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Notice2023-10850

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

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Published

May 22, 2023

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS has received a request from Invenergy Wind Offshore, LLC (IWO) for authorization to take marine mammals incidental to marine site characterization surveys in waters off of New Jersey and New York in the New York Bight, specifically within 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 0542 (Lease Area) and associated Export Cable Route (ECR) survey area (ECR Area). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.

Full Text

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<title>Federal Register, Volume 88 Issue 98 (Monday, May 22, 2023)</title>
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[Federal Register Volume 88, Number 98 (Monday, May 22, 2023)]
[Notices]
[Pages 32735-32756]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10850]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC970]

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

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

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

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SUMMARY: NMFS has received a request from Invenergy Wind Offshore, LLC
(IWO) for authorization to take marine mammals incidental to marine
site characterization surveys in waters off of New Jersey and New York
in the New York Bight, specifically within 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 0542 (Lease Area) and associated Export Cable Route (ECR) survey area
(ECR Area). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS
is requesting comments on its proposal to issue an incidental
harassment authorization (IHA) to incidentally take marine mammals
during the specified activities. NMFS is also requesting comments on a
possible one-time, 1-year renewal that could be issued under certain
circumstances and if all requirements are met, as described in Request
for Public Comments at the end of this notice. NMFS will consider
public comments prior to making any final decision on the issuance of
the requested MMPA authorization and agency responses will be
summarized in the final notice of our decision.

DATES: Comments and information must be received no later than June 21,
2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources, NMFS,
and should be submitted via email to <a href="/cdn-cgi/l/email-protection#feb7aaaed09d929b889b908d8a97909bbe90919f9fd0999188">[email&#160;protected]</a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at
<a href="http://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, Office of
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the
application and supporting documents, as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of
problems

[[Page 32736]]

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

National Environmental Policy Act

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

Summary of Request

On February 3, 2023, NMFS received a request from IWO for an IHA to
take marine mammals incidental to conducting marine site
characterization surveys in waters off of New Jersey and New York in
the New York Bight, specifically within the BOEM Lease Area OCS-A 0542
and associated ECR Area. Following NMFS' review of the application, IWO
submitted a revised request on March 29, 2023. NMFS deemed the
application adequate and complete on April 25, 2023. IWO's request is
for take of small numbers of 15 species (16 stocks) of marine mammals
by Level B harassment only. Neither IWO nor NMFS expect serious injury
or mortality to result from this activity and, therefore, an IHA is
appropriate.

Description of Proposed Activity

Overview

IWO proposes to conduct marine site characterization surveys,
including high-resolution geophysical (HRG) surveys, in waters off of
New Jersey and New York in the New York Bight, specifically within BOEM
Lease Area OCS-A 0542 and associated ECR Area, collectively considered
the Survey Area.
The planned marine site characterization surveys are designed to
obtain data sufficient to meet BOEM guidelines for providing
geophysical, geotechnical, and geohazard information for site
assessment plan surveys and/or construction and operations plan
development. The objective of the surveys is to support the site
characterization, siting, and engineering design of offshore wind
project facilities including wind turbine generators, offshore
substations, and submarine cables within the Survey Area. Up to three
vessels may conduct survey efforts concurrently. Underwater sound
resulting from IWO's marine site characterization survey activities,
specifically HRG surveys, have the potential to result in incidental
take of marine mammals in the form of Level B harassment.

Dates and Duration

The proposed activity is planned to begin once an IHA is issued.
The proposed surveys are estimated to require a maximum of 274 survey
days within a single year across a maximum of three vessels operating
concurrently, which would include up to two vessels operating offshore
(greater than 20 meters (m); 65 feet (ft) depth) and one vessel
operating nearshore (less than 20 m (65 ft) depth). The survey days are
proposed to occur any month throughout the year as the exact timing of
the surveys during the year is not yet certain. A ``survey day'' is
defined as a 24-hour (hr) activity period in which active acoustic
sound sources are used offshore and a 12-hr activity period when a
vessel is operating nearshore. Surveyed at a speed of approximately 3.8
knots (kn; 7.04 kilometer (km) per hr (km/hr)), it is expected that
each offshore vessel would cover approximately 80 km of trackline per
day, and the nearshore vessel would cover 25-30 km of trackline per day
(inclusive of infills and line-turns), based on IWO's expectations
regarding data acquisition efficiency. There is up to 12,818 km of
trackline survey effort planned: a maximum trackline length of 7,460 km
is planned for the Lease Area and 5,358 km for the ECR Area. The IHA
would be effective for 1 year from the date of issuance.

Specific Geographic Region

IWO's survey activities would occur in waters off of New Jersey and
New York in the New York Bight, specifically within BOEM Lease Area
OCS-A 0542 and associated ECR Area (Figures 1, 2). The Survey Area
(9,470 square km (km\2\)) includes both the Lease Area (569 km\2\; 40-
50 m depth) and ECR Area (8,901 km\2\; 1-55 m depth).
BILLING CODE 3510-22-P

[[Page 32737]]

[GRAPHIC] [TIFF OMITTED] TN22MY23.000

[[Page 32738]]

[GRAPHIC] [TIFF OMITTED] TN22MY23.001

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

IWO's marine site characterization surveys within the Survey Area
include HRG and geotechnical surveys, including: depth sounding to
determine water depth, site bathymetry, and general seafloor topography
using a multibeam echosounder (MBES); seafloor imaging using a side-
scan sonar; magnetic intensity measurements using a gradiometer;
shallow penetration sub-bottom profilers (SBPs; compressed high-
intensity radiated

[[Page 32739]]

pulse (CHIRP) and parametric); and medium penetration SBPs (sparkers).
<bullet> MBES and side-scan sonars are used to determine water
depths and general seafloor topography. The proposed MBES and side-scan
sonar both have operating frequencies greater than 180 kilohertz (kHz)
and are, therefore, outside the general hearing range of marine
mammals.
<bullet> Gradiometers are used to detect local variations in
regional magnetic field from geological strata and potential ferrous
objects on and below the seafloor. The proposed gradiometer has an
operating frequency greater than 180 kHz and is, therefore, outside the
general hearing range of marine mammals.
<bullet> CHIRP SBPs are shallow penetration non-impulsive, non-
parametric sources used to map the near-surface stratigraphy (soil down
to 10 m) of sediment below seabed. A CHIRP system emits signals
covering a frequency sweep from approximately 0.01-1.9 kHz over time.
The frequency range can be adjusted to meet project variables.
<bullet> Parametric SBPs are shallow penetration non-impulsive
sources used for providing high data density in subsurface profiles
that are typically required for cable routes, very shallow water, and
archaeological surveys. These sources generate short, very narrow-beam
(1[deg] to 3.5[deg]) signals at high frequencies (generally around 85-
115 kHz). The narrow beamwidth significantly reduces the potential that
a marine mammal could be exposed to the signal while the high frequency
of operation means that the signal is rapidly attenuated in seawater
(and cannot be heard by mysticetes). These sources are typically
deployed on a pole rather than towed behind the vessel.
NMFS does not expect geotechnical survey activities or HRG survey
activities using MBES, side-scan sonar, gradiometer, or shallow SBP to
present a reasonably anticipated risk of causing incidental take of
marine mammals, so these activities are not discussed further in this
notice.
IWO proposes to use sparkers during HRG survey activities that have
the potential to cause incidental take of marine mammals. Sparkers are
medium penetration impulsive sources used to map deep subsurface
stratigraphy (soils down to at least 100 m (328 ft) below the seabed in
sand and at least 125 m (410 ft) below the seabed in mixed sediments).
Sparkers create omnidirectional acoustic pulses from 50 hertz (Hz) to 4
kHz, are typically towed behind the vessel, and may be operated with
different numbers of electrode tips to allow tuning of the acoustic
waveform for specific applications. There are three sparker systems
planned for use: Applied Acoustics Dura-Spark 240/400 (400 tip/500
joules (J)), Applied Acoustics Dura-Spark UHD 400+400 Seismic Sound
Source (400 tip/500-800 J), and the Geo-Source 200-400 Marine Multi-Tip
Sparker System (400 tip/400-500 J).
Crocker and Fratantonio (2016) measured the Applied Acoustics Dura-
Spark but did not provide data for an energy setting near 800 J for a
400-tip configuration (Crocker and Fratantonio (2016) provide
measurements at 500, 2,000, and 2,400 J). No data are provided by
Crocker and Fratantonio (2016) for the Applied Acoustics Dura-Spark UHD
or Geo-Source sparker system. Therefore, IWO proposes to use the data
provided for the Applied Acoustics Dura-Spark at the 400 tip/500 J
setting as a proxy for all three sparker systems as it is the closest
match due to the similarities in composition and operation, with both
employing up to 400 electrode tips. NMFS concurs with these selections,
which are described in Table 1.
IWO proposes to use the same equipment over the entire Survey Area
and has requested authorization of take based on the assumption that
the sparkers, using any of the impulsive sparker systems listed as they
all produce the same distance to the 160 dB sound pressure level (SPL)
threshold for acoustic impacts, would occur during all survey effort
(see Table 1-3 and Section 6.1 in application).

Table 1--Representative Survey Equipment Expected to Result in Take of Marine Mammals
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source level Source level
Operating (SPL dB re 1 (Peak dB re 1 Sound exposure Pulse Repetition Beam width
Equipment type Equipment make/model frequency [micro]Pa @1 [micro]Pa @1 level (dB re 1 Reference duration rate (Hz) (degrees)
(kHz) m) m) [micro]Pa\2\*s) (ms)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Medium SBP (sparker).................. Applied Acoustics Dura- 0.3-1.2 203 211 174 Crocker and Fratantonio, 1.1 4.6 180
Spark 240/400 (500 J). 2016 [Dagger].
Medium SBP (sparker).................. Applied Acoustics Dura- 0.3-1.2 203 211 174 Crocker and Fratantonio, 1.1 4 180
Spark UHD 400+400 (500 2016 [Dagger].
J) *.
Medium SBP (sparker).................. GeoMarine Geo-Source 200- 0.3-1.2 203 211 174 Crocker and Fratantonio, 1.1 4 180
400 (400-500 J). 2016 Sec. .
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Proposed equipment or equivalents will be used.
* This sparker may be used at a power setting of up to 800 J.
[Dagger] Applied Acoustics Dura-spark 240/400 400 tip/500 J Proxy.
Sec. This system was tested and measured by Crocker and Fratantonio (2016) and we use the specifications for 400 tips and 500 J.
kHz--kilohertz.
ms--milliseconds.
Hz--hertz.
[mu]Pa--microPascal.
SPL--sound pressure level.
dB--decibel.
re--referenced at.
m--meters.
s--seconds.
SBP--sub-bottom profiler.
NR--not reported.
J--joules.

[[Page 32740]]

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

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' Stock Assessment Reports
(SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is expected and
proposed to be authorized for this activity, and summarizes information
related to the species or stock, including regulatory status under the
MMPA and Endangered Species Act (ESA) and potential biological removal
(PBR), where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is anticipated or proposed to be authorized
here, PBR and annual serious injury and mortality 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 MMPA managed stocks in this region are assessed
in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
Table 2 are the most recent available at the time of publication
(including from the draft 2022 SARs) and are available 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>.

Table 2--Species and Stocks Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/SI
\2\ abundance survey) \3\ \4\
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Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale..... Eubalaena glacialis... Western North Atlantic E/D; Y 338 (0; 332; 2020).... 0.7 8.1
Family Balaenopteridae (rorquals):
Fin whale...................... Balaenoptera physalus. Western North Atlantic E/D; Y 6,802 (0.24; 5,573, 11 1.8
2016).
Humpback whale................. Megaptera novaeangliae Gulf of Maine......... -/-; Y 1,396 (0; 1,380; 2016) 22 12.15
Minke whale.................... Balaenoptera Canadian East Coastal. -/-; N 21,968 (0.31; 17,002; 170 10.6
acutrostrata. 2016).
Sei whale...................... Balaenoptera borealis. Nova Scotia........... E/D; Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
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Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale.................... Physeter macrocephalus North Atlantic........ E/D; Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Atlantic spotted dolphin....... Stenella frontalis.... Western North Atlantic -/-; N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic white-sided dolphin... Lagenorhynchus acutus. Western North Atlantic -/-; N 93,233 (0.71;54,443; 544 27
2016).
Bottlenose dolphin............. Tursiops truncatus.... Western North -/-; N 62,851 (0.23; 51,914; 519 28
Atlantic, Offshore. 2016).
Bottlenose dolphin............. Tursiops truncatus.... Western North -/D; Y 6,639 (0.41; 4,759; 48 12.2-21.5
Atlantic, Northern 2016).
Migratory Coastal.
Long-finned pilot whale........ Globicephala melas.... Western North Atlantic -/-; N 39,215 (0.3; 30,627; 306 9
2016).
Risso's dolphin................ Grampus griseus....... Western North Atlantic -/-; N 35,215 (0.19; 30,051; 301 34
2016).
Common dolphin................. Delphinus delphis..... Western North Atlantic -/-; N 172,974 (0.21; 1,452 390
145,216; 2016).
Family Phocoenidae (porpoises):
Harbor porpoise................ Phocoena phocoena..... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \5\.................. Halichoerus grypus.... Western North Atlantic -/-; N 27,300 (0.22; 22,785; 1,389 4,453
2016).
Harbor seal.................... Phoca vitulina........ Western North Atlantic -/-; N 61,336 (0.08; 57,637; 1,729 329
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal 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 coefficient of variation; Nmin is the minimum estimate of stock abundance.

[[Page 32741]]

\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g.,
commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A
CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,600. The annual M/SI given is for the total stock.

As indicated above, all 15 species (16 stocks) in Table 2
temporally and spatially co-occur with the proposed activity to the
degree that take is reasonably likely to occur. While other species
have been documented in the area (see Table 3-1 of the IHA
application), the temporal and/or spatial occurrence of these species
is such that take is not expected to occur and they are not discussed
further beyond the explanation provided here.

North Atlantic Right Whale

North Atlantic right whales (NARW) range from calving grounds in
the southeastern United States to feeding grounds in New England waters
and into Canadian waters (Hayes et al., 2018). They are observed year
round in the Mid-Atlantic Bight, and surveys have demonstrated the
existence of seven areas where NARWs congregate seasonally in Georges
Bank, off Cape Cod, and in Massachusetts Bay (Hayes et al., 2018). In
the late fall months (e.g., October), NARWs are generally thought to
depart from the feeding grounds in the North Atlantic and move south to
their calving grounds off Georgia and Florida. However, recent research
indicates our understanding of their movement patterns remains
incomplete (Davis et al., 2017). A review of passive acoustic
monitoring data from 2004 to 2014 throughout the western North Atlantic
demonstrated nearly continuous year-round NARW presence across their
entire habitat range (for at least some individuals), including in
locations previously thought of as migratory corridors, suggesting that
not all of the population undergoes a consistent annual migration
(Davis et al., 2017). Given that IWO's surveys would be concentrated
offshore in the New York Bight, some NARWs may be present year round.
However, the majority of NARWs in the vicinity of the survey areas are
likely to be transient, migrating through the area.
Recent aerial surveys in the New York Bight showed NARW in the
proposed survey area in the winter and spring, preferring deeper waters
near the shelf break (NARW observed in depths ranging from 33-1,041 m)
but were observed throughout the survey area (Zoidis et al., 2021,
Robinson et al., 2021). Similarly, passive acoustic data collected from
2018 to 2020 in the New York Bight showed detections of NARW throughout
the year (Estabrook et al., 2021). Seasonally, NARW acoustic presence
was highest in the fall. NARW can be anticipated to occur in the
proposed survey area year-round but with lower levels in the summer
from July-September.
Since 2010, the NARW population has been in decline (Pace III et
al., 2017), with a 40 percent decrease in calving rate (Kraus et al.,
2016). In 2018, no new NARW calves were documented in their calving
grounds; this represented the first time since annual NOAA aerial
surveys began in 1989 that no new NARW calves were observed. Calf
numbers have increased since 2018 with 20 NARW calves documented in
2021 and 15 in 2022.
Elevated NARW mortalities have occurred since June 7, 2017, along
the U.S. and Canadian coast. This event has been declared an unusual
mortality event (UME), with human interactions, including entanglement
in fixed fishing gear and vessel strikes, implicated in at least 60 of
the mortalities or serious injuries thus far. As of May 9, 2023, a
total of 98 confirmed cases of mortality, serious injury, or morbidity
(sublethal injury or illness) have been documented. The preliminary
cause of most of these cases is from rope entanglements or vessel
strikes. More information is available online at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event</a>.
The proposed survey area is within a migratory corridor
biologically important area (BIA) for NARWs that extends from
Massachusetts to Florida (LaBrecque et al., 2015). There is possible
migratory behavior that could occur in this area between November and
April. Off the coast of New Jersey, the migratory BIA extends from the
coast to beyond the shelf break.
NMFS' regulations at 50 CFR part 224.105 designated nearshore
waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal
Management Areas (SMA) for NARWs in 2008. SMAs were developed to reduce
the threat of collisions between ships and NARWs around their migratory
route and calving grounds. The New York/New Jersey SMA, which occurs in
the New York Bight, is in the proposed survey area and is active from
November 1 through April 30 of each year. Within SMAs, the regulations
require a mandatory vessel speed (less than 10 kn) or 5.14 meters per
second (m/sec) for all vessels longer than 65 ft (19.8 m).
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 UME (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
IWO 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.

Fin Whale

Fin whales are present north of 35 degrees N 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 tend to
calve and breed in lower latitudes or offshore. There is currently no
critical habitat designated for this species.

[[Page 32742]]

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 (Robinson et al., 2021). Passive acoustic data from 2018 to
2020 also detected fin whales throughout the year (Estabrook et al.,
2021).

Humpback Whale

On September 8, 2016, NMFS divided the once single species of
humpback whales into 14 distinct population segments (DPS),\1\ removed
the current species-level listing, and, instead, listed four DPSs as
endangered and one DPS as threatened (81 FR 62259, September 8, 2016).
The remaining nine DPSs were not listed. The West Indies DPS, which is
not listed under the ESA, is the only DPS of humpback whale that is
expected to occur in the survey area. Members of the West Indies DPS
disperse to multiple western North Atlantic feeding populations,
including the Gulf of Maine stock designated under the MMPA. Whales
occurring in the project area are considered to be from the West Indies
DPS but are not necessarily from the Gulf of Maine stock. Barco et al.
(2002) estimated that, based on photo-identification, only 39 percent
of individual humpback whales observed along the mid- and south
Atlantic U.S. coast are from the Gulf of Maine stock. Bettridge et al.
(2015) estimated the size of this population at 12,312 (95 percent
confidence interval (CI) 8,688-15,954) whales in 2004-05, 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).
---------------------------------------------------------------------------

\1\ Under the Endangered Species Act, in 16 U.S.C. 1532(16), a
distinct population segment (or DPS) is a vertebrate population or
group of populations that is discrete from other populations of the
species and significant in relation to the entire species. NOAA
Fisheries and the U.S. Fish and Wildlife Service released a joint
statement on February 7, 1996 (61 FR 4722), that defines the
criteria for identifying a population as a DPS.
---------------------------------------------------------------------------

Humpback whales utilize the mid-Atlantic as a migration pathway
between calving/mating grounds to the south and feeding grounds in the
north (Waring et al., 2007a, Waring et al., 2007b). A key question with
regard to humpback whales off the Mid-Atlantic States is to which
feeding population whales in these waters belong.
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. Partial or
full necropsy examinations have been conducted on approximately half of
the 191 known cases (as of May 9, 2023). Of the whales examined, about
40 percent had evidence of human interaction, either vessel strike or
entanglement. While a portion of the whales have shown evidence of pre-
mortem vessel strike, this finding is not consistent across all whales
examined and more research is needed. NOAA is consulting with
researchers that are conducting studies on the humpback whale
populations, and these efforts may provide information on changes in
whale distribution and habitat use that could provide additional
insight into how these vessel interactions occurred. More information
is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast</a>.

Minke Whale

Minke whales can be found in temperate, tropical, and high-latitude
waters. The Canadian East Coast stock can be found in the area from the
western half of the Davis Strait (45[deg] W longitude) 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). 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 (Robinson et al., 2021).
Since January 2017, elevated minke whale mortalities have occurred
along the Atlantic coast from Maine through South Carolina, with a
total of 142 strandings (as of May 9, 2023). This event has been
declared a UME; as of 2023, it is pending closure. Full or partial
necropsy examinations were conducted on more than 60 percent of the
stranded whales. Preliminary findings in several of the whales have
shown evidence of human interactions or infectious disease, but these
findings are not consistent across all of the whales examined, so more
research is needed. More information is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast">https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast</a>.

Sei Whale

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

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 m deep. The basic social unit of the sperm whale appears to be
the mixed school of adult females, their calves, and some juveniles of
both sexes, normally numbering 20-40 animals. There is evidence that
some social bonds persist for many years (Christal et al., 1998). In
summer, the distribution of sperm whales includes the area northeast 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 whales occur south of New England on the continental
shelf at its highest level. In winter, sperm whales are concentrated
east and northeast of Cape Hatteras, North Carolina.
Aerial studies in the New York Bight observed sperm whales in the
highest number in the summer with a preference for the shelf break
(Robinson et al., 2021). Passive acoustic recordings of sperm whale
recorded them throughout the year, and the highest number of whales
occurred during spring and summer (Estabrook et al., 2021).

Atlantic Spotted Dolphin

Atlantic spotted dolphins are found in tropical and warm temperate
waters ranging from southern New England, south to the Gulf of Mexico
and the Caribbean to Venezuela (Waring et al., 2014). The Western North
Atlantic stock regularly occurs in continental shelf waters south of
Cape Hatteras, North Carolina and in continental shelf edge and
continental slope waters north of this region (Waring et al., 2014).

[[Page 32743]]

Atlantic White-Sided Dolphin

White-sided dolphins are found in temperate and sub-polar waters of
the North Atlantic, primarily in continental shelf waters to the 100-m
depth contour from central west Greenland to North Carolina (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. Aerial
studies confirmed observations in fall and winter in the New York Bight
area with preference for deep water at the shelf break throughout the
year (Robinson et al., 2021).

Bottlenose Dolphin

There are two distinct bottlenose dolphin morphotypes in the
Western North Atlantic: the Western North Atlantic Northern Migratory
Coastal Stock (coastal stock) and the Western North Atlantic Offshore
Stock (offshore stock) (Waring et al., 2016). The coastal stock resides
in waters typically less than 20 m deep, along the inner continental
shelf (within 7.5 km (4.6 miles) of shore), around islands, and is
continuously distributed south of Long Island, New York into the Gulf
of Mexico. Torres et al. (2003) found a statistically significant break
in the distribution of the ecotypes at 34 km from shore based upon the
genetic analysis of tissue samples collected in nearshore and offshore
waters from New York to central Florida. The offshore stock was found
exclusively seaward of 34 km and in waters deeper than 34 m (Hayes et
al., 2017, Hayes et al., 2018). 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.
Both stocks of bottlenose dolphins are likely to occur in the proposed
survey area. These two stocks are considered geographically separated
by the 20-m depth contour with the Coastal Stock found in waters less
than 20 m and the Offshore Stock in waters greater than 20 m in depth.

Long-Finned Pilot Whale

Only long-finned pilot whales are reasonably expected to occur in
this project area due to their more northerly distribution and
association with colder water compared to short-finned pilot whales
(Garrison and Rosel, 2017). Long-finned pilot whales are found from
North Carolina to Iceland, Greenland, and the Barents Sea (Waring et
al., 2016). In U.S. Atlantic waters, the Western North Atlantic stock
is distributed principally along the continental shelf edge off the
northeastern U.S. coast in winter and early spring. In late spring,
pilot whales move onto Georges Bank and into the Gulf of Maine and more
northern waters and remain in these areas through late autumn (Waring
et al., 2016).

Risso's Dolphin

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

Common Dolphin

Common dolphins within the U.S. Atlantic EEZ belong to the Western
North Atlantic stock, generally occurring from Cape Hatteras to the
Scotian Shelf (Hayes et al., 2021). Common dolphins are a highly
seasonal, migratory species. Within the U.S. Atlantic EEZ, this species
is distributed along the continental shelf and typically associated
with Gulf Stream features (Hayes et al., 2021, CETAP, 1982, Hamazaki,
2002, Selzer and Payne, 1988). They are commonly found over the
continental shelf between the 100-m and 2,000-m isobaths and over
prominent underwater topography and east to the mid-Atlantic Ridge
(Waring et al., 2016). Common dolphins occur from Cape Hatteras
northeast to Georges Bank (35[deg] N to 42[deg] N latitude) during mid-
January to May and move as far north as the Scotian Shelf from mid-
summer to fall (Selzer and Payne, 1988). Migration onto the Scotian
Shelf and continental shelf off Newfoundland occurs when water
temperatures exceed 51.8 [deg]F (11[deg] Celsius) (Sergeant et al.,
1970, Gowans and Whitehead, 1995). Breeding usually takes place between
June and September (Hayes et al., 2019). Kraus et al. (2016) observed
3,896 individual common dolphins within the Rhode Island/Massachusetts
Wind Energy Area. Summer surveys included observations of the most
individuals followed by fall, winter, and then spring.

Harbor Porpoise

In the project area, only the Gulf of Maine/Bay of Fundy stock of
harbor porpoises may be present in the fall and winter. This stock is
found in U.S. and Canadian Atlantic waters and is concentrated in the
northern Gulf of Maine and southern Bay of Fundy region, generally in
waters less than 150 m deep (Waring et al., 2016). During fall
(October-December) and spring (April-June), they are more widely
dispersed from New Jersey to Maine with lower densities farther north
and south. In winter (January-March), intermediate densities of harbor
porpoises can be found in waters off New Jersey to North Carolina with
lower densities found in waters off New York to New Brunswick, Canada
(Hayes et al., 2020). They are seen from the coastline to deep waters
(greater than 1,800 m) (Westgate and Read, 1998), although the majority
of the population is found over the continental shelf (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 (Gray Seal and Harbor Seal)

Gray seals are regularly observed 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 Sea. 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 increase (Waring et
al., 2016). Documented haulouts for gray seals exist in the Long Island
area, with a possible rookery on Little Gull Island.
Since June 2022, elevated numbers of sick and dead harbor seals and
gray seals have been documented along the southern and central coast of
Maine. This event has also been declared a UME. Preliminary testing of
samples

[[Page 32744]]

found that some harbor and gray seals were positive for the highly
pathogenic avian influenza. NMFS and other partners are working on an
ongoing investigation of this UME. From June 1, 2022-February 19, 2023,
there have been 337 seal strandings. Information on these UMEs are
available online at: <a href="https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast">https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast</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., 2005, Wartzok and
Ketten, 1999, Au and Hastings, 2008)). To reflect this, Southall et al.
(2007) and Southall et al. (2019) recommended that marine mammals be
divided into hearing groups based on directly measured (behavioral or
auditory evoked potential techniques) or estimated hearing ranges
(behavioral response data, anatomical modeling, etc.). Note that no
direct measurements of hearing ability have been successfully completed
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS
(2018) described generalized hearing ranges for these marine mammal
hearing groups. Generalized hearing ranges were chosen based on the
approximately 65-dB threshold from the normalized composite audiograms,
with the exception for lower limits for low-frequency cetaceans where
the lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 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 et al.,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
Detailed descriptions of the potential effects of similar specified
activities have been provided in other recent Federal Register notices,
including for survey activities using the same methodology, over a
similar amount of time, and occurring in the mid-Atlantic region,
including the New York Bight (e.g., 87 FR 38094, June 27, 2022; 87 FR
51359, August 22, 2022). No significant new information is available,
and we refer to the detailed discussions in those documents rather than
repeating the details here.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determination section considers the content of this section, the
Estimated Take section, and the Proposed Mitigation section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and whether those
impacts are reasonably expected to, or reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.

Summary on Specific Potential Effects of Acoustic Sound Sources

For general information on sound, its interaction with the marine
environment, and a description of acoustic terminology, please see,
e.g., (American National Standards Institute, 1986, American National
Standards Institute, 1995, Au and Hastings, 2008, Hastings and Popper,
2005, Mitson, 1995, NIOSH, 1998, Richardson et al., 2005, Southall et
al., 2007, Urick, 1983). Underwater sound from active acoustic sources
can cause one or more of the following: temporary or permanent hearing
impairment, behavioral disturbance, masking, stress, and non-auditory
physical effects. The degree of effect is intrinsically related to the
signal characteristics, received level, distance from the source, and
duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for prolonged periods, can
experience hearing threshold shift (TS), which is the loss of hearing
sensitivity at certain frequency ranges (Finneran, 2015). TS can be
permanent (PTS; permanent threshold shift), in which case the loss of
hearing sensitivity is not fully recoverable, or temporary (TTS;
temporary threshold shift), in which case the animal's hearing
threshold would recover over time (Southall et al., 2007).
When PTS occurs, there is physical damage to the sound receptors in
the ear (i.e., tissue damage), whereas TTS represents primarily tissue
fatigue and is reversible (Southall et al., 2007). In addition, other
investigators have suggested that TTS is within the normal bounds of
physiological variability and tolerance and does not represent physical
injury (e.g., (Ward, 1997)). Therefore, NMFS does not consider TTS to
constitute auditory injury.
Animals in the vicinity of IWO's proposed HRG survey activities 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

[[Page 32745]]

to cause TTS because it is unlikely that exposure would occur close
enough to the vessel for received levels to exceed peak pressure TTS
criteria, and the cumulative duration of exposure would be insufficient
to exceed cumulative sound exposure level (SEL) criteria. Even for
high-frequency cetacean species (e.g., harbor porpoises), which have
the greatest sensitivity to potential TTS, individuals would have to
make a very close approach and remain very close to the vessel
operating 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.
Behavioral disturbance to marine mammals from sound may include a
variety of effects, including subtle changes in behavior (e.g., minor
or brief avoidance of an area or changes in vocalizations), more
conspicuous changes in similar behavioral activities, and more
sustained and/or potentially severe reactions, such as displacement
from or abandonment of high-quality habitat. Behavioral responses to
sound are highly variable and context-specific and any reactions depend
on numerous intrinsic and extrinsic factors (e.g., species, state of
maturity, experience, current activity, reproductive state, auditory
sensitivity, time of day), as well as the interplay between factors.
Available studies show wide variation in response to underwater sound;
therefore, it is difficult to predict specifically how any given sound
in a particular instance might affect marine mammals perceiving the
signal.
In addition, sound can disrupt behavior through masking, or
interfering with, an animal's ability to detect, recognize, or
discriminate between acoustic signals of interest (e.g., those used for
intraspecific communication and social interactions, prey detection,
predator avoidance, navigation). Masking occurs when the receipt of a
sound is interfered with by another coincident sound at similar
frequencies and at similar or higher intensity, and may occur whether
the sound is natural (e.g., snapping shrimp, wind, waves,
precipitation) or anthropogenic (e.g., shipping, sonar, seismic
exploration) in origin. Marine mammal communications would not likely
be masked appreciably by the acoustic signals given the directionality
of the signals for the HRG survey equipment planned for use (Table 1)
and the brief period for when an individual mammal would likely be
exposed.
Sound may affect marine mammals through impacts on the abundance,
behavior, or distribution of prey species (e.g., crustaceans,
cephalopods, fish, zooplankton) (i.e., effects to marine mammal
habitat). Prey species exposed to sound might move away from the sound
source, experience TTS, experience masking of biologically relevant
sounds, or show no obvious direct effects. The most likely impacts, if
any, for most prey species in a given area would be temporary avoidance
of the area. Surveys using active acoustic sound sources move through
an area, limiting exposure to multiple pulses. In all cases, sound
levels would return to ambient once a survey ends and the noise source
is shut down and, when exposure to sound ends, behavioral and/or
physiological responses are expected to end relatively quickly.
Finally, the HRG survey equipment will not have significant impacts to
the seafloor and does not represent a source of pollution.

Vessel Strike

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

Estimated Take

This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of ``small numbers,'' and the negligible impact
determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to sound produced by the sparkers. Based on the
characteristics of the signals produced by the acoustic sources planned
for use, Level A harassment is neither anticipated (even absent
mitigation) nor proposed to be authorized. As described previously, no
serious injury or mortality is anticipated or proposed to be authorized
for this activity. Below we describe how the proposed take numbers are
estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas;

[[Page 32746]]

and, (4) the number of days of activities. We note that while these
factors can contribute to a basic calculation to provide an initial
prediction of potential takes, additional information that can
qualitatively inform take estimates is also sometimes available (e.g.,
previous monitoring results or average group size). Below, we describe
the factors considered here in more detail and present the proposed
take estimates.

Acoustic Thresholds

NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., (Ellison et al., 2012, Southall et al., 2007, Southall
et al., 2021)). 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 (RMS) SPL of 120 dB (referenced to 1
microPascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources.
Generally speaking, Level B harassment take estimates based on
these behavioral harassment thresholds are expected to include any
likely takes by TTS as, in most cases, the likelihood of TTS occurs at
distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
IWO's marine site characterization surveys include the use of
impulsive (i.e., sparker) sources, and therefore the SPL threshold of
160 dB re 1 [mu]Pa is applicable.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(NMFS, 2018) identifies dual criteria to assess auditory injury (Level
A harassment) to five different marine mammal groups (based on hearing
sensitivity) as a result of exposure to noise from two different types
of sources (impulsive or non-impulsive).
The references, analysis, and methodology used in the development
of the thresholds are described in NMFS (2018) Technical Guidance,
which may be accessed at: <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>.
IWO's marine site characterization surveys include the use of
impulsive (i.e., sparker) sources. However, as discussed above, NMFS
has concluded that Level A harassment is not a reasonably likely
outcome for marine mammals exposed to noise through use of the sources
proposed for use here, and the potential for Level A harassment is not
evaluated further in this document. Please see IWO's application for
details of a quantitative exposure analysis exercise (i.e., calculated
Level A harassment isopleths and estimated Level A harassment
exposures). IWO did not request authorization of take by Level A
harassment, and no take by Level A harassment is proposed for
authorization by NMFS.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality (when relevant) to refine estimated ensonified
zones. For acoustic sources that operate with different beamwidths, the
maximum beamwidth was used, and the lowest frequency of the source was
used when calculating the frequency-dependent absorption coefficient
(Table 1). IWO used 180[deg] beamwidth in the calculation for the
proposed sparker systems as is appropriate for an omnidirectional
source.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG survey equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases where the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends 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.
IWO proposes to use the Applied Acoustics Dura-Spark 240/400 (400
tip/500 J), Applied Acoustics Dura-Spark UHD 400+400 (400 tip/500-800
J) and the Geo-Source 200-400 Marine Multi-tip Sparker System (400 tip/
400-500 J). For the two Applied Acoustics source configurations (Table
1), the maximum power expected to be discharged is 800 J. However,
Crocker and Fratantonio (2016) did not measure the Dura-Spark with an
energy of 800 J, only 500 J, 2,000 J, and 2,400 J, so the source level
values for 500 J (provided in Table 10 of Crocker and Fratantonio
(2016)) were used as a proxy, as this setting was anticipated to be
more representative of the application of the equipment than the next
level reported for 2,000 J. The Applied Acoustics Dura-Spark was also
used as a proxy for the Geo-Source 200-400 Marine Multi-tip Sparker
System (400 tip/400-500 J). Using the measured source level of 203 dB
RMS SPL of the proxy, results of modeling indicated that all three
sparkers would produce an estimated distance of 141 m to the Level B
harassment isopleth.
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment proposed for use by the applicant
(Table 1) that has the potential to result in Level B harassment of
marine mammals, all three systems would produce the same distance to
the Level B harassment isopleth (141 m).

[[Page 32747]]

Marine Mammal Occurrence

In this section we provide information about the occurrence of
marine mammals, including density or other relevant information that
will inform the take calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, Roberts and
Halpin, 2022) represent the best available information regarding marine
mammal densities in the proposed survey area. These density data
incorporate aerial and shipboard line-transect survey data from NMFS
and other organizations and incorporate data from numerous
physiographic and dynamic oceanographic and biological covariates, and
controls for the influence of sea state, group size, availability bias,
and perception bias on the probability of making a sighting. These
density models were originally developed for all cetacean taxa in the
U.S. Atlantic in 2016 and models for all taxa were updated in 2022
(Roberts et al., 2016, Roberts and Halpin, 2022). More information is
available online at <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. Marine
mammal density estimates in the survey area (animals/km\2\) were
obtained using the most recent model results for all taxa.
For the exposure analysis, density data from Roberts and Halpin
(2022) were mapped using a geographic information system (GIS). For the
survey area, the monthly densities of each species as reported by
Roberts and Halpin (2022) were averaged by season; thus, a density was
calculated for each species for spring, summer, fall, and winter.
Density seasonal averages were calculated for both the Lease Area and
the ECR Area for each species to assess the greatest average seasonal
densities for each species. To be conservative since the exact timing
for the survey during the year is uncertain, the greatest average
seasonal density calculated for each species was carried forward in the
exposure analysis, with exceptions noted later in this discussion.
Estimated greatest average seasonal densities (animals/km\2\) of marine
mammal species that may be taken incidental to the planned survey can
be found in Tables 6-1 and 6-2 of IWO's IHA application. Below, we
discuss how densities were assumed to apply to specific species for
which the Roberts and Halpin (2022) models provide results at the genus
or guild level.
There are two stocks of bottlenose dolphins that may be impacted by
the surveys (Western North Atlantic Northern Migratory Coastal Stock
(Coastal Stock) and Western North Atlantic Offshore Stock (Offshore
Stock)), however, Roberts and Halpin (2022) do not differentiate by
stock. The Coastal Stock is assumed to generally occur in waters less
than 20 m (65 ft) and the Offshore Stock in waters greater than 20 m
(65 ft) isobath. The Lease Area is in waters greater than 20 m (65 ft)
depth and only the Offshore Stock would occur and potentially be taken
by survey effort in that area. Both stocks could occur in the ECR Area,
so IWO calculated separate mean seasonal densities for the portion that
is less than 20 m depth and for the portion that is greater than 20 m
depth to use for estimating take of the Coastal and Offshore Stocks of
bottlenose dolphins, respectively.
Furthermore, the Roberts and Halpin (2022) density model does not
differentiate between the different pinniped species. For seals, given
their size and behavior when in the water, seasonality, and feeding
preferences, there is limited information available on species-specific
distribution. Density estimates from Roberts and Halpin (2022) include
all seal species that may occur in the Western North Atlantic combined
(i.e., gray, harbor, harp, hooded). For this IHA, only gray seals and
harbor seals are reasonably expected to occur in the survey area;
densities of seals were split evenly between these two species.
Finally, the Roberts and Halpin (2022) density model does not
differentiate between pilot whale species. While the exact latitudinal
ranges of the two species are uncertain, only long-finned pilot whales
are expected to occur in this project area due to their more northerly
distribution and tolerance of shallower, colder shelf waters (Hayes et
al., 2022). Short-finned pilot whales are not anticipated to occur as
far north as the survey area so we assume that all pilot whales near
the project area would be long-finned pilot whales (Garrison and Rosel,
2017). For this IHA, densities of pilot whales are assumed to be only
long-finned pilot whale.

Take Estimation

Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and proposed for authorization.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that would result in harassment, radial
distances to predicted isopleths corresponding to Level B harassment
thresholds were calculated, as described above. The distance (i.e., 141
m distance associated with the sparker systems) to the Level B
harassment criterion and the total length of the survey trackline were
then used to calculate the total ensonified area, or harassment zone,
around the survey vessel.
IWO proposes to conduct HRG surveys for a maximum total of 12,818
km trackline length, of which 7,460 km are in the Lease Area and 5,358
km are in the ECR Area. Of the ECR Area trackline, 1,600 km are in
waters less than 20 m depth. Based on the maximum estimated distance to
the Level B harassment threshold (141 m) for all three sparker systems
and maximum total survey length, the total ensonified area is 3,615
km\2\ (2,104 km\2\ Lease Area and 1,511 km\2\ ECR Area (452 km\2\ in
waters less than 20 m depth; 1,059 km\2\ in waters greater than 20 m
depth)), based on the following formula, where the total estimated
trackline length (L) in each area was used and buffered with the
horizontal distance to the Level B harassment threshold (R) to
determine the total area ensonified to 160 dB SPL.

Harassment Zone = (L x 2R) + [pi]R\2\

The number of marine mammals expected to be incidentally taken
during the total survey is then calculated by estimating the number of
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the greatest seasonal estimated marine mammal
densities as described above. The product is then rounded to generate
an estimate of the total number of instances of harassment expected for
each species over the duration of the survey (up to 274 days). A
summary of this method is illustrated in the following formula, where
the Harassment Zone is multiplied by the highest seasonal mean density
(D) of each species or stock (animals/km\2\; except for pilot whales
where annual density was used based on data availability).

Estimated Take = Harassment Zone x D

The resulting take of marine mammals (Level B harassment) is shown
in Table 4.

[[Page 32748]]

Table 4--Estimated Take Numbers and Total Take Proposed for Authorization
----------------------------------------------------------------------------------------------------------------
Density Total take
Species Ensonified (animals/ Estimated take proposed to be Percent of
area (km\2\) km\2\) authorized abundance \1\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale.... 3,615 0.001748 6 6 1.87
Humpback whale................ 3,615 0.003657 13 13 0.95
Fin whale..................... 3,615 0.004856 18 18 0.26
Sei whale..................... 3,615 0.001813 7 7 0.10
Minke whale................... 3,615 0.025476 92 92 0.42
Sperm whale................... 3,615 0.000371 1 [dagger] 2 0.03
Risso's dolphin............... 3,615 0.002841 10 10 0.03
Long-finned pilot whale....... 3,615 0.003363 12 [dagger] 15 0.03
Atlantic white-sided dolphin.. 3,615 0.027836 101 101 0.11
Common dolphin................ 3,615 0.245719 888 888 0.51
Atlantic spotted dolphin...... 3,615 0.011683 42 42 0.11
Harbor porpoise............... 3,615 0.262904 950 950 0.99
Common bottlenose dolphin 3,164 0.193127 611 611 0.97
(Offshore Stock) \2\.........
Common bottlenose dolphin 452 1.758553 795 795 11.97
(Northern Migratory Coastal
Stock) \3\...................
Gray seal..................... 3,615 \4\ 0.262904 950 950 0.21
Harbor seal................... 3,615 \4\ 0.262904 950 950 \5\ 1.55
----------------------------------------------------------------------------------------------------------------
[dagger] Take request based on average group size using sightings data from (CETAP, 1982, Palka et al., 2017,
Palka et al., 2021) (see Attachment 3 of application).
\1\ Based on the 2022 draft marine mammal stock assessment reports (SAR).
\2\ The ensonified area for the offshore stock is for greater than 20 m water depth includes all the lease area
and portions of the ECR.
\3\ The ensonified area for the migratory coastal stock is only the areas of less than 20 m water depth (found
only in portions of the ECR).
\4\ These each represent 50% of a generic seal density value.
\5\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock
abundance estimate for U.S. population is only 27,300.

Proposed Mitigation

In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and,
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
NMFS proposes that the following mitigation measures be implemented
during IWO's planned marine site characterization surveys. Pursuant to
section 7 of the ESA, IWO would also be 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>).

Visual Monitoring and Shutdown Zones

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

[[Page 32749]]

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

Pre-Start Clearance and Ramp-Up Procedures

A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
sparker system when technically feasible. Operators should ramp up
sparker to half power for 5 min and then proceed to full power. A 30
min pre-start clearance observation period of the shutdown zones must
occur prior to the start of ramp-up. The intent of the pre-start
clearance observation period (30 min) is to ensure no marine mammals
are within the shutdown zones prior to the beginning of ramp-up. The
intent of the ramp-up is to warn marine mammals of pending operations
and to allow sufficient time for those animals to leave the immediate
vicinity. All operators must adhere to the following pre-start
clearance and ramp-up requirements:
<bullet> The operator must notify a designated PSO of the planned
start of ramp-up as agreed upon with the lead PSO; the notification
time should not be less than 60 min prior to the planned ramp-up in
order to allow the PSOs time to monitor the shutdown zones for 30 min
prior to the initiation of ramp-up (pre-start clearance). During this
30 min pre-start clearance period the entire shutdown zone must be
visible, except as indicated below.
<bullet> Ramp-ups shall be scheduled so as to minimize the time
spent with the source activated.
<bullet> A visual PSO conducting pre-start clearance observations
must be notified again immediately prior to initiating ramp-up
procedures and the operator must receive confirmation from the PSO to
proceed.
<bullet> Any PSO on duty has the authority to delay the start of
survey operations if a marine mammal is detected within the applicable
pre-start clearance zone.
<bullet> The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
acoustic source to ensure that mitigation commands are conveyed swiftly
while allowing PSOs to maintain watch.
The pre-start clearance requirement is waived for small delphinids
and pinnipeds. Detection of a small delphinid (individual belonging to
the following genera of the Family Delphinidae: Steno, Delphinus,
Lagenorhynchus, Stenella, and Tursiops) or pinniped within the shutdown
zone does not preclude beginning of ramp-up, unless the PSO confirms
the individual to be of a genus other than those listed, in which case
normal pre-clearance requirements apply.
If there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which the pre-clearance requirement is
waived), PSOs may use best professional judgment in making the decision
to call for a shutdown.
<bullet> Ramp-up may not be initiated if any marine mammal to which
the pre-start clearance requirement applies is within the shutdown
zone. If a marine mammal is observed within the shutdown zone during
the 30 min pre-start clearance period, ramp-up may not begin until the
animal(s) has been observed exiting the zones or until an additional
time period has elapsed with no further sightings (30 min for all
baleen whale species and sperm whales, 15 min for all other species).
<bullet> PSOs must monitor the shutdown zones 30 min before and
during ramp-up, and ramp-up must cease and the source must be shut down
upon observation of a marine mammal within the applicable shutdown
zone.
<bullet> Ramp-up may occur at times of poor visibility, including
nighttime, if appropriate visual monitoring has occurred with no
detections of marine mammals in the 30 min prior to beginning ramp-up.
Sparker activation may only occur at night where operational planning
cannot reasonably avoid such circumstances.
If the acoustic source is shut down for brief periods (i.e., less
than 30 min) for reasons other than implementation of prescribed
mitigation (e.g., mechanical difficulty), it may be activated again
without ramp-up if PSOs have maintained constant visual observation and
no detections of marine mammals have occurred within the applicable
shutdown zone. For any longer shutdown, pre-start clearance observation
and ramp-up are required.

Shutdown Procedures

All operators must adhere to the following shutdown requirements:
<bullet> Any PSO on duty has the authority to call for shutdown of
the sparker system if a marine mammal is detected within the applicable
shutdown zone.
<bullet> The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
source to ensure that shutdown commands are conveyed swiftly while
allowing PSOs to maintain watch.
<bullet> When the sparker system is active and a marine mammal
appears within or enters the applicable shutdown zone, the source must
be shut down. When shutdown is instructed by a PSO, the sparker system
must be immediately deactivated and any dispute resolved only following
deactivation.
<bullet> Two shutdown zones are defined, depending on the species
and context. An extended shutdown zone encompassing the area at and
below the sea surface out to a radius of 500 m from the sparker system
(0-500 m) is defined for NARW. For all other marine mammals, the
shutdown zone encompasses a standard distance of 100 m (0-100 m) during
the use of the sparker.
The shutdown requirement is waived for small delphinids and
pinnipeds. If a small delphinid (individual belonging to the following
genera of the Family Delphinidae: Steno, Delphinus, Lagenorhynchus,
Stenella, and Tursiops) or pinniped is visually detected within the
shutdown zone, no shutdown is required unless the PSO confirms the
individual to be of a genus other than those listed, in which case a
shutdown is required.
If there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived or one of the species
with a larger shutdown zone), PSOs may use best professional judgment
in making the decision to call for a shutdown.
Upon implementation of shutdown, the source may be reactivated
after the marine mammal has been observed exiting the applicable
shutdown zone or following a clearance period (30 min for all baleen
whale species and sperm whales, 15 min for all other species) with no
further detection of the marine mammal.

[[Page 32750]]

If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (141 m), shutdown must occur.

Vessel Strike Avoidance

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

Seasonal Operating Requirements

As described above, a section of the 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 to adhere to vessel
speed restrictions (less than 10 kn (18.52 km/hr)) when operating
within the SMA during times when the SMA is active (Table 5).

Table 5--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within the Survey Area
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by If established by N/A.
right whale. NMFS, all of NMFS, all of
IWO's vessel will IWO's vessel will
abide by the abide by the
described described
restrictions. restrictions.
ECR Area (within SMA)........... North Atlantic If established by If established by November 1 through
right whale. NMFS, all of NMFS, all of April 31 (Ports
IWO's vessel will IWO's vessel will of New York/New
abide by the abide by the Jersey).
described described
restrictions. restrictions.
ECR Area (outside SMA).......... North Atlantic If established by If established by N/A.
right whale. NMFS, all of NMFS, all of
IWO's vessel will IWO's vessel will
abide by the abide by the
described described
restrictions. restrictions.
----------------------------------------------------------------------------------------------------------------
More information on Vessel 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.

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

[[Page 32751]]

Proposed Monitoring and Reporting

In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.

Proposed Monitoring Measures

Visual monitoring must be performed by qualified, NMFS-approved
PSOs. IWO must submit PSO resumes for NMFS review and approval prior to
commencement of the survey. Resumes should include dates of training
and any prior NMFS approval, as well as dates and description of last
experience, and must be accompanied by information documenting
successful completion of an acceptable training course.
For prospective PSOs not previously approved, or for PSOs whose
approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, who would coordinate
duty schedules and roles for the PSO team and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
A ``trained lookout'' may be used on a space-limited nearshore
vessel (generally operating in water less than 20 m depth for no more
than 12 hr/day) during required breaks for the approved PSO on duty.
Project-specific training must be conducted for all vessel crew with
``lookout'' responsibilities prior to the start of a survey and during
any changes in crew such that all relevant survey personnel are fully
aware and understand the mitigation, monitoring, and reporting
requirements. All vessel crew members operating as a trained lookout
must be briefed in the identification of protected species that may
occur in the survey area and in relevant mitigation requirements.
Reference materials must be available aboard all project vessels for
identification of protected species.
At least one PSO aboard each acoustic source vessel must have a
minimum of 90 days at-sea experience working in the role, with no more
than 18 months elapsed since the conclusion of the at-sea experience.
One PSO with such experience must be designated as the lead for the
entire PSO team and serve as the primary point of contact for the
vessel operator. (Note that the responsibility of coordinating duty
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the
lead PSO must devise the duty schedule such that experienced PSOs are
on duty with those PSOs with appropriate training but who have not yet
gained relevant experience.
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or more)
a written and/or oral examination developed for the training program.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
IWO 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);

[[Page 32752]]

<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 IWO is responsible
for ensuring PSOs have the proper equipment required to perform the
duties specified in the IHA.
The PSOs will be responsible for monitoring the waters surrounding
the survey vessel to the farthest extent permitted by sighting
conditions, including Shutdown Zones, during all HRG survey operations.
PSOs will visually monitor and identify marine mammals, including those
approaching or entering the established Shutdown Zones during survey
activities. It will be the responsibility of the PSO(s) on duty to
communicate the presence of marine mammals as well as to communicate
the action(s) that are necessary to ensure mitigation and monitoring
requirements are implemented as appropriate.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to Shutdown Zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, appropriate night-vision devices (e.g.,
night-vision goggles with thermal clip-ons and infrared technology)
would be used. Position data would be recorded using hand-held or
vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs must also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources and between acquisition periods, to the maximum
extent practicable. Any observations of marine mammals by crew members
aboard the vessel associated with the survey would be relayed to the
PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements (see Proposed Reporting Measures). This
would include dates, times, and locations of survey operations; dates
and times of observations, location and weather; details of marine
mammal sightings (e.g., species, numbers, behavior); and details of any
observed marine mammal behavior that occurs (e.g., noted behavioral
disturbances). Members of the PSO team shall consult the NMFS NARW
reporting system and Whale Alert, daily and as able, for the presence
of NARWs throughout survey operations.

Proposed Reporting Measures

IWO shall submit a draft comprehensive report to NMFS on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
must describe all activities conducted and sightings of marine mammals,
must provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and must summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report shall also include geo-referenced, time-stamped vessel
tracklines for all time periods during which acoustic sources were
operating. Tracklines should include points recording any change in
acoustic source status (e.g., when the sources began operating, when
they were turned off, or when they changed operational status such as
from full array to single gun or vice versa). GIS files shall be
provided in Environmental Systems Research Institute, Inc. (ESRI)
shapefile format and include the Coordinated Universal Time (UTC) date
and time, latitude in decimal degrees, and longitude in decimal
degrees. All coordinates shall be referenced to the WGS84 geographic
coordinate system. In addition to the report, all raw observational
data shall be made available. The report must summarize the
information. A final report must be submitted within 30 days following
resolution of any comments on the draft report. All draft and final
marine mammal monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#0f5f5d21465b5f21426061667b607d6661685d6a7f607d7b7c4f61606e6e21686079">[email&#160;protected]</a>, <a href="/cdn-cgi/l/email-protection#0c62616a7f226b6d7e2265626f65686962786d6021786d67694c62636d6d226b637a">[email&#160;protected]</a>,
and <a href="/cdn-cgi/l/email-protection#90d9c4c0bef3fcf5e6f5fee3e4f9fef5d0fefff1f1bef7ffe6">[email&#160;protected]</a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel names (source vessel), vessel size and type, maximum
speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. PSO names and affiliations;
4. Date and participants of PSO briefings;
5. Visual monitoring equipment used;
6. PSO location on vessel and height of observation location above
water surface;
7. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
8. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
9. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
10. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
11. Water depth (if obtainable from data collection software);
12. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
13. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions); and,
14. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
15. Upon visual observation of any marine mammal, the following
information must be recorded:

[[Page 32753]]

a. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
b. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
c. PSO who sighted the animal;
d. Time of sighting;
e. Initial detection method;
f. Sightings cue;
g. Vessel location at time of sighting (decimal degrees);
h. Direction of vessel's travel (compass direction);
i. Speed of the vessel(s) from which the observation was made;
j. Identification of the animal (e.g., genus/species, lowest
possible taxonomic level or unidentified); also note the composition of
the group if there is a mix of species;
k. Species reliability (an indicator of confidence in
identification);
l. Estimated distance to the animal and method of estimating
distance;
m. Estimated number of animals (high/low/best);
n. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
o. Description (as many distinguishing features as possible of each
individual seen, including length, shape, color, pattern, scars, or
markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
p. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
q. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
r. Equipment operating during sighting;
s. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and,
t. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a NARW is observed at any time by PSOs or personnel on the
project vessel, during surveys or during vessel transit, IWO must
report the sighting information to the NMFS NARW Sighting Advisory
System (866-755-6622) within 2 hr of occurrence, when practicable, or
no later than 24 hr after occurrence. NARW sightings in any location
may also be reported to the U.S. Coast Guard via channel 16 and through
the 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, the incident must be
reported to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#6806050e1b460f091a4601060b010c0d061c0904451c09030d2806070909460f071e">[email&#160;protected]</a> and
<a href="/cdn-cgi/l/email-protection#0d5d5f2344595d234062636479627f64636a5f687d627f797e4d63626c6c236a627b">[email&#160;protected]</a>). The report must include the
following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the event of a vessel strike of a marine mammal by any vessel
involved in the activities, IWO must report the incident to NMFS by
phone (866-755-6622) and by email (<a href="/cdn-cgi/l/email-protection#f49a999287da939586da9d9a979d90919a809598d980959f91b49a9b9595da939b82">[email&#160;protected]</a>
and <a href="/cdn-cgi/l/email-protection#b5e5e79bfce1e59bf8dadbdcc1dac7dcdbd2e7d0c5dac7c1c6f5dbdad4d49bd2dac3">[email&#160;protected]</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).

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 2, 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 sub-sections below.
Specifically, we provide additional discussion related to NARW and to
other species currently experiencing UMEs.
NMFS does not anticipate that serious injury or mortality would
occur as a result from HRG surveys, even in the absence of mitigation,
and no serious

[[Page 32754]]

injury or mortality is proposed to be authorized. As discussed in the
Potential Effects of Specified Activities on Marine Mammals and their
Habitat section, non-auditory physical effects, auditory physical
effects, and vessel strike are not expected to occur. NMFS expects that
all potential takes would be in the form of Level B harassment in the
form of temporary avoidance of the area or decreased foraging (if such
activity was occurring), reactions that are considered to be of low
severity and with no lasting biological consequences (e.g., (Southall
et al., 2007, Ellison et al., 2012)).
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the 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 attribute human interactions,
specifically vessel strikes and entanglements, as the cause of death
for the majority of NARWs. As noted previously, the survey area
overlaps a migratory corridor BIA for NARWs that extends from
Massachusetts to Florida and from the coast to beyond the shelf break.
Due to the fact that the planned survey activities are temporary (will
occur for up to 1 year) and the spatial extent of sound produced by the
survey would be small relative to the spatial extent of the available
migratory habitat in the BIA, NARW migration is not expected to be
impacted by the survey. This important migratory area is approximately
269,488 km\2\ in size (compared with the approximately 3,615 km\2\ of
total estimated Level B harassment ensonified area associated with the
Survey Area) and is comprised of the waters of the continental shelf
offshore the East Coast of the United States, extending from Florida
through Massachusetts.
Given the relatively small size of the ensonified area, it is
unlikely that prey availability would be adversely affected by HRG
survey operations. Required vessel strike avoidance measures will also
decrease risk of vessel strike during migration; no vessel strike is
expected to occur during IWO's planned activities. Additionally, only
very limited take by Level B harassment of NARWs has been requested and
is being proposed for authorization by NMFS as HRG survey operations
are required to maintain and implement a 500-m shutdown zone. The 500-m
shutdown zone for NARWs is conservative, considering the Level B
harassment zone for the most impactful acoustic source (i.e., sparker)
is estimated to be 141 m, and thereby minimizes the intensity and
duration of any potential incidents of behavioral harassment for this
species. As noted previously, Level A harassment is not expected due to
the small estimated zones in conjunction with the aforementioned
shutdown requirements. NMFS does not anticipate NARW takes that would
result from IWO's proposed activities would impact annual rates of
recruitment or survival. Thus, any takes that occur would not result in
population level impacts.

Other Marine Mammal Species With Active UMEs

As noted previously, there are several active UMEs occurring in the
vicinity of IWO'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 (i.e., vessel strike, entanglement). The UME does not
yet provide cause for concern regarding population-level impacts.
Despite the UME, the relevant population of humpback whales (the West
Indies breeding population, or DPS) remains stable at approximately
12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
Elevated numbers of harbor seal and gray seal mortalities were
first observed from 2018-2020 and, as part of a separate UME, again in
2022. These have occurred across Maine, New Hampshire, and
Massachusetts. Based on tests conducted so far, the main pathogen found
in the seals is phocine distemper virus (2018-2020) and avian influenza
(2022), although additional testing to identify other factors that may
be involved in the UMEs is underway. The UMEs do not provide cause for
concern regarding population-level impacts to any of these stocks. For
harbor seals, the population abundance is over 60,000 and annual M/SI
(339) is well below PBR (1,729) (Hayes et al., 2022). The population
abundance for gray seals in the United States is over 27,000, with an
estimated abundance, including seals in Canada, of approximately
450,000. In addition, the abundance of gray seals is likely increasing
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021, Hayes et
al., 2022).
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in Table 2, including
those with active UMEs, to the level of least practicable adverse
impact. In particular, they would provide animals the opportunity to
move away from the sound source before HRG survey equipment reaches
full energy, thus preventing them from being exposed to sound levels
that have the potential to cause injury. No Level A harassment is
anticipated, even in the absence of mitigation measures, or proposed
for authorization.
NMFS expects that takes would be in the form of short-term Level B
harassment by way of brief startling reactions and/or temporary
vacating of the area, or decreased foraging (if such activity was
occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could

[[Page 32755]]

result in more severe behavioral harassment.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect any of the species
or stocks through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or proposed
to be authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or proposed to be authorized;
<bullet> Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the ensonified areas
during the planned survey to avoid exposure to sounds from the
activity;
<bullet> Take is anticipated to be by Level B harassment only
consisting of brief startling reactions and/or temporary avoidance of
the ensonified area;
<bullet> Survey activities would occur in such a comparatively
small portion of the BIA for the NARW migration that any avoidance of
the area due to survey activities would not affect migration. In
addition, mitigation measures require shutdown at 500 m (over three
times the size of the Level B harassment zone of 141 m) to minimize the
effects of any Level B harassment take of the species; and,
<bullet> The proposed mitigation measures, including visual
monitoring and shutdowns, are expected to minimize potential impacts to
marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.

Small Numbers

As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
NMFS proposes to authorize incidental take by Level B harassment
only of 15 marine mammal species with 16 managed stocks. The total
amount of takes proposed for authorization relative to the best
available population abundance is less than 2 percent for 15 of the 16
managed stocks (less than 12 percent for the Western North Atlantic
Northern Migratory Coastal Stock of bottlenose dolphins) (Table 4). The
take numbers proposed for authorization are considered conservative
estimates for purposes of the small numbers determination as they
assume all takes represent different individual animals, which is
unlikely to be the case.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals would be taken relative to the population
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

Proposed Authorization

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

Request for Public Comments

We request comment on our analyses, the proposed authorization, and
any other aspect of this notice of proposed IHA for marine site
characterization surveys. We also request comment on the potential
renewal of this proposed IHA as described in the paragraph below.
Please include with your comments any supporting data or literature
citations to help inform decisions on the request for this IHA or a
subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, one-year
renewal IHA following notice to the public providing an additional 15
days for public comments when (1) up to another year of identical or
nearly identical activities as described in the Description of Proposed
Activity section of this notice is planned, or (2) the activities as
described in the Description of Proposed Activity section of this
notice would not be completed by the time the IHA expires and a renewal
would allow for completion of the activities beyond that described in
the Dates and Duration section of this notice, provided all of the
following conditions are met:
<bullet> A request for renewal is received no later than 60 days
prior to the needed renewal IHA effective date (recognizing that the
renewal IHA expiration date cannot extend beyond one year from
expiration of the initial IHA).
<bullet> The request for renewal must include the following:
[cir] An explanation that the activities to be conducted under the
requested renewal IHA are identical to the

[[Page 32756]]

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).
[cir] A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected
species or stocks, and any other pertinent information, NMFS determines
that there are no more than minor changes in the activities, the
mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.

Dated: May 17, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-10850 Filed 5-19-23; 8:45 am]
BILLING CODE 3510-22-P

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