus backups);
<bullet> Means of communication among vessel crew and PSOs; and
<bullet> Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-party PSO provider, or the operator, but Attentive Energy is
responsible for ensuring PSOs have the proper equipment required to
perform the duties specified in the IHA.
During good conditions (e.g., daylight hours; Beaufort sea state 3
or less), PSOs shall conduct observations when the specified acoustic
sources are not operating for comparison of sighting rates and behavior
with and without use of the specified acoustic sources and between
acquisition periods, to the maximum extent practicable.
The PSOs will be responsible for monitoring the waters surrounding
the 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 PSO(s)
on duty to communicate the presence of marine mammals as well as to
communicate the action(s) that are necessary to ensure mitigation and
monitoring requirements are implemented as appropriate.
At a minimum, Attentive Energy plans to use a PSO during all HRG
survey operations (e.g., any day on which use of an HRG source is
planned to occur), one PSO must be on duty during daylight operations
on the survey vessel, conducting visual observations at all times on
the active survey vessel during daylight hours (i.e., from 30 minutes
prior to sunrise through 30 minutes following sunset) and 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 four consecutive hours followed
by a break of at least two hours between watches and may conduct a
maximum of 12 hours of observation per 24-hr period.
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
(BSS) 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 the vessel associated with the survey would be relayed
to the PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements (see Proposed Reporting Measures). This
would include dates, times, and locations of survey operations; dates
and times of observations, location and weather; details of marine
mammal sightings (e.g., species, numbers, behavior); and details of any
observed marine mammal behavior that occurs (e.g., noted behavioral
disturbances).

Proposed Reporting Measures

Attentive Energy shall submit a draft comprehensive report on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
must describe all activities conducted and sightings of marine mammals,
must provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and must summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report shall also include geo-referenced, time-stamped vessel
tracklines for all time periods during which acoustic sources were
operating. Tracklines should include points recording any change in
acoustic source status (e.g., when the sources began operating, when
they were turned off, or when they

[[Page 38113]]

changed operational status such as from full array to single gun or
vice versa). GIS files shall be provided in ESRI shapefile format and
include the UTC date and time, latitude in decimal degrees, and
longitude in decimal degrees. All coordinates shall be referenced to
the WGS84 geographic coordinate system. In addition to the report, all
raw observational data shall be made available. The report must
summarize the information submitted in interim monthly reports (if
required) as well as additional data collected. A final report must be
submitted within 30 days following resolution of any comments on the
draft report. All draft and final marine mammal monitoring reports must
be submitted to <a href="/cdn-cgi/l/email-protection#e1b1b3cfa8b5b1cfac8e8f88958e93888f86b384918e939592a18f8e8080cf868e97">[email&#160;protected]</a>, <a href="/cdn-cgi/l/email-protection#ff9192998cd1989e8dd196919c969b9a918b9e93d28b9e949abf91909e9ed1989089">[email&#160;protected]</a> and <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="3d74696d13755c4f515c5e55584f7d53525c5c135a524b">[email&#160;protected]</a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel name (source vessel), vessel size and type, maximum speed
capability of vessel;
2. Dates of departures and returns to port with port name;
3. The lease number;
4. PSO names and affiliations;
5. Date and participants of PSO briefings;
6. Visual monitoring equipment used;
7. PSO location on vessel and height of observation location above
water surface;
8. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
9. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
10. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval
11. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
12. Water depth (if obtainable from data collection software);
13. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
14. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions); and
15. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
Upon visual observation of any marine mammal, the following
information must be recorded:
1. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
2. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
3. PSO who sighted the animal;
4. Time of sighting;
5. Initial detection method;
6. Sightings cue;
7. Vessel location at time of sighting (decimal degrees);
8. Direction of vessel's travel (compass direction);
9. Speed of the vessel(s) from which the observation was made;
10. 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;
11. Species reliability (an indicator of confidence in
identification);
12. Estimated distance to the animal and method of estimating
distance;
13. Estimated number of animals (high/low/best);
14. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
15. 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);
16. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
17. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
18. Equipment operating during sighting;
19. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and
20. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a North Atlantic right whale is observed at any time by PSOs or
personnel on the project vessel, during surveys or during vessel
transit, Attentive Energy must report the sighting information to the
NMFS North Atlantic Right Whale Sighting Advisory System (866-755-6622)
within two hours of occurrence, when practicable, or no later than 24
hours after occurrence. North Atlantic right whale sightings in any
location may also be reported to the U.S. Coast Guard via channel 16
and through the WhaleAlert app (<a href="http://www.whalealert.org">http://www.whalealert.org</a>).
In the event that Attentive Energy personnel discover an injured or
dead marine mammal, regardless of the cause of injury or death or in
the event that personnel involved in the survey activities discover an
injured or dead marine mammal, Attentive Energy must report the
incident to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#c2acafa4b1eca5a3b0ecb1b6b0a3aca6abaca582acada3a3eca5adb4">[email&#160;protected]</a> and
<a href="/cdn-cgi/l/email-protection#8ededca0c7dadea0c3e1e0e7fae1fce7e0e9dcebfee1fcfafdcee0e1efefa0e9e1f8">[email&#160;protected]</a>) as soon as feasible. The report must
include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Attentive
Energy must report the incident to NMFS by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#e08e8d8693ce878192ce939492818e84898e87a08e8f8181ce878f96">[email&#160;protected]</a> and
<a href="/cdn-cgi/l/email-protection#1040423e5944403e5d7f7e79647f62797e774275607f626463507e7f71713e777f66">[email&#160;protected]</a>) as soon as feasible. The report
would include the following information:

[[Page 38114]]

1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
12. To the extent practicable, photographs or video footage of the
animal(s).

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
taken through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338;
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected by the status of the
species, population size and growth rate where known, ongoing sources
of human-caused mortality, and ambient noise levels).
To avoid repetition, the majority of our analysis applies to all
the species listed in Table 3, given that some of the anticipated
effects of this project on different marine mammal stocks are expected
to be relatively similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of expected take
on the population due to differences in population status, or impacts
on habitat, they are included as separate subsections below.
NMFS does not anticipate that serious injury or mortality would
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 section, 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, refer to Potential Effects and Estimated Take
section for further discussion.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141-m. Although this distance is assumed
for all survey activity in estimating take numbers proposed for
authorization and evaluated here, in reality, the Dual Geo-Spark 2000X
would likely not be used across the entire 24-hour period and across
all 56 days. As noted in their application, the other acoustic sources
Attentive Energy has included in their application have minimal Level B
harassment zones. Therefore, when not using the sparker, the ensonified
area surrounding the vessel is small compared to the overall
distribution of the animals and ambient sound in the area and their use
of the habitat. Feeding behavior is not likely to be significantly
impacted as prey species are mobile and are broadly distributed
throughout the survey area; therefore, marine mammals that may be
temporarily displaced during survey activities are expected to be able
to resume foraging once they have moved away from areas with disturbing
levels of underwater noise. Because of the temporary nature of the
disturbance and the availability of similar habitat and resources in
the surrounding area, the impacts to marine mammals and the food
sources that they utilize are not expected to cause significant or
long-term consequences for individual marine mammals or their
populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the proposed survey
area and there are no feeding areas known to be biologically important
to marine mammals within the proposed survey area. There is no
designated critical habitat for any ESA-listed marine mammals in the
proposed 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 noted
previously, 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 proposed survey area overlaps a migratory
corridor BIA for North Atlantic right whales. Due to the fact that the
proposed survey activities are temporary and the spatial extent of
sound produced by the survey would be very small relative to the
spatial extent of the available migratory habitat in the BIA, right
whale migration is not expected to be impacted by the proposed survey.
Given the relatively small size of the ensonified area, it is unlikely
that prey availability would be adversely affected by HRG survey
operations. Required vessel strike avoidance measures will also
decrease risk of ship strike during migration; no ship strike is
expected to occur during Attentive Energy's proposed activities. 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) is estimated to be 141-m, and

[[Page 38115]]

thereby minimizes the potential for behavioral harassment of this
species.
As noted previously, Level A harassment is not expected due to the
small PTS zones associated with HRG equipment types proposed for use.
The proposed authorizations for Level B harassment takes of North
Atlantic right whale are not expected to exacerbate or compound upon
the ongoing UME. The limited North Atlantic right whale Level B
harassment takes proposed for authorization are expected to be of a
short duration, and given the number of estimated takes, repeated
exposures of the same individual are not expected. Further, given the
relatively small size of the ensonified area during Attentive Energy's
proposed activities, it is unlikely that North Atlantic right whale
prey availability would be adversely affected. Accordingly, NMFS does
not anticipate North Atlantic right whales takes that would result from
Attentive Energy's proposed activities would impact annual rates of
recruitment or survival. Thus, any takes that occur would not result in
population level impacts.

Other Marine Mammal Species With Active UMEs

As noted previously, there are several active UMEs occurring in the
vicinity of Attentive Energy proposed 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.
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 required mitigation measures are expected to reduce the number
and/or severity of proposed takes for all species listed in Table 2,
including those with active UMEs, to the level of least practicable
adverse impact. In particular, they would provide animals the
opportunity to move away from the sound source throughout the survey
area before HRG survey equipment reaches full energy, thus preventing
them from being exposed to sound levels that have the potential to
cause injury (Level A harassment) or more severe Level B harassment. As
discussed previously, take by Level A harassment (injury) is considered
unlikely, even absent mitigation, based on the characteristics of the
signals produced by the acoustic sources planned for use, and is not
proposed for authorization. Implementation of required mitigation would
further reduce this potential. Therefore, NMFS is not proposing any
Level A harassment for authorization.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.

Biologically Important Areas for Other Species

As previously discussed, impacts from the proposed project are
expected to be localized to the specific area of activity and only
during periods of time where Attentive Energy's acoustic sources are
active. While areas of biological importance to fin whales, humpback
whales, and harbor seals can be found off the coast of New Jersey and
New York, NMFS does not expect this proposed action to affect these
areas. This is due to the combination of the mitigation and monitoring
measures being required of Attentive Energy's as well as the location
of these biologically important areas. All of these important areas are
found outside of the range of this survey area, as is the case with fin
whales and humpback whales (BIAs found further north), and, therefore,
not expected to be impacted by Attentive Energy's proposed survey
activities.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect any of the species
or stocks through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or proposed for authorization;
<bullet> Foraging success is not likely to be 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 would occur in such
a comparatively small area such that any avoidance of the survey area
due to activities would not affect migration; and
<bullet> The proposed mitigation measures, including effective
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 proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.

Small Numbers

As noted 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.
NMFS proposes to authorize incidental take (by Level B harassment
only) of 15 marine mammal species (with 15 managed stocks). The total
amount of takes proposed for

[[Page 38116]]

authorization relative to the best available population abundance is
less than 1 percent for all stocks (Table 7).
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 only
small numbers of marine mammals would be taken relative to the
population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

Proposed Authorization

As a result of these preliminary determinations, NMFS proposes to
issue an IHA to Attentive Energy for conducting marine site
characterization surveys off the coast of New York and New Jersey from
August 1, 2022 to July 31, 2023, 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/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.

Request for Public Comments

We request comment on our analyses, the proposed authorization, and
any other aspect of this notice of proposed IHA for the proposed marine
site characterization surveys. We also request comment on the potential
renewal of this proposed IHA as described in the paragraph below.
Please include with your comments any supporting data or literature
citations to help inform decisions on the request for this IHA or a
subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 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 activities as described in the Description of Proposed
Activities section of this notice is planned or (2) the activities as
described in the Description of Proposed Activities 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).
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected
species or stocks, and any other pertinent information, NMFS determines
that there are no more than minor changes in the activities, the
mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.

Dated: June 21, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-13667 Filed 6-24-22; 8:45 am]
BILLING CODE 3510-22-P

</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on June 27, 2022.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.