Notice2022-17978
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys
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
August 22, 2022
Effective
September 15, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Attentive Energy, LLC (Attentive Energy) to incidentally harass marine mammals during marine site characterization surveys associated with high resolution geophysical (HRG) equipment 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. There are no changes from the proposed authorization in this final authorization.
Full Text
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<title>Federal Register, Volume 87 Issue 161 (Monday, August 22, 2022)</title>
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[Federal Register Volume 87, Number 161 (Monday, August 22, 2022)]
[Notices]
[Pages 51359-51387]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17978]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC138]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an Incidental Harassment Authorization (IHA) to
Attentive Energy, LLC (Attentive Energy) to incidentally harass marine
mammals during marine site characterization surveys associated with
high resolution geophysical (HRG) equipment 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. There are no changes from the proposed authorization in
this final authorization.
DATES: This authorization is effective from September 15, 2022 through
September 14, 2023.
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/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-new">https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-new</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 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.
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.
On June 17 2022, NMFS published a proposed IHA for public comment (87
FR 38094). 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. There are no changes from the
proposed IHA to the final IHA.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations to further reduce
the likelihood of mortalities and serious injuries to endangered right
whales from vessel collisions, which are a leading cause of the
species' decline and a primary factor in an ongoing Unusual Mortality
Event (87 FR 46921). Should a final vessel speed rule be issued and
become effective during the effective period of this IHA (or any other
MMPA incidental take authorization), the authorization holder would be
required to comply with any and all applicable
[[Page 51360]]
requirements contained within the final rule. Specifically, where
measures in any final vessel speed rule are more protective or
restrictive than those in this or any other MMPA authorization,
authorization holders would be required to comply with the requirements
of the rule. Alternatively, where measures in this or any other MMPA
authorization are more restrictive or protective than those in any
final vessel speed rule, the measures in the MMPA authorization would
remain in place. These changes would become effective immediately upon
the effective date of any final vessel speed rule and would not require
any further action on NMFS's part.
Description of Activity
Overview
Attentive Energy plans to conduct marine site characterization
surveys using high-resolution geophysical (HRG) acoustic sources in the
Lease Area OCS-A 0538.
The purpose of the survey 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 planned surveys. Underwater sound resulting from Attentive Energy's
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 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. Planned activities would
occur between September 15, 2022 and September 14, 2023.
Specific Geographic Region
Attentive Energy's planned 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. Planned 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 51361]]
[GRAPHIC] [TIFF OMITTED] TN22AU22.012
BILLING CODE 3510-22-C
Detailed Description of Specific Activity
Attentive Energy's 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 planed HRG and geotechnical survey activities are
described below.
Geotechnical Survey Activities
Attentive Energy's 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 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 notification.
Geophysical Survey Activities
Attentive Energy has planned that HRG survey operations would be
conducted continuously 24 hours a day. Based on 24-hour operations, the
estimated total duration of the 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
planned 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
[[Page 51362]]
variations in regional magnetic field from geological strata and
potential ferrous objects on and below the bottom;
<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 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--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) [mu]Pa @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; [mu]Pa--microPascal.
The deployment of HRG survey equipment, including the equipment
planned for use during Attentive Energy's activities, produces sound in
the marine environment that has the potential to result in harassment
of marine mammals. Mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Mitigation and
Monitoring and Reporting).
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Attentive Energy was
published in the Federal Register on June 27, 2022 (87 FR 38094). That
notice described, in detail, Attentive Energy's activities, the marine
mammal species that may be affected by the activities, and the
anticipated effects on marine mammals. In that notice, we requested
public input on the request for authorization described therein, our
analyses, the proposed authorization, and any other aspect of the
notice of proposed IHA, and requested that interested persons submit
relevant information, suggestions, and comments. This proposed notice
was available for a 30-day public comment period.
NMFS received letters from two environmental non-governmental
organizations (eNGOs) (Oceana, Inc. (Oceana) and Clean Ocean Action
(COA)). All comments, and NMFS' responses, are provided below, and the
letters are available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-new">https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-new</a>). Please review the letters for full
details regarding the comments and underlying justification.
Comment 1: COA does not agree with NMFS' negligible impact
determination for North Atlantic right whale (NARW) and states that
NMFS provides an inaccurate characterization of impacts to NARW.
Response: NMFS disagrees with the COA's position regarding the
negligible impact analysis, and they do not provide a reasoned basis
for finding that the effects of the specified activity would be greater
than negligible on NARW. The Negligible Impact Analysis and
Determination section of the proposed IHA (87 FR 38094) provides a
detailed qualitative discussion supporting NMFS' determination that any
anticipated impacts from this action would be negligible. The section
contains a number of factors that were considered by NMFS based on the
best available scientific data and why we concluded that impacts
resulting from the specified activity are not reasonably expected to,
or reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival.
With specific regard to NARW, we note that take is authorized for
only a very small percentage of the right whale population (see Table
6). However, the numbers of potential incidents of take or animals
taken are only part of an assessment and are not, alone, decisively
indicative of the degree of impact. In order to adequately evaluate the
effects of noise exposure at the population level, the total number of
take incidents must be further interpreted in context of relevant
biological and population parameters and other biological,
environmental, and anthropogenic factors and in a spatially and
temporally explicit manner. The effects to individuals of a ``take''
are not necessarily equal. Some take events represent exposures that
only just exceed a Level B harassment threshold, which would be
expected to result in lower-level impacts, while other exposures occur
at higher received levels and would typically be expected to have
comparatively greater potential impacts on an individual. Further,
responses to similar received levels may result in significantly
different impacts on an individual dependent upon the context of the
exposure or the status of the individuals (e.g., if it occurred in an
area and time where concentrated feeding was occurring, or to
individuals
[[Page 51363]]
weakened by other effects). In this case, NMFS reiterates that no such
higher level takes are expected to occur. The maximum anticipated Level
B harassment zone is 141 m, a distance smaller than the precautionary
shutdown zone of 500 m. To the extent that any exposure of NARW does
occur, it would be expected to result in lower-level impacts that are
unlikely to result in significant or long-lasting impacts to the
exposed individual and, given the relatively small amount of exposures
expected to occur, it is unlikely that these exposures would result in
population-level impacts. NMFS acknowledges that impacts of a similar
degree on a proportion of the individuals in a stock may have differing
impacts to the stock based on its status, i.e., smaller stocks may be
less able to absorb deaths or reproductive suppression and maintain
similar growth rates as larger stocks. However, even given the
precarious status of the NARW, the low-level nature of the impacts
expected to occur from this action and the small number of individuals
affected supports NMFS' determination that population-level impacts
will not occur. The commenters provide no substantive reasoning to
contradict this finding, and do not support their assertions of effects
greater than NMFS has assumed may occur.
Comment 2: COA and Oceana asserted that NMFS is overestimating the
population abundance for NARW.
Response: NMFS agrees that the most up to date population estimate
should be used for assessing NARW abundance estimates. The revised
abundance estimate (368; 95 percent with a confidence interval of 356-
378) published by Pace (2021) (and subsequently included in the 2021
draft Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>)), which was used in the proposed IHA, provides the most recent
and best available estimate, and introduced improvements to NMFS' right
whale abundance model. Specifically, Pace (2021) looked at a different
way of characterizing annual estimates of age-specific survival. NMFS
considered all relevant information regarding NARW, including the
information cited by the commenters. However, NMFS relies on the SAR.
Recently, NMFS 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>), as COA
mentioned. We anticipate that this information will be presented in the
draft 2022 SAR. We note that this change in abundance estimate would
not change the estimated take of NARW or authorized take numbers, nor
affect our ability to make the required findings under the MMPA for
Attentive Energy's survey activities.
NMFS further notes that the MMPA specifies that the ``best
available data'' must be used, which does not always mean the most
recent. As is NMFS' prerogative, we referenced the best available NARW
abundance estimate of 368 from the draft 2021 SARs as NMFS'
determination of the best available data that we relied on in our
analysis. The Pace (2021) results strengthened the case for a change in
mean survival rates after 2010-2011, but did not significantly change
other current estimates (population size, number of new animals, adult
female survival) derived from the model.
Lastly, as we stated previously and in the notice of proposed IHA
(87 FR 38094; June 27, 2022), any impacts to marine mammals are
expected to be temporary and minor and, given the relative size of the
survey area compared to the overall migratory route and foraging
habitat (which is not affected by the specified activity). The survey
area is small (approximately 854 km\2\ total area) compared to the size
of the NARW migratory Biologically Important Areas (BIA) (269,448
km\2\). Because of this, and in context of the minor, low-level nature
of the impacts expected to result from the planned survey, such impacts
are not expected to result in disruption to biologically important
behaviors.
Comment 3: Oceana and COA asserted that NMFS must fully consider
the discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and NARWs in particular and ensure that the cumulative effects are not
excessive before issuing or renewing an IHA. Additionally, Oceana and
COA state that they are similarly concerned with cumulative impacts of
offshore wind development on marine mammal species in the region.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for a separate ``cumulative effects'' analysis of
other unrelated activities and their impacts on populations. The
preamble for NMFS' implementing regulations (54 FR 40338; September 29,
1989) states in response to comments that the impacts from other past
and ongoing anthropogenic activities are to be incorporated into the
negligible impact analysis via their impacts on the baseline.
Consistent with that direction, NMFS has factored into its negligible
impact analysis the impacts of other past and ongoing anthropogenic
activities via their impacts on the baseline, e.g., as reflected in the
density/distribution and status of the species, population size and
growth rate, and other relevant stressors. The 1989 final rule for the
MMPA implementing regulations also addressed public comments regarding
cumulative effects from future, unrelated activities. There NMFS stated
that such effects are not considered in making findings under section
101(a)(5) concerning negligible impact. In this case, this IHA, as well
as other IHAs currently in effect or proposed within the specified
geographic region, are appropriately considered an unrelated activity
relative to the others. The IHAs are unrelated in the sense that they
are discrete actions under section 101(a)(5)(D), issued to discrete
applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Attentive Energy is the applicant for the IHA, and we
are responding to the specified activity as described in that
application (and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated that (1) we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) reasonably foreseeable cumulative effects would also be
considered under section 7 of the Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written
Environmental Assessments (EA) that addressed cumulative impacts
related to substantially similar activities, in similar locations,
e.g., the 2017 Ocean Wind, LLC EA for site characterization surveys off
New Jersey and the 2018 Deepwater Wind EA for survey activities
offshore Delaware, Massachusetts, and Rhode Island. Cumulative impacts
regarding issuance of IHAs for site characterization survey
[[Page 51364]]
activities such as those planned by Attentive Energy have been
adequately addressed under NEPA in prior environmental analyses that
support NMFS' determination that this action is appropriately
categorically excluded from further NEPA analysis. NMFS independently
evaluated the use of a categorical exclusion (CE) for issuance of
Attentive Energy's IHA, which included consideration of extraordinary
circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean have been analyzed in the
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New
York, and New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities
include those for which NMFS issued previous IHAs (82 FR 31562; July 7,
2017, 85 FR 21198; April 16, 2020 and 86 FR 26465; May 10, 2021), which
are similar to those planned by Attentive Energy under this current IHA
request. This Biological Opinion (BiOp) determined that NMFS' issuance
of IHAs for site characterization survey activities associated with
leasing, individually and cumulatively, are not likely to adversely
affect listed marine mammals. NMFS notes that, while issuance of this
IHA is covered under a different consultation, this BiOp remains valid.
Comment 4: COA is concerned regarding the wide range of marine
mammal species that could be impacted by the activities, as well as a
lack of baseline data being available for species in the area,
specifically harbor seals. In addition, COA has stated that NMFS did
not adequately address the potential for cumulative impacts to
bottlenose dolphins from Level B harassment over several years of
project activities.
Response: We appreciate the concern expressed by COA. NMFS utilizes
the best available science when analyzing which species may be impacted
by an applicant's proposed activities. Based on information found in
the scientific literature, as well as based on density models developed
by Duke University, all marine mammal species included in the proposed
Federal Register notice have some likelihood of occurring in Attentive
Energys' survey areas. Furthermore, the MMPA requires us to evaluate
the effects of the specified activities in consideration of the best
scientific evidence available and, if the necessary findings are made,
to issue the requested take authorization. The MMPA does not allow us
to delay decision making in hopes that additional information may
become available in the future. Furthermore, NMFS notes that it has
previously addressed discussions on cumulative impact analyses in
previous comments and references COA back to these specific responses
in this Notice.
Regarding the lack of baseline information cited by COA, with
specific concern pointed out for harbor seals, NMFS points towards two
sources of information for marine mammal baseline information: the
Ocean/Wind Power Ecological Baseline Studies, January 2008--December
2009 completed by the New Jersey Department of Environmental Protection
in July 2010 (<a href="https://dspace.njstatelib.org/xmlui/handle/10929/68435">https://dspace.njstatelib.org/xmlui/handle/10929/68435</a>)
and the Atlantic Marine Assessment Program for Protected Species
(AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>)
with annual reports available from 2010 to 2020 (<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that cover the areas across the
Atlantic Ocean. NMFS has duly considered this and all available
information.
Based on the information presented, NMFS has determined that no new
information has become available, nor do the commenters present
additional information, that would change our determinations since the
publication of the proposed notice.
Comment 5: Oceana stated that NMFS must utilize the best available
science, and suggested that NMFS has not done so, specifically
referencing information regarding the NARW such as updated population
estimates, habitat usage in the survey area, and seasonality
information. Oceana specifically asserted that NMFS is not using the
best available science with regards to the NARW population estimate.
Similarly, COA ensures that activities covered by this IHA should not
occur during peak migratory season or biologically sensitive periods
for the affected species.
Response: While NMFS agrees that the best available science should
be used for assessing NARW abundance estimates, we disagree that
Oceana's cited study represents the most recent and best available
estimate for NARW abundance. Rather the revised abundance estimate
(368; 95 percent with a confidence interval of 356-378) published by
Pace (2021) (and subsequently included in the 2021 draft Stock
Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>)),
which was used in the proposed IHA, provides the most recent and best
available estimate, and introduced improvements to NMFS' right whale
abundance model. Specifically, Pace (2021) looked at a different way of
characterizing annual estimates of age-specific survival. NMFS
considered all relevant information regarding NARW, including the
information cited by the commenters. However, NMFS relies on the SAR.
Recently (after publication of the notice of proposed IHA), NMFS
updated its species web page to recognize the population estimate for
NARW 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>). We anticipate that this information will
be presented in the draft 2022 SAR. We note that this change in
abundance estimate would not change the estimated take of NARW or
authorized take numbers, nor affect our ability to make the required
findings under the MMPA for Attentive Energy's survey activities.
NMFS further notes that the commenters seem to be conflating the
phrase ``best available data'' with ``the most recent data.'' The MMPA
specifies that the ``best available data'' must be used, which does not
always mean the most recent. As is NMFS' prerogative, we referenced the
best available NARW abundance estimate of 368 from the draft 2021 SARs
as NMFS' determination of the best available data that we relied on in
our analysis. The Pace (2021) results strengthened the case for a
change in mean survival rates after 2010-2011, but did not
significantly change other current estimates (population size, number
of new animals, adult female survival) derived from the model.
Furthermore, NMFS notes that the SARs are peer reviewed by other
scientific review groups prior to being finalized and published.
NMFS considered the best available science regarding both recent
habitat usage patterns for the study area and up-to-date seasonality
information in the notice of the proposed IHA, including consideration
of existing BIAs and densities provided by Roberts et al. (2021). While
the commenter has suggested that NMFS consider best available
information for recent habitat usage patterns and seasonality, it has
not offered any additional information which it suggests should be
considered best available information in place of what NMFS considered
in its notice of
[[Page 51365]]
proposed IHA (87 FR 38094; June 27, 2022).
Lastly, as we stated in the notice of proposed IHA (87 FR 38094;
June 27, 2022), any impacts to marine mammals are expected to be
temporary and minor and, given the relative size of the survey area
compared to the overall migratory route leading to foraging habitat
(which is not affected by the specified activity). Comparatively, the
survey area is extremely small (854 km\2\) compared to the size of the
NARW migratory BIA (269,448 km\2\). Because of this, and in context of
the minor, low-level nature of the impacts expected to result from the
planned survey, such impacts are not expected to result in disruption
to biologically important behaviors. Also, refer to comment two for
similar discussion on right whale abundance.
Comment 6: Oceana made comments objecting to NMFS' renewal process
regarding the extension of any 1-year IHA with a truncated 15-day
public comment period as it violates the MMPA, and suggested an
additional 30-day public comment period is necessary for any renewal
request.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464; October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS
has explained how the renewal process, as implemented, is consistent
with the statutory requirements contained in section 101(a)(5)(D) of
the MMPA, and further, promotes NMFS' goals of improving conservation
of marine mammals and increasing efficiency in the MMPA compliance
process. Therefore, we intend to continue implementing the renewal
process.
In particular, we emphasize that any Renewal IHA does have a 30-day
public comment period, and in fact, each Renewal IHA is made available
for a 45-day public comment period. The notice of the proposed IHA
published in the Federal Register on June 27, 2022 (87 FR 38094) made
clear that NMFS was seeking comment on the proposed IHA and the
potential issuance of a renewal for this survey. As detailed in the
Federal Register notice for the proposed IHA and on the agency's
website, any renewal is limited to another year of identical or nearly
identical activities in the same location or the same activities that
were not completed within the 1-year period of the initial IHA. NMFS'
analysis of the anticipated impacts on marine mammals caused by the
applicant's activities covers both the initial IHA period and the
possibility of a 1-year renewal. Therefore a member of the public
considering commenting on a proposed Initial IHA also knows exactly
what activities (or subset of activities) would be included in a
proposed Renewal IHA, the potential impacts of those activities, the
maximum amount and type of take that could be caused by those
activities, the mitigation and monitoring measures that would be
required, and the basis for the agency's negligible impact
determinations, least practicable adverse impact findings, small
numbers findings, and (if applicable) the no unmitigable adverse impact
on subsistence use finding--all the information needed to provide
complete and meaningful comments on a possible renewal at the time of
considering the proposed initial IHA. Reviewers have the information
needed to meaningfully comment on both the immediate proposed IHA and a
possible 1-year renewal, should the IHA holder choose to request one.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would make available and use to verify that the
activities are identical to those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS would also need to confirm, among other things, that
the activities would occur in the same location; involve the same
species and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period, which includes NMFS' direct notice to anyone who commented on
the proposed initial IHA, provides the public an opportunity to review
these few documents, provide any additional pertinent information and
comment on whether they think the criteria for a renewal have been met.
Between the initial 30-day comment period on these same activities and
the additional 15 days, the total comment period for a renewal is 45
days.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for renewals in the regulations, description of the process
and express invitation to comment on specific potential renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
renewals respectively, NMFS has ensured that the public is ``invited
and encouraged to participate fully in the agency's decision-making
process'', as Congress intended.
Comment 7: Oceana stated that NMFS must require that all IHA
applicants minimize the impacts of underwater noise to have the least
practicable impact on marine mammal species or stocks and their
habitats in and around the project site, including through the use of
best available technology and methods to minimize sound levels from
geophysical surveys such as through the use of technically and
commercially feasible and effective noise reduction and attenuation
measures.. Oceana additionally states that NMFS must make an assessment
of which activities, technologies and strategies are truly necessary to
achieve site characterization to inform development of the offshore
wind projects and which are not critical, asserting that NMFS should
prescribe the appropriate survey techniques.
Response: The MMPA requires that an IHA include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS agrees that the IHA should include
conditions for the survey activities that will first avoid adverse
effects on NARW in and around the survey site, where practicable, and
then minimize the effects that cannot be avoided. NMFS has determined
that the IHA meets this requirement to effect the least practicable
adverse impact. As part of the analysis for all marine site
characterization survey IHAs, NMFS evaluated the effects expected as a
result of the specified activity, made the necessary findings, and
prescribed mitigation requirements sufficient to achieve the least
practicable adverse impact on the affected species and stocks of marine
mammals. It is not within NMFS' purview to make judgments regarding
what may be appropriate techniques or technologies for an operator's
survey objectives.
Comment 8: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and
[[Page 51366]]
recovery, and stated that chronic stress may result in energetic
effects for NARW. Oceana suggested that NMFS has not fully considered
both the use of the area and the effects of both acute and chronic
stressors on the health and fitness of NARW, as disturbance responses
in NARW's could lead to chronic stress or habitat displacement, leading
to an overall decline in their health and fitness.
Response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for NARW conservation and recovery. We
recognize that acute stress from acoustic exposure is one potential
impact of these surveys, and that chronic stress can have fitness,
reproductive, etc. impacts at the population-level scale. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking. However, NMFS does not expect
that the generally short-term, intermittent, and transitory marine site
characterization survey activities planned by Attentive Energy will
create conditions of acute or chronic acoustic exposure leading to
long-term physiological stress responses in marine mammals. NMFS has
also prescribed a robust suite of mitigation measures, including
extended distance shutdowns for NARW, that are expected to further
reduce the duration and intensity of acoustic exposure, while limiting
the potential severity of any possible behavioral disruption. The
potential for chronic stress was evaluated in making the determinations
presented in NMFS' negligible impact analyses. Because NARW generally
use this location in a transitory manner, specifically for migration,
any potential impacts from these surveys are lessened for other
behaviors due to the brief periods where exposure is possible. In
context of these expected low-level impacts, which are not expected to
meaningfully affect important behavior, we also refer again to the
large size of the migratory corridor compared with the survey area (the
overlap between the BIA and the proposed survey area will cover
approximately 854 km\2\ of the 269,448 km\2\ BIA). Thus, the transitory
nature of NARW's at this location means it is unlikely for any exposure
to cause chronic effects, as Attentive Energy's planned survey area and
ensonified zones are much smaller than the overall migratory corridor.
As such, NMFS does not expect acute or cumulative stress to be a
detrimental factor to NARW from Attentive Energy's described survey
activities.
Comment 9: Oceana states that Attentive Energy's activities will
increase service vessel traffic in and around the project area and that
the IHA must include a vessel traffic plan to minimize the effects of
increased vessel traffic.
Response: NMFS disagrees with Oceana's statement that the IHA must
require a vessel traffic plan. During HRG surveys there are no service
vessels required. NMFS agrees that a vessel plan may be potentially
appropriate for project construction, but it is not needed for marine
site characterization surveys.
Comment 10: Oceana suggests that Protected Species Observers (PSOs)
complement their survey efforts at all times when underway, using
additional technologies, such as infrared detection devices when in
low-light conditions.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to utilize a thermal (infrared) device during low-light
conditions was included in the proposed Federal Register notice. That
requirement is included as a requirement of the issued IHA.
Comment 11: Oceana recommended that NMFS restrict all vessels of
all sizes associated with the proposed survey activities to speeds less
than 10 knots (kn) (5.14 meters/second (m/s)) at all times with no
exceptions due to the risk of vessel strikes to NARWs and other large
whales.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for vessel strike
resulting from Attentive Energy's activity and have determined that
based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the IHA,
potential for vessel strike is so low as to be discountable. The
required mitigation measures, all of which were included in the
proposed IHA and are now required in the final IHA, include: A
requirement that all vessel operators comply with 10 kn (18.5 km/hour
(kph)) or less speed restrictions in any Seasonal Management Area
(SMA), Dynamic Management Area (DMA) or Slow Zone while underway, and
check daily for information regarding the establishment of mandatory or
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and
information regarding NARW sighting locations; a requirement that all
vessels greater than or equal to 19.8 m in overall length operating
from November 1 through April 30 operate at speeds of 10 kn (18.5 kph)
or less; a requirement that all vessel operators reduce vessel speed to
10 kn (18.5 kph) or less when any large whale, any mother/calf pairs,
pods, or large assemblages of non-delphinid cetaceans are observed near
the vessel; a requirement that all survey vessels maintain a separation
distance of 500 m or greater from any ESA-listed whales or other
unidentified large marine mammals visible at the surface while
underway; a requirement that, if underway, vessels must steer a course
away from any sighted ESA-listed whale at 10 kn (18.5 kph) or less
until the 500 m minimum separation distance has been established; a
requirement that, if an ESA-listed whale is sighted in a vessel's path,
or within 500 m of an underway vessel, the underway vessel must reduce
speed and shift the engine to neutral; a requirement that all vessels
underway must maintain a minimum separation distance of 100 m from all
non-ESA-listed baleen whales; and a requirement that all vessels
underway must, to the maximum extent practicable, attempt to maintain a
minimum separation distance of 50 m from all other marine mammals, with
an understanding that at times this may not be possible (e.g., for
animals that approach the vessel). We have determined that the vessel
strike avoidance measures in the IHA are sufficient to ensure the least
practicable adverse impact on species or stocks and their habitat.
Furthermore, no documented vessel strikes have occurred for any marine
site characterization surveys for which IHAs were issued from NMFS
during the survey activities themselves or while transiting to and from
survey sites.
Comment 12: Oceana suggests that NMFS require vessels to maintain a
separation distance of at least 500 m from NARW at all times.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to maintain a separation distance of at least 500 m from
NARWs at all times was included in the proposed Federal Register notice
and was included as a requirement in the issued IHA.
Comment 13: Oceana recommended that the IHA should require all
vessels supporting site characterization be equipped with and use Class
A Automatic Identification System (AIS) devices at all times while on
the water. Oceana suggested this requirement should apply to all
vessels, regardless of size, associated with the survey.
Response: NMFS is generally supportive of the idea that vessels
involved with survey activities be equipped with and use Class A
[[Page 51367]]
Automatic Identification System (devices) at all times while on the
water. Indeed, there is a precedent for NMFS requiring such a
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268,
December 7, 2018); however, those activities carried the potential for
much more significant impacts than the marine site characterization
surveys to be carried out by Attentive Energy, with the potential for
both Level A and Level B harassment take. Given the small isopleths and
small numbers of take authorized by this IHA, NMFS does not agree that
the benefits of requiring AIS on all vessels associated with the survey
activities outweighs and warrants the cost and practicability issues
associated with this requirement.
Comment 14: Oceana stated that the IHA must include a requirement
for all phases of the site characterization to subscribe to the highest
level of transparency, including frequent reporting to federal
agencies. Oceana recommended requirements to report all visual and
acoustic detections of NARWs and any dead, injured, or entangled marine
mammals to NMFS or the Coast Guard as soon as possible and no later
than the end of the PSO shift. Oceana states that to foster stakeholder
relationships and allow public engagement and oversight of the
permitting, the IHA should require all reports and data to be
accessible on a publicly available website.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA calls for IHAs to incorporate reporting requirements. As included
in the proposed IHA, the final IHA includes requirements for reporting
that address Oceana's recommendations. Attentive Energy is required to
submit a monitoring report to NMFS within 90 days after completion of
survey activities that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring. PSO
datasheets or raw sightings data must also be provided with the draft
and final monitoring report. This final monitoring report is then made
available to the public on NMFS website.
Further, the draft IHA and final IHA stipulate that if a NARW is
observed at any time by any survey vessels, during surveys or during
vessel transit, Attentive Energy must immediately report sighting
information to the NMFS NARW Sighting Advisory System within two hours
of occurrence, when practicable, or no later than 24 hours after
occurrence. Attentive Energy may also report the sighting to the U.S.
Coast Guard. Additionally, Attentive Energy must report any discoveries
of injured or dead marine mammals to the Office of Protected Resources,
NMFS, and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. This includes entangled animals. All
reports and associated data submitted to NMFS are included on the
website for public inspection.
Comment 15: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions will
create enforcement uncertainty and incentives to evade regulations
through reclassification and redesignation. They recommend that NMFS
simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
Response: NMFS agrees with Oceana and required these measures in
the proposed IHA and final IHA. The IHA requires that a copy of the IHA
must be in the possession of Attentive Energy, the vessel operators,
the lead PSO, and any other relevant designees of Attentive Energy
operating under the authority of this IHA. The IHA also states that
Attentive Energy must ensure that the vessel operator and other
relevant vessel personnel, including the PSO team, are briefed on all
responsibilities, communication procedures, marine mammal monitoring
protocols, operational procedures, and IHA requirements prior to the
start of survey activity, and when relevant new personnel join the
survey operations.
Comment 16: Oceana recommends a shutdown requirement if a NARW or
other ESA-listed species is detected in the clearance zone as well as a
publicly available explanation of any exemptions as to why the
applicant would not be able to shut down in these situations.
Response: There are several shutdown requirements described in the
Federal Register notice of the proposed IHA (87 FR 38094; June 27,
2022), and which are included in the final IHA, including the
stipulation that geophysical survey equipment must be immediately shut
down if any marine mammal is observed within or entering the relevant
Exclusion Zone while geophysical survey equipment is operational.
Oceana mentions an exemption to the shutdown for human safety, however,
there is no exemption for the shutdown requirement for NARW, ESA-listed
species, or any other species.
Attentive Energy is required to implement a 30-minute pre-start
clearance period prior to the initiation of ramp-up of specified HRG
equipment. During this period, clearance zones 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 clearance
zone. If a marine mammal is observed within an clearance zone during
the pre-start 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 the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again without ramp-up if PSOs have maintained constant
observation and no detections of any marine mammal have occurred within
the respective exclusion zones.
In regards to reporting, Attentive Energy must notify NMFS if a
NARW is observed at any time by any survey vessels during surveys or
during vessel transit. Additionally, Attentive Energy is required to
report the relevant survey activity information, such as such as the
type of survey equipment in operation, acoustic source power output
while in operation, and any other notes of significance (i.e., pre-
clearance survey, ramp-up, shutdown, end of operations, etc.) as well
as the estimated distance to an animal and its heading relative to the
survey vessel at the initial sighting and survey activity information.
We note that if a NARW is detected within the Exclusion Zone before a
shutdown is implemented, the NARW and its distance from the sound
source, including if it is within the Level B harassment zone, would be
reported in Attentive Energy's final monitoring report and made
publicly available on NMFS' website. Attentive Energy is required to
immediately notify NMFS of any sightings of NARWs and report upon
survey activity information. NMFS believes that these requirements
address the commenter's concerns.
Comment 17: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the surveys should be required to use a
ramp-up procedure to encourage any nearby marine life to leave the
area.
Response: NMFS agrees with this recommendation and included in the
Federal Register notice of the proposed IHA (87 FR 38094; June 27,
2022) and this final IHA a stipulation that when technically feasible,
survey equipment
[[Page 51368]]
must be ramped up at the start or restart of survey activities. A ramp-
up procedure, involving a gradual increase in source level output, is
required at all times as part of the activation of the acoustic source
when technically feasible. Operators should ramp up sources to half
power for 5 minutes and then proceed to full power. A 30-minute pre-
start clearance observation period must occur prior to the start of
ramp-up (or initiation of source use if ramp-up is not technically
feasible). NMFS notes that ramp-up is not required for short periods
where acoustic sources were shut down (i.e., less than 30 minutes) if
PSOs have maintained constant visual observation and no detections of
marine mammals occurred within the applicable Exclusion Zones.
Comment 18: Oceana recommended increasing the Exclusion Zone to
1,000m for NARWs with requirements for HRG survey vessels to use PSOs
and Passive Acoustic Monitoring (PAM) to establish and monitor these
zones.
Response: NMFS notes that the 500 m Exclusion Zone for NARWs
exceeds the modeled distance to the largest 160 dB Level B harassment
isopleth (141 m during sparker use) by a conservative margin to be
extra cautious. Commenters do not provide a compelling rationale for
why the Exclusion Zone should be even larger. Given that these surveys
are relatively low impact and that, regardless, NMFS has prescribed a
precautionary NARW Exclusion Zone that is larger (500 m) than the
conservatively estimated largest harassment zone (141 m), NMFS has
determined that the Exclusion Zone is appropriate.
Regarding the use of acoustic monitoring to implement the exclusion
zones, NMFS does not anticipate that acoustic monitoring would be
effective for a variety of reasons discussed below and therefore has
not required it in this IHA. As described in the Mitigation section,
NMFS has determined that the prescribed mitigation requirements are
sufficient to effect the least practicable adverse impact on all
affected species or stocks.
The commenters do not explain why they expect that PAM would be
effective in detecting vocalizing mysticetes, nor does NMFS agree that
this measure is warranted, as it is not expected to be effective for
use in detecting the species of concern. It is generally accepted that,
even in the absence of additional acoustic sources, using a towed
passive acoustic sensor to detect baleen whales (including NARWs) is
not typically effective because the noise from the vessel, the flow
noise, and the cable noise are in the same frequency band and will mask
the vast majority of baleen whale calls. Vessels produce low-frequency
noise, primarily through propeller cavitation, with main energy in the
5-300 Hertz (Hz) frequency range. Source levels range from about 140 to
195 decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003;
Hildebrand, 2009), depending on factors such as ship type, load, and
speed, and ship hull and propeller design. Studies of vessel noise show
that it appears to increase background noise levels in the 71-224 Hz
range by 10-13 dB (Hatch et al. 2012; McKenna et al. 2012; Rolland et
al. 2012). PAM systems employ hydrophones towed in streamer cables
approximately 500 m behind a vessel. Noise from water flow around the
cables and from strumming of the cables themselves is also low
frequency and typically masks signals in the same range. Experienced
PAM operators participating in a recent workshop (Thode et al. 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because background
noise levels rendered any acoustic detection impossible. The same
workshop report stated that a typical eight-element array towed 500 m
behind a vessel could be expected to detect delphinids, sperm whales,
and beaked whales at the required range, but not baleen whales, due to
expected background noise levels (including seismic noise, vessel
noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 141 m); this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low. Together these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for NARWs and other low frequency cetaceans, species for
which PAM has limited efficacy), and the cost and impracticability of
implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
habitat. NMFS has previously provided discussions on why PAM isn't a
required monitoring measure during HRG survey IHAs in past Federal
Register notices (see 86 FR 21289, April 22, 2021 and 87 FR 13975,
March 11, 2022 for examples).
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 or stocks for which take is expected and
authorized for this activity, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
[[Page 51369]]
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is expected to occur, PBR and annual
serious injury and mortality from anthropogenic sources are included
here as gross indicators of the status of the species or stocks and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks 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>).
Table 2--Species 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 in Table 2 temporally and
spatially co-occur with the 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 planned 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 be
taken by the planned activities as well as further detail informing the
status for select species (i.e., information regarding
[[Page 51370]]
current Unusual Mortality Events (UMEs) and important habitat areas).
North Atlantic Right Whale
The NARW 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 NARW congregate seasonally, including north and east of the
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 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, NARW 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 NARW 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 NARW calves have documented to have been born
during this calving season.
The survey area is part of a migratory corridor Biologically
Important Area (BIA) for NARW (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. 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 planned 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 (18.5 kph)) for all vessels greater than 65 ft (19.8 m).
Attentive Energy survey vessel, regardless of length, would be required
to adhere to a 10 kn (18.5 kph) 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 kn (18.5 kph)
vessel speed restriction when operating in any DMA declared by NMFS.
Elevated NARW mortalities have occurred since June 7, 2017, along
the U.S. and Canadian coast. This event has been declared an Unusual
Mortality Event (UME), with human interactions, including entanglement
in fixed fishing gear and vessel strikes, implicated in at least 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 NARW 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
planned 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 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
[[Page 51371]]
(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 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).
[[Page 51372]]
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 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). Haulout 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
[[Page 51373]]
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. 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 provides a discussion of the ways in which 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 Mitigation section, to draw conclusions
regarding the likely impacts of these activities on the reproductive
success or survivorship of individuals and whether those impacts are
reasonably expected to, or reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
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
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,
[[Page 51374]]
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 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 kiloHertz (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
planned 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
[[Page 51375]]
would recover over time (Southall et al., 2007).
Animals in the vicinity of Attentive Energy 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 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
[[Page 51376]]
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 kn
(7.4-9.3 kph). 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 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 planned
activities will be temporary, insignificant, and discountable.
The 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
authorized 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 authorized. As described previously, no serious injury
or mortality is anticipated or authorized for this activity. Below we
describe how the planned take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the 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.
Attentive Energy's HRG sruveys include the use impulsive (sparker)
sources, and therefore the RMS SPL thresholds of 160 dB re 1 [mu]Pa is
applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on
[[Page 51377]]
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: <ls-thn-eq>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: <ls-thn- Cell 8: LE,PW,24h: 201 dB
eq>Lpk,flat: 218 dB;
LE,PW,24h: 185 dB.
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
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
type used during the planned 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, which
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 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
<a href="https://seamap.env">https://seamap.env</a> .duke.edu/models/Duke/EC/.
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, 2021). 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
[[Page 51378]]
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 planned 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 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 planned 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 planned surveys will complete a
total of 3,028 km survey trackline during 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
[[Page 51379]]
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 take of marine mammals 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.
Table 6--Numbers of Potential Incidental Take of Marine Mammals Authorized and Planned Takes as a Percentage of
Population
----------------------------------------------------------------------------------------------------------------
Total
Estimated -------------------------------
Species Abundance* Level B takes Level B takes Percent of
authorized 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 U.S. population only is 27,300.
The take numbers authorized 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).
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.
Mitigation Measures
NMFS requires 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 NARW 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
[[Page 51380]]
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 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 survey area partially overlaps
with a portion of a NARW SMA off the port of New York/New Jersey. This
SMA is active from November 1 through April 30 of each year. The survey
vessel, regardless of length, would be required
[[Page 51381]]
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' NARW reporting systems for the presence of NARW throughout survey
operations. Members of the monitoring team would also monitor the NMFS
NARW reporting systems for the establishment of 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 right If established by NMFS, all of Attentive N/A.
ECR North.............. whale (Eubalaena Energy's vessel will abide by the November 1 through
glacialis). described restrictions. July 31 (Raritan
Bay).
ECR South.............. N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the NARW 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> whales.
----------------------------------------------------------------------------------------------------------------
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 planned survey would occur in an area that has been
identified as a biologically important area for migration for NARW.
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 NARW, thus
additional mitigation to address the survey's occurrence in NARW
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 NARW from vessel strikes, including SMAs and 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 NARW reporting
system and Whale Alert, daily and as able, for the presence of NARW
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
[[Page 51382]]
upon request. Further information can 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 measures, as well as
other measures considered by NMFS, NMFS has determined that the
mitigation measures provide the means of effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
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 51383]]
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 hr 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 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).
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 51384]]
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#feaeacd0b7aaaed0b39190978a918c979099ac9b8e918c8a8dbe90919f9fd0999188"><span class="__cf_email__" data-cfemail="2a7a7804637e7a04674544435e455843444d784f5a45585e596a44454b4b044d455c">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#16787b706538717764387f78757f72737862777a3b62777d73567879777738717960"><span class="__cf_email__" data-cfemail="5836353e2b763f392a7631363b313c3d362c3934752c39333d1836373939763f372e">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#5b120f0b75133a29373a38333e291b35343a3a753c342d"><span class="__cf_email__" data-cfemail="d8918c88f690b9aab4b9bbb0bdaa98b6b7b9b9f6bfb7ae">[email protected]</span></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 NARW 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 NARW Sighting
Advisory System (866-755-6622) within two hours of occurrence, when
practicable, or no later than 24 hours after occurrence. NARW 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#513f3c37227f3630237f222523303f35383f36113f3e30307f363e27"><span class="__cf_email__" data-cfemail="2b45464d58054c4a5905585f594a454f42454c6b45444a4a054c445d">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#a3f3f18deaf7f38deecccdcad7ccd1cacdc4f1c6d3ccd1d7d0e3cdccc2c28dc4ccd5"><span class="__cf_email__" data-cfemail="4010126e0914106e0d2f2e29342f32292e271225302f323433002e2f21216e272f36">[email protected]</span></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#8de3e0ebfea3eaecffa3fef9ffece3e9e4e3eacde3e2ececa3eae2fb"><span class="__cf_email__" data-cfemail="56383b302578313724782522243738323f3831163839373778313920">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#3060621e7964601e7d5f5e59445f42595e576255405f424443705e5f51511e575f46"><span class="__cf_email__" data-cfemail="2f7f7d01667b7f01624041465b405d4641487d4a5f405d5b5c6f41404e4e01484059">[email protected]</span></a>) as soon as feasible. The report
would include the following information:
[[Page 51385]]
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
12. To the extent practicable, photographs or video footage of the
animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338;
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the majority of our analysis applies to all
the species listed in Table 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 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 planned 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 planned survey area
and there are no feeding areas known to be biologically important to
marine mammals within the survey area. There is no designated critical
habitat for any ESA-listed marine mammals in the survey area.
North Atlantic Right Whales
The status of the NARW population is of heightened concern and,
therefore, merits additional analysis. As noted previously, elevated
NARW mortalities began in June 2017 and there is an active UME.
Overall, preliminary findings support human interactions, specifically
vessel strikes and entanglements, as the cause of death for the
majority of right whales. As noted previously, the survey area overlaps
a migratory corridor BIA for NARW. Due to the fact that the planned
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 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 planned 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 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
[[Page 51386]]
equipment types planned for use. The authorizations for Level B
harassment takes of NARW are not expected to exacerbate or compound
upon the ongoing UME. The limited NARW Level B harassment takes
authorized 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 activities, it is unlikely that NARW
prey availability would be adversely affected. Accordingly, NMFS does
not anticipate NARW takes that would result from Attentive Energy's
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's survey area. Elevated humpback whale
mortalities have occurred along the Atlantic coast from Maine through
Florida since January 2016. Of the cases examined, approximately half
had evidence of human interaction (ship strike or entanglement). The
UME does not yet provide cause for concern regarding population-level
impacts. Despite the UME, the relevant population of humpback whales
(the West Indies breeding population, or DPS) remains stable at
approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale stranding's 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
[…truncated; see source link]Indexed from Federal Register on August 22, 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.