[Federal Register Volume 86, Number 79 (Tuesday, April 27, 2021)]
[Notices]
[Pages 22160-22177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08681]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB011]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off of Delaware and New Jersey

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 Garden State Offshore Energy, 
LLC (Garden State) for authorization to take marine mammals incidental 
to marine site characterization surveys offshore of Delaware and New 
Jersey in the area of the Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS-A 
0482) and along potential export cable routes to landfall locations in 
Delaware and New Jersey. Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to incidentally take marine 
mammals during the specified activities. NMFS is also requesting 
comments on a possible one-time one-year renewal that could be issued 
under certain circumstances and if all requirements are met, as 
described in Request for Public Comments at the end of this notice. 
NMFS will consider public comments prior to making any final decision 
on the issuance of the requested MMPA authorizations and agency 
responses will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than May 27, 
2021.

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 [email protected].
    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 
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected 
Resources, NMFS, (301) 427-8421. 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: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

[[Page 22161]]

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of 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 NMFS 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.
    NMFS 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 November 2, 2020, NMFS received a request from Garden State for 
an IHA to take marine mammals incidental to marine site 
characterization surveys offshore of Delaware and New Jersey in the 
area of the Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf (OCS-A 0482) and along 
potential export cable routes (ECRs) to a landfall location in Delaware 
and New Jersey. Following NMFS' review of the draft application, a 
revised version was submitted on March 30, 2021. The application was 
deemed adequate and complete on April 5, 2021. Garden State's request 
is for take of a small number of 16 species of marine mammals by Level 
B harassment only. Neither Garden State nor NMFS expects serious injury 
or mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of Proposed Activity

Overview

    As part of its overall marine site characterization survey 
operations, Garden State proposes to conduct high-resolution 
geophysical (HRG) surveys in the Lease Area and along potential ECRs to 
landfall locations in Delaware and New Jersey.
    The purpose of the marine site characterization surveys are to 
obtain a baseline assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of offshore wind facility development. Surveys are also 
conducted to support engineering design and to map unexploded 
ordnances. Underwater sound resulting from Garden State's proposed site 
characterization survey activities, specifically HRG surveys, has the 
potential to result in incidental take of marine mammals in the form of 
Level B harassment.

Dates and Duration

    The estimated duration of HRG survey activity is expected to be up 
to 350 survey days over the course of a single year (``survey day'' 
defined as a 24-hour (hr) activity period), with 200 vessel survey days 
expected in the Lease Area and 150 vessel survey days expected in the 
ECR area. This schedule is based on 24-hour operations and includes 
potential down time due to inclement weather. Although some shallow-
water locations may be surveyed by smaller vessels during daylight 
hours only, the estimated number of survey days assumes uniform 24-hr 
operations.
    Garden State proposes to start survey activity as soon as possible 
in spring 2021. The IHA would be effective for one year from the date 
of issuance.

Specific Geographic Region

    The proposed survey activities will occur within the Project Area 
which includes the Lease Area and potential ECRs to landfall locations, 
as shown in Figure 1. The Lease Area is approximately 284 square 
kilometers (km\2\) and is within the Delaware Wind Energy Area (WEA) of 
the Bureau of Ocean Energy Management (BOEM) Mid-Atlantic planning 
area. Water depths in the Lease Area range from 15 meters (m) to 30 m. 
Water depths in the ECR area extend from the shoreline to approximately 
30 m.

[[Page 22162]]

[GRAPHIC] [TIFF OMITTED] TN27AP21.004

Detailed Description of Specific Activity

    Garden State proposed to conduct HRG survey operations, including 
multibeam depth sounding, seafloor imaging, and shallow and medium 
penetration sub-bottom profiling. The HRG surveys may be conducted 
using any or all of the following equipment types: Side scan sonar, 
multibeam echosounder, magnetometers and gradiometers, parametric sub-
bottom profiler (SBP), CHIRP SBP, boomers, or sparkers. As many as 
three vessels may be engaged in HRG surveying activities during Garden 
State's overall site characterization efforts with up to two working 
concurrently in the Lease Area and one vessel working in the ECR area. 
Garden State assumes that HRG survey operations would be conducted 24 
hours per day, with an assumed daily survey distance of 70 km. Vessels 
would generally conduct survey effort at a transit speed of 
approximately 4 knots (kn), which equates to 110 km per 24-hr period. 
However, based on past survey experience (i.e., knowledge of typical 
daily downtime due to weather, system malfunctions, etc.) Garden State 
assumes 70 km as the average daily distance. On this basis, a total of 
350 survey days (200 survey days in the Lease Area and 150 survey days 
in the ECR area) are expected. In certain shallow-water areas, vessels 
may conduct survey effort during daylight hours only, with a 
corresponding assumption that the daily survey distance would be halved 
(35 km). However, for purposes of analysis all survey days are assumed 
to cover the

[[Page 22163]]

maximum 70 km. A maximum of two vessels would operate concurrently in 
the Lease Area, with an additional third vessel surveying the ECRs.
    Acoustic sources planned for use during HRG survey activities 
proposed by Garden State include the following:
     Shallow penetration, non-impulsive, non-parametric SBPs 
(i.e., CHIRP SBPs) are used to map the near-surface stratigraphy (top 0 
to 10 m) of sediment below seabed. A CHIRP system emits signals 
covering a frequency sweep from approximately 2 to 20 kHz over time. 
The frequency range can be adjusted to meet project variables. These 
sources are typically mounted on a pole rather than towed, reducing the 
likelihood that an animal would be exposed to the signal.
     Medium penetration, impulsive sources (i.e., boomers and 
sparkers) are used to map deeper subsurface stratigraphy. A boomer is a 
broadband source operating in the 3.5 Hz to 10 kHz frequency range. 
Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 kHz. 
These sources are typically towed behind the vessel.
    Operation of the following survey equipment types is not reasonably 
expected to result in take of marine mammals and will not be discussed 
further beyond the brief summaries provided below.
     Non-impulsive, parametric SBPs are used for providing high 
data density in sub-bottom 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 85-100 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. These sources are 
typically deployed on a pole rather than towed behind the vessel.
     Acoustic corers are seabed-mounted sources with three 
distinct sound sources: A high-frequency parametric sonar, a high-
frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beamwidth 
is narrow (3.5[deg] to 8[deg]) and the source is operated roughly 3.5 m 
above the seabed with the transducer pointed directly downward.
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by the vessel transceiver and a transponder 
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several 
transponders mounted on other survey equipment. USBLs are expected to 
produce extremely small acoustic propagation distances in their typical 
operating configuration.
     Multibeam echosounders (MBESs) are used to determine water 
depths and general bottom topography. The proposed MBESs all have 
operating frequencies >180 kHz and are therefore outside the general 
hearing range of marine mammals.
     Side scan sonars (SSS) are used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The proposed SSSs all have operating 
frequencies >180 kHz and are therefore outside the general hearing 
range of marine mammals.
    Table 1 identifies representative survey equipment with the 
expected potential to result in exposure of marine mammals and 
potentially result in take. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending upon the final survey design, 
vessel availability, and survey contractor selection.

                                                 Table 1--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    SLrms  (dB  SL0-pk  (dB      Pulse
                                    Acoustic source    Operating       re 1         re 1        duration     Repetition   Beamwidth    CF = Crocker and
            Equipment                    type          frequency    [micro]Pa    [micro]Pa      (width)      rate  (Hz)   (degrees)   Fratantonio (2016)
                                                         (kHz)          m)           m)      (millisecond)                            MAN = Manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Non-impulsive, Non-parametric, Shallow Sub-bottom Profilers (CHIRP Sonars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top unit)  Non-impulsive,             2-16          195            -            20             6           24  MAN.
                                   mobile,                    2-8
                                   intermittent.
ET 424..........................  Non-impulsive,             4-24          176            -           3.4             2           71  CF.
                                   mobile,
                                   intermittent.
ET 512..........................  Non-impulsive,           0.7-12          179            -             9             8           80  CF.
                                   mobile,
                                   intermittent.
GeoPulse 5430A..................  Non-impulsive,             2-17          196            -            50            10           55  MAN.
                                   mobile,
                                   intermittent.
Teledyne Benthos Chirp III--TTV   Non-impulsive,              2-7          197            -            60            15          100  MAN.
 170.                              mobile,
                                   intermittent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Impulsive, Medium Sub-bottom Profilers (Sparkers & Boomers)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AA, Dura-spark UHD (400 tips,     Impulsive, mobile.      0.3-1.2          203          211           1.1             4         Omni  CF.
 500 J) \1\.
AA, Dura-spark UHD (400+400) \1\  Impulsive, mobile.      0.3-1.2          203          211           1.1             4         Omni  CF (AA Dura-spark
                                                                                                                                       UHD Proxy).
GeoMarine, Geo-Source dual 400    Impulsive, mobile.        0.4-5          203          211           1.1             2        Omni.  CF (AA Dura-spark
 tip sparker (800 J) \1\.                                                                                                              UHD Proxy)
GeoMarine Geo-Source 200 tip      Impulsive, mobile.      0.3-1.2          203          211           1.1             4         Omni  CF (AA Dura-spark
 sparker (400 J) \1\.                                                                                                                  UHD Proxy).
GeoMarine Geo-Source 200-400 tip  Impulsive, mobile.      0.3-1.2          203          211           1.1             4         Omni  CF (AA Dura-spark
 light weight sparker (400 J)                                                                                                          UHD Proxy).
 \1\.
GeoMarine Geo-Source 200-400 tip  Impulsive, mobile.      0.3-1.2          203          211           1.1             4         Omni  CF (AA Dura-spark
 freshwater sparker (400 J) \1\.                                                                                                       UHD Proxy).

[[Page 22164]]

 
AA, triple plate S-Boom (700-     Impulsive, mobile.        0.1-5          205          211           0.6             4           80  CF.
 1,000 J) \2\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; NR = not reported; [micro]Pa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; HF = high-frequency; J = joule; LF
  = low-frequency; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; SL = source level; SPL = root-mean-square
  sound pressure level; UHD = ultra-high definition; WFA = weighting factor adjustments.
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods
  and settings when manufacturer or other reliable measurements are not available.
\2\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
  used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
  in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

    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. 
Additional information regarding population trends and threats may be 
found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS' 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, NMFS follows the Committee on 
Taxonomy (2020). 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 
mortality is anticipated or authorized here, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All 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 and 
are available in the 2019 SARs (Hayes et al., 2020) and draft 2020 SARS 
available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

                  Table 2--Marine Mammal Species Likely To Occur Near the Project Area That May Be Affected by Garden State's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic (Y/N)      Nmin, most recent        PBR      Annual M/SI
                                                                                            \1\          abundance survey) \2\                   \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale.....  Eubalaena glacialis...  Western North Atlantic  E/D; Y             412 (0; 408; 2018)....          0.8         18.6
Family Balaenopteridae (rorquals):
    Humpback whale.................  Megaptera novaeangliae  Gulf of Maine.........  -/-; Y             1,393 (0; 1,375; 2016)           22           58
    Fin whale......................  Balaenoptera physalus.  Western North Atlantic  E/D; Y             6,802 (0.24; 5,573;              11         2.35
                                                                                                         2016).
    Sei whale......................  Balaenoptera borealis.  Nova Scotia...........  E/D; Y             6,292 (1.015; 3,098;            6.2          1.2
                                                                                                         See SAR).
    Minke whale....................  Balaenoptera            Canadian East Coast...  -/-; N             21,968 (0.31; 17,002;           170         10.6
                                      acutorostrata.                                                     2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale....................  Physeter macrocephalus  NA....................  E; Y               4,349 (0.28; 3,451;             3.9            0
                                                                                                         See SAR).
Family Delphinidae:
    Long-finned pilot whale........  Globicephala melas....  Western North Atlantic  -/-; N             39,215 (0.30; 30,627;           306           21
                                                                                                         See SAR).
    Short finned pilot whale.......  Globicephala            Western North Atlantic  -/-;Y              28,924 (0.24; 23,637;           236          160
                                      macrorhynchus.                                                     See SAR).

[[Page 22165]]

 
    Bottlenose dolphin.............  Tursiops truncatus....  Western North Atlantic  -/-N               62,851 (0.23; 51,914;           519           28
                                                              Offshore.              -/-;Y               See SAR).                       48    12.2-21.5
                                                             W.N.A. Northern                            6,639 (0.41; 4,759,
                                                              Migratory Coastal.                         2016).
    Common dolphin.................  Delphinus delphis.....  Western North Atlantic  -/-; N             172,947 (0.21;                1,452          399
                                                                                                         145,216; 2016).
    Atlantic white-sided dolphin...  Lagenorhynchus acutus.  Western North Atlantic  -/-; N             93,233 (0.71; 54,443;           544           26
                                                                                                         See SAR).
    Atlantic spotted dolphin.......  Stenella frontalis....  Western North Atlantic  -/-; N             39,921 (0.27; 32,032;           320            0
                                                                                                         2012).
    Risso's dolphin................  Grampus griseus.......  Western North Atlantic  -/-; N             35,493 (0.19; 30,289;           303         54.3
                                                                                                         See SAR).
Family Phocoenidae (porpoises):
    Harbor porpoise................  Phocoena phocoena.....  Gulf of Maine/Bay of    -/-; N             95,543 (0.31; 74,034;           851          217
                                                              Fundy.                                     See SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \4\..................  Halichoerus grypus....  Western North Atlantic  -/-; N             27,131 (0.19; 23,158,         1,389        4,729
                                                                                                         2016).
    Harbor seal....................  Phoca vitulina........  Western North Atlantic  -/-; N             75,834 (0.15; 66,884,         2,006          350
                                                                                                         2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship 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.
\4\ The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 451,431.

    As indicated above, all 16 species (with 17 managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. In addition to what is 
included in Sections 3 and 4 of the application, the SARs, and NMFS' 
website, further detail informing the baseline for select species 
(i.e., information regarding current Unusual Mortality Events (UME) and 
important habitat areas) is provided below.

North Atlantic Right Whale

    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017, along the U.S. and Canadian coast. This event has been 
declared an UME, with human interactions, including entanglement in 
fixed fishing gear and vessel strikes, implicated in at least 15 of the 
mortalities thus far. As of April 16, 2021, a total of 34 confirmed 
dead stranded whales (21 in Canada; 13 in the United States) have been 
documented. The cumulative total number of animals in the North 
Atlantic right whale UME has been updated to 49 individuals to include 
both the confirmed mortalities (dead stranded or floaters) (n=34) and 
seriously injured free-swimming whales (n=15) to better reflect the 
confirmed number of whales likely removed from the population during 
the UME and more accurately reflect the population impacts. More 
information is available online at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    The proposed survey area is part of a migratory corridor 
Biologically Important Area (BIA) for North Atlantic right whales 
(effective March-April and November-December) that extends from 
Massachusetts to Florida (LeBrecque et al., 2015). Off the coast of New 
Jersey, the migratory BIA extends from the coast to beyond the shelf 
break. This important migratory area is approximately 269,488 km\2\ in 
size (compared with the approximately 6,930 km\2\ of total estimated 
Level B harassment ensonified area associated with the 350 planned 
survey days) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts. NMFS' regulations at 50 CFR part 224.105 
designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic 
U.S. Seasonal Management Areas (SMA) for right whales in 2008. SMAs 
were developed to reduce the threat of collisions between ships and 
right whales around their migratory route and calving grounds. A 
portion of one SMA, which occurs off the mouth of Delaware Bay, 
overlaps spatially with a section of the proposed survey area. The SMA 
which occurs off the mouth of Delaware Bay is active from November 1 
through April 30 of each year.

Humpback Whale

    Following a NMFS evaluation of the status of the species, on 
September 8, 2016, NMFS identified 14 distinct population segments 
(DPS) of humpback whales, and listed four DPSs as endangered and one 
DPS as threatened (81 FR 62260; 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. Bettridge et al. (2015) estimated the size of this 
population at 12,312 (95 percent CI 8,688-15,954) whales in 2004-05, 
which is consistent with previous population estimates of approximately 
10,000-11,000 whales (Stevick et al., 2003; Smith et al., 1999) and the 
increasing trend for the West Indies DPS (Bettridge et al., 2015). 
Whales occurring in the survey area are considered to be from the West 
Indies DPS, but are not necessarily from the Gulf of Maine feeding 
population

[[Page 22166]]

managed as a stock by NMFS. 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.
    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 147 known cases (as of March 8, 2021). Of the whales examined, 
about 50 percent had evidence of human interaction, either ship strike 
or entanglement. While a portion of the whales have shown evidence of 
pre-mortem vessel strike, this finding is not consistent across all 
whales examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Minke Whale

    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 105 strandings (as of April 16, 2021). This event has been 
declared a UME. Full or partial necropsy examinations were conducted on 
more than 60 percent of the 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: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.

Seals

    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire and 
Massachusetts. This event has been declared a UME. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers, therefore the UME investigation now 
encompasses all seal strandings from Maine to Virginia. Ice seals (harp 
and hooded seals) have also started stranding with clinical signs, 
again not in elevated numbers, and those two seal species have also 
been added to the UME investigation. A total of 3,152 reported 
strandings (of all species) had occurred from July 1, 2018, through 
March 13, 2020. Full or partial necropsy examinations have been 
conducted on some of the seals and samples have been collected for 
testing. Based on tests conducted thus far, the main pathogen found in 
the seals is phocine distemper virus. NMFS is performing additional 
testing to identify any other factors that may be involved in this UME. 
Information on this UME is available online at: www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

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. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

           Table 3--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
          Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans       7 Hz to 35 kHz.
 (baleen whales).
Mid-frequency (MF) cetaceans       150 Hz to 160 kHz.
 (dolphins, toothed whales,
 beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans      275 Hz to 160 kHz.
 (true porpoises, Kogia, river
 dolphins, cephalorhynchid,
 Lagenorhynchus cruciger & L.
 australis).
Phocid pinnipeds (PW)              50 Hz to 86 kHz.
 (underwater) (true seals).
Otariid pinnipeds (OW)             60 Hz to 39 kHz.
 (underwater) (sea 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).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid) 
species) have the reasonable potential to co-occur with the proposed 
survey activities. Please refer to Table 2. Of the cetacean species 
that may be present, five are classified as low-frequency cetaceans 
(i.e., all mysticete species), eight are classified as mid-frequency 
cetaceans (i.e., all delphinid species and the sperm whale), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

[[Page 22167]]

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
Garden State's 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 within the 
same specified geographical region (e.g., 82 FR 20563, May 3, 2017; 85 
FR 36537, June 17, 2020; 85 FR 37848, June 24, 2020; 85 FR 48179, 
August 10, 2020). No significant new information is available, and we 
refer the reader to these documents rather than repeating the details 
here. The Estimated Take section includes a quantitative analysis of 
the number of individuals that are expected to be taken by Garden 
State's activity. The Negligible Impact Analysis and Determination 
section considers the potential effects of the specified activity, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.

Background on Active Acoustic Sound Sources and Acoustic Terminology

    This subsection contains a brief technical background on sound, on 
the characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to the summary of the potential effects of the specified 
activity on marine mammals. For general information on sound and its 
interaction with the marine environment, please see, e.g., Au and 
Hastings (2008); Richardson et al. (1995); Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz or cycles per second. Wavelength is the distance 
between two peaks or corresponding points of a sound wave (length of 
one cycle). Higher frequency sounds have shorter wavelengths than lower 
frequency sounds, and typically attenuate (decrease) more rapidly, 
except in certain cases in shallower water. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound and is typically 
described using the relative unit of the decibel. A sound pressure 
level (SPL) in dB is described as the ratio between a measured pressure 
and a reference pressure (for underwater sound, this is 1 microPascal 
([mu]Pa)), and is a logarithmic unit that accounts for large variations 
in amplitude. Therefore, a relatively small change in dB corresponds to 
large changes in sound pressure. The source level (SL) represents the 
SPL referenced at a distance of 1 m from the source (referenced to 1 
[mu]Pa), while the received level is the SPL at the listener's position 
(referenced to 1 [mu]Pa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy in a stated frequency band over a stated 
time interval or event and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse, 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event. Peak sound pressure (also referred to 
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous 
sound pressure measurable in the water at a specified distance from the 
source and is represented in the same units as the rms sound pressure.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be either 
directed in a beam or beams or may radiate in all directions 
(omnidirectional sources), as is the case for sound produced by the 
pile driving activity considered here. The compressions and 
decompressions associated with sound waves are detected as changes in 
pressure by aquatic life and man-made sound receptors such as 
hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz 
and, if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a

[[Page 22168]]

given frequency and location can vary by 10-20 dB from day to day 
(Richardson et al., 1995). The result is that, depending on the source 
type and its intensity, sound from the specified activity may be a 
negligible addition to the local environment or could form a 
distinctive signal that may affect marine mammals. Details of source 
types are described in the following text.
    Sounds are often considered to fall into one of two general types: 
Pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see 
Southall et al. (2007) for an in-depth discussion of these concepts. 
The distinction between these two sound types is not always obvious, as 
certain signals share properties of both pulsed and non-pulsed sounds. 
A signal near a source could be categorized as a pulse, but due to 
propagation effects as it moves farther from the source, the signal 
duration becomes longer (e.g., Greene and Richardson, 1988).
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems. The 
duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment. Sparkers and boomers 
produce pulsed signals with energy in the frequency ranges specified in 
Table 1. The amplitude of the acoustic wave emitted from sparker 
sources is equal in all directions (i.e., omnidirectional), while other 
sources planned for use during the proposed surveys have some degree of 
directionality to the beam, as specified in Table 1. Other sources 
planned for use during the proposed survey activity (e.g., CHIRP SBPs) 
should be considered non-pulsed, intermittent sources.

Summary on Specific Potential Effects of Acoustic Sound Sources

    Underwater sound from active acoustic sources can include one or 
more of the following impacts: Temporary or permanent hearing 
impairment, non-auditory physical or physiological effects, behavioral 
disturbance, stress, and masking. 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), in which case the loss of hearing sensitivity 
is not fully recoverable, or temporary (TTS), in which case the 
animal's hearing threshold would recover over time (Southall et al., 
2007).
    Animals in the vicinity of Garden State's proposed HRG survey 
activity are unlikely to incur even TTS due to the characteristics of 
the sound sources, which include relatively low source levels (176 to 
205 dB re 1 [micro]Pa-m) and generally very short pulses and potential 
duration of exposure. These characteristics mean that instantaneous 
exposure is unlikely to cause TTS, as it is unlikely that exposure 
would occur close enough to the vessel for received levels to exceed 
peak pressure TTS criteria, and that the cumulative duration of 
exposure would be insufficient to exceed cumulative SEL criteria. Even 
for high-frequency cetacean species (e.g., harbor porpoises), which 
have the greatest sensitivity to potential TTS, individuals would have 
to make a very close approach and also remain very close to vessels 
operating these sources in order to receive multiple exposures at 
relatively high levels, as would be necessary to cause TTS. 
Intermittent exposures--as would occur due to the brief, transient 
signals produced by these sources--require a higher cumulative SEL to 
induce TTS than would continuous exposures of the same duration (i.e., 
intermittent exposure results in lower levels of TTS). Moreover, most 
marine mammals would more likely avoid a loud sound source rather than 
swim in such close proximity as to result in TTS. Kremser et al. (2005) 
noted that the probability of a cetacean swimming through the area of 
exposure when a sub-bottom profiler emits a pulse is small--because if 
the animal was in the area, it would have to pass the transducer at 
close range in order to be subjected to sound levels that could cause 
TTS and would likely exhibit avoidance behavior to the area near the 
transducer rather than swim through at such a close range. Further, the 
restricted beam shape of many of HRG survey devices planned for use 
(Table 1) makes it unlikely that an animal would be exposed more than 
briefly during the passage of the vessel.
    Behavioral disturbance 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 most HRG survey equipment types planned for use 
(Table 1) and the brief period when an individual mammal is likely to 
be exposed.

[[Page 22169]]

Vessel Strike

    Ship strikes of marine mammals can cause major wounds, which may 
lead to the death of the animal. An animal at the surface could be 
struck directly by a vessel, a surfacing animal could hit the bottom of 
a vessel, or a vessel's propeller could injure an animal just below the 
surface. The severity of injuries typically depends on the size and 
speed of the vessel (Knowlton and Kraus 2001; Laist et al., 2001; 
Vanderlaan and Taggart 2007).
    The most vulnerable marine mammals are those that spend extended 
periods of time at the surface in order to restore oxygen levels within 
their tissues after deep dives (e.g., the sperm whale). In addition, 
some baleen whales, such as the North Atlantic right whale, seem 
generally unresponsive to vessel sound, making them more susceptible to 
vessel collisions (Nowacek et al., 2004). These species are primarily 
large, slow moving whales. Smaller marine mammals (e.g., bottlenose 
dolphin) move quickly through the water column and are often seen 
riding the bow wave of large ships. Marine mammal responses to vessels 
may include avoidance and changes in dive pattern (NRC 2003).
    An examination of all known ship strikes from all shipping sources 
(civilian and military) indicates vessel speed is a principal factor in 
whether a vessel strike results in death (Knowlton and Kraus 2001; 
Laist et al., 2001; Jensen and Silber 2003; Vanderlaan and Taggart 
2007). In assessing records with known vessel speeds, Laist et al. 
(2001) found a direct relationship between the occurrence of a whale 
strike and the speed of the vessel involved in the collision. The 
authors concluded that most deaths occurred when a vessel was traveling 
in excess of 24.1 km/h (14.9 mph; 13 kn). Given the slow vessel speeds 
(typically 4-5 knots) and predictable course necessary for data 
acquisition, ship strike is unlikely to occur during Garden State's 
proposed survey activities. Marine mammals would be able to easily 
avoid the survey vessel due to the slow vessel speed. Further, Garden 
State would implement measures (e.g., protected species monitoring, 
vessel speed restrictions and separation distances; see Proposed 
Mitigation) set forth in the BOEM lease to reduce the risk of a vessel 
strike to marine mammal species in the survey area.

Marine Mammal Habitat

    The HRG survey equipment will not contact the seafloor and does not 
represent a source of pollution. NMFS is not aware of any available 
literature on impacts to marine mammal prey from sound produced by HRG 
survey equipment. However, as the HRG survey equipment introduces noise 
to the marine environment, there is the potential for it to result in 
avoidance of the area around the HRG survey activities on the part of 
marine mammal prey. Any avoidance of the area on the part of marine 
mammal prey would be expected to be short term and temporary.
    Because of the temporary nature of the disturbance, and the 
availability of similar habitat and resources (e.g., prey species) in 
the surrounding area, the impacts to marine mammals and the food 
sources that they utilize are not expected to cause significant or 
long-term consequences for individual marine mammals or their 
populations. NMFS has preliminarily determined that impacts on marine 
mammal habitat from the proposed activities will be temporary, 
insignificant, and discountable.
    The potential effects of Garden State'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 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based on the characteristics of the signals produced by the acoustic 
sources planned for use, Level A harassment (serious injury, and 
mortality) is neither anticipated, even absent mitigation, nor proposed 
to be authorized. Consideration of the anticipated effectiveness of the 
mitigation measures (i.e., exclusion zones and shutdown measures), 
discussed in detail below in the Proposed Mitigation section, further 
strengthens the conclusion that Level A harassment is not a reasonably 
anticipated outcome of the survey activity. As described previously, no 
serious injury or mortality is anticipated or proposed to be authorized 
for this activity.
    Generally speaking, NMFS estimates take by considering: (1) 
Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be behaviorally harassed or incur 
some degree of permanent hearing impairment; (2) the area or volume of 
water that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) and the number of days of activities. NMFS notes that while 
these basic factors can contribute to a basic calculation to provide an 
initial prediction of takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Below, NMFS 
describes the factors considered here in more detail and present the 
proposed take estimate.

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 (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007, Ellison et al., 2012). NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed (i.e., Level B harassment) when 
exposed to underwater anthropogenic noise above received levels of 160 
dB re 1 [mu]Pa (rms) for the impulsive sources (i.e., boomers, 
sparkers) and non-impulsive, intermittent sources (e.g.,

[[Page 22170]]

CHIRP SBPs) evaluated here for Garden State's proposed activity.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). For more 
information, see NMFS' 2018 Technical Guidance, which may be accessed 
at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Garden State's proposed activity includes the use of impulsive 
(i.e., sparkers and boomers) and non-impulsive (e.g., CHIRP SBP) 
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 Garden State's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated Level A harassment exposures. 
Maximum estimated Level A harassment isopleths were less than 3 m for 
all sources and hearing groups with the exception of an estimated 37 m 
zone and 17 m zone calculated for high-frequency cetaceans during use 
of the GeoPulse 5430 CHIRP SBP and the TB CHIRP III, respectively (see 
Table 1 for source characteristics). Garden State 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

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the frequency-dependent absorption coefficient (Table 1).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
types that may be used during the proposed surveys and the sound levels 
associated with those HRG equipment types.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Garden State that 
has the potential to result in Level B harassment of marine mammals, 
the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-Source sparkers 
would produce the largest Level B harassment isopleth (141 m; please 
see Table 4 of Garden State's application). Estimated Level B 
harassment isopleths associated with the boomer and CHIRP SBP systems 
planned for use are estimated as 25 and 36 m, respectively. Although 
Garden State does not expect to use sparker sources on all planned 
survey days, it proposes to assume for purposes of analysis that the 
sparker would be used on all survey days. This is a conservative 
approach, as the actual sources used on individual survey days may 
produce smaller harassment distances.

Marine Mammal Occurrence

    In this section, NMFS provides information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) 
represent the best available information regarding marine mammal 
densities in the proposed survey area. The density data presented by 
Roberts et al. (2016, 2017, 2018, 2020) incorporates aerial and 
shipboard line-transect survey data from NMFS and other organizations 
and incorporates data from 8 physiographic and 16 dynamic oceanographic 
and biological covariates, and controls for the influence of sea state, 
group size, availability bias, and perception bias on the probability 
of making a sighting. These density models were originally developed 
for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/. 
Marine mammal density estimates in the survey area (animals/km\2\) were 
obtained using the most recent model results for all taxa (Roberts et 
al., 2016, 2017, 2018, 2020). The updated models incorporate additional 
sighting data, including sightings from the NOAA Atlantic Marine 
Assessment Program for Protected Species (AMAPPS) surveys.
    For the exposure analysis, density data from Roberts et al. (2016, 
2017, 2018, 2020) were mapped using a geographic information system 
(GIS). Density grid cells that included any portion of the proposed 
survey area were selected for all survey months (see Figure 3 in Garden 
State's application).
    Densities from each of the selected density blocks were averaged 
for each month available to provide monthly density estimates for each 
species (when available based on the temporal resolution of the model 
products), along with the average annual density. Please see Tables 7 
and 8 of Garden State's application for density values used in the 
exposure estimation process for the Lease Area and the potential ECRs, 
respectively. Note that no density estimates are available for the 
portion of the ECR area in Delaware Bay, so the marine mammal densities 
from the density models of Roberts et al. (2016, 2017, 2018, 2020) were 
assumed to apply to this area. Additional data regarding average group 
sizes from survey effort in the region was considered to ensure 
adequate take estimates are evaluated.

Take Calculation and Estimation

    Here NMFS describes how the information provided above is brought 
together to produce a quantitative take estimate. In order to estimate 
the number of marine mammals predicted to be exposed to sound levels 
that would result in harassment, radial distances to predicted 
isopleths corresponding to Level B harassment thresholds are 
calculated, as described above. The maximum distance (i.e., 141 m 
distance associated with sparkers) to the Level B harassment criterion 
and the estimated trackline distance traveled per day by a given survey 
vessel (i.e., 70 km) are then used to calculate the daily ensonified 
area, or zone of influence (ZOI) around the survey vessel.
    The ZOI is a representation of the maximum extent of the ensonified 
area around a sound source over a 24-hr

[[Page 22171]]

period. The ZOI for each piece of equipment operating below 200 kHz was 
calculated per the following formula:

ZOI = (Distance/day x 2r) + [pi]r\2\

    Where r is the linear distance from the source to the harassment 
isopleth.

    ZOIs associated with all sources with the expected potential to 
cause take of marine mammals are provided in Table 6 of Garden State's 
application. The largest daily ZOI (19.8 km\2\), associated with the 
various sparkers proposed for use, was applied to all planned survey 
days.
    Potential Level B harassment exposures are estimated by multiplying 
the average annual density of each species within either the Lease Area 
or potential ECR area by the daily ZOI. That product is then multiplied 
by the number of operating days expected for the survey in each area 
assessed, and the product is rounded to the nearest whole number. These 
results are shown in Table 4.

                           Table 4--Summary of Take Numbers Proposed for Authorization
----------------------------------------------------------------------------------------------------------------
                                                                                   Level B takes    Max percent
                             Species                                 Abundance          \1\         population
----------------------------------------------------------------------------------------------------------------
                                             Low-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Fin whale.......................................................           6,802               9            0.13
Sei whale.......................................................           6,292           0 (1)            0.02
Minke whale.....................................................          21,968               3            0.01
Humpback whale..................................................           1,393               4            0.29
North Atlantic right whale......................................             412              14            3.40
----------------------------------------------------------------------------------------------------------------
                                             Mid-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Sperm whale \3\.................................................           4,349           0 (3)            0.07
Atlantic white-sided dolphin....................................          93,233              15            0.00
Atlantic spotted dolphin........................................          39,921               9            0.00
Common bottlenose dolphin:\2\
    Offshore Stock..............................................          62,851             437            0.21
    Migratory Stock.............................................           6,639           1,192            7.77
Pilot Whales:\3\
    Short-finned pilot whale....................................          28,924          3 (10)            0.03
    Long-finned pilot whale.....................................          39,215          3 (10)            0.03
Risso's dolphin.................................................          35,493          0 (30)            0.08
Common dolphin..................................................         172,974             112            0.06
----------------------------------------------------------------------------------------------------------------
                                            High-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................................................          95,543              98            0.03
----------------------------------------------------------------------------------------------------------------
                                                    Pinnipeds
----------------------------------------------------------------------------------------------------------------
Seals: \4\
    Gray seal...................................................         451,431               9            0.00
    Harbor seal.................................................          75,834               9            0.01
----------------------------------------------------------------------------------------------------------------
\1\Parenthesis denote changes from calculated take estimates.Increases from calculated values are based on
  assumed average group size for the species; sei whale, Kenney and Vigness-Raposa, 2010; sperm whale and
  Risso's dolphin, Barkaszi and Kelly, 2018.
\2\Roberts et al. (2016) does not provide density estimates for individual stocks of common bottlenose dolphins;
  therefore, stock densities were delineated using the 20-m isobath.
\3\Roberts (2018) only provides density estimates for ``generic'' pilot whales; therefore, an equal potential
  for takes has been assumed either for each species.
\4\Roberts (2018) only provides density estimates for ``generic'' seals; therefore, densities were split evenly
  between the two species.

    The take numbers shown in Table 4 are those requested by Garden 
State, with the exception of the two pilot whale species. Garden State 
requested 3 takes each of short-finned and long-finned pilot whales, by 
Level B harassment. However, the requested number of takes is below the 
mean group size for each of these species; therefore, NMFS proposes 
increasing to 10 (from 3, proposed by Garden State) the number of takes 
by Level B harassment for each of these species, based on published 
mean group sizes (Kenney and Vigness-Raposa, 2010). For all other 
species, NMFS concurs with the take numbers requested by Garden State 
and proposes to authorize them.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
carefully considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is

[[Page 22172]]

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, impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS proposes the following mitigation measures be implemented 
during Garden State's proposed marine site characterization surveys.

Marine Mammal Exclusion Zones

    Marine mammal exclusion zones (EZ) would be established around the 
HRG survey equipment and monitored by protected species observers 
(PSOs):
     500 m EZ for North Atlantic right whales during use of all 
acoustic sources; and
     100 m EZ for all marine mammals, with certain exceptions 
specified below, during operation of impulsive acoustic sources (boomer 
and/or sparker).
    If a marine mammal is detected approaching or entering the EZs 
during the HRG survey, the vessel operator would adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated requirements will be included in the site-specific 
training to be provided to the survey team.

Pre-Clearance of the Exclusion Zones

    Garden State would implement a 30-minute pre-clearance period of 
the EZs prior to the initiation of ramp-up of HRG equipment. During 
this period, the EZ will be monitored by the PSOs, using the 
appropriate visual technology. Ramp-up may not be initiated if any 
marine mammal(s) is within its respective EZ. If a marine mammal is 
observed within an EZ during the pre-clearance period, ramp-up may not 
begin until the animal(s) has been observed exiting its respective EZ 
or until an additional time period has elapsed with no further sighting 
(i.e., 15 minutes for small odontocetes and seals, and 30 minutes for 
all other species).

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure would be used for 
HRG survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. The ramp-up procedure would be used at 
the beginning of HRG survey activities in order to provide additional 
protection to marine mammals near the survey area by allowing them to 
vacate the area prior to the commencement of survey equipment operation 
at full power.
    A ramp-up would begin with the powering up of the smallest acoustic 
HRG equipment at its lowest practical power output appropriate for the 
survey. When technically feasible, the power would then be gradually 
turned up and other acoustic sources would be added.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective exclusion zone. Ramp-up will continue if the animal has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals and 30 minutes for all other species).
    Activation of survey equipment through ramp-up procedures may not 
occur when visual observation of the pre-clearance zone is not expected 
to be effective (i.e., during inclement conditions such as heavy rain 
or fog).

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment would 
be required if a marine mammal is sighted entering or within its 
respective exclusion zone. The vessel operator must comply immediately 
with any call for shutdown by the Lead PSO. Any disagreement between 
the Lead PSO and vessel operator should be discussed only after 
shutdown has occurred. Subsequent restart of the survey equipment can 
be initiated if the animal has been observed exiting its respective 
exclusion zone or until an additional time period has elapsed (i.e., 30 
minutes for all other species).
    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 (36 m, non-impulsive; 141 m impulsive), 
shutdown would occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective EZs. If the acoustic source is shut down for a period 
longer than 30 minutes and PSOs have maintained constant observation, 
then pre-clearance and ramp-up procedures will be initiated as 
described in the previous section.
    The shutdown requirement would be waived for small delphinids of 
the following genera: Delphinus, Lagenorhynchus, Stenella, and Tursiops 
and seals. Specifically, if a delphinid from the specified genera or a 
pinniped is visually detected approaching the vessel (i.e., to bow 
ride) or towed equipment, shutdown is not required. Furthermore, 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 judgement in making the decision to call for a shutdown. 
Additionally, shutdown is required if a delphinid or pinniped detected 
in the exclusion zone and belongs to a genus other than those 
specified.

Vessel Strike Avoidance

    Garden State will ensure that vessel operators and crew maintain a 
vigilant watch for cetaceans and pinnipeds and slow down or stop their 
vessels to avoid striking these species. Survey vessel crew members 
responsible for navigation duties will receive site-specific training 
on marine mammals sighting/reporting and vessel strike avoidance 
measures. Vessel strike avoidance measures would include the following, 
except under circumstances when complying with these requirements would 
put the safety of the vessel or crew at risk:
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated 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 protected species from other phenomena and (2) broadly to 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal.
     All vessels, regardless of size, must observe a 10-knot 
speed restriction in

[[Page 22173]]

specific areas designated by NMFS for the protection of North Atlantic 
right whales from vessel strikes including seasonal management areas 
(SMAs) and dynamic management areas (DMAs) when in effect.
     All vessels greater than or equal to 19.8 m in overall 
length operating from November 1 through April 30 will operate at 
speeds of 10 knots or less while transiting to and from Project Area.
     All vessels must reduce their speed to 10 knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from right whales. If a whale is observed but cannot be confirmed 
as a species other than a right whale, the vessel operator must assume 
that it is a right whale and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from sperm whales and all other baleen whales.
     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).
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
     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.
    Members of the monitoring team will consult NMFS North Atlantic 
right whale reporting system and Whale Alert, as able, for the presence 
of North Atlantic right whales throughout survey operations, and for 
the establishment of a DMA. If NMFS should establish a DMA in the 
Project Area during the survey, the vessels will abide by speed 
restrictions in the DMA.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. Prior to implementation with 
vessel crews, the training program will be provided to NMFS for review 
and approval. Confirmation of the training and understanding of the 
requirements will be documented on a training course log sheet. Signing 
the log sheet will certify that the crew member understands and will 
comply with the necessary requirements throughout the survey 
activities.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

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

Proposed Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Garden State would 
employ independent, dedicated, trained 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 their designated task 
and/or have demonstrated experience in the role of an independent PSO 
during an HRG survey. At least one PSO aboard each acoustic source 
vessel must have a minimum of 90 days at-sea experience working as a 
PSO during a geophysical survey, with no more than 18 months elapsed 
since the conclusion of the at-sea experience. On a case-by-case basis, 
non-independent observers may be approved by NMFS for limited, specific 
duties in support of approved, independent PSOs on smaller vessels with 
limited crew capacity operating in nearshore waters.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established EZs during 
survey activities. It will be the responsibility of the Lead PSO on 
duty to communicate the presence of marine mammals as well as to 
communicate the

[[Page 22174]]

action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) would ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and would conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least two hours between 
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying 
concurrently, any observations of marine mammals would be communicated 
to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to EZs. Reticulated binoculars must also be available to PSOs 
for use as appropriate based on conditions and visibility to support 
the sighting and monitoring of marine mammals. During nighttime 
operations, night-vision goggles with thermal clip-ons and infrared 
technology would be used. Position data would be recorded using hand-
held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements. This would include dates, 
times, and locations of survey operations; dates and times of 
observations, location and weather; details of marine mammal sightings 
(e.g., species, numbers, behavior); and details of any observed marine 
mammal behavior that occurs (e.g., noted behavioral disturbances).

Proposed Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a final technical report will be 
provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys (including what type of mitigation and the species and number 
of animals that prompted the mitigation action, when known), and 
provides an interpretation of the results and effectiveness of all 
mitigation and monitoring. Any recommendations made by NMFS must be 
addressed in the final report prior to acceptance by NMFS. All draft 
and final marine mammal and acoustic monitoring reports must be 
submitted to [email protected] and [email protected]. 
The report must contain at minimum, the following:
     PSO names and affiliations;
     Dates of departures and returns to port with port name;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends, vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     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;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     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);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during surveys or during vessel 
transit, Garden State must immediately report sighting information to 
the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 
755-6622. North Atlantic right whale sightings in any location may also 
be reported to the U.S. Coast Guard via channel 16.
    In the event that Garden State personnel discover an injured or 
dead marine mammal, Garden State would report the incident to the NMFS 
Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would 
include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and

[[Page 22175]]

updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Garden State 
would report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would 
include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     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;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     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
     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 responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. NMFS also assesses 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 environmental 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, our analysis applies to all the species listed 
in Table 4, given that NMFS expects the anticipated effects of the 
proposed survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
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 injury or mortality is proposed to be authorized. As discussed 
in the Potential Effects section, non-auditory physical effects and 
vessel strike are not expected to occur. NMFS expects that all 
potential takes would be in the form of short-term Level B behavioral 
harassment in the form of temporary avoidance of the area or decreased 
foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007). Even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole. As described above, Level A harassment is not 
expected to occur given the nature of the operations and the estimated 
small size of the Level A harassment zones.
    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 proposed survey 
area and there are no feeding areas known to be biologically important 
to marine mammals within the proposed survey area. There is no 
designated critical habitat for any ESA-listed marine mammals in the 
proposed survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As noted 
previously, elevated North Atlantic right whale mortalities began in 
June 2017 and there is an active UME. Overall, preliminary findings 
support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of right whales. 
The proposed survey area overlaps a migratory corridor Biologically 
Important Area (BIA) for North Atlantic right whales (effective March-
April and November-December) that extends from Massachusetts to Florida 
(LeBrecque et al., 2015). Off the coast of Delaware, this migratory BIA 
extends from the coast to beyond the shelf break. Due to the fact that 
that the proposed survey activities are temporary and the spatial 
extent of sound produced by the survey would be very small relative to 
the spatial extent of the available migratory habitat in the BIA, right 
whale migration is not expected to be impacted by the proposed survey. 
Given the relatively

[[Page 22176]]

small size of the ensonified area, it is unlikely that prey 
availability would be adversely affected by HRG survey operations. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration; no ship strike is expected to occur 
during Garden State's proposed activities. Additionally, only very 
limited take by Level B harassment of North Atlantic right whales has 
been requested and is being proposed by NMFS as HRG survey operations 
are required to maintain a 500 m EZ and shutdown if a North Atlantic 
right whale is sighted at or within the EZ. The 500 m shutdown zone for 
right whales is conservative, considering the Level B harassment 
isopleth for the most impactful acoustic source (i.e., GeoMarine Geo-
Source 400 tip sparker) is estimated to be 141 m, and thereby minimizes 
the potential for behavioral harassment of this species. As noted 
previously, Level A harassment is not expected due to the small PTS 
zones associated with HRG equipment types proposed for use. NMFS does 
not anticipate North Atlantic right whales takes that would result from 
Garden State'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 Garden State's proposed survey area. Elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine 
through Florida since January 2016. Of the cases examined, 
approximately half had evidence of human interaction (ship strike or 
entanglement). The UME does not yet provide cause for concern regarding 
population-level impacts. Despite the UME, the relevant population of 
humpback whales (the West Indies breeding population, or DPS) remains 
stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and 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, although 
additional testing to identify other factors that may be involved in 
this UME are underway. The UME does not yet provide cause for concern 
regarding population-level impacts to any of these stocks. For harbor 
seals, the population abundance is over 75,000 and annual M/SI (350) is 
well below PBR (2,006) (Hayes et al., 2020). The population abundance 
for gray seals in the United States is over 27,000, with an estimated 
abundance, including seals in Canada, of approximately 451,431. In 
addition, the abundance of gray seals is likely increasing in the U.S. 
Atlantic exclusive economic zone (EEZ) as well as in Canada (Hayes et 
al., 2020).
    The required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in Table 4, 
including those with active UME's to the level of least practicable 
adverse impact. In particular they would provide animals the 
opportunity to move away from the sound source throughout the survey 
area before HRG survey equipment reaches full energy, thus preventing 
them from being exposed to sound levels that have the potential to 
cause injury (Level A harassment) or more severe Level B harassment. 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 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    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 the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or proposed 
for authorization;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed for authorization;
     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;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
     While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, the activities would occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities would not affect migration. In addition, mitigation 
measures to shutdown at 500 m to minimize potential for Level B 
behavioral harassment would limit any take of the species; and
     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 above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.

[[Page 22177]]

    NMFS proposes to authorize incidental take of 16 marine mammal 
species (with 17 managed stocks). The total amount of takes proposed 
for authorization relative to the best available population abundance 
is less than 8 percent for one stock (bottlenose dolphin northern 
coastal migratory stock) and less than 4 percent of all other species 
and stocks, which NMFS preliminarily finds are small numbers of marine 
mammals relative to the estimated overall population abundances for 
those stocks (please see Table 4).
    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 will 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 NMFS proposes to authorize take for 
endangered or threatened species, in this case with NMFS Greater 
Atlantic Regional Fisheries Office (GARFO).
    The NMFS OPR 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 whales. The OPR has requested 
initiation of Section 7 consultation with NMFS GARFO for the issuance 
of this IHA. NMFS will conclude the ESA section 7 consultation prior to 
reaching a determination regarding the proposed issuance of the 
authorization.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Garden State for conducting marine site 
characterization surveys off the coasts of Delaware and New Jersey for 
one year from the date of issuance, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed marine 
site characterization surveys. We also request at this time 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, 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, 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:
     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).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: April 21, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-08681 Filed 4-26-21; 8:45 am]
BILLING CODE 3510-22-P