[Federal Register Volume 87, Number 26 (Tuesday, February 8, 2022)]
[Notices]
[Pages 7139-7155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02573]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB757]


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

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

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

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SUMMARY: NMFS has received a request from Kitty Hawk Wind for 
authorization to take marine mammals incidental to marine site 
characterization surveys offshore and in state waters 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 March 
10, 2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service and 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

[[Page 7140]]

availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NAO 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 August 16, 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 wind development area (WDA) and along the electric 
cable corridor (ECC) to landfall locations in North Carolina and 
Virginia. The application was deemed adequate and complete on January 
13, 2022. Kitty Hawk Wind's request is for take of a small number of 
seventeen 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.
    On July 21, 2021, NMFS issued another IHA to Kitty Hawk Wind for a 
short survey duration which was effective from July 23, 2021 through 
October 31, 2021. The reporting for that IHA will be submitted to NMFS 
prior to us making a final decision on the newly requested IHA.

Description of Proposed Activity

Overview

    Kitty Hawk Wind is requesting an IHA authorizing the take, by Level 
B harassment only, of 17 species of marine mammals incidental to marine 
site characterization surveys, specifically in association with the use 
of high-resolution geophysical (HRG) survey equipment in the Atlantic 
Ocean off of North Carolina and Virginia (we note survey work extending 
into Virginia is very limited). Kitty Hawk will also conduct surveys in 
the inshore sounds of North Carolina, include Bogue, Pamlico, 
Albemarle, and Currituck Sounds (as part of the ECC); however, those 
surveys will use equipment operating at frequencies above 180 kHz 
(outside marine mammal hearing range) and therefore will not result in 
harassment to marine mammals. For this reasons, survey work in inshore 
sounds is not further analyzed in this notice.
    The surveys will support offshore wind development in 60 percent of 
the Kitty Hawk South lease area (OCS-A 0508) in the northwest corner 
closest to the North Carolina shoreline (approximately 198 square 
kilometers (km\2\)). 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.
    In addition to Kitty Hawk South surveys, there will be a small 
amount of residual survey effort from the Kitty Hawk North WDA and ECC 
included in this survey effort due to previous inability to complete 
previous surveys as a result of unsuitable weather (Figure 1).

Dates and Duration

    Kitty Hawk Wind plans to commence the surveys in April 2021 and 
continue for one year. Based on 24-hour operations, the estimated 
duration of the HRG survey activities (excluding those in inshore 
sounds) will be 273 vessel days which represents the sum of the total 
number of days each vessel operates (not calendar days). Kitty Hawk 
intends to complete the surveys prior to November 2022 to minimize 
impacts to migrating North Atlantic right whales; however, the analysis 
in the application and this proposed IHA considers the potential for 
work to occur year-round.

Specific Geographic Region

    The majority of Kitty Hawk Wind's survey activities will occur 
within the Kitty Hawk South WDA (approximately 297 km2 of 
the approximately 495 km2 Lease Area) and along the offshore 
ECC (Figure 1). Kitty Hawk will also complete surveys along the Kitty 
Hawk North ECC (Figure 1) as poor weather prohibited completion of this 
work under the 2021 IHA. Water depths across the Survey Area range from 
shallow water areas (0 m) near the offshore ECC landfall to 
approximately 20 to 50 meters (m) in the Lease Area.

[[Page 7141]]

[GRAPHIC] [TIFF OMITTED] TN08FE22.047

Detailed Description of Specific Activity

    Kitty Hawk Wind intends to eventually develop 60 percent of the 
southeast portion on the WDA. 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, support the development of the 
Construction and Operations Plan, and meet the Bureau of Ocean Energy 
Management's (BOEM) data quality guidelines for the HRG, 
archaeological, and benthic resources surveys.
    HRG surveys are anticipated to commence no earlier than April 1, 
2022, and finish in 273 vessel days, not including non-noise-generating 
days likely needed for weather down time. The survey activities will be 
supported simultaneously by three vessels, all capable of maintaining a 
survey speed of approximately 4 knots (7.4 kilometers per hour [km/hr]) 
while transiting survey lines. Vessels will maintain at least 2 km 
separation from each other at all times. Kitty Hawk Wind anticipates 
the surveys will be completed prior to November 2022; however, they 
have requested the IHA be effective for the entire year in case 
unexpected circumstances arise that necessitate surveying beyond 
November.
    The surveys will cover approximately 50,211 line kms between the 
WDA, ECC, overlapping areas, and within several inshore sounds, 
including Bogue, Pamlico, Albemarle, and Currituck Sounds. During the 
surveys, Vessel A would initially collect data using the Multi-channel 
sparker (MCS) within the WDA. Two MCS options are currently under 
consideration, as noted in Table 1. Vessel A would then demobilize the 
MCS and remobilize data collection within both the WDA and ECC using 
the Triple Plate Boomer (boomer). Vessel A would also employ other 
equipment including the ultra-short baseline positioning system (USBL), 
sidescan sonar (SSS), shallow penetration parametric sub-bottom 
profiler (Innomar), and multibeam echo sounder (MBES). However, this 
equipment has a smaller disturbance zone than the MCS or boomer or has 
frequency ranges above 180 kHz, outside of the hearing range of marine 
mammals. Vessels B and C would perform data collection within both the 
WDA and ECC using the boomer. Table 1 provides vessel use and survey 
coverage details. However, all survey equipment within inshore bays and 
sounds would operate above 180 kHz which is outside of marine mammal 
hearing ranges; therefore, no harassment is anticipated to occur from 
these inshore surveys and this activity is not noted in Table 1 and 
will not be discussed further in this notice.

                                         Table 1--Survey Segment Details
----------------------------------------------------------------------------------------------------------------
           Vessel                 Location and line kms        Predominant HRG source            Duration
----------------------------------------------------------------------------------------------------------------
Vessel A....................  WDA: 7,562 kms; ECC: 590....  Multi-channel Seismic         WDA: 42 days; ECC: 4.
                                                             (Sparker).
Vessel A....................  ECC Alternative A: 3,107 kms  Single Channel Seismic        17 days.
                                                             (Boomer).
Vessel A....................  Expanded OECC: 5,843........  Single Channel Seismic        33 days.
                                                             (Boomer).
Vessel B....................  WDA/ECC: 15,715 kms.........  Single Channel Seismic        80 days.
                                                             (Boomer).
Vessel C....................  ECC Base Case: 16,071 kms...  Single Channel Seismic        96 days.
                                                             (Boomer).
----------------------------------------------------------------------------------------------------------------

[[Page 7142]]

 
                                                      Total
----------------------------------------------------------------------------------------------------------------
5 vessels...................  48,888 km...................  ............................  273 days.
----------------------------------------------------------------------------------------------------------------

    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 sub-bottom profilers (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 2 identifies all representative survey equipment proposed for 
use by Kitty Hawk Wind that has the potential to result in harassment 
to marine mammals. 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 2--Kitty Hawk Wind HRG Source Characteristics
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Source       Source
            HRG system                Representative HRG   Operating frequencies     level     level dBrms   Pulse duration (ms)    Beam width (degree)
                                       survey equipment       kilohertz (kHz)        dBpeak
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shallow penetration subbottom       EdgeTech 512i........  0.4 to 12............      \c\ 186      \c\ 180  1.8 to 65.8..........  51 to 80.
 profiler.
Medium penetration subbottom        Applied Acoustics      0.9-14...............      \d\ 206      \d\ 198  0.8..................   30 \e\.
 profiler \a\.                       SBoom 750J (Triple
                                     Plate Boomer).
Multi-channel Sparker (MCS) in      Applied Acoustics      3.2..................      \f\ 223      \f\ 213  0.5 to 3 \f\.........  180.
 flip/flop configuration \b\.        Dura-Spark 1000J.
Multi-channel Sparker (MCS) in      GeoMarine Geo-Source   0.05 to 5............          215          206  5.5..................  180.
 flip/flop configuration.            800J.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ While three operational powers (500/750/1000J) were modeled for the Applied Acoustics S-Boom for comparison purposes, only the 750 joules (J)
  operational power is anticipated to be used.
\b\ Although the entire MCS array would be mobilized, the sparker sources would be activated in an alternating flip/flop sequence.
\c\ The source levels are based on data from Crocker and Frantantonio (2016) for the EdgeTech 512i for 75 percent power with a bandwidth of 0.5 to 8
  kHz.
\d\ The source levels are based on data from Crocker and Frantantonio (2016) for the Applied Acoustics S-Boom for source setting of 750J.
\e\ The beamwidth was provided in email correspondence with Neil MacDonald of Modulus Technology Ltd.
\f\ The source levels are based on data from Crocker and Frantantonio (2016).

    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 Assessment Reports (SARs; https://
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-

[[Page 7143]]

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 3 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 (2021). 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 proposed to be authorized here, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species 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 3 are the most 
recent available at the time of publication and are available in the 
draft 2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                         Table 3--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 right whale......  Eubalaena glacialis....  Western North Atlantic.  E/D; Y              368 (-; 356; 2020)....        0.8       18.6
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0; 1,375; 2016)         22         58
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.02; 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 Ziphiidae:
    Cuvier's beaked Whale...........  Ziphius cavirostris....  Western North Atlantic.  -/-; N              5,744 (0.36, 4,282,            43        0.2
                                                                                                             2016).
    Blainville's beaked Whale.......  Mesoplodon densirostris  Western North Atlantic.  -/-; N              10,107 (0.27, 8,085,           81          0
                                                                                                             2016).
    True's beaked whale.............  Mesoplodon mirus.......  Western North Atlantic.  -/-; N                                             81          0
    Gervais' beaked whale...........  Mesoplodon europaeus...  Western North Atlantic.  -/-; N                                             81          0
    Sowerby's beaked whale..........  Mesoplodon bidens......  Western North Atlantic.  -/-; N                                             81          0
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. Southern          -/-;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):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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.

    As indicated above, all 17 species (with 18 managed stocks) in 
Table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. In addition to what is 
included in Sections 3 and 4 of the application, the SARs, and NMFS' 
website, further detail informing the baseline for select species 
(i.e., information regarding current Unusual Mortality Events (UME) and 
important habitat areas) is provided below. We also provide a brief 
summary of sighting data from Kitty Hawk.

North Atlantic Right Whale

    The North Atlantic right whale is considered one of the most 
critically endangered populations of large whales in the world and has 
been listed as a Federal endangered species since 1970. The Western 
Atlantic stock is considered depleted under the MMPA (Hayes et al. 
2021). There is a recovery plan (NOAA Fisheries 2017) for the right 
whale and recently there was a five-year review of the species (NOAA 
Fisheries 2017). The right whale had a 2.8 percent recovery rate 
between 1990 and 2011 (Hayes et al. 2021).

[[Page 7144]]

    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017, along the U.S. and Canadian coast. This event has been 
declared an UME, with human interactions, including entanglement in 
fixed fishing gear and vessel strikes, implicated in at least 15 of the 
mortalities thus far. As of January 26, 2021, a total of 34 confirmed 
dead stranded whales (21 in Canada; 13 in the United States) have been 
documented. The cumulative total number of animals in the North 
Atlantic right whale UME has been updated to 50 individuals to include 
both the confirmed mortalities (dead stranded or floaters) (n=34) and 
seriously injured free-swimming whales (n=16) to better reflect the 
confirmed number of whales likely removed from the population during 
the UME and more accurately reflect the population impacts. More 
information is available online at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    The offshore waters of North Carolina, including waters of the 
Survey Area, are used as part of the migration corridor for right 
whales. Right whales occur here during seasonal movements north or 
south between their feeding and breeding grounds (Firestone et al. 
2008; Knowlton et al. 2002). Right whales have been observed in or near 
North Carolina waters from October through December, as well as in 
February and March, which coincides with the migratory timeframe for 
this species (Knowlton et al. 2002). They have been acoustically 
detected off Georgia and North Carolina in 7 of 11 months monitored 
(Hodge et al. 2015) and other recent passive acoustic studies of right 
whales off the Virginia coast demonstrate their year-round presence in 
Virginia (Salisbury et al. 2018), with increased detections in fall and 
late winter/early spring. They are typically most common in the spring 
(late March) when they are migrating north and, in the fall (i.e., 
October and November) during their southbound migration (NOAA Fisheries 
2017).
    Seasonal management areas (SMA) are designated within portions of 
the proposed survey area. A SMA exists from November 1 through April 
30, annually, in a contiguous area 20 nautical miles (nm; 37 km) from 
shore between Wilmington, North Carolina to Brunswick, Georgia. A SMA 
also exists for the same time period within a 20-nm (37 km) radius of 
the Ports of Hampton Roads and Morehead City/Beaufort, NC. While the 
WDA does not overlap with these SMAs, vessel transit routes and 
portions of the ECCs that will be surveyed do spatially overlap with 
these SMAs. Kitty Hawk intends to complete the surveys before November 
1, 2022. However, we assume that the surveys may extend throughout the 
year in our analyses. The implementing regulations identifying SMAs (50 
CFR 224.105) also establish a process under which dynamic management 
areas (DMAs) can be established based on North Atlantic right whale 
sightings. NMFS has established a Slow Zone program in 2020 that 
notifies vessel operators of areas where maintaining speeds of 10 knots 
or less can help protect right whales from vessel collisions. Right 
Whale Slow Zones are established around areas where right whales have 
been recently seen or heard; these areas are identical to DMAs when 
triggered by right whale visual sightings but they can also be 
established when right whale detections are confirmed from acoustic 
receivers. More information on SMAs, DMAs, and Slow Zones can be found 
at https://www.fisheries.noaa.gov/national/endangered-species-
conservation/reducing-vessel-strikes-north-atlantic-right-
whales#:~:text=Right%20Whale%20Slow%20Zones%20is,right%20whales%20have%2
0been%20detected.
    In 2020, NMFS finalized a report evaluating the conservation value 
and economic and navigational safety impacts of the 2008 North Atlantic 
right whale vessel speed regulations. The report evaluates four aspects 
of the right whale vessel speed rule: Biological efficacy, mariner 
compliance, impacts to navigational safety, and economic cost to 
mariners. NMFS continues to evaluate its North Atlantic right whale 
vessel strike reduction programs, both regulatory and non-regulatory. 
NMFS anticipates releasing a proposed rule modifying the right whale 
speed regulations in Spring 2022 to further address the risk of 
mortality and serious injury from vessel collisions in U.S. waters.
    The proposed survey area is also recognized as a migratory corridor 
Biologically Important Area (BIA) for North Atlantic right whales 
(effective March-April and November-December) that extends from 
Massachusetts to Florida (LeBrecque et al., 2015). This important 
migratory area is approximately 269,488 km\2\ in and is comprised of 
the waters of the continental shelf offshore the East Coast of the 
United States, extending from Florida through Massachusetts. No 
critical habitat is designated within the survey area.

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.
    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 155 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.

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

[[Page 7145]]

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, 
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 122 strandings recorded through December 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.

Marine Mammal Habitat

    The survey area primarily includes waters inshore and offshore of 
North Carolina with a very small amount of work extending into southern 
Virginia. As described above, a migratory BIA for North Atlantic right 
whales is recognized within the project area in November through 
December and March through April. This BIA extends along the entire 
east coast. A calving BIA is located south of the WDA and potential 
cable corridors; therefore, no impacts to this BIA are anticipated.
    No other BIAs are recognized nor is critical habitat designated in 
the project area; however, the project area is a migratory corridor for 
other large whale species (e.g., humpback whales) and offers habitat 
for various activities such as socializing and foraging for smaller 
cetaceans such as delphinids.

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 4.

                  Table 4--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          150 Hz to 160 kHz.
 (dolphins, 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)    50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)   60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Seventeen 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, 5 are classified as low-frequency 
cetaceans (i.e., all mysticete species), 11 are classified as mid-
frequency cetaceans (i.e., all delphinid species), 1 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 and over a 
similar amount of time (e.g., 85 FR 37848, June 24, 2020; 85 FR 45578, 
July 29, 2020; 85 FR 48179, August 10, 2020; 86 FR 11239, February 24, 
2021, 86 FR 28061, May 25, 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

[[Page 7146]]

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 [mu]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 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 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.

[[Page 7147]]

    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 and boomers) 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 
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. Kitty 
Hawk Wind did not request authorization of take by Level A harassment, 
and no take by Level A harassment is proposed for authorization by 
NMFS.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    Sources that have the potential to result in marine mammal 
harassment include sparkers and boomers. These are impulsive sources. 
The basis for the HRG survey take estimate is the number of marine 
mammals that would be exposed to sound levels in excess of Level B 
harassment criteria for impulsive and/or intermittent noise (160 
dBrms). Distances to thresholds were calculated assuming a propagation 
loss rate of 15logR, also known as practical spreading. The resulting 
distances to NMFS Level B harassment isopleth (160 dBrms) are presented 
in Table 5.
    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 (4 knots [7.4 km/hr]) and the 24-hour 
operational period. Within each survey segment, the ZOI was calculated 
using the respective maximum distance to the Level B harassment 
threshold and estimated daily vessel track of 177.792 km. During the 
use of the Applied Acoustics Dura-Spark 1000J MCS, estimates of take 
have been based on a maximum Level B harassment distance of 445 m from 
the sound source resulting in an ensonified area (i.e., ZOI) around the 
survey equipment of 158.857 km\2\ per day over a projected survey 
period of 45 days (Table 5). During the use of Applied Acoustics S-Boom 
(boomer), estimates of take have been based on a maximum Level B 
harassment distance of 13.49 m from the sound source resulting in an 
ensonified area (i.e., ZOI) around the survey equipment of 4.765 km\2\ 
per day over a projected survey period of 273 days (Table 5).
    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\

[[Page 7148]]



                       Table 5--Level B Harassment Threshold Distances and Ensonified Area
----------------------------------------------------------------------------------------------------------------
                                     Number of       Estimated       Estimated
    Dominant survey equipment      active survey    total line     distance  per    Distance to     ZOI per day
                                       days        distance (km)     day (km)        threshold        (km\2\)
----------------------------------------------------------------------------------------------------------------
MCS.............................              47           8,152         177.792             445         158.857
Boomer..........................             226          42,059  ..............            13.4           4.765
----------------------------------------------------------------------------------------------------------------

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 https://seamap.env.duke.edu/models/Duke/EC/. 
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. Within each survey segment (WDA 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 
d where d equals the number of days each source is dominant (i.e., 47 
days for the sparker and 226 days for the boomer). We note the 
densities provided in Table 5 represent the number of animals/100 km; 
therefore, the density is normalized to 1km in the equation. However, 
for some species, this equation does not reflect those species that can 
travel in 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 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 and/or boomer operations 
(273). Based on marine mammal sighting data collected during previous 
survey efforts, as described in Avangrid's previous monitoring report, 
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 prior geotechnical surveys was 17 individuals. For Risso's 
dolphin and pilot whales, average group size for these species are 25 
and 20, respectively (Reeves et al. 2002).
    For bottlenose dolphin densities, Roberts et al. (2016a, 2016b, 
2017, 2018, 2020) does not differentiate by individual stock. The WDA 
is located within depths exceeding 20 m. Therefore, given the southern 
coastal migratory stock propensity to be found shallower than the 20 m 
depth isobath north of Cape Hatteras (Reeves et al. 2002; Waring et al. 
2016), take of the southern coastal migratory stock would be unlikely. 
Therefore, all work in the WDA was allocated to the offshore stock.
    Table 6 provides the total amount of take calculated and proposed 
to be authorized in the IHA. For details of take per survey segment, 
please see Table 8 in Kitty Hawk's application.

                                Table 6--Marine Mammal Density and Take Estimates
----------------------------------------------------------------------------------------------------------------
                                                                    Calculated                      Percent of
                Species                           Stock                take        Proposed take    population
----------------------------------------------------------------------------------------------------------------
N Atlantic right whale................  Western North Atlantic..               2               2              <1
Humpback whale........................  Gulf of Maine...........              15              15              <1
Fin whale.............................  Western North Atlantic..              18              18              <1
Sei whale.............................  Western North Atlantic..               1               1  ..............
Minke whale...........................  Canadian East Coast.....              22              22              <1
Pilot whales..........................  Western North Atlantic..              32              32              <1
Cuvier's Beaked Whale.................  Western North Atlantic..               5               5              <1
Mesoplodon spp........................  Western North Atlantic..               3               3              <1
Bottlenose dolphin....................  Western North Atlantic,              823             823              <1
                                         offshore.
Bottlenose dolphin....................  Western North Atlantic               226             226             6.0
                                         southern migratory
                                         coastal.
Common dolphin \a\....................  Western North Atlantic..             365           9,282             5.3
Atlantic spotted dolphin \a\..........  Western North Atlantic..             418           8,736              <1

[[Page 7149]]

 
Risso's dolphin \a\...................  Western North Atlantic..               8              25              <1
Rough-toothed dolphin \a\.............  Western North Atlantic..               1              20            14.7
Harbor porpoise.......................  Gulf of Maine/Bay of                  39              39              <1
                                         Fundy.
----------------------------------------------------------------------------------------------------------------
\a\ Multiplier applied to increase calculated take to account for two large group size, an average pod size of
  16 individuals encountered in Survey Area (Milne 2019, 2021) has been included for spotted dolphin and 17
  individuals have also been included for common dolphin (Milne 2019, 2021). Pod size adjustments of 25 and 20
  individuals (average pod size from Reeves et al. [2002]) have been included for Risso's and rough-toothed
  dolphins, respectively.

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.

Pre-Clearance of the Shutdown Zones

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

Ramp-Up

    Where technically feasible (e.g., equipment is not on a binary on/
off switch), a ramp-up procedure will be used for HRG survey equipment 
capable of adjusting energy levels at the start or restart of HRG 
survey activities. A ramp-up would begin with the power of the smallest 
acoustic equipment at its lowest practical power output appropriate for 
the survey. When technically feasible the power would then be turned up 
and other acoustic sources added in a way such that the source level 
would increase gradually. Ramp-up activities not begin if a marine 
mammal(s) enters a clearance zone(s) prior to initiating ramp-up. Ramp-
up will commence when the animal has been observed exiting the 
exclusion zone or until an additional time period has elapsed with no 
further sighting (i.e., 15 minutes for small dolphins and seals and 30 
minutes for all other marine mammal species). The ramp-up procedure 
will be used at the beginning of HRG survey activities to provide 
additional protection to marine mammals near the survey area by 
allowing them to vacate the area prior to the commencement of survey 
equipment use.

Marine Mammal Shutdown Zones

    An immediate shutdown of a sparker or boomer 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 30 
minutes has passed without subsequent detection of a large whale or 15 
minutes for a smaller cetacean or seal. Table 6 provides the required 
shutdown zones.

   Table 6--Clearance and Shutdown Zones During Sparker and Boomer Use
------------------------------------------------------------------------
                                          Clearance zone   Shutdown zone
                 Species                        (m)             (m)
------------------------------------------------------------------------
North Atlantic right whale..............             500             500
All other ESA-listed marine mammals.....             500             450
Non-ESA marine mammals \1\..............             100             100
------------------------------------------------------------------------
\1\ Shutdown is not required for a delphinid from specified genera
  Delphinus, Stenella (frontalis only), and Tursiops.


[[Page 7150]]

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 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. 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.

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 vessel operators will monitor the North Atlantic Right 
Whale Reporting Systems (e.g., the Early Warning System, Sighting 
Advisory System, and Mandatory Ship Reporting System) daily throughout 
the entire survey period for the presence of North Atlantic right 
whales during activities conducted in support of plan submittal;
     All vessel operators will comply with the 10 knot (18.5 
km/hr) or less speed restrictions when operating in any SMA from 
November 1 through April 30;
     All vessels, regardless of size, must observe a 10-knot 
speed restriction in a North Atlantic right whale DMA;
     All survey vessels will maintain a separation distance of 
500 m or greater from any sighted North Atlantic right whale or other 
ESA-listed whale;
     If underway, vessels must steer a course away from any 
sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less 
until the 500 m minimum separation distance has been established. If a 
North Atlantic right whale is sighted in a vessel's path, or within 100 
m to an underway vessel, the underway vessel must reduce speed and 
shift the engine to neutral. Engines will not be engaged until the 
North Atlantic right whale has moved outside of the vessel's path and 
beyond 100 m. If stationary, the vessel must not engage engines until 
the North Atlantic right whale has moved beyond 100 m;
     All vessels will maintain a separation distance of 100 m 
or greater from any sighted non-delphinid cetacean. If sighted, the 
vessel underway must reduce speed and shift the engine to neutral, and 
must not engage the engines until the non-delphinid cetacean has moved 
outside of the vessel's path and beyond 100 m. If a survey vessel is 
stationary, the vessel will not engage engines until the non-delphinid 
cetacean has moved out of the vessel's path and beyond 100 m;
     All vessel operators will comply with 10 knot (18.5 km/hr) 
or less speed restrictions when mother/calf pairs, pods, or large 
assemblages of non-delphinid cetaceans are observed near an underway 
vessel;
     All vessels will maintain a separation distance of 50 m or 
greater from any sighted delphinid cetacean and pinniped. Any vessel 
underway will remain parallel to a sighted delphinid cetacean or 
pinniped's course whenever possible and avoid excessive speed or abrupt 
changes in direction. Any vessel underway reduces vessel speed to 10 
knots (18.5 km/hr) or less when pods (including mother/calf pairs) or 
large assemblages of delphinid cetaceans are observed. Vessels may not 
adjust course and speed until the delphinid cetaceans have moved beyond 
50 m and/or the abeam of the underway vessel;
     All vessels underway will not divert or alter course in 
order to approach any marine mammal. Any vessel underway will avoid 
excessive speed or abrupt changes in direction to avoid injury to the 
sighted cetacean or pinniped;
     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 or greater from any sighted non-delphinid cetacean;
     All vessels shall attempt to maintain a separation 
distance of 50 m or greater from any sighted delphinid cetacean and 
pinniped, with an understanding that at times this may not be possible 
(e.g., for animals that approach the vessel); and
     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

[[Page 7151]]

or any vessel that is navigationally constrained.
    These requirements do not apply in any case where compliance would 
create an imminent and serious threat to a person or vessel or to the 
extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.
    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. In addition to the aforementioned measures, Kitty Hawk will 
abide by all marine mammal relevant conditions in the Greater Atlantic 
Regional Office's (GARFO) informal programmatic consultation, dated 
June 29, 2021 (revised September 2021), pursuant to section 7 of the 
ESA. These include the relevant best management practices of project 
design criteria (PDCs) 4, 5, and 7.
    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.

Proposed Monitoring and Reporting

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

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. 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 
4 consecutive hours followed by a break of at least 2 hours between 
watches and may conduct a maximum of 12 hours of observation per 24-
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

[[Page 7152]]

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;
     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 (1-877-942-5343) if the sighting is in North 
Carolina or the Northeast Stranding Network (1-866-755-6622) if the 
sighting is in Virginia as soon as feasible. The report would include 
the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Kitty Hawk 
Wind would report the incident to the NMFS OPR and the NMFS Southeast 
Marine Mammal Stranding Network (1-877-942-5343) if the sighting is in 
North Carolina or the Northeast Stranding Network (1-866-755-6622) if 
the sighting is in Virginia as soon as feasible but 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

[[Page 7153]]

     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 6, given that NMFS expects the anticipated effects of the 
survey to be similar in nature. Where there are meaningful differences 
between species or stocks--as is the case of the North Atlantic right 
whale--they are included as separate subsections below. NMFS does not 
anticipate that serious injury or mortality would occur as a result 
from HRG surveys, even in the absence of mitigation, and no serious 
injury or mortality is proposed to be authorized. As discussed in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat section above, non-auditory physical effects and vessel strike 
are not expected to occur. NMFS expects that all potential takes would 
be in the form of short-term Level B behavioral harassment in the form 
of temporary avoidance of the area or decreased foraging (if such 
activity was occurring), reactions that are considered to be of low 
severity and with no lasting biological consequences (e.g., Southall et 
al., 2007). Even repeated Level B harassment of some small subset of an 
overall stock is unlikely to result in any significant realized 
decrease in viability for the affected individuals, and thus would not 
result in any adverse impact to the stock as a whole. As described 
above, Level A harassment is not expected to occur given the nature of 
the operations, the estimated size of the Level A harassment zones, and 
the required shutdown zones for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel from sparker use is 445 m and 13 m from 
boomer use. The ensonified area surrounding each vessel is relatively 
small compared to the overall distribution of the animals in the area 
and their use of the habitat. Feeding behavior is not likely to be 
significantly impacted as the impacts of the surveys are limited to 
very small areas around each vessel, prey species are mobile and are 
broadly distributed throughout the survey area; therefore, marine 
mammals that may be temporarily displaced during survey activities are 
expected to be able to resume foraging once they have moved away from 
areas with disturbing levels of underwater noise. Because of the 
temporary nature of the disturbance and the availability of similar 
habitat and resources in the surrounding area, the impacts to marine 
mammals and the food sources that they utilize are not expected to 
cause significant or long-term consequences for individual marine 
mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the survey area and 
there are no feeding areas known to be biologically important to marine 
mammals within the survey area. There is no designated critical habitat 
for any ESA-listed marine mammals in the survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As 
discussed in the notice of proposed IHA (86 FR 17783; April 6, 2021), 
elevated North Atlantic right whale mortalities began in June 2017 and 
there is an active UME. Overall, preliminary findings support human 
interactions, specifically vessel strikes and entanglements, as the 
cause of death for the majority of right whales. As noted previously, 
the survey area overlaps a migratory corridor BIA for North Atlantic 
right whales. Due to the fact that the survey activities are temporary 
and the spatial extent of sound produced by the survey will be very 
small relative to the spatial extent of the available migratory habitat 
in the BIA, right whale migration is not expected to be impacted by the 
survey. Given the relatively small size of the ensonified area, it is 
unlikely that prey availability would be adversely affected by Kitty 
Hawk Wind's proposed survey operations. Required vessel strike 
avoidance measures would also decrease risk of ship strike during 
migration; no ship strike is expected to occur during Kitty Hawk Wind's 
proposed activities. Additionally, only very limited take by Level B 
harassment of North Atlantic right whales has been requested and is 
proposed to be authorized by NMFS as Kitty Hawk Wind's proposed survey 
operations would be required to maintain a shutdown zone of 500 m if a 
North Atlantic right whale is observed. The 500 m shutdown zone for 
right whales is conservative, considering the Level B harassment 
isopleth for the most impactful acoustic source (i.e., sparker--which 
would not be used on all survey days) is estimated to be 445 m, and 
thereby minimizes the potential for behavioral harassment of this 
species. As noted previously, Level A harassment is not expected due to 
the characteristics of the signals produced by the acoustic sources 
planned for use; this finding is further enforced by the proposed 
mitigation measures. NMFS does not anticipate North Atlantic right 
whales takes that would result from Kitty Hawk Wind's activities would 
impact annual rates of recruitment or survival. Thus, any takes that 
occur will not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As discussed above, there are several active UMEs occurring in the 
vicinity of Kitty Hawk Wind's survey area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.

[[Page 7154]]

    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    The proposed mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 6, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular they would provide animals the opportunity to 
move away from the sound source throughout the survey area before HRG 
survey equipment reaches full energy, thus preventing them from being 
exposed to sound levels that have the potential to cause injury (Level 
A harassment) or more severe Level B harassment. No Level A harassment 
is anticipated, even in the absence of mitigation measures, or proposed 
for authorization.
    NMFS expects that takes will be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals will only be exposed briefly to a small ensonified area that 
might result in take. Additionally, the proposed mitigation measures 
would further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors 
preliminarily 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 proposed 
to be authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed to be authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be by Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the survey area;
     While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, the activities will occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities will not affect migration. In addition, the 
requirement to shut down at 500 m to minimize potential for Level B 
behavioral harassment would limit the effects of the action on 
migratory behavior of the species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS preliminarily finds that the total marine mammal take 
from the activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities. 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 ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of IHAs, NMFS consults 
internally whenever we propose to authorize take for endangered or 
threatened species.
    NMFS is proposing to authorize take, by Level B harassment only, of 
North Atlantic right whales fin whales, and sei whales which are listed 
under the ESA. On June 29, 2021 (revised September 2021), GARFO 
completed an informal programmatic consultation on the effects of 
certain site assessment and site characterization activities to be 
carried out to support the siting of offshore wind energy development 
projects off the U.S. Atlantic coast. Part of the activities considered 
in the consultation are geophysical surveys such as those proposed by 
Kitty Hawk Wind and for which we are proposing to authorize take. GARFO 
concluded site assessment surveys are not likely to adversely affect 
endangered species or adversely modify or destroy critical habitat. 
NMFS has determined issuance of the IHA is covered under the 
programmatic consultation; therefore, ESA consultation has been 
satisfied.

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.

[[Page 7155]]

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 Activity section of this notice is planned or 
(2) the activities as described in the Description of Proposed Activity 
section of this notice would not be completed by the time the IHA 
expires and a Renewal would allow for completion of the activities 
beyond that described in the Dates and Duration section of this notice, 
provided all of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA);
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take); 
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: February 2, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-02573 Filed 2-7-22; 8:45 am]
BILLING CODE 3510-22-P