[Federal Register Volume 86, Number 99 (Tuesday, May 25, 2021)]
[Notices]
[Pages 28061-28078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10955]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA967]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys, Virginia and North Carolina

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

ACTION: Notice; proposed incidental harassment authorization; request 
for

[[Page 28062]]

comments on proposed authorization and possible renewal.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a request from Kitty Hawk Wind for 
authorization to take marine mammals incidental to marine site 
characterization surveys offshore of North Carolina. 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 June 24, 
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: Jaclyn Daly, 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: 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:

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.

National Environmental Policy Act

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

Summary of Request

    On February 2, 2021, NMFS received a request from Kitty Hawk Wind, 
a subsidiary of Avangrid Renewables (Avangrid) for an IHA to take 
marine mammals incidental to conducting marine site characterization 
surveys off of the Atlantic Coast. Kitty Hawk Wind's overall lease area 
(OCS-A 0508) is located approximately 44 kilometers (km) offshore of 
Corolla, North Carolina, in Federal waters. The proposed survey 
activities will occur within the lease area and along potential 
submarine cable routes to landfall locations in Virginia. The 
application was deemed adequate and complete on April 27, 2021. Kitty 
Hawk Wind's request is for take of a small number of nine species of 
marine mammals, by Level B harassment only. Neither Kitty Hawk 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 Avangrid for similar work in the 
same geographic area on June 3, 2019 (84 FR 31032) with effectives 
dates from June 1, 2019 through May 31, 2020. Avangrid complied with 
all the requirements (e.g., mitigation, monitoring, and reporting) of 
the previous IHA and information regarding their monitoring results may 
be found in the Estimated Take section. Avangrid's final marine mammal 
monitoring report, dated January 7, 2021, submitted pursuant to that 
IHA can be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-avangrid-renewables-llc-marine-site-characterization-surveys.

Description of Proposed Activity

Overview

    Kitty Hawk Wind is requesting an IHA authorizing the take, by Level 
B harassment only, of nine species of marine mammals incidental to 
marine site characterization surveys, specifically in association with 
the use of high-resolution geophysical (HRG) survey equipment off North 
Carolina. We note surveys will also occur off Virginia; however, for 
reasons described below, take of marine mammals incidental to use of 
those surveys is not expected to occur. The surveys will support 
offshore wind development in 40 percent of the lease area (OCS-A 0508) 
in the northwest corner closest to the North Carolina shoreline 
(approximately 198 square kilometers (km\2\)). Kitty Hawk Wind would 
use five

[[Page 28063]]

types of survey equipment; however, as described below, only the Fugro 
SRP EAH 2D sparker has the potential to harass marine mammals. Exposure 
to noise from the surveys may cause behavioral changes in marine 
mammals (e.g., avoidance, increased swim speeds, etc.) rising to the 
level of take (Level B harassment) as defined under the MMPA.

Dates and Duration

    Kitty Hawk Wind would commence the survey as soon as possible, with 
the objective of completing the work by September 2021. The surveys 
would cover approximately 3,300 km of survey trackline over 25 days, 
not including non-survey days likely needed for weather down time. The 
IHA would be effective for one year from the date of issuance. This 
schedule is based on 24-hour operations.

Specific Geographic Region

    Kitty Hawk Wind's overall lease area is approximately 495 km\2\ and 
is located approximately 44 km offshore of Corolla, North Carolina, in 
Federal waters. The proposed survey activities will occur within the 
lease area and along potential submarine cable routes to landfall 
locations in Virginia (Figure 1). Specifically, Kitty Hawk will conduct 
the 2021 HRG survey campaign in the wind development area (WDA defined 
as the northwestern 40 percent of the Lease Area) and offshore export 
cable corridor. The HRG surveys would occur in the WDA and an 
approximately 62 km long by 2 km wide export cable corridor. Water 
depths across the WDA range from approximately 27 to 38.5 meters (m). 
The offshore export cable corridor will extend from shallow water areas 
(0 m) near landfall to approximately 33 m depth.
BILLING CODE 3510-40-P

[[Page 28064]]

[GRAPHIC] [TIFF OMITTED] TN25MY21.000


[[Page 28065]]


BILLING CODE 3510-40-C

Detailed Description of Specific Activity

    The purpose of Kitty Hawk Wind's marine site characterization 
surveys is to support the siting of the proposed wind turbine 
generators and offshore export cables, providing a more detailed 
understanding of the seabed and sub-surface conditions in the WDA and 
export cable corridor.
    Kitty Hawk Wind anticipates that during most of the survey only two 
vessels would be necessary, with one vessel operating nearshore and 
another operating offshore. However, up to 3 vessels may operate at any 
given time with final vessel choices dependent on the final survey 
design, vessel availability, and survey contractor selection. 
Concurrently operating vessels would remain at least 1 km apart. The 
vessels will be capable of maintaining course and a survey speed of 
approximately 3 knots (5.6 km per hour (hr)) while transiting survey 
lines. Surveys will be conducted along track lines spaced 300 m apart, 
with tie lines perpendicular to the main transect lines also spaced 300 
m apart.
    Acoustic sources planned for use during HRG survey activities 
proposed by Kitty Hawk Wind include the following:
     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 expected 
to present reasonable risk of marine mammal take, 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.
     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.
    All decibel (dB) levels included in this notice are referenced to 1 
micoPascal. The root mean square decibel level (dBrms) 
represents the square root of the average of the pressure of the sound 
signal over a given duration. The peak dB level (dBpeak) 
represents the range in pressure between zero and the greatest pressure 
of the signal. Operating frequencies are presented in kilohertz (kHz).

                                                    Table 1--Summary of Representative HRG Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Operating                       Source
                  HRG system                      Representative HRG survey       frequencies     Source level     level     Pulse duration   Beam width
                                                          equipment             kilohertz (kHz)      dBpeak        dBrms          (ms)         (degree)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subsea Positioning/ultra-short baseline        Sonardyne Ranger 2 USBL........            35-50             200        188               16          180
 positioning system (USBL) \a\.
Sidescan Sonar a b...........................  Klein 3900 Side Scan Sonar.....          445/900             226        220   0.016 to 0.100       1 to 2
Parametric Shallow penetration sub-bottom      Innomar parametric SES-2000            85 to 115             247    \c\ 241        0.07 to 2            1
 profiler \a\.                                  Standard.
Multibeam Echo Sounder a b...................  Reson T20-P....................      200/300/400             227        221           2 to 6   1.8  0.2
Multi-level Stacked Sparker..................  Fugro SPR EAH 2D Sparker (700         0.4 to 3.5         \d\ 223    \d\ 213     \d\ 0.5 to 3          180
                                                J).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Potential harassment from operation of this device is not anticipated.
\b\ Operating frequencies are above all relevant marine mammal hearing thresholds.
\c\ The equipment specification sheets indicate a peak source level of 247 dB re 1 [micro]PA m. The average difference between the peak and SPLRMS
  source levels for sub-bottom profilers measured by Crocker and Fratantonio (2016) was 6 dB. Therefore, the estimated SPLRMS sound level is 241 dB re 1
  [micro]PA m.
\d\ Sound levels where not available from the manufacturer. Therefore, the source levels and pulse duration are based on data from Crocker and
  Fratantonio (2016) using the Applied Acoustics Dura-Spark as a comparable proxy. The source levels are based on an energy level of 1,000 J with 240
  tips and a bandwidth of 3.2 kHz.

    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's Stock

[[Page 28066]]

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's website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks that may occur within the 
survey area 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, we follow 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's 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's stock abundance estimates. For some species, this geographic 
area may extend beyond U.S. waters. All managed stocks in this region 
are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., 
Hayes et al., 2019, 2020). All values presented in Table 2 are the most 
recent available at the time of publication and are available in the 
2019 SARs and draft 2020 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                         Table 2--Summary Information of Species Within the Proposed Survey Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae: North Atlantic     Eubalaena glacialis....  Western North Atlantic.  E/D; Y              368 (-; 356; 2020) \4\        0.8       18.6
 right whale.
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 (1.02; 3,098;           6.2        1.2
                                                                                                             2016).
    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.                                                        2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -/-; N              62,851 (0.23; 51,914,         519         28
                                                                Offshore.                                    2016).
                                                               W.N.A. Northern          -/-; Y              6,639 (0.41, 4,759,            48  12.2-21.5
                                                                Migratory Coastal.                           2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -/-; N              172,947 (0.21;              1,452        399
                                                                                                             145,216; 2016).
    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
                                                                                                             2016).
Family Phocoenidae (porpoises):       Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        217
 Harbor porpoise.                                               Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):      Phoca vitulina.........  Western North Atlantic.  -/-; N              75,834 (0.15; 66,884,       2,006        350
 Harbor seal.                                                                                                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\ Pace et al. 2021.

    All species that could potentially occur in the proposed survey 
areas are included in Table 2. While North Atlantic right whales,sei 
and sperm whales, and harbor seals have been sighted within the survey 
area, the temporal occurrence of the surveys (summer/early fall) does 
not overlap with the time of year these species may be present in the 
survey area as most of these species are in northern latitudes during 
this time. For these reasons, along with the very short duration of the 
survey, we consider the potential for

[[Page 28067]]

take of these species de minimus and they will not be discussed 
further.

Humpback Whale

    Humpback whales are found worldwide in all oceans. Humpback whales 
were listed as endangered under the Endangered Species Conservation Act 
(ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks 
continued to be listed as endangered. NMFS recently evaluated the 
status of the species, and on September 8, 2016, NMFS divided the 
species into 14 distinct population segments (DPS), removed the current 
species-level listing, and in its place listed four DPSs as endangered 
and one DPS as threatened (81 FR 62259; September 8, 2016). The 
remaining nine DPSs were not listed. The West Indies DPS, which is not 
listed under the ESA, is the only DPS of humpback whale that is 
expected to occur in the survey area.
    Humpback whales have a global distribution and follow a migratory 
pattern of feeding in the high latitudes during summers and spending 
winters in the lower latitudes for calving and mating. The Gulf of 
Maine stock follows this pattern with winters spent in the Caribbean 
and West Indies, although acoustic recordings show a small number of 
males persisting in Stellwagen Bank throughout the year (Vu et al., 
2012). Barco et al. (2002) suggested that the mid-Atlantic region 
primarily represents a supplemental winter feeding ground used by 
humpbacks. However, with populations recovering, additional surveys 
that include photo identification and genetic sampling need to be 
conducted to determine which stocks are currently using the mid-
Atlantic region.
    Sightings of humpback whales in the Mid-Atlantic are common (Barco 
et al., 2002), as are strandings (Wiley et al., 1995). Barco et al. 
(2002) suggested that the Mid-Atlantic region primarily represents a 
supplemental winter feeding ground used by humpbacks. During Kitty Hawk 
Wind's 2019 and 2020 marine site characterization surveys (HRG and 
geotechnical surveys), no humpback whales were observed (Milne, 2020).
    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 145 known cases. 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. Three previous UMEs involving humpback whales 
have occurred since 2000, in 2003, 2005, and 2006. More information is 
available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Fin Whale

    Fin whales are common in waters of the U.S. Atlantic Exclusive 
Economic Zone (EEZ), principally from Cape Hatteras northward (Hayes et 
al., 2020). Fin whales are present north of 35-degree latitude in every 
season and are broadly distributed throughout the western North 
Atlantic for most of the year, though densities vary seasonally (Hayes 
et al., 2020). While fall is the season of lowest overall abundance of 
fin whales off Virginia and North Carolina, they do not depart the area 
entirely. Fin whales, much like humpback whales, seem to exhibit 
habitat fidelity (Hayes et al. 2020; NOAA Fisheries 2019). Fin whales 
accounted for 46 percent of the large whales sighted during aerial 
surveys along the continental shelf (CETAP, 1982) between Cape Hatteras 
and Nova Scotia from 1978 to 1982. During Kitty Hawk Wind's 2019 and 
2020 marine site characterization surveys, five detections of 17 fin 
whales were recorded with a mean group size of 3.4 (Milne, 2020). 
However, these observations occurred during transit well north of the 
project area offshore Delaware and New Jersey (Milne, 2020; Figure 7). 
No fin whales were observed in the WDA or cable corridor. The main 
threats to fin whales are fishery interactions and vessel collisions 
(Hayes et al., 2020).

Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude 
waters. The Canadian East Coast stock can be found in the area from the 
western half of the Davis Strait (45[deg] W) to the Gulf of Mexico 
(Hayes et al., 2020). This species generally occupies waters less than 
100 m deep on the continental shelf. Little is known about minke 
whales' specific movements through the mid-Atlantic region; however, 
there appears to be a strong seasonal component to minke whale 
distribution, with acoustic detections indicating that they migrate 
south in mid-October to early November, and return from wintering 
grounds starting in March through early April (Hayes et al., 2020). 
Northward migration appears to track the warmer waters of the Gulf 
Stream along the continental shelf, while southward migration is made 
farther offshore (Risch et al., 2014). During Kitty Hawk Wind's 2019 
and 2020 marine site characterization surveys, one minke whale was 
detected. Similar to fin whales, this detection occurred while the 
vessel was in transit and located north of the project area off New 
Jersey.
    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 103 strandings recorded through January 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.

Long-Finned Pilot Whale

    Long-finned pilot whales are found from North Carolina and north to 
Iceland, Greenland and the Barents Sea (Hayes et al., 2020). In U.S. 
Atlantic waters the species is distributed principally along the 
continental shelf edge off the northeastern U.S. coast in winter and 
early spring and in late spring, pilot whales move onto Georges Bank 
and into the Gulf of Maine and more northern waters and remain in these 
areas through late autumn (Hayes et al., 2020). Long-finned and short-
finned pilot whales overlap spatially along the mid-Atlantic shelf 
break between Delaware and the southern flank of Georges Bank. Long-
finned pilot whales have occasionally been observed stranded as far 
south as South Carolina, but sightings of long-finned pilot whales 
south of Cape Hatteras would be considered unusual (Hayes et al., 
2020). During Kitty Hawk Wind's 2019 and 2020 marine site 
characterization surveys, no pilot whales were observed (Milne, 2020). 
The main threats to this species include interactions with fisheries 
and habitat issues including exposure to high levels of polychlorinated 
biphenyls and chlorinated pesticides, and toxic metals

[[Page 28068]]

including mercury, lead, cadmium, and selenium (Hayes et al., 2020).

Short-Finned Pilot Whale

    As described above, long-finned and short-finned pilot whales 
overlap spatially along the mid-Atlantic shelf break between Delaware 
and the southern flank of Georges Bank. There is limited information on 
the distribution of short-finned pilot whales; they prefer warmer or 
tropical waters and deeper waters offshore, and in the northeastern 
United States, they are often sighted near the Gulf Stream (Hayes et 
al., 2020). Short-finned pilot whales have occasionally been observed 
stranded as far north as Massachusetts but north of ~42[deg] N short-
finned pilot whale sightings would be considered unusual while south of 
Cape Hatteras most pilot whales would be expected to be short-finned 
pilot whales (Hayes et al., 2020). In addition, short-finned pilot 
whales are documented along the continental shelf and continental slope 
in the northern Gulf of Mexico (Mullin and Fulling 2003), and they are 
also known from the wider Caribbean. During Kitty Hawk Wind's 2019 and 
2020 marine site characterization surveys, no pilot whales were 
observed (Milne, 2020). As with long-finned pilot whales, the main 
threats to this species include interactions with fisheries and habitat 
issues including exposure to high levels of polychlorinated biphenyls 
and chlorinated pesticides, and toxic metals including mercury, lead, 
cadmium, and selenium (Hayes et al., 2020).

Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of 
the North Atlantic, primarily in continental shelf waters to the 100-m 
depth contour from central West Greenland to North Carolina (Hayes et 
al., 2020). The Gulf of Maine stock is most common in continental shelf 
waters from Hudson Canyon to Georges Bank, and in the Gulf of Maine and 
lower Bay of Fundy. Sighting data indicate seasonal shifts in 
distribution (Northridge et al., 1997). During January to May, low 
numbers of white-sided dolphins are found from Georges Bank to Jeffreys 
Ledge (off New Hampshire), with even lower numbers south of Georges 
Bank, as documented by a few strandings collected on beaches of 
Virginia to South Carolina. The Virginia and North Carolina 
observations appear to represent the southern extent of the species 
range. From June through September, large numbers of white-sided 
dolphins are found from Georges Bank to the lower Bay of Fundy. From 
October to December, white-sided dolphins occur at intermediate 
densities from southern Georges Bank to southern Gulf of Maine (Payne 
and Heinemann 1990). Sightings south of Georges Bank, particularly 
around Hudson Canyon, occur year round but at low densities. During 
Kitty Hawk Wind's 2019 and 2020 marine site characterization surveys, 
one detection of white-sided dolphins comprised of six individuals were 
observed during geotechnical surveys; no detections occurred during HRG 
operations (Milne, 2020).

Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate 
waters ranging from southern New England, south to Gulf of Mexico and 
the Caribbean to Venezuela (Hayes et al., 2020). This stock regularly 
occurs in continental shelf waters south of Cape Hatteras and in 
continental shelf edge and continental slope waters north of this 
region (Hayes et al., 2020). Atlantic spotted dolphins regularly occur 
in the inshore waters south of Chesapeake Bay, and near the continental 
shelf edge and continental slope waters north of this region (Payne et 
al., 1984; Mullin and Fulling, 2003). Atlantic spotted dolphins north 
of Cape Hatteras also associate with the north wall of the Gulf Stream 
and warm-core rings (Hayes et al., 2020). There are 2 forms of this 
species, with the larger ecotype inhabiting the continental shelf and 
is usually found inside or near the 200 m isobaths (Hayes et al., 
2020).
    During Kitty Hawk Wind's 2019 and 2020 marine site characterization 
surveys, 78 detections comprising 1,237 Atlantic spotted dolphins were 
recorded during HRG operations between 2012 and 2014 during the summer 
MABS surveys (Milne, 2020). An additional 14 detections comprising 203 
individuals were reported during geotechnical work with a mean group 
size of 14.5 (Milne, 2020).

Common Dolphin

    The common dolphin is found world-wide in temperate to subtropical 
seas. In the North Atlantic, common dolphins are commonly found over 
the continental shelf between the 100-m and 2,000-m isobaths and over 
prominent underwater topography and east to the mid-Atlantic Ridge 
(Hayes et al., 2020). They are present in the western Atlantic from 
Newfoundland to Florida. The common dolphin is especially common along 
shelf edges and in areas with sharp bottom relief such as seamounts and 
escarpments (Reeves et al. 2002). They show a strong affinity for areas 
with warm, saline surface waters. Common dolphins belonging to the 
Western North Atlantic stock are distributed in waters off the eastern 
U.S. coast from Cape Hatteras northeast to Georges Bank (35[deg] to 
42[deg] N) during mid-January to May and move as far north as the 
Scotian Shelf from mid-summer to autumn (CETAP, 1982; Hayes et al., 
2020; Hamazaki, 2002; Selzer and Payne, 1988).
    During the 2019 and 2020 marine site characterization surveys, five 
detections of common dolphins comprising 82 individuals and mean group 
size of 16.4 were recorded (Milne, 2020). An additional 6 detections 
occurred during HRG survey work. Those detections comprised 25 
individuals with a mean group size of 4 (Milne, 2020).

Bottlenose Dolphin

    There are two distinct bottlenose dolphin morphotypes in the 
western North Atlantic: The coastal and offshore forms (Hayes et al., 
2020). The offshore form is distributed primarily along the outer 
continental shelf and continental slope in the Northwest Atlantic Ocean 
from Georges Bank to the Florida Keys. The coastal morphotype is 
morphologically and genetically distinct from the larger, more robust 
morphotype that occupies habitats further offshore. North of Cape 
Hatteras, there is separation of the offshore and coastal morphotypes 
across bathymetric contours during summer months. Aerial surveys flown 
from 1979 through 1981 indicated a concentration of common bottlenose 
dolphins in waters <25 m deep that corresponded with the coastal 
morphotype, and an area of high abundance along the shelf break that 
corresponded with the offshore stock (Hayes et al., 2020). Torres et 
al. (2003) found a statistically significant break in the distribution 
of the morphotypes; almost all dolphins found in waters >34 m depth and 
>34 km from shore were of the offshore morphotype. The coastal stock is 
best defined by its summer distribution, when it occupies coastal 
waters from the shoreline to the 20-m isobath between Virginia and New 
York (Hayes et al., 2020). This stock migrates south during late summer 
and fall, and during colder months it occupies waters off Virginia and 
North Carolina (Hayes et al., 2020). Therefore, during the summer, 
dolphins found inside the 20-m isobath in the Project Area are likely 
to belong to the coastal stock, while those found in deeper waters or 
observed during cooler months belong to the offshore stock. HRG surveys 
using the sparker would occur in water depths greater than 20 m in the 
WDA; therefore, the offshore stock is likely to be the only stock 
observed during the surveys.

[[Page 28069]]

    During the 2019 and 2020 surveys, 56 detections of bottlenose 
dolphins comprising 780 individuals were recorded during HRG surveys 
(Milne, 2020). Mean group size was 14. During geotechnical work, four 
detections comprising 25 individuals and a mean group size of 6.25 were 
reported (Milne, 2020). These detections occurred both offshore and 
nearshore; therefore, not all dolphins observed belonged to the 
offshore stock.

Risso's Dolphin

    Risso's dolphins are large dolphins with a characteristic blunt 
head and light coloration, often with extensive scarring. They are 
widely distributed in tropical and temperate seas. In the Western North 
Atlantic they occur from Florida to eastern Newfoundland (Leatherwood 
et al., 1976; Baird and Stacey, 1991). Off the Northeastern U.S. Coast, 
Risso's dolphins are primarily distributed along the continental shelf, 
but can also be found swimming in shallower waters to the mid-shelf 
(Hayes et al., 2020).
    Risso's dolphins occur along the continental shelf edge from Cape 
Hatteras to Georges Bank during spring, summer, and autumn. In winter, 
they are distributed in the Mid-Atlantic from the continental shelf 
edge outward (Hayes et al., 2020). No Risso's dolphins were observed by 
Kitty Hawk Wind during previous marine site characterization surveys 
(Milne, 2020).

Harbor Porpoise

    The harbor porpoise inhabits shallow, coastal waters, often found 
in bays, estuaries, and harbors. In the western Atlantic, they are 
found from Cape Hatteras north to Greenland. During summer (July to 
September), harbor porpoises are concentrated in the northern Gulf of 
Maine and southern Bay of Fundy region, generally in waters less than 
150 m deep with a few sightings in the upper Bay of Fundy and on 
Georges Bank. During fall (October-December) and spring (April-June), 
harbor porpoises are widely dispersed from New Jersey to Maine, with 
lower densities farther north and south. They are seen from the 
coastline to deep waters (>1,800 m) although the majority of the 
population is found over the continental shelf. During winter (January 
to March), intermediate densities of harbor porpoises can be found in 
waters off New Jersey to North Carolina, and lower densities are found 
in waters off New York to New Brunswick, Canada. There does not appear 
to be a temporally coordinated migration or a specific migratory route 
to and from the Bay of Fundy region. However, during the fall, several 
satellite-tagged harbor porpoises did favor the waters around the 92-m 
isobaths (Hayes et al. 2018).
    In the survey area, only the Gulf of Maine/Bay of Fundy stock may 
be present. This stock is found in U.S. and Canadian Atlantic waters 
and is concentrated in the northern Gulf of Maine and southern Bay of 
Fundy region, generally in waters less than 150 m deep (Hayes et al., 
2020). They are seen from the coastline to deep waters (>1,800 m; 
Westgate et al. 1998), although the majority of the population is found 
over the continental shelf (Hayes et al., 2020). During Kitty Hawk 
Wind's 2019 and 2020 marine site characterization surveys, one harbor 
porpoise was detected during HRG surveys (Milne 2020).
    The main threat to the species is interactions with fisheries, with 
documented take in the U.S. northeast sink gillnet, mid-Atlantic 
gillnet, and northeast bottom trawl fisheries and in the Canadian 
herring weir fisheries (Hayes et al. 2020).
Marine Mammal Habitat
    The survey area includes the WDA, located offshore of North 
Carolina, and potential cable corridors extending from the WDA to 
Virginia waters. There are no rookeries, mating or calving grounds 
known to be biologically important to marine mammals within the planned 
survey area at the time of survey (the Biologically Important Area 
(BIA) for North Atlantic right whales is for a time period outside the 
proposed survey time period) and there are no primary feeding areas 
known to be biologically important to marine mammals within the planned 
survey area.

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 dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. Marine mammal hearing groups and their 
associated hearing ranges are provided in Table 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
              Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen      7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,   150 Hz to 160 kHz.
 toothed whales, beaked whales,
 bottlenose whales).
High-frequency (HF) cetaceans (true       275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true  50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea  60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).


[[Page 28070]]

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Nine marine mammal species (all cetaceans) have the reasonable 
potential to be taken by the survey activities (Table 5). Of the 
cetacean species that may be present, three are classified as low-
frequency cetaceans (i.e., all mysticete species), 5 are classified as 
mid-frequency cetaceans (i.e., all delphinid species), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary of the ways that Kitty Hawk Wind'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 45578, July 29, 2020; 85 FR 
48179, August 10, 2020; 86 FR 11239, February 24, 2021). 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 Kitty Hawk Wind'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.

Summary on Specific Potential Effects of Acoustic Sound Sources

    Underwater sound from active acoustic sources can include one or 
more of the following: 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 Kitty Hawk Wind'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 sound exposure 
level (SEL) criteria. Even for high-frequency cetacean species (e.g., 
harbor porpoises), which have the greatest sensitivity to potential 
TTS, individuals would have to make a very close approach and 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 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.
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, zooplankton) (i.e., effects to marine mammal 
habitat). Prey species exposed to sound might move away from the sound 
source, experience TTS, experience masking of biologically relevant 
sounds, or show no obvious direct effects. The most likely impacts (if 
any) for most prey species in a given area would be temporary avoidance 
of the area. Surveys using active acoustic sound sources move through 
an area relatively quickly, limiting exposure to multiple pulses. In 
all cases, sound levels would return to ambient once a

[[Page 28071]]

survey ends and the noise source is shut down and, when exposure to 
sound ends, behavioral and/or physiological responses are expected to 
end relatively quickly. Finally, the HRG survey equipment will not have 
significant impacts to the seafloor and does not represent a source of 
pollution.

Vessel Strike

    Vessel collisions with marine mammals, or ship strikes, can result 
in death or serious injury of the animal. These interactions are 
typically associated with large whales, which are less maneuverable 
than are smaller cetaceans or pinnipeds in relation to large vessels. 
Ship strikes generally involve commercial shipping vessels, which are 
generally larger and of which there is much more traffic in the ocean 
than geophysical survey vessels. Jensen and Silber (2004) summarized 
ship strikes of large whales worldwide from 1975-2003 and found that 
most collisions occurred in the open ocean and involved large vessels 
(e.g., commercial shipping). For vessels used in geophysical survey 
activities, vessel speed while towing gear is typically only 4-5 knots. 
At these speeds, both the possibility of striking a marine mammal and 
the possibility of a strike resulting in serious injury or mortality 
are so low as to be discountable. At average transit speed for 
geophysical survey vessels, the probability of serious injury or 
mortality resulting from a strike is less than 50 percent. However, the 
likelihood of a strike actually happening is again low given the 
smaller size of these vessels and generally slower speeds. Notably in 
the Jensen and Silber study, no strike incidents were reported for 
geophysical survey vessels during that time period.
    The potential effects of Kitty Hawk 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 
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 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 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. 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 proposed take 
estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--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). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, 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 in a manner we consider 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., sparkers) evaluated here for Kitty Hawk Wind'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.
    Kitty Hawk Wind's proposed activity includes the use of impulsive 
(i.e., sparkers) 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 Kitty Hawk 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 ranged from 0 
to 2 m m for all sources and hearing groups with the exception of the 
Furgo 2D Sparker). The Level A harassment isopleth for low frequency, 
mid-frequency, and high frequency cetaceans was 18, 0.5, and 120.5 m, 
respectively and 10 m for phocids. Kitty Hawk Wind did not request 
authorization of take by Level A

[[Page 28072]]

harassment, and no take by Level A harassment is proposed for 
authorization by NMFS.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The Fugro SPR EAH 2D sparker is the only source with the potential 
to result in marine mammal harassment; therefore, the 160 
dBrms isopleth resulting from this source is applied in 
ensonified area calculations. As noted previously, Kitty Hawk Wind 
intends to survey a total track-line distance of 3,300 km over the 
course of 25 days. It is estimated that the sparker will be in 
operation for approximately 50 percent of this duration. During the 
remainder of survey days, only sources not expected to have the 
potential to result in take of marine mammals would be used. To be 
conservative, the sparker has been assigned a duration of 13 days 
(instead of 12.5 days). The distance to the 160 dBrms Level 
B harassment isopleth is calculated using the conservative practical 
spreading model and a source level of 213dBrms (Table 1). 
The resulting isopleth is 445 m.
    Kitty Hawk then considered track line coverage and isopleth 
distance to estimate the maximum ensonified area over a 24-hr period, 
also referred to as the zone of influence (ZOI). The estimated distance 
of the daily vessel track line was determined using the estimated 
average speed of the vessel (3 knots [5.6 km/hr]) over a 24-hr 
operational period for a total daily track line coverage of 134.4 km. 
The ZOI was calculated by squaring the respective maximum distance to 
the Level B harassment threshold (445 m) and multiplying by the 
estimated daily vessel track line distance of approximately 134.4 km to 
obtain the area of a box (118.7 km\2\). Then the ensonified area around 
the vessel at any given point (0.63) was added to that area to account 
for \1/2\ of a circle at each end of the box. The resulting ZOI is 
119.3 km\2\ (Table 4).
    The ZOI is a representation of the maximum extent of the ensonified 
area around a sound source over a 24-hr period. The ZOI was calculated 
per the following formula:

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

                                   Table 4--Ensonified Area During Sparker Use
----------------------------------------------------------------------------------------------------------------
                                                 Number of     Estimated total     Estimated
              Survey equipment                 active survey    line distance     distance per     ZOI per day
                                                  days \a\           (km)           day (km)         (km\2\)
----------------------------------------------------------------------------------------------------------------
Fugro SPR EAH 2D Sparker....................              13            1,700            133.4            119.3
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide the 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 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.
    Monthly density grids (e.g., rasters) for each species were 
overlain with the Survey Area and values from all grid cells that 
overlapped the Survey Area were averaged to determine monthly mean 
density values for each species. Monthly mean density values within the 
Survey Area were averaged by season (Winter [December, January, 
February], Spring [March, April, May], Summer [June, July, August], 
Fall [September, October, November]) to provide seasonal density 
estimates. Since the HRG surveys would only occur during summer and 
fall, only those values were used in the take estimation analysis. 
Within each survey segment (Wind Development Area and offshore export 
cable corridor), the highest seasonal density estimates during the 
duration of the proposed survey were used to estimate take.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    For most species, the proposed take amount is equal to the 
calculated take amount resulting from the following equation: D x ZOI x 
13 days. We note the densities provided in Table 5 represent the number 
of animals/100 km; therefore, the density is normalized to 1 km in the 
equation. However, for some species, this equation does not reflect 
those species that can travel is large groups--an important parameter 
to consider that is not captured by density values. The equation also 
does not capture the propensity of some delphinid species to be 
attracted to the vessel and bowride. Therefore, to account for these 
real-world situations, the proposed take is a product of group size. 
For large groups of spotted and short beaked common dolphins knowing 
their affinity for bow riding (and therefore coming very close to the 
vessel), Kitty Hawk Wind assumed one group could be taken each day of 
sparker operations (13 days). Based on previous survey data, as 
described in previous monitoring reports, Kitty Hawk Wind assumes an 
average group size for spotted dolphins is 16 in the survey area. For 
common dolphins, the overall average reported group size was 4 in all 
survey areas but the average group size during the geotechnical surveys 
was 17 individuals. Therefore, in this case, Kitty Hawk Wind assumed a 
group of 17 common dolphins could be taken on any given day of sparker 
operation. For Risso's dolphin and pilot whales, one group is 
anticipated to be taken over the 13 days of sparker operations. Average 
group size for these species are 25 and 20, respectively (Reeves et al. 
2002).

[[Page 28073]]

Take for all other species is a reflection of the calculated take. 
Given the timing and location of the surveys, Kitty Hawk Wind is not 
requesting, nor are we proposing to authorize, take of North Atlantic 
right whales or sei whales. Table 5 provides the amount of take 
proposed to be authorized in the IHA.

                                Table 5--Marine Mammal Density and Take Estimates
----------------------------------------------------------------------------------------------------------------
                                                    Max average
                                                     seasonal
            Species                   Stock           density       Calculated     Proposed take    Percent of
                                                   (animals/ 100       take                         population
                                                      km2) 1
----------------------------------------------------------------------------------------------------------------
Humpback whale................  Gulf of Maine...           0.084           1.297               1              <1
Fin whale.....................  Western North              0.171           2.648               3              <1
                                 Atlantic.
Minke whale...................  Canadian East              0.105           1.634               2              <1
                                 Coast.
Pilot whales..................  Western North              0.073           1.139            3 20              <1
                                 Atlantic.
Harbor porpoise...............  Gulf of Maine/             0.033           0.510               1              <1
                                 Bay of Fundy.
Bottlenose dolphin b..........  Western North              7.913         122.725             123              <1
                                 Atlantic,
                                 offshore.
Common dolphin................  Western North              1.583          24.555           4 221              <1
                                 Atlantic.
Atlantic spotted dolphin......  Western North              7.669         118.937           4 208              <1
                                 Atlantic.
Risso's dolphin...............  Western North              0.058           0.893            4 25              <1
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
1 Density values from Duke University (Roberts et al. 2016b, 2017, 2018, 2020).
2 Estimates based on bottlenose dolphin stock preferred water depths (Reeves et al. 2002; Waring et al. 2016).
3 Roberts (2018) only provides density estimates for ``generic'' pilot whales and seals; therefore, an equal
  potential for takes has been assumed either for species or stocks within the larger group. The take adjusted
  from calculated value to account for encountering one group over the course of the 13 days of sparker use.
4 Take adjusted from calculated take to account for encountering one group on each of the 13 days of sparker
  use.

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, 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 may consider such things as cost and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS proposes that the following mitigation measures be implemented 
during Kitty Hawk Wind's planned marine site characterization surveys.

Marine Mammal Shutdown Zones

    An immediate shutdown of the Sparker 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). Table 
6 provides the required shutdown zones.

               Table 6--Shutdown Zones During Sparker Use
------------------------------------------------------------------------
                                                               Shutdown
                           Species                             zone (m)
------------------------------------------------------------------------
North Atlantic right whale..................................         500
All other ESA-listed marine mammals.........................         450
Non-ESA marine mammals 1....................................          50
------------------------------------------------------------------------
1 If a delphinid from specified genera is visually detected approaching
  the vessel (i.e., to bow ride) or towed equipment, shutdown is not
  required.

Pre-Clearance of the Shutdown Zones

    Kitty Hawk Wind would implement a 30-minute pre-clearance period of 
the shutdown 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 shutdown zone. If a 
marine mammal is observed within the shutdown zone during the pre-
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective shutdown zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes, and 30 minutes for all other species).

Shutdown Procedures

    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 shutdown zone or the 
relevant time period has lapsed

[[Page 28074]]

without re-detection (15 minutes for small odontocetes and seals, and 
30 minutes for all other species).
    The shutdown requirement would be waived for small delphinids of 
the following genera: Delphinus, Stenella (frontalis only), and 
Tursiops. Specifically, if a delphinid from the specified genera s 
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 detected in the exclusion zone and 
belongs to a genus other than those specified.
    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 only if the PSOs have maintained constant 
observation and the shutdown zone is clear of marine mammals. If the 
source is turned off for more than 30 minutes, it may only be restarted 
after PSOs have cleared the shutdown zones for 30 minutes.
    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 (445 m), shutdown would be required.

Ramp-Up

    The Fugro SPR EAH 2D Sparker operates on a binary on/off switch and 
thus ramp-up is not technically feasible for this piece of equipment.

Vessel Strike Avoidance

    Kitty Hawk Wind will ensure that vessel operators and crew maintain 
a vigilant watch for marine mammals and slow down or stop their vessels 
to avoid striking these species. All personnel responsible for 
navigation and marine mammal observation 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 (e.g., source vessels, chase vessels, supply 
vessels), regardless of size, must observe a 10-knot speed restriction 
in the unlikely scenario a North Atlantic right whale dynamic 
management area (DMA) is in effect;
     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 underway;
     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.
    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 Kitty Hawk Wind's proposed measures, 
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.

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 
planned 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

[[Page 28075]]

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. Kitty Hawk Wind 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.
    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) would ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and would conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
four consecutive hours followed by a break of at least two hours 
between watches and may conduct a maximum of 12 hours of observation 
per 24-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 exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 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).

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);
     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;

[[Page 28076]]

     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);
     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.
    Although not anticipated, 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, Kitty Hawk 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 must also be reported to the U.S. 
Coast Guard via channel 16.
    In the event that Kitty Hawk Wind personnel discover an injured or 
dead marine mammal, Kitty Hawk Wind would report the incident to the 
NMFS Office of Protected Resources (OPR) and the NMFS Southeast Marine 
Mammal Stranding Network within 24 hours. 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, Kitty Hawk 
Wind would report the incident to the NMFS OPR and the NMFS Southeast 
Marine Mammal Stranding Network within 24 hours. 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. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS'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 5, given that NMFS expects the anticipated effects of the 
planned survey to be similar in nature. 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 of Specified 
Activities on Marine Mammals and their Habitat 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 previously due to the nature of 
the operations, Level A harassment is not expected even in the absence 
of mitigation. The small size of the Level A harassment zones and the 
required shutdown zones for certain activities further bolster this 
conclusion. In addition to being temporary, the maximum expected Level 
B harassment zone around a survey vessel is 445 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

[[Page 28077]]

area and their use of the habitat. Feeding behavior is not likely to be 
significantly impacted as prey species are mobile and are broadly 
distributed throughout the survey area; therefore, marine mammals that 
may be temporarily displaced during survey activities are expected to 
be able to resume foraging once they have moved away from areas with 
disturbing levels of underwater noise. Because of the temporary nature 
of the disturbance and the availability of similar habitat and 
resources in the surrounding area, the impacts to marine mammals and 
the food sources that they utilize are not expected to cause 
significant or long-term consequences for individual marine mammals or 
their populations. There are no rookeries, mating or calving grounds 
known to be biologically important to marine mammals within the planned 
survey area at the time of survey (the BIA for North Atlantic right 
whales is for a time period outside the proposed survey time period) 
and there are no primary feeding areas known to be biologically 
important to marine mammals within the planned survey area. In 
addition, there is no designated critical habitat for any ESA-listed 
marine mammals in the planned survey area.
    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 (e.g., 
shutdown) 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 proposed to be authorized;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area and could occur over a very short time 
period (13 days);
     No areas of particular importance to marine mammals (e.g., 
BIA, critical habitat) occur within the survey area; and
     Impacts on marine mammal habitat and species that serve as 
prey species for marine mammals are expected to be minimal and the 
alternate areas of similar habitat value for marine mammals are readily 
available.
    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. For this IHA, take of 
all species or stocks is below one third of the estimated stock 
abundance (in fact, take of individuals is less than 7 percent of the 
abundance for all affected stocks).
    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 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS is proposing to authorize take of fin whales, which are listed 
under the ESA. Therefore, we have requested initiation of Section 7 
consultation with OPR's Interagency Cooperation Division for the 
issuance of this IHA. NMFS will conclude the ESA 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 Kitty Hawk Wind for conducting marine site 
characterization surveys off the coast of North Carolina and Virginia, 
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, one-year 
Renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical, or nearly identical, activities as described in the 
Description of Proposed Activities section of this notice is planned or 
(2) the activities as described in the Description of Proposed 
Activities section of this notice would not be

[[Page 28078]]

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

    Dated: May 18, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-10955 Filed 5-24-21; 8:45 am]
BILLING CODE 3510-22-P