Notice2023-13764
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off New Jersey and New York
Primary source
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Published
June 28, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from Atlantic Shores Offshore Wind Bight, LLC (Atlantic Shores) for authorization to take marine mammals incidental to marine site characterization surveys offshore of New Jersey and New York in the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0541 and associated export cable route (ECR) area. NMFS is requesting comments on its proposal to issue an incidental harassment authorization 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 the 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 123 (Wednesday, June 28, 2023)</title>
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[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Notices]
[Pages 41912-41920]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13764]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC903]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off New Jersey and New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments on proposed authorization and possible renewal.
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SUMMARY: NMFS has received a request from Atlantic Shores Offshore Wind
Bight, LLC (Atlantic Shores) for authorization to take marine mammals
incidental to marine site characterization surveys offshore of New
Jersey and New York in the Bureau of Ocean Energy Management (BOEM)
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS) Lease Area OCS-A 0541 and associated
export cable route (ECR) area. NMFS is requesting comments on its
proposal to issue an incidental harassment authorization 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 the Request for Public Comments at the end of this
notice. NMFS will consider public comments prior to making any final
decision on the issuance of the requested MMPA authorization and agency
responses will be summarized in the final notice of our decision.
DATES: Comments and information must be received no later than July 28,
2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to <a href="/cdn-cgi/l/email-protection#7e372a2e502a1f0712110c3e10111f1f50191108"><span class="__cf_email__" data-cfemail="5f160b0f710b3e2633302d1f31303e3e71383029">[email protected]</span></a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All personal identifying
information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
Electronic copies of the original application and supporting
documents (including NMFS Federal Register notices of the original
proposed and final authorizations, and the previous IHA), as well as a
list of the references cited in this document, may be obtained online
at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems
accessing these documents, please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The activities described in Atlantic Shores' request, the overall
survey duration, the project location, and the acoustic sources
proposed for use are identical to what was previously analyzed in
support of the IHA issued by NMFS to Atlantic Shores for 2022 site
characterization surveys (2022 IHA) (87 FR 38067, June 27, 2022; 87 FR
50293, August 16, 2022). All proposed mitigation, monitoring, and
reporting requirements remain the same. While Atlantic Shores' planned
activity would qualify for renewal of the 2022 IHA, due to the
availability of updated marine mammal density data (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a> EC/), which NMFS has determined
represents the best available scientific data, NMFS has determined to
proceed with a new IHA process rather than a renewal, providing a 30-
day period for
[[Page 41913]]
the public to comment on this proposed action.
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is
requesting comments on its proposal to issue an IHA to allow Atlantic
Shores to incidentally take marine mammals during the specified
activities. NMFS is also requesting comments on a possible 1-year
Renewal IHA that could be issued under certain circumstances and if all
requirements are met, as described in the 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.
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment. This action
is consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has preliminarily determined
that the issuance of the proposed IHA qualifies to be categorically
excluded from further NEPA review.
We will review all comments submitted in response to this
notification prior to concluding our NEPA process or making a final
decision on the IHA request.
Summary of Request
On March 20, 2023, NMFS received a request from Atlantic Shores for
an IHA to take marine mammals incidental to high-resolution geophysical
(HRG) marine site characterization surveys offshore of New Jersey and
New York in the areas of BOEM Commercial Lease of Submerged Lands for
Renewable Energy Development on the OCS Lease Area OCS A-0541 and
associated ECR area. Following NMFS' review of the application,
Atlantic Shores submitted a revised request on April 7, 2023. The
application (the 2023 request) was deemed adequate and complete on
April 20, 2023. Atlantic Shores' request is for take of 15 species of
marine mammals, by Level B harassment only. Neither Atlantic Shores nor
NMFS expect serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate. Take by Level A harassment
(injury) is considered unlikely, even absent mitigation, based on the
characteristics of the signals produced by the acoustic sources planned
for use.
NMFS has previously issued a similar IHA to Atlantic Shores. On
April 8, 2022, NMFS received a request from Atlantic Shores for an IHA
to take marine mammals incidental to marine site characterization
surveys offshore of New Jersey and New York, in the area of Commercial
Lease of Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf Lease Areas OCS-A 0541 and the associated ECR area.
Atlantic Shores requested authorization to take small numbers of 15
species (comprising 15 stocks) of marine mammals by Level B harassment
only. NMFS published a notice of the proposed IHA in the Federal
Register on June 27, 2022 (87 FR 30867). After a 30-day public comment
period and consideration of all public comments received, we
subsequently issued the 2022 IHA, which is effective from August 10,
2022, to August 9, 2023 (87 FR 50293, August 16, 2022).
Atlantic Shores completed a subset of the survey work under the
2022 IHA. This request is identical to the 2022 IHA.
However, Duke University's Marine Geospatial Ecology Laboratory
released updated marine mammal density information for all species in
the project area (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>), and
NMFS determined it would issue a proposed IHA rather than undertake the
renewal process. In evaluating the 2023 request and to the extent
deemed appropriate, NMFS also relies on the information presented in
notices associated with issuance of the 2022 IHA (87 FR 38067, June 27,
2022; 87 FR 50293, August 16, 2022).
Atlantic Shores conducted the required marine mammal mitigation and
monitoring and did not exceed authorized levels of take under previous
IHAs issued for surveys offshore of New York and New Jersey (see 85 FR
21198, April 16, 2020 and 86 FR 21289, April 22, 2021). These previous
monitoring results are available to the public on our website: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization</a>.
Description of the Proposed Activity and Anticipated Impacts
Overview
Atlantic Shores proposes to conduct HRG marine site
characterization surveys in BOEM Lease Area OCS-A 0541 and along the
ECR off of New Jersey and New York. The purpose of the proposed surveys
is to obtain an assessment of seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of a planned offshore wind facility development area. Surveys
are also conducted to support engineering design and to map unexploded
ordnance. As many as three survey vessels may operate concurrently as
part of the proposed surveys. During survey effort, the vessels would
operate at a maximum speed of 3.5 knots (kns) (6.5 kilometers (km)).
Underwater sound resulting from Atlantic Shores' proposed activities
has the potential to result in incidental take of marine mammals in the
form of Level B harassment.
[[Page 41914]]
Dates and Duration
The proposed activity is estimated to require up to 360 survey days
using a maximum of three vessels operating concurrently over the course
of the 1-year period of effectiveness of the proposed IHA (Table 1). A
``survey day'' is defined as a 24-hour activity period in which active
acoustic sound sources are used. This schedule is inclusive of any
inclement weather downtime and crew transfers. It is expected that each
vessel would cover approximately 55 km of track line per day based on
Atlantic Shores' data acquisition efficiency expectations.
Table 1--Proposed Survey Days
------------------------------------------------------------------------
Number of
Survey areas active survey
days expected
------------------------------------------------------------------------
Lease Survey Area (OCS-A 541).......................... 180
ECR Survey Area........................................ 180
------------------------------------------------------------------------
Specified Geographic Region
Atlantic Shores' proposed activities would occur in the Northwest
Atlantic Ocean within Federal and state waters offshore of New York and
New Jersey in BOEM Lease Area OCS-A 0541 and along the associated
potential ECR (Figure 1). Overall, the survey area is approximately
1,375,710 acres (5,567.3 km\2\) and extends from approximately 11
nautical miles (nm) (20 km) to 40 nm (74 km) offshore of New York and
New Jersey. In general, the survey area spans from Sandy Hook Bay to
Ocean City, New Jersey. No nearshore surveys are planned.
BILLING CODE 3510-22-P
[[Page 41915]]
[GRAPHIC] [TIFF OMITTED] TN28JN23.001
BILLING CODE 3510-22-C
Detailed Description of the Action
A detailed description of the proposed survey activities can be
found in the previous Federal Register notices (87 FR 38067, June 27,
2022; 87 FR 50293, August 16, 2022) and supplementary documents,
available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llc-marine-site">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llc-marine-site</a>.
The specific geographic region; duration (360 total survey days); and
nature of specified activities, including the types of HRG equipment
planned for use (sparkers and CHIRPs), daily trackline distances (55 km
per day), and number of survey vessels (up to three operating
concurrently) are identical to those described in the previous notices.
Atlantic Shores plans to conduct geotechnical surveys, which
consists of identical activities (i.e., drilling of sample boreholes,
deep cone penetration tests (CPTs), and shallow CPTs) previously
described in its application for the 2022 IHA (87 FR 38067, June 27,
2022; 87 FR 50293, August 16, 2022). Consistent with NMFS' previous
analysis of these activities, no take of marine mammals is expected to
occur as a result of geotechnical survey activities. As a result, these
activities will not be discussed further herein.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
can be found in the previous documents and notices
[[Page 41916]]
for the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293, August 16,
2022), which remain applicable to this proposed IHA. NMFS reviewed the
most recent draft Stock Assessment Reports (SARs, found on NMFS'
website at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>), up-to-date information on
relevant Unusual Mortality Events (UMEs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events</a>), and recent scientific literature and
determined that no new information affects our original analysis of
impacts under the 2022 IHA.
NMFS notes that, since issuance of the 2022 IHA, a new SAR is
available for the North Atlantic right whale (NARW). Estimated
abundance for the species declined from 368 to 338. However, this
change does not affect our analysis of impacts, as described under the
2022 IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293,
August 16, 2022). At present, there is no new information on potential
effects that would impact our analysis.
Estimated Take
A detailed description of the methods used to estimate take
anticipated to occur incidental to the project is found in the previous
Federal Register notices (87 FR 38067, June 27, 2022; 87 FR 50293,
August 16, 2022). The methods of estimating take are identical to those
used in the 2022 IHA. Atlantic Shores updated the marine mammal
densities based on new information (Roberts et al., 2016; Roberts et
al., 2023), available online at: <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. We refer the reader to Table 6 in Atlantic Shores' 2023 IHA
request for specific density values used in the analysis. The IHA
request is available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
The take that NMFS proposes to authorize can be found in Table 2,
which presents the results of Atlantic Shores' density-based
calculations for the survey area. For comparative purposes, we have
provided the 2022 IHA authorized take (87 FR 50293, August 16, 2022).
NMFS notes that take by Level A harassment was not requested nor does
NMFS anticipate that it could occur. Therefore, NMFS has not proposed
to authorize any take by Level A harassment. Mortality or serious
injury is neither anticipated to occur nor proposed for authorization.
Table 2--Summary of Take Numbers Proposed for Authorization
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2023 Proposed
2022 IHA take
Species Scientific name Stock Abundance Authorized proposed for Max percent
take authorization population
\1\
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North Atlantic right whale.............. Eubalaena glacialis........ Western Atlantic........... 338 24 5 1.5
Humpback whale.......................... Megaptera novaeangliae..... Gulf of Maine.............. 1,396 8 \6\ 8 (16) 1.2
Fin whale............................... Balaenoptera physalus...... Western North Atlantic..... 6,802 16 9 <1
Sei whale \2\........................... Balaenoptera borealis...... Nova Scotia................ 6,292 2 4 <1
Minke whale............................. Balaenoptera acutorostrata. Canadian East Coastal...... 21,968 8 46 <1
Sperm whale \2\......................... Physeter macrocephalus..... Western Atlantic........... 4,349 3 2 <1
Long-finned pilot whale \3\............. Globicephala melas......... Western North Atlantic..... 39,215 20 8 (20) <1
Bottlenose dolphin...................... Tursiops truncatus......... Western North Atlantic 62,851 232 179 <1
Offshore Stock.
Common dolphin.......................... Delphinus delphis.......... Western North Atlantic..... 172,974 911 588 <1
Atlantic white-sided dolphin............ Lagenorhynchus acutus...... Western North Atlantic..... 93,233 108 63 <1
Atlantic spotted dolphin................ Stenella frontalis......... Western North Atlantic..... 39,921 100 42 (100) <1
Risso's dolphin......................... Grampus griseus............ Western North Atlantic..... 35,215 30 7 (30) <1
Harbor porpoise......................... Phocoena phocoena.......... Gulf of Maine/Bay of Fundy. 95,543 357 281 <1
Harbor seal \4\......................... Phoca vitulina............. Western North Atlantic..... 61,336 263 374 <1
Gray seal \4\ \5\....................... Halichoerus grypus......... Western North Atlantic..... 27,300 263 374 1.37
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\1\ Parentheses denote proposed take authorization where different from calculated take estimates. Increases from calculated values are based on average
group size for the following species: humpback whale, King et al., 2021; long-finned pilot whale and Risso's dolphin, NOAA, 2022; and Atlantic spotted
dolphin, Jefferson et al., 2008.
\2\ Where calculated takes for a species in a given survey area were less than 1 individual, the number was rounded up to 1 take in each survey area.
\3\ Roberts et al. (2023) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
of long-finned pilot whales.
\4\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
equally in the survey area; therefore, density values were split evenly between the 2 species, i.e., total estimated take for ``seals'' is 748.
\5\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,600.
\6\ According to recent findings that humpback whales were the most commonly sighted species in the New York Bight (King et al., 2021), the number of
modeled exposures (4) for each of the lease area and ECR is multiplied by an average whale size of 2 for a total of 8 estimated takes in the lease
area and 8 estimated takes in the ECR. The total request (16) represents the sum of estimated take in the lease area (8) and ECR (8).
Description of Proposed Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures proposed here
are identical to those included in the Federal Register notice
announcing the final 2022 IHA and the discussion of the least
practicable adverse impact included in that document remains accurate.
As described in the previous Federal Register notices (87 FR 38067,
June 27, 2022; 87 FR 50293, August 16, 2022), NMFS determined that
issuance of the 2022 IHA to Atlantic Shores was within the scope of the
NOAA Fisheries Greater Atlantic Regional Office (GARFO) programmatic
consultation regarding geophysical surveys along the U.S. Atlantic
coast in the three Atlantic Renewable Energy Regions (NOAA GARFO, 2021;
<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>). NMFS similarly concludes that the currently proposed
survey activities are within scope of the consultation, and thus will
[[Page 41917]]
require adherence to the relevant Project Design Criteria (PDC)
(specifically PDCs 4, 5, and 7).
Additionally, on August 1, 2022, NMFS announced proposed changes to
the existing NARW vessel speed regulations to further reduce the
likelihood of mortalities and serious injuries to endangered NARWs from
vessel collisions, which are a leading cause of the species' decline
and a primary factor in an ongoing Unusual Mortality Event (87 FR
46921, August 1, 2023). Should a final vessel speed rule be issued and
become effective during the effective period of this IHA (or any other
MMPA incidental take authorization), the authorization holder would be
required to comply with any and all applicable requirements contained
within the final rule. Specifically, where measures in any final vessel
speed rule are more protective or restrictive than those in this or any
other MMPA authorization, authorization holders would be required to
comply with the requirements of the rule. Alternatively, where measures
in this or any other MMPA authorization are more restrictive or
protective than those in any final vessel speed rule, the measures in
the MMPA authorization would remain in place. The responsibility to
comply with the applicable requirements of any vessel speed rule would
become effective immediately upon the effective date of any final
vessel speed rule and, when notice is published of the effective date,
NMFS would also notify Atlantic Shores if the measures in the speed
rule were to supersede any of the measures in the MMPA authorization
such that they were no longer applicable.
Establishment of Shutdown Zones (SZ)--Marine mammal SZs would be
established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSOs) during HRG surveys as
follows:
<bullet> A 500-m SZ for North Atlantic right whales during use of
specified acoustic sources (impulsive: Sparkers; non-impulsive: Non-
parametric sub-bottom profilers); and,
<bullet> 100-m SZ for all other marine mammals (excluding North
Atlantic right whales) during use of specified acoustic sources (except
as specified below). The only exception for this is for pinnipeds
(seals) and small delphinids (i.e., those from the genera Delphinus,
Lagenorhynchus, Stenella or Tursiops).
If a marine mammal is detected approaching or entering the SZs
during the HRG survey, the vessel operator would adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
During use of acoustic sources with the potential to result in marine
mammal harassment (sparkers and non-parametric sub-bottom profilers;
i.e., anytime the acoustic source is active, including ramp-up),
occurrences of marine mammals within the monitoring zone (but outside
the SZs) must be communicated to the vessel operator to prepare for
potential shutdown of the acoustic source.
Visual Monitoring--Monitoring must be conducted by qualified PSOs
who are trained biologists, with minimum qualifications described in
the Federal Register notices for the 2022 project (87 FR 38067, June
27, 2022; 87 FR 50293, August 16, 2022). Atlantic Shores must have one
PSO on duty during the day and a minimum of two NMFS-approved PSOs must
be on duty and conducting visual observations when HRG equipment is in
use at night. Visual monitoring must begin no less than 30 minutes
prior to ramp-up of HRG equipment and continue until 30 minutes after
use of the acoustic source. PSOs must establish and monitor the
applicable clearance zones, SZs, and vessel separation distances as
described in the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293,
August 16, 2022). PSOs must coordinate to ensure 360-degree visual
coverage around the vessel from the most appropriate observation posts,
and must conduct observations while free from distractions and in a
consistent, systematic, and diligent manner. PSOs are required to
estimate distances to observed marine mammals. It is the responsibility
of the Lead PSO on duty to communicate the presence of marine mammals
as well as to communicate action(s) that are necessary to ensure
mitigation and monitoring requirements are implemented as appropriate.
Pre-Start Clearance--Marine mammal clearance zones (CZs) would be
established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSOs) prior to use of sparkers
and non-parametric sub-bottom profilers as follows:
<bullet> 500-m CZ for all ESA-listed species; and,
<bullet> 100-m CZ for all other marine mammals.
Prior to initiating HRG survey activities, Atlantic Shores should
implement a 30-minute pre-start clearance period. The operator must
notify a designated PSO of the planned start of ramp-up where the
notification time should not be less than 60 minutes prior to the
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes
prior to the initiation of ramp-up. Prior to ramp-up beginning,
Atlantic Shores would receive confirmation from the PSO that the CZs
are clear prior to preceding. Any PSO on duty has the authority to
delay the start of survey operations if a marine mammal is detected
within the applicable pre-start clearance zones.
During this 30-minute period, the entire CZ must be visible. The
exception to this would be in situations where ramp-up must occur
during periods of poor visibility (inclusive of nighttime) as long as
appropriate visual monitoring has occurred with no detections of marine
mammals in 30 minutes prior to the beginning of ramp-up. Acoustic
source activation must only occur at night where operational planning
cannot reasonably avoid such circumstances.
If a marine mammal is observed within the relevant CZs during the
pre-start clearance period, initiation of HRG survey equipment must not
begin until the animal(s) has been observed exiting the respective
clearance zone, or until an additional period has elapsed with no
further sighting (i.e., minimum 15 minutes for small odontocetes and
seals; 30 minutes for all other species). The pre-start clearance
requirement includes small delphinids. PSOs must also continue to
monitor the zone for 30 minutes after survey equipment is shut down or
survey activity has concluded.
Ramp-Up of Survey Equipment--When technically feasible, a ramp-up
procedure must be used for geophysical survey equipment capable of
adjusting energy levels at the start or re-start of survey activities.
The ramp-up procedure must be used at the beginning of HRG survey
activities in order to provide additional protection to marine mammals
near the project area by allowing them to detect the presence of the
survey and vacate the area prior to the commencement of survey
equipment operation at full power. Ramp-up of the survey equipment must
not begin until the relevant SZs has been cleared by the PSOs, as
described above. HRG equipment operators must ramp up acoustic sources
to half power for 5 minutes and then proceed to full power. If any
marine mammals are detected within the SZs prior to or during ramp-up,
the HRG equipment must be shut down (as described below).
Shutdown Procedures--If an HRG source is active and a marine mammal
is observed within or entering a relevant SZ (as described above), an
immediate shutdown of the HRG survey equipment is required. When
shutdown is called for by a PSO, the acoustic source must
[[Page 41918]]
be immediately deactivated and any dispute resolved only following
deactivation. Any PSO on duty has the authority to delay the start of
survey operations or to call for shutdown of the acoustic source if a
marine mammal is detected within the applicable SZ. The vessel operator
must establish and maintain clear lines of communication directly
between PSOs on duty and crew controlling the HRG source(s) to ensure
that shutdown commands are conveyed swiftly while allowing PSOs to
maintain watch. Subsequent restart of the HRG equipment may only occur
after the marine mammal has been observed exiting the relevant SZ, or,
until an additional period has elapsed with no further sighting of the
animal within the relevant SZ.
Upon implementation of shutdown, the HRG source may be reactivated
after the marine mammal that triggered the shutdown has been observed
exiting the applicable SZ or, following a clearance period of 15
minutes for small odontocetes and seals and 30 minutes for all other
species with no further observation of the marine mammal(s) within the
relevant SZ. If the HRG equipment is shut down for brief periods (i.e.,
less than 30 minutes) for reasons other than mitigation (e.g.,
mechanical or electronic failure), the equipment may be re-activated as
soon as is practicable at full operational level, without 30 minutes of
pre-clearance, only if PSOs have maintained constant visual observation
during the shutdown and no visual detections of marine mammals occurred
within the applicable SZs during that time. For a shutdown of 30
minutes or longer, or if visual observation was not continued
diligently during the pause, pre-clearance observation is required, as
described above. The acoustic source(s) must be deactivated when not
acquiring data or preparing to acquire data, except as necessary for
testing. Unnecessary use of the acoustic source shall be avoided.
The shutdown requirement is waived for pinnipeds (seals) and
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus,
Stenella, or Tursiops) under certain circumstances. If a delphinid(s)
from these genera is visually detected within the SZ, shutdown would
not be 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),
PSOs must use best professional judgment in making the decision to call
for a shutdown.
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
area encompassing the Level B harassment isopleth (141 m), shutdown
must occur.
Vessel Strike Avoidance--Atlantic Shores must comply with vessel
strike avoidance measures as described in the Federal Register notice
for the 2022 IHA (87 FR 50293, August 16, 2022). This includes speed
restrictions (10 kn (5.14 m/s) or less) when mother/calf pairs, pods,
or large assemblages of cetaceans are spotted near a vessel; species-
specific vessel separation distances; appropriate vessel actions when a
marine mammal is sighted (e.g., avoid excessive speed, remain parallel
to animal's course, etc.); and monitoring of the NMFS North Atlantic
Right Whale reporting system and WhaleAlert daily.
Throughout all phases of the survey activities, Atlantic Shores
must monitor NOAA Fisheries North Atlantic right whale reporting
systems for the establishment of a dynamic management area (DMA). If
NMFS establishes a DMA in the surrounding area, including the project
area or export cable routes being surveyed, Atlantic Shores is required
to abide by the 10-kn speed restriction.
Seasonal Operating Requirements--Atlantic Shores will conduct HRG
survey activities in the vicinity of a North Atlantic right whale Mid-
Atlantic seasonal management area (SMA). Activities must comply with
the seasonal mandatory speed restriction period for this SMA (November
1 through April 30) for any survey work or transit within this area.
Training--Project-specific training is required for all vessel crew
prior to the start of survey activities.
Reporting--PSOs must record specific information as described in
the Federal Register notice of the issuance of the 2022 IHA (87 FR
50293, August 16, 2022). Within 90 days after completion of survey
activities, Atlantic Shores must provide NMFS with a monitoring report,
which must include summaries of recorded takes and estimates of the
number of marine mammals that may have been harassed.
In the event of a ship strike or discovery of an injured or dead
marine mammal, Atlantic Shores must report the incident to the Office
of Protected Resources (OPR), NMFS and to the New England/Mid-Atlantic
Regional Stranding Coordinator as soon as feasible. The report must
include the information listed in the Federal Register notice of the
issuance of the initial IHA (87 FR 50293, August 16, 2022).
Preliminary Determinations
Atlantic Shores' HRG survey activities are unchanged from those
analyzed in support of the 2022 IHA. The effects of the activity,
taking into consideration the proposed mitigation and related
monitoring measures, remain unchanged from those evaluated in support
of the 2022 IHA, regardless of the minor increases in estimated take
for two marine mammal species (humpback whale and minke whale). NMFS
expects that all potential takes would be short-term Level B behavioral
harassment in the form of temporary avoidance of the area or decreased
foraging (if such activity was occurring), reactions that are
considered to be of low severity and with no lasting biological
consequences (e.g., Southall et al., 2007). In addition to being
temporary, the maximum expected harassment zone around a survey vessel
is 141 m from use of the AA Dura-spark sparker. Although this distance
is assumed for all survey activity evaluated here and in estimating
take numbers proposed for authorization, in reality, much of the survey
activity would involve use of non-impulsive acoustic sources with a
reduced acoustic harassment zone of up to 56 m, producing expected
effects of particularly low severity. The ensonified area surrounding
each vessel is extremely small compared to the overall distribution of
the animals in the area and the available 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. Even
considering the increased estimated take for some species, the impacts
of these lower severity exposures are not expected to accrue to a
degree that the fitness of any individuals would be impacted and,
therefore, no impacts on the annual rates of recruitment or survival
would result.
As previously discussed in the 2022 IHA (87 FR 50293, August 16,
2022),
[[Page 41919]]
impacts from the survey are expected to be localized to the specific
area of activity and only during periods when Atlantic Shores' acoustic
sources are active. There are no rookeries, mating or calving grounds,
or any feeding areas known to be biologically important to marine
mammals within the proposed survey area. There is no designated
critical habitat for any marine mammals listed under the Endangered
Species Act (ESA) in the survey area.
As noted for the 2022 IHA (87 FR 50293, August 16, 2022), the
survey area overlaps a migratory corridor biologically important area
(BIA) and migratory route seasonal management area (SMA) (Port of New
Jersey/New York) for North Atlantic right whales. As the survey
activities would be temporary and the spatial acoustic footprint
produced by the survey would be very small relative to the spatial
extent of the available migratory habitat in the BIA (269,448 km\2\),
NMFS does not expect North Atlantic right whale migration to be
impacted by the survey. Required vessel strike avoidance measures would
also decrease risk of ship strike during migration; no ship strike is
expected to occur during Atlantic Shores' proposed activities. Atlantic
Shores would be required to comply with seasonal speed restrictions of
these SMAs, and in any dynamic management area (DMA), should NMFS
establish one (or more) in the proposed survey area. Additionally,
Atlantic Shores requested, and NMFS proposes, to authorize only five
takes by Level B harassment of North Atlantic right whales. This amount
is less than the 24 Level B harassment takes authorized in the 2022 IHA
due to the updated Duke University density data (Roberts et al., 2023).
Although take by Level B harassment of North Atlantic right whales
has been proposed for authorization by NMFS, we anticipate such take
may not actually occur, and should it occur, we anticipate a very low
level of harassment because Atlantic Shores is required to maintain a
shutdown zone of 500 m if a North Atlantic right whale is observed. The
takes proposed for authorization account for any missed animals wherein
the survey equipment is not shut down immediately. As shutdown would be
called for immediately upon detection (if the whale is within 500 m),
it is likely the exposure time would be very limited and received
levels would not be much above the harassment threshold. Further, the
500-m SZ for North Atlantic right whales is conservative, considering
the Level B harassment isopleth for the most impactful acoustic source
(i.e., AA Dura-spark sparker) is estimated to be 141 m, and thereby
minimizes the potential for behavioral harassment of this species. As
noted previously, Level A harassment is not expected due to the small
permanent threshold shift (PTS) zones associated with HRG equipment
types proposed for use. NMFS does not anticipate North Atlantic right
whale takes that would result from Atlantic Shores' activities would
impact annual rates of recruitment or survival. Thus, any takes that
occur would not result in population level impacts.
We also note that our findings for other species with active UMEs
that were previously described for the 2022 IHA remain applicable to
this project. Therefore, in conclusion, there is no new information
suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has preliminarily determined the following: (1) the
required mitigation measures would effect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the proposed
authorized takes would have a negligible impact on the affected marine
mammal species or stocks; (3) the proposed authorized takes represent
small numbers of marine mammals relative to the affected stock
abundances; (4) Atlantic Shores' activities would not have an
unmitigable adverse impact on taking for subsistence purposes as no
relevant subsistence uses of marine mammals are implicated by this
action; and (5) appropriate monitoring and reporting requirements are
included.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS is proposing to authorize the incidental take of four species
of marine mammals which are listed under the ESA, the North Atlantic
right, fin, sei, and sperm whale, and has determined that this activity
falls within the scope of activities analyzed in NMFS Greater Atlantic
Regional Fisheries Office's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021).
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to Atlantic Shores for conducting high-resolution
geophysical site characterization surveys off New Jersey and New York
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/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
Request for Public Comments
We request comment on our analyses (included in both this document
and the referenced documents supporting the 2022 IHA (ITA application;
issued IHA; and Federal Register notices including 87 FR 38067, June
27, 2022; 87 FR 50293, August 16, 2022)), the proposed authorization,
and any other aspect of this notice of proposed IHA for the HRG marine
site characterization surveys. We also request comment on the potential
for renewal of this proposed IHA as described in the paragraph below.
Please include with your comments any supporting data or literature
citations to help inform our final decision on the request for MMPA
authorization.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal
IHA following notice to the public providing an additional 15 days for
public comments when (1) up to another year of identical or nearly
identical activities as described in the Description of the Proposed
Activity and Anticipated Impacts section of this notice is planned, or
(2) the activities as described in the Description of the Proposed
Activity and Anticipated Impacts section of this notice would not be
completed by the time the IHA expires and a renewal would allow for
completion of the activities beyond that described in the Dates and
Duration section of this notice, provided all of the following
conditions are met:
<bullet> A request for renewal is received no later than 60 days
prior to the needed renewal IHA effective date (recognizing that the
renewal IHA expiration date cannot extend beyond 1 year from expiration
of the initial IHA).
<bullet> The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the
requested renewal IHA are identical to the activities analyzed under
the initial
[[Page 41920]]
IHA, are a subset of the activities, or include changes so minor (e.g.,
reduction in pile size) that the changes do not affect the previous
analyses, mitigation and monitoring requirements, or take estimates
(with the exception of reducing the type or amount of take).
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
<bullet> Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
Dated: June 23, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-13764 Filed 6-27-23; 8:45 am]
BILLING CODE 3510-22-P
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