Notice2023-06594
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of New Jersey and New York
Primary source
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Published
March 30, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from Atlantic Shores Offshore Wind, LLC (Atlantic Shores) for authorization to take marine mammals incidental to marine site characterization offshore of New Jersey and New York in the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0499 and OCS-A 0549 and associated export cable route (ECR) area. The activities described in Atlantic Shores' request, the overall survey duration, the project location, and the acoustic sources proposed for use are identical to what was previously analyzed in support of the IHA issued by NMFS to Atlantic Shores for the 2022 site characterization surveys (2022 IHA). All proposed mitigation, monitoring, and reporting requirements remain the same. While Atlantic Shores' planned activity would qualify for renewal of the 2022 IHA, due to the availability of updated marine mammal density data (https://seamap.env.duke.edu/models/Duke/EC/), which NMFS has determined represents the best available scientific data. NMFS has determined it appropriate to provide a 30-day period for the public to comment on this proposed action. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-year renewal IHA that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
Full Text
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<title>Federal Register, Volume 88 Issue 61 (Thursday, March 30, 2023)</title>
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[Federal Register Volume 88, Number 61 (Thursday, March 30, 2023)]
[Notices]
[Pages 19075-19088]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06594]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC667]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Offshore of New Jersey and New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments on proposed authorization and possible renewal.
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SUMMARY: NMFS has received a request from Atlantic Shores Offshore
Wind, LLC (Atlantic Shores) for authorization to take marine mammals
incidental to marine site characterization offshore of New Jersey and
New York in the Bureau of Ocean Energy Management (BOEM) Commercial
Lease of Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS) Lease Area OCS-A 0499 and OCS-A 0549 and
associated export cable route (ECR) area. The activities described in
Atlantic Shores' request, the overall survey duration, the project
location, and the acoustic sources proposed for use are identical to
what was previously analyzed in support of the IHA issued by NMFS to
Atlantic Shores for the 2022 site characterization surveys (2022 IHA).
All proposed mitigation, monitoring, and reporting requirements remain
the same. While Atlantic Shores' planned activity would qualify for
renewal of the 2022 IHA, due to the availability of updated marine
mammal density data (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>),
which NMFS has determined represents the best available scientific
data. NMFS has determined it appropriate to provide a 30-day period for
the public to comment on this proposed action. Pursuant to the Marine
Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to issue an IHA to incidentally take marine mammals during the
specified activities. NMFS is also requesting comments on a possible
one-year renewal IHA that could be issued under certain circumstances
and if all requirements are met, as described in Request for Public
Comments at the end of this notice. NMFS will consider public comments
prior to making any final decision on the issuance of the requested
MMPA authorization and
[[Page 19076]]
agency responses will be summarized in the final notice of our
decision.
DATES: Comments and information must be received no later than May 1,
2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to <a href="/cdn-cgi/l/email-protection#115845413f417e657d7e727a517f7e70703f767e67"><span class="__cf_email__" data-cfemail="7f362b2f512f100b13101c143f11101e1e51181009">[email protected]</span></a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. Attachments to comments will be
accepted in Microsoft Word, Excel, or Adobe PDF file formats only. All
comments received are a part of the public record and will generally be
posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All
personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application and supporting documents (including NMFS Federal Register
notices of the original proposed and final authorizations, and the
previous IHA), as well as a list of the references cited in this
document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these documents, please call the
contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment. This action
is consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has preliminarily determined
that the issuance of the proposed IHA qualifies to be categorically
excluded from further NEPA review.
We will review all comments submitted in response to this
notification prior to concluding our NEPA process or making a final
decision on the IHA request.
History of Request
On August 16, 2021, NMFS received a request from Atlantic Shores
for an IHA to take marine mammals incidental to high-resolution
geophysical (HRG) marine site characterization surveys offshore of New
Jersey and New York in the area of BOEM Commercial Lease of Submerged
Lands for Renewable Energy Development on the OCS-A 0499 and associated
ECR area. Atlantic Shores requested authorization to take small numbers
of up to 15 species of marine mammals, comprising 13 cetacean species
and two pinniped species, by Level B harassment only. NMFS published a
notice of the proposed IHA in the Federal Register on January 27, 2022
(87 FR 4200). After a 30-day public comment period and consideration of
all public comments received, we subsequently issued the IHA on April
22, 2022 (87 FR 24103), which is effective from April 20, 2022 through
April 19, 2023. A minor correction notice was published on May 5, 2022
(87 FR 26726).
Atlantic Shores conducted the required marine mammal mitigation and
monitoring and did not exceed the authorized levels of take under
previous IHAs issued for surveys offshore of New York and New Jersey
(see 85 FR 21198, April 16, 2020 and 86 FR 21289, April 22, 2021).
These previous monitoring results are available to the public on our
website: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization</a>.
On December 27, 2022, NMFS received a request from Atlantic Shores
for an IHA to take marine mammals incidental to HRG marine site
characterization surveys offshore of New Jersey and New York in the
areas of BOEM Commercial Lease of Submerged Lands for Renewable Energy
Development on the OCS Lease Area OCS-A 0499 and OCS-A 0549 and
associated ECR area (Note BOEM segmented Lease Area OCS-A 0499 into
Lease Areas OCS-A 0499 and 0549; thus, the physical lease area is the
same as described in the 2022 IHA. More information can be found on
BOEM's website (<a href="https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549">https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549</a>). Following NMFS' review of
the application, Atlantic Shores submitted a revised request. The
application was deemed adequate and complete on January 10, 2023 (the
2023 Request). Atlantic Shores' request is for take of 15 species of
marine mammals, comprising 13 cetacean and 2 pinniped stocks, by Level
B harassment only. Neither Atlantic Shores nor NMFS, expect serious
injury or mortality to result from this activity, and therefore, an IHA
is appropriate. Take by Level A harassment (injury) is considered
unlikely, even absent mitigation, based on the characteristics of the
signals produced by the acoustic sources planned for use.
This request is identical to the 2022 IHA. However, NMFS has
determined a renewal of the 2022 IHA is not appropriate due to Duke
University's Marine Geospatial Ecology Laboratory's
[[Page 19077]]
updated marine mammal density information (June 20, 2022) for all
species in the project area (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>). NMFS relies substantially herein, as appropriate, on the
information previously presented in notices associated with issuance of
the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103, April 22,
2022).
Description of the Proposed Activity and Anticipated Impacts
Overview
Atlantic Shores proposes to conduct geotechnical and HRG marine
site characterization surveys in BOEM Lease Areas OCS-A 0499 and OCS-A-
0549 and along potential submarine ECRs (ECRs North and South) to
landfall locations in either New York or New Jersey. The purpose of the
proposed surveys are to support the site characterization, siting, and
engineering design of offshore wind project facilities, including wind
turbine generators, offshore substations, and submarine cables within
the Lease Areas and along the ECRs. As many as three survey vessels may
operate concurrently as part of the proposed surveys. During survey
effort, the vessels would operate at a maximum speed of 3.5 knots (4
miles per hour). Underwater sound resulting from Atlantic Shores'
proposed activities has the potential to result in incidental take of
marine mammals in the form of Level B harassment.
Dates and Duration
The proposed activity is planned to begin once an IHA is issued and
estimated to require up to 360 survey days across a maximum of three
vessels operating concurrently over the course of the one year period
of effectiveness of the proposed IHA (Table 1). A ``survey day'' is
defined as a 24-hour activity period in which active acoustic sound
sources are used. This schedule is inclusive of any inclement weather
downtime and crew transfers. It is expected that each vessel would
cover approximately 55 kilometers (km) of track line per day based on
Atlantic Shores' data acquisition efficiency expectations.
Table 1--Number of Survey Days That Atlantic Shores Plans To Perform the Described HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Survey area Number of active survey days expected
\1\
----------------------------------------------------------------------------------------------------------------
Lease Areas......................... OCS-A-0499............. 50 120 days total.
OCS-A-0549............. 70
----------------------------------------------------------------------------------------------------------------
Export Cable Route North (ECR North)....................180..
Export Cable Route South (ECR South).....................60..
----------------------------------------------------------------------------------------------------------------
\1\ Surveys in each area may temporally overlap; therefore, actual number of days of activity in a given year
may be less than 360.
Specific Geographic Region
Atlantic Shores' proposed activities would occur in the Northwest
Atlantic Ocean within Federal and state waters offshore of New York and
New Jersey in BOEM Lease Area OCS-A 0499 and OCS-A 0549 and associated
ECR area to landfall locations in New York or New Jersey (see Figure
1). Overall, the survey area is approximately 1,450,006 acres (5,868
square kilometers (km\2\)) and extends approximately 24 nautical miles
(44 km) offshore. Water depths in the Lease Areas and surrounding ECRs
are estimated to be approximately 5 to 40 meters (m; 16 to 131 feet
(ft)).
NMFS notes that while this proposed IHA would occur on two Lease
Areas (0499 and 0549) and the 2022 IHA occurred on only one Lease Area
(0499), this is the result of the BOEM's segregation of 0499 into two
lease areas (i.e., 0499 and 0549). However, the planned survey activity
would occur in the same location as the 2022 IHA (see Figure 1).
Furthermore, the survey area is the same size as the survey area under
the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103, April 22,
2022). More information can be found on BOEM's website (<a href="https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549">https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549</a>).
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Figure 1--Map of the Proposed Survey Area
Detailed Description of the Action
A detailed description of the proposed specified activities can be
found in the previous Federal Register notices (87 FR 4200, January 27,
2022; 87 FR 24103, April 22, 2022) and supplementary documents. The
specific geographic region; duration (360 total
[[Page 19079]]
survey days); and nature of the specified activities, including the
types of HRG equipment planned for use (sparkers and CHIRPs), daily
trackline distances (55 km per day), and number of survey vessels (up
to three operating concurrently), are identical to those described in
the previous notices.
Atlantic Shores plans to conduct geotechnical surveys, which
consists of identical activities (i.e., drilling of sample boreholes,
deep cone penetration tests (CPTs), and shallow CPTs) previously
described in its application for the 2022 IHA (87 FR 4200, January 27,
2022 and 87 FR 24103, April 22, 2022);. Consistent with NMFS' previous
analysis of these activities, no take of marine mammals is expected to
occur as a result of geotechnical survey activities. As a result, these
activities will not be discussed further herein.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
can be found in the previous documents and notices for the 2022 IHA (87
FR 4200, January 27, 2022; 87 FR 24103, April 22, 2022), which remains
applicable to this proposed IHA. NMFS reviewed the most recent draft
Stock Assessment Reports (SARs, found on NMFS' website at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>), up-to-date information on relevant Unusual
Mortality Events (UMEs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events</a>), and recent
scientific literature and determined that no new information affects
our original analysis of impacts under the 2022 IHA.
NMFS notes that, since issuance of the 2022 IHA, a new SAR is
available for the North Atlantic right whale (NARW). Estimated
abundance for the species declined from 368 to 338. However, this
change does not affect our analysis of impacts, as described under the
2022 IHA. Additionally, on August 1, 2022, NMFS announced proposed
changes to the existing NARW vessel speed regulations to further reduce
the likelihood of mortalities and serious injuries to endangered NARWs
from vessel collisions, which are a leading cause of the species'
decline and a primary factor in an ongoing 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 requirements contained
within the final rule. Specifically, where measures in any final vessel
speed rule are more protective or restrictive than those in this or any
other MMPA authorization, authorization holders would be required to
comply with the requirements of the rule. Alternatively, where measures
in this or any other MMPA authorization are more restrictive or
protective than those in any final vessel speed rule, the measures in
the MMPA authorization would remain in place. The responsibility to
comply with the applicable requirements of any vessel speed rule would
become effective immediately upon the effective date of any final
vessel speed rule and, when notice is published of the effective date,
NMFS would also notify Atlantic Shores if the measures in the speed
rule were to supersede any of the measures in the MMPA authorization
such that they were no longer applicable
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103,
April 22, 2022). At present, there is no new information on potential
effects that would impact our analysis.
Estimated Take
A detailed description of the methods used to estimate take
anticipated to occur incidental to the project is found in the previous
Federal Register notices (87 FR 4200, January 27, 2022; 87 FR 24103,
April 22, 2022). The methods of estimating take are identical to those
used in the 2022 IHA. We updated the marine mammal densities based on
new information (Roberts et al., 2016; Roberts and Halpin, 2022),
available online at: <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. We
refer the reader to Table 4 in the ITA Request from Atlantic Shores for
specific density values used in the analysis. The ITA request is
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
The take that NMFS proposes for authorization can be found in Table
2 below. Table 2 presents the results of Atlantic Shores' density-based
calculations for the combined Lease Area (0499 and 0549) and the two
ECRs (North and South). For comparative purposes, we have provided the
2022 IHA authorized take (87 FR 24103, April 22, 2022; 87 FR 26726, May
5, 2022). NMFS notes that take by Level A harassment was not requested
nor does NMFS anticipate that it could occur. Therefore, NMFS has not
proposed to authorize any take by Level A harassment. Mortality or
serious injury is neither anticipated to occur nor proposed for
authorization.
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Proposed Mitigation
The proposed mitigation measures are identical to those included in
the Federal Register notice announcing the final 2022 IHA (87 FR 24103,
April 22, 2022; 87 FR 26726, May 5, 2022) and the discussion of the
least practicable adverse impact included in that document remains
accurate. The measures proposed for inclusion in this IHA are found
below.
Atlantic Shores must also abide by all the marine mammal relevant
conditions in the NOAA Fisheries Greater Atlantic Regional Office
(GARFO) programmatic consultation (specifically Project Design Criteria
(PDC) 4, 5, and 7) regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions (NOAA
GARFO, 2021; <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>), pursuant to Section 7 of the
Endangered Species Act.
Marine Mammal Exclusion Zones and Level B Harassment Zones
Marine mammal Exclusion Zones will be established around the HRG
survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive:
sparkers; non-impulsive: non-parametric sub-bottom profilers), a
minimum of one PSO must be on duty, per source vessel, during daylight
hours and two PSOs must be on duty, per source vessel, during nighttime
hours. These PSO will monitor 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 NARWs during use of specified
acoustic sources (impulsive: sparkers; non-impulsive: non-parametric
sub-bottom profilers).
<bullet> A 100 m Exclusion Zone for all other marine mammals
(excluding NARWs) during use of specified acoustic sources (except as
specified below).
All visual monitoring must begin no less than 30 minutes prior to
the initiation of the specified acoustic source and must continue until
30 minutes after use of specified acoustic sources ceases.
If a marine mammal were detected approaching or entering the
Exclusion Zones during the HRG survey, the vessel operator will 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 will be used for HRG
survey equipment capable of adjusting energy levels at the start or
restart of survey activities. A ramp-up of sources will begin with the
powering up of the smallest acoustic HRG equipment at half power for
five minutes and then proceed to full power. The ramp-up procedure will
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 will 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
small odontocetes and seals; 30 minutes for all other species).
Atlantic Shores will 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 where the notification time should not be less than 60
minutes prior to the planned ramp-up. This will allow the PSOs to
monitor the Exclusion Zones for 30 minutes prior to the initiation of
ramp-up. Prior to ramp-up beginning, Atlantic Shores 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 only occur at night 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 small odontocetes and pinnipeds; 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 pre-clearance zones will 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 30-minute clock must be
paused. If the PSO confirms the animal has exited the zone and headed
away from the survey vessel, the 30-minute clock that was paused may
resume. The pre-clearance clock will reset to 30 minutes 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 will be
required if a marine mammal is
[[Page 19083]]
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 Level B
harassment zone, shutdown will 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.
Specifically, if a delphinid from the specified genera or a
pinniped is visually detected approaching the vessel (i.e., to bow
ride) or towed equipment, shutdown is not required.
Upon implementation of a shutdown, the 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
porpoises 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) other than non-parametric sub-
bottom profilers (e.g., CHIRPs). Pre-clearance and ramp-up, but not
shutdown, are required when using non-impulsive, non-parametric sub-
bottom profilers.
Seasonal Operating Requirements
As described in the in the Federal Register notice announcing the
final 2022 IHA (87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022),
a section of the survey area partially overlaps with a portion of a
North Atlantic right whale seasonal management area (SMA) off the port
of New York/New Jersey. This SMA is active from November 1 through
April 30 of each year. All survey vessels, regardless of length, would
be required to adhere to vessel speed restrictions (<10 knots) when
operating within the SMA during times when the SMA is active. In
addition, between watch shifts, members of the monitoring team would
consult NMFS' NARW reporting systems for the presence of NARWs
throughout survey operations. Members of the monitoring team would also
monitor the NMFS NARW reporting systems for the establishment of
Dynamic Management Areas (DMA). NMFS may also establish voluntary right
whale Slow Zones any time a right whale (or whales) is acoustically
detected. Atlantic Shores should be aware of this possibility and
remain attentive in the event a Slow Zone is established nearby or
overlapping the survey area (Table 3).
Table 3--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within the Survey Areas
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by NMFS, all of N/A.
ECR North....................... right whale Atlantic Shores' vessels will abide November 1 through
ECR South....................... (Eubalaena by the described restrictions. July 31 (Raritan
glacialis). Bay).
N/A.
----------------------------------------------------------------------------------------------------------------
Note: More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS'
website: <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales</a>.
There are no known marine mammal rookeries or mating or calving
grounds in the survey area that would otherwise potentially warrant
increased mitigation measures for marine mammals or their habitat (or
both). The survey activities would occur in an area that has been
identified as a biologically important area for migration for NARWs.
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 nor to negatively impact the migration of NARWs, thus
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> Atlantic Shores will ensure that vessel operators and crew
maintain a vigilant watch for cetaceans and pinnipeds and slow down,
stop their vessels, 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)
[[Page 19084]]
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. All vessels, regardless of
size, must observe a 10-knot speed restriction in specific areas
designated by NMFS for the protection of NARWs from vessel strikes,
including seasonal management areas (SMAs) and dynamic management areas
(DMAs) when in effect. See <a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a>
for specific detail regarding these areas.
<bullet> All vessels must reduce their speed to 10-knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel;
<bullet> All vessels 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> All vessels must maintain a minimum separation distance of
100 m (328 ft) from non-ESA-listed baleen whales.
<bullet> All vessels 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 NARWs
throughout survey operations, and for the establishment of a DMA. If
NMFS should establish a DMA in the survey area during the survey, the
vessels will abide by speed restrictions in the DMA.
Training
All PSOs must have completed a PSO training program and received
NMFS approval to act as a PSO for geophysical surveys. Documentation of
NMFS approval and most recent training certificates of individual PSOs'
successful completion of a commercial PSO training course must be
provided upon request. Further information can 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>.
Atlantic Shores 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.
Survey-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 all
survey vessels 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 all survey vessels, 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.
Proposed Monitoring and Reporting
The proposed monitoring and reporting requirements are identical to
those included in the Federal Register notice announcing the final 2022
IHA (87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022). The
measures proposed for inclusion in this IHA are found below.
Monitoring Measures
Atlantic Shores 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
[[Page 19085]]
PSO with the most experience, 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.
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 mammal by crew members aboard any vessel
associated with the survey shall be relayed to the PSO team.
Atlantic Shores must work with the selected third-party PSO
provider to ensure PSOs have all equipment (including backup equipment)
needed to adequately perform necessary tasks, including accurate
determination of distance and bearing to observed marine mammals, and
to ensure that PSOs are capable of calibrating equipment as necessary
for accurate distance estimates and species identification. Such
equipment, at a minimum, shall include:
<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
millimeter (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-part PSO provider, or the operator, but Atlantic Shores is
responsible for ensuring PSOs have the proper equipment required to
perform the duties specified in the IHA.
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
each survey vessel to the farthest extent permitted by sighting
conditions, including Exclusion Zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established Exclusion Zones
during survey activities. It will be the responsibility of the 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.
Atlantic Shores plans to utilize six PSOs across each vessel to
account for shift changes, with a total of 18 during these surveys (six
PSOs per vessel x three vessels). At a minimum, 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 each
survey vessel, conducting visual observations at all times on all
active survey vessels during daylight hours (i.e., from 30 minutes
prior to sunrise through 30 minutes following sunset) and two PSOs will
be on watch during nighttime operations. The PSO(s) would ensure
360[deg] visual coverage around the vessel from the most appropriate
observation posts and would conduct visual observations using
binoculars and/or night vision goggles and the naked eye while free
from distractions and in a consistent, systematic, and diligent manner.
PSOs may be on watch for a maximum of four consecutive hours followed
by a break of at least two hours between watches and may conduct a
maximum of 12 hours of observation per 24-hr period. In cases where
multiple vessels are surveying concurrently, any observations of marine
mammals would be communicated to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to Exclusion Zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(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 any vessel associated with the survey would be relayed
to the PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements (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
Atlantic Shores 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
[[Page 19086]]
sooner. The report must describe all activities conducted and sightings
of marine mammals, must provide full documentation of methods, results,
and interpretation pertaining to all monitoring, and must summarize the
dates and locations of survey operations and all marine mammals
sightings (dates, times, locations, activities, associated survey
activities). The draft report shall also include geo-referenced, time-
stamped vessel tracklines for all time periods during which acoustic
sources were operating. Tracklines should include points recording any
change in acoustic source status (e.g., when the sources began
operating, when they were turned off, or when they changed operational
status such as from full array to single gun or vice versa). GIS files
shall be provided in 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 and acoustic monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#86d6d4a8cfd2d6a8cbe9e8eff2e9f4efe8e1d4e3f6e9f4f2f5c6e8e9e7e7a8e1e9f0"><span class="__cf_email__" data-cfemail="ecbcbec2a5b8bcc2a183828598839e85828bbe899c839e989fac82838d8dc28b839a">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#e0a9b4b0ceb08f948c8f838ba08e8f8181ce878f96"><span class="__cf_email__" data-cfemail="ace5f8fc82fcc3d8c0c3cfc7ecc2c3cdcd82cbc3da">[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 names (source vessel and other vessels associated with
survey), 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 any
survey vessels, during surveys or during vessel transit, Atlantic
Shores must report the sighting information to the NMFS North Atlantic
Right Whale Sighting Advisory System (866-755-6622) within two hours of
occurrence, when practicable, or no later than 24 hours after
occurrence. 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 personnel involved in the survey activities
discover an injured or dead marine mammal, Atlantic Shores 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#b4dad9d2c79ad3d5c69ac7c0c6d5dad0dddad3f4dadbd5d59ad3dbc2"><span class="__cf_email__" data-cfemail="c3adaea5b0eda4a2b1edb0b7b1a2ada7aaada483adaca2a2eda4acb5">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#1b4b4935524f4b35567475726f746972757c497e6b74696f685b75747a7a357c746d"><span class="__cf_email__" data-cfemail="277775096e7377096a48494e5348554e494075425748555354674948464609404851">[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;
[[Page 19087]]
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, Atlantic
Shores must report the incident to NMFS by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#ee8083889dc0898f9cc09d9a9c8f808a878089ae80818f8fc0898198"><span class="__cf_email__" data-cfemail="4826252e3b662f293a663b3c3a29262c21262f0826272929662f273e">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#2070720e6974700e6d4f4e49544f52494e477245504f525453604e4f41410e474f56"><span class="__cf_email__" data-cfemail="88d8daa6c1dcd8a6c5e7e6e1fce7fae1e6efdaedf8e7fafcfbc8e6e7e9e9a6efe7fe">[email protected]</span></a>) as soon as feasible. The report
would include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
12. To the extent practicable, photographs or video footage of the
animal(s).
Preliminary Determinations
When issuing the 2022 IHA (87 FR 24103, April 22, 2022), NMFS found
Atlantic Shores' proposed HRG survey would have a negligible impact to
species or stocks annual rates of recruitment and survival and the
amount of taking would be small relative to the population size of such
species or stocks (less than 6 percent). Atlantic Shores' proposed HRG
survey activities are identical to those analyzed in support of the
2022 IHA. Additionally, the potential effects of the activity, taking
into consideration the proposed mitigation and related monitoring
measures, are identical to those evaluated in support of the 2022 IHA.
There is a minor increase in estimated take numbers for six marine
mammal species and/or stocks (see Table 2). However, the total amount
of takes proposed for authorization are small relative to the best
available population size of each species or stock (less than 1 percent
for 13 stocks; less than 2 percent for 2 stocks; and less than 19
percent for the remaining stock (Western North Atlantic Migratory
Coastal Stock of Bottlenose dolphins)). Additionally, only Level B
harassment is proposed for authorization, which NMFS expects would be
of a lower severity, predominately in the form of avoidance of the
sound sources that may cause a temporary abandonment of the location
during active source use that may result in a temporary interruption of
foraging activities for some species. NMFS does not expect that the
proposed activity will have long-term or permanent impacts as the
acoustic source would be mobile and would leave the area within a
specific amount of time for which the animals could return to the area.
Even considering the increased estimated take for some species, the
impacts of these lower severity exposures are not expected to accrue to
a degree that the fitness of any individuals would be impacted, and
therefore, no impacts on the annual rates of recruitment or survival
are expected to result.
As previously discussed in the 2022 IHA (87 FR 24103, April 22,
2022), impacts from the survey are expected to be localized to the
specific area of activity and only during periods of time where
Atlantic Shores' acoustic sources are active. While areas of biological
importance to fin whales, humpback whales, and harbor seals can be
found off the coast of New Jersey and New York, NMFS does not expect
these activities to affect these areas. This is due to the combination
of the mitigation and monitoring measures being required of Atlantic
Shores as well as the location of these biologically important areas.
All of these important areas are found outside of the range of this
survey area, as is the case with fin whales and humpback whales (BIAs
found further north), and, therefore, not expected to be impacted by
Atlantic Shores' survey activities. Three major haul-out sites exist
for harbor seals within ECR North along New Jersey, including at Great
Bay, Sand Hook, and Barnegat Inlet (CWFNJ, 2015). As hauled out seals
would be out of the water, no in-water effects are expected.
Atlantic Shores' project would occur in a small fraction of the
migratory corridor for the North Atlantic right whale and impacts are
expected to be limited to low levels of behavioral harassment,
resulting in temporary and minor behavioral changes during any brief
period of exposure. As noted for the 2022 IHA (87 FR 24103, April 22,
2022), the size of the survey area (5,868 km\2\) in comparison with the
entire migratory habitat for the North Atlantic right whale (BIA of
269,448 km\2\) is small, representing 2.11 percent of the entire
migratory corridor. Given the transitory nature of North Atlantic right
whales in this area and due to the lack of year-round ``core'' North
Atlantic right whale foraging habitat (Oleson et al., 2020) (such
habitat is located much further north in the southern area of Martha's
Vineyard and Nantucket Islands where both visual and acoustic
detections of North Atlantic right whales indicate a nearly year-round
presence (Oleson et al., 2020)), it is unlikely for any exposure to
cause chronic effects as any exposure would be short and intermittent.
Furthermore, given the small size of the Level B harassment zones (141
m) and the robust suite of mitigation and monitoring measures proposed
by NMFS, with specific note on the mitigation zones for North Atlantic
right whales (exclusion zone; 500 m), NMFS does not expect adverse
impacts on this species. Lastly, NMFS notes the reduction in requested
take from the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103,
April 22, 2022) due to the revised Duke University density data
(Roberts and Halpin, 2022). Under the 2022 IHA, NMFS authorized 17
instances of take for North Atlantic right whales. Here, NMFS is
proposing only three takes by Level B harassment representing less than
1 percent of the overall species abundance. Given the updates to the
density for this species in particular during the periods where project
activities are expected to be ongoing, NMFS expects low-level impacts
(e.g., temporary avoidance of the area) from this proposed project on
North Atlantic right whales.
We also note that our findings for other species with active UMEs
or species where biologically important areas or haul-outs have been
previously described in the 2022 IHA remain applicable to this project.
In conclusion, there is no new information suggesting that our analysis
or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has preliminarily determined the following: (1) the
required mitigation measures will effect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the proposed
authorized takes will have a
[[Page 19088]]
negligible impact on the affected marine mammal species or stocks; (3)
the proposed authorized takes represent small numbers of marine mammals
relative to the affected stock abundances; (4) Atlantic Shores'
activities will not have an unmitigable adverse impact on taking for
subsistence purposes as no relevant subsistence uses of marine mammals
are implicated by this action, and (5) appropriate monitoring and
reporting requirements are included.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS is proposing to authorize the incidental take of four species
of marine mammals which are listed under the ESA, the North Atlantic
right, fin, sei, and sperm whale, and has determined that this activity
falls within the scope of activities analyzed in NMFS Greater Atlantic
Regional Fisheries Office's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021).
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to Atlantic Shores for conducting HRG marine site
characterization surveys off New Jersey and New York for a period of
one year, provided the previously mentioned mitigation, monitoring, and
reporting requirements are incorporated. A draft of the proposed IHA
can be found at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
Request for Public Comments
We request comment on our analyses (included in both this document
and the referenced documents supporting the 2022 IHA (ITA application;
issued IHA; and Federal Register notices including 87 FR 4200, January
27, 2022; 87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022)), the
proposed authorization, and any other aspect of this notice of proposed
IHA for the proposed HRG marine site characterization surveys. We also
request comment on the potential for renewal of this proposed IHA as
described in the paragraph below. Please include with your comments any
supporting data or literature citations to help inform our final
decision on the request for MMPA authorization.
On a case-by-case basis, NMFS may issue a one-time, one-year
renewal IHA following notice to the public providing an additional 15
days for public comments when (1) up to another year of identical or
nearly identical activities as described in the Description of the
Proposed Activity and Anticipated Impacts section of this notice is
planned or (2) the activities as described in the Description of the
Proposed Activity and Anticipated Impacts section of this notice would
not be completed by the time the IHA expires and a renewal would allow
for completion of the activities beyond that described in the Dates and
Duration section of this notice, provided all of the following
conditions are met:
<bullet> A request for renewal is received no later than 60 days
prior to the needed renewal IHA effective date (recognizing that the
renewal IHA expiration date cannot extend beyond one year from
expiration of the initial IHA);
<bullet> The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the
requested renewal IHA are identical to the activities analyzed under
the initial IHA, are a subset of the activities, or include changes so
minor (e.g., reduction in pile size) that the changes do not affect the
previous analyses, mitigation and monitoring requirements, or take
estimates (with the exception of reducing the type or amount of take);
and
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized; and
<bullet> Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
Dated: March 24, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-06594 Filed 3-29-23; 8:45 am]
BILLING CODE 3510-22-P
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