[Federal Register Volume 86, Number 92 (Friday, May 14, 2021)]
[Notices]
[Pages 26465-26479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10236]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB074]


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

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

ACTION: Notice; issuance of an Incidental Harassment Authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Ocean Wind, LLC (Ocean Wind) to incidentally harass, by Level B 
harassment only, marine mammals during marine site characterization 
surveys off of New Jersey in the area of Commercial Lease of Submerged 
Lands for Renewable Energy Development on the Outer Continental Shelf 
Lease Areas OCS-A 0498 and OCS-A 0532 (Lease Area) and potential export 
cable routes to landfall locations in New Jersey.

DATES: This Authorization is effective for a period of one year, from 
May 10, 2021 through May 9, 2022.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey. In case of problems accessing 
these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    On December 11, 2020, NMFS received a request from Ocean Wind for 
an IHA to take marine mammals incidental to marine site 
characterization surveys off of New Jersey in the Lease Area and 
potential export cable routes (ECRs) to landfall locations in New 
Jersey. Following NMFS review of the draft application, a revised 
version was submitted on February 23, 2021. That revised version was 
deemed adequate and complete on March 9, 2020. Ocean Wind's request is 
for take of 16 species of marine mammals, by Level B harassment only. 
Neither Ocean Wind nor NMFS expects serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to Ocean Wind for similar work in the 
same geographic area on June 8, 2017 (82 FR 31562; July 7, 2017) with 
effective dates from June 8, 2017, through June 7, 2018. Ocean Wind 
complied with all the requirements (e.g., mitigation, monitoring, and 
reporting) of the previous IHA.

Description of Proposed Activity

Overview

    As part of its overall marine site characterization survey 
operations, Ocean Wind plans to conduct high-resolution geophysical 
(HRG) surveys in the Lease Area and along potential ECRs to landfall 
locations in New Jersey.

[[Page 26466]]

    The purpose of the marine site characterization surveys are to 
obtain an assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of a planned offshore wind facility development. Surveys are 
also conducted to support engineering design and to map unexploded 
ordnance. Underwater sound resulting from Ocean Wind's site 
characterization survey activities, specifically HRG surveys, has the 
potential to result in incidental take of marine mammals in the form of 
Level B behavioral harassment.

Dates and Duration

    The estimated duration of HRG survey activity is expected to be up 
to 275 survey days over the course of a single year, with a ``survey 
day'' defined as a 24-hour (hr) activity period. Ocean Wind plans to 
start survey activity as soon as possible in spring 2021. The IHA is 
effective for one year, from May 10, 2021, through May 9, 2022.
    This schedule is based on 24-hr operations and includes potential 
down time due to inclement weather. Although some shallow-water 
locations may be surveyed by smaller vessels that would operate during 
daylight hours only, the estimated total number of survey days assumes 
uniform 24-hr operations. The number of estimated survey days varies 
between the Lease Area and ECR area, with 142 vessel survey days 
expected in the Lease Area and 133 vessel survey days in the ECR area.

Specific Geographic Region

    The survey activities will occur within the Project Area which 
includes the Lease Area and potential ECRs, as shown in Figure 1. The 
Lease Area is approximately 649 square kilometers (km\2\) and is within 
the Bureau of Ocean Energy Management's New Jersey Wind Energy Area 
(WEA). Water depths in the Lease Area range from 15 meters (m) to 35 m, 
and the potential ECRs extend from the shoreline to approximately 40 m 
depth.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN14MY21.000

BILLING CODE 3510-22-C

[[Page 26468]]

Detailed Description of Specific Activity

    Ocean Wind plans 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. Ocean Wind 
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.) Ocean Wind assumes 70 km as the average 
daily distance. On this basis, a total of 275 survey days (142 survey 
days in the Lease Area and 133 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 maximum 
70 km. A maximum of 2 vessels would operate concurrently in areas where 
24-hr operations would be conducted, with an additional third vessel 
potentially conducting daylight-only survey effort in shallow-water 
areas.
    The following acoustic sources planned for use during Ocean Wind's 
HRG survey activities are conservatively assumed to have the potential 
to result in incidental take of marine mammals:
     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; and
     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.
    Additional acoustic sources not expected to have the potential to 
cause take of marine mammals were described in the notice of proposed 
IHA (86 FR 17783; April 6, 2021). 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 Equipment
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                                                                  SL0-pk
                                          Operating    SLrms     (dB re 1  Pulse duration              Beamwidth
                Equipment                 frequency   (dB re 1  [micro]Pa      (width)     Repetition               CF = Crocker and Fratantonio (2016)
                                            (kHz)    [micro]Pa      m)      (millisecond)  rate  (Hz)  (degrees)            MAN = manufacturer
                                                         m)
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                                                 Non-parametric shallow penetration SBPs (non-impulsive)
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ET 216 (2000DS or 3200 top unit)........       2-16        195          -              20           6         24  MAN.
                                                2-8
ET 424..................................       4-24        176          -             3.4           2         71  CF.
ET 512..................................     0.7-12        179          -               9           8         80  CF.
GeoPulse 5430A..........................       2-17        196          -              50          10         55  MAN.
Teledyne Benthos Chirp III--TTV 170.....        2-7        197          -              60          15        100  MAN.
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                                                           Medium penetration SBPs (impulsive)
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AA, Dura-spark UHD (400 tips, 500 J) \1\    0.3-1.2        203        211             1.1           4       Omni  CF.
AA, triple plate S-Boom (700-1,000 J)         0.1-5        205        211             0.6           4         80  CF.
 \2\.
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- = not applicable; [micro]Pa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; J = joule; 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.
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  These include variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. 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.


[[Page 26469]]

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

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Ocean Wind was 
published in the Federal Register on April 6, 2021 (86 FR 17783). 
During the 30-day comment period, NMFS did not receive any substantive 
public comments.

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; 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 
(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 would be authorized here, PBR and annual 
serious injury and mortality from anthropogenic sources are included 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: 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 Ocean Wind's Activity
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                                                                                                       Stock abundance
                                                                                 ESA/MMPA status;      (CV, Nmin, most                      Annual M/SI
          Common name              Scientific name            Stock            strategic (Y/N) \1\    recent  abundance         PBR             \3\
                                                                                                         survey) \2\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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                                                                    Family Balaenidae
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North Atlantic right whale.....  Eubalaena           Western North Atlantic   E/D; Y                 412 (0; 408; 2018)              0.8            18.6
                                  glacialis.          (WNA).
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                                                            Family Balaenopteridae (rorquals)
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Humpback whale.................  Megaptera           Gulf of Maine..........  -/-; Y                 1,393 (0.15; 1,375;              22              58
                                  novaeangliae.                                                       2016)
Fin whale......................  Balaenoptera        WNA....................  E/D; Y                 6,802 (0.24; 5,573;              11            2.35
                                  physalus.                                                           2016)
Sei whale......................  Balaenoptera        Nova Scotia............  E/D; Y                 6,292 (1.02; 3,098;             6.2             1.2
                                  borealis.                                                           2016)
Minke whale....................  Balaenoptera        Canadian East Coast....  -/-; N                 21,968 (0.31;                   170            10.6
                                  acutorostrata.                                                      17,002; 2016)
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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                                                                   Family Physeteridae
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Sperm whale....................  Physeter            North Atlantic.........  E/D; Y                 4,349 (0.28; 3,451;             3.9               0
                                  macrocephalus.                                                      2016)
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                                                                   Family Delphinidae
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Long-finned pilot whale........  Globicephala melas  WNA....................  -/-; N                 39,215 (0.30;                   306              21
                                                                                                      30,627; 2016)
Short finned pilot whale.......  Globicephala        WNA....................  -/-; N                 28,924 (0.24;                   236             160
                                  macrorhynchus.                                                      23,637; 2016)
Bottlenose dolphin.............  Tursiops truncatus  WNA Offshore...........  -/-; N                 62,851 (0.23;                   519              28
                                                                                                      51,914; 2016)
                                                     WNA Northern Migratory   -/D; Y                 6,639 (0.41, 4,759,              48       12.2-21.5
                                                      Coastal.                                        2016)

[[Page 26470]]

 
Common dolphin.................  Delphinus delphis.  WNA....................  -/-; N                 172,974 (0.21;                1,452             399
                                                                                                      145,216; 2016)
Atlantic white-sided dolphin...  Lagenorhynchus      WNA....................  -/-; N                 93,233 (0.71;                   544              26
                                  acutus.                                                             54,443; 2016)
Atlantic spotted dolphin.......  Stenella frontalis  WNA....................  -/-; N                 39,921 (0.27;                   320               0
                                                                                                      32,032; 2016)
Risso's dolphin................  Grampus griseus...  WNA....................  -/-; N                 35,493 (0.19;                   303            54.3
                                                                                                      30,289; 2016)
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                                                             Family Phocoenidae (porpoises)
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Harbor porpoise................  Phocoena phocoena.  Gulf of Maine/Bay of     -/-; N                 95,543 (0.31;                   851             217
                                                      Fundy.                                          74,034; 2016)
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                                                         Order Carnivora--Superfamily Pinnipedia
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                                                             Family Phocidae (earless seals)
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Gray seal \4\..................  Halichoerus grypus  WNA....................  -/-; N                 27,131 (0.19;                 1,389           4,729
                                                                                                      23,158, 2016)
Harbor seal....................  Phoca vitulina....  WNA....................  -/-; N                 75,834 (0.15;                 2,006             350
                                                                                                      66,884, 2012)
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\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: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. 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' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual M/SI value given is for the total stock.

    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) was provided in the notice of proposed IHA (86 
FR 17783; April 6, 2021) and is not repeated here. No new information 
is available since publication of that notice.

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).

[[Page 26471]]

 
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).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The notice of proposed IHA included a summary of the ways that 
Ocean Wind's specified activity may impact marine mammals and their 
habitat (86 FR 17783; April 6, 2021). 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 the notice of proposed IHA and 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 Ocean Wind's activity. The 
Negligible Impact Analysis and Determination section considers the 
potential effects of the specified activity, the Estimated Take 
section, and the Mitigation section, to draw conclusions regarding the 
likely impacts of these activities on the reproductive success or 
survivorship of individuals and how those impacts on individuals are 
likely to impact marine mammal species or stocks. The notice of 
proposed IHA also provided background information regarding active 
acoustic sound sources and acoustic terminology, which is not repeated 
here.
    The potential effects of Ocean Wind's specified survey activity are 
expected to be limited to Level B behavioral harassment. No permanent 
or temporary auditory effects, or significant impacts to marine mammal 
habitat, including prey, are expected.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact 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 are 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 primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor authorized. Consideration of 
the anticipated effectiveness of the mitigation measures (i.e., 
exclusion zones and shutdown measures), discussed in detail below in 
the 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 authorized for this activity. Below we describe how the 
take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note 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, we describe the 
factors considered here in more detail and present the take estimates.

Acoustic Thresholds

    NMFS uses 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,

[[Page 26472]]

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 may 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., CHIRP SBPs) evaluated here for Ocean Wind's 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.
    Ocean Wind's 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 Ocean 
Wind'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 5 m for all sources and hearing groups with 
the exception of an estimated 37 m zone calculated for high-frequency 
cetaceans during use of the GeoPulse 5430 CHIRP SBP (see Table 1 for 
source characteristics). Ocean Wind did not request authorization of 
take by Level A harassment, and no take by Level A harassment is 
authorized 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 survey activity and the source 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 Ocean Wind 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 Ocean Wind's application). Estimated Level B harassment 
isopleths associated with the boomer and CHIRP SBP systems planned for 
use are estimated as 34 and 48 m, respectively. Although Ocean Wind 
does not expect to use sparker sources on all planned survey days, it 
assumed 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 informs 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 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 NOAA's 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 survey area 
were selected for all survey months (see Figure 3 in Ocean Wind'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 Ocean Wind'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 mammal densities from 
the density models of Roberts et al. 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

[[Page 26473]]

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

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 Ocean Wind'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 Authorized Take Numbers
----------------------------------------------------------------------------------------------------------------
                                                                                      Level B
                             Species                                 Abundance      harassment      Max percent
                                                                                     takes \1\      population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................             412               9            2.18
Fin whale.......................................................           6,802               6            0.09
Sei whale.......................................................           6,292           0 (1)            0.02
Minke whale.....................................................          21,968               2            0.01
Humpback whale..................................................           1,393               2            0.14
Sperm whale:\3\.................................................           4,349           0 (3)            0.07
Atlantic white-sided dolphin....................................          93,233              16            0.02
Atlantic spotted dolphin........................................          39,921               3            0.01
Common bottlenose dolphin:\2\
    Offshore Stock..............................................          62,851             262            0.42
    Migratory Stock.............................................           6,639           1,410           21.24
Pilot Whales:\3\
    Short-finned pilot whale....................................          28,924               2            0.01
    Long-finned pilot whale.....................................          39,215               2            0.01
Risso's dolphin.................................................          35,493          0 (30)            0.08
Common dolphin..................................................         172,974             124            0.07
Harbor porpoise.................................................          95,543              91            0.10
Seals:\4\
    Gray seal...................................................         451,431              11            0.00
    Harbor seal.................................................          75,834              11            0.01
----------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote take authorization where different 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. Coastal migratory stock dolphins
  are assumed to occur inshore of this line and offshore stock dolphins are assumed to occur offshore of this
  line.
\3\ Roberts (2018) only provides density estimates for pilot whales as a guild. The pilot whale density values
  were applied to both species of pilot whale; therefore, the total authorized take number for pilot whales (4)
  is double the estimated take number for the guild.
\4\ Roberts (2018) only provides density estimates for seals without differentiating by species. Harbor seals
  and gray seals are assumed to occur equally; therefore, density values were split evenly between the two
  species, i.e., total estimated take for ``seals'' is 22.

    The take numbers shown in Table 4 are those requested by Ocean 
Wind. NMFS concurs with the requested take numbers has authorized them. 
Previous monitoring data compiled by Ocean Wind (available online at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-marine-site-characterization-surveys-offshore-new) suggests that the 
authorized take numbers are sufficient.

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, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which

[[Page 26474]]

may consider such things as cost and impact on operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS has prescribed the following mitigation measures to be 
implemented during Ocean Wind's marine site characterization surveys.

Marine Mammal Exclusion Zones and Harassment Zones

    Marine mammal exclusion zones (EZ) must 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.
     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 must 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

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

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure must be used for HRG 
survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. The ramp-up procedure must be used at the 
beginning of HRG survey activities in order to provide additional 
protection to marine mammals near the survey area by allowing them to 
vacate the area prior to the commencement of survey equipment operation 
at full power.
    A ramp-up must 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 will then be gradually 
turned up and other acoustic sources 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 will 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 (48 m, non-impulsive; 141 m impulsive), 
shutdown must 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 exclusion zones. 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 will 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

    Ocean Wind 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 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 survey vessels, regardless of size, must observe a 10-
knot speed restriction in 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;

[[Page 26475]]

     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; and
     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 
survey 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 determined that the 
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.

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.

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. Ocean Wind must 
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. 
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 exclusion zones 
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 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) will ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and will conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent,

[[Page 26476]]

systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least 2 hours between 
watches and may conduct a maximum of 12 hours of observation per 24-hr 
period. In cases where multiple vessels are surveying concurrently, any 
observations of marine mammals will be communicated to PSOs on all 
nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology will be used. Position data will 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 will 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 will be relayed to 
the PSO team. Data on all PSO observations will be recorded based on 
standard PSO collection requirements. This will include dates, times, 
and locations of survey operations; dates and times of observations, 
location and weather; details of marine mammal sightings (e.g., 
species, numbers, behavior); and details of any observed marine mammal 
behavior that occurs (e.g., noted behavioral disturbances).

Reporting Measures

    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, Ocean Wind 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 Ocean Wind personnel discover an injured or dead 
marine mammal, Ocean Wind will 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 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, Ocean Wind 
must report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as

[[Page 26477]]

feasible. The report must 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's 
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 
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 authorized. As discussed in the Potential 
Effects section of the notice of proposed IHA (86 FR 17783; April 6, 
2021), 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, 
the estimated size of the Level A harassment zones, and the required 
shutdown zones for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m. Although this distance is assumed 
for all survey activity in estimating take numbers evaluated here, in 
reality much of the survey activity will involve use of non-impulsive 
acoustic sources with a reduced acoustic harassment zone of 48 m, 
producing expected effects of particularly low severity. 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 survey area and 
there are no feeding areas known to be biologically important to marine 
mammals within the survey area. There is no designated critical habitat 
for any ESA-listed marine mammals in the survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As 
discussed in the notice of proposed IHA (86 FR 17783; April 6, 2021), 
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. As noted previously, 
the survey area overlaps a migratory corridor biologically important 
area (BIA) for North Atlantic right whales. Due to the fact that the 
survey activities are temporary and the spatial extent of sound 
produced by the survey will be very small relative to the spatial 
extent of the available migratory habitat in the BIA, right whale 
migration is not expected to be impacted by the survey. Given the 
relatively small size of the ensonified area, it is unlikely that prey 
availability would be adversely affected by HRG survey operations. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration; no ship strike is expected to occur 
during Ocean Wind's activities. Additionally, only very limited take by 
Level B harassment of North Atlantic right whales has been requested 
and is being authorized 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

[[Page 26478]]

harassment isopleth for the most impactful acoustic source (i.e., 
sparker) is estimated to be 141 m, and thereby minimizes the potential 
for behavioral harassment of this species. As noted previously, Level A 
harassment is not expected due to the small PTS zones associated with 
HRG equipment types planned for use. NMFS does not anticipate North 
Atlantic right whales takes that would result from Ocean Wind's 
activities would impact annual rates of recruitment or survival. Thus, 
any takes that occur will not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As discussed in the notice of proposed IHA (86 FR 17783; April 6, 
2021), there are several active UMEs occurring in the vicinity of Ocean 
Wind's survey area. Elevated humpback whale mortalities have occurred 
along the Atlantic coast from Maine through Florida since January 2016. 
Of the cases examined, approximately half had evidence of human 
interaction (ship strike or entanglement). The UME does not yet provide 
cause for concern regarding population-level impacts. Despite the UME, 
the relevant population of humpback whales (the West Indies breeding 
population, or DPS) remains stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale 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 450,000. In 
addition, the abundance of gray seals is likely increasing in the U.S. 
Atlantic as well as in Canada (Hayes et al., 2020).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 4, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular they would provide animals the opportunity to 
move away from the sound source 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 
authorized.
    NMFS expects that takes will 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 will 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 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 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
     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 will occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities will not affect migration. In addition, the 
requirement to shut down at 500 m to minimize potential for Level B 
behavioral harassment would limit any take of the species; and
     The required 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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
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.
    NMFS has authorized incidental take of 16 marine mammal species 
(with 17 managed stocks). The total amount of takes authorized relative 
to the best available population abundance is less than 22 percent for 
one stock (bottlenose dolphin northern coastal migratory stock), less 
than 3 percent for the North Atlantic right whale, and less than 1 
percent for all other species and stocks, which NMFS finds are small 
numbers of marine mammals relative to the estimated overall population 
abundances for those stocks. See Table 4.
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

[[Page 26479]]

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.

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 evaluate our proposed action (i.e., the issuance of the 
incidental take authorization) and alternatives 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 has not identified any extraordinary circumstances that 
would preclude this categorical exclusion. Accordingly, NMFS has 
determined that the issuance of the IHA qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS OPR consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with NMFS Greater 
Atlantic Regional Fisheries Office (GARFO).
    The NMFS OPR is authorizing the incidental take of four species of 
marine mammals which are listed under the ESA: Fin, sei, sperm, and 
North Atlantic right whales. We requested initiation of consultation 
under section 7 of the ESA with NMFS GARFO for the issuance of this 
IHA. NMFS GARFO determined that issuance of the IHA to Ocean Wind is 
not likely to adversely affect the North Atlantic right, fin, sei, and 
sperm whale or the critical habitat of any ESA-listed species or result 
in the take of any marine mammals in violation of the ESA.

Authorization

    NMFS has issued an IHA to Ocean Wind for the potential harassment 
of small numbers of 16 marine mammal species incidental to conducting 
marine site characterization surveys offshore of New Jersey and along 
potential submarine cable routes to a landfall location in New Jersey 
provided the previously mentioned mitigation, monitoring and reporting 
requirements are followed.

    Dated: May 11, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-10236 Filed 5-13-21; 8:45 am]
BILLING CODE 3510-22-P