[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Notices]
[Pages 24103-24130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08653]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB775]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off New Jersey and New York for Atlantic Shores Offshore Wind, 
LLC

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an IHA to Atlantic Shores Offshore Wind, LLC to 
incidentally harass marine mammals during marine site characterization 
surveys off New Jersey and New York.

DATES: This Authorization is effective from April 20, 2022 through 
April 19, 2023.

FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

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

Summary of Request

    On August 16, 2021, NMFS received a request from Atlantic Shores 
for an IHA to take marine mammals incidental to marine site 
characterization surveys occurring in three locations (Lease Area and 
Export Cable Routes (ECR) North and South) off of New Jersey and New 
York in and around the area of Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf Lease Area 
(OCS)-A 0499. The application was deemed adequate and complete on 
December 13, 2021. Atlantic Shores' request is for take of a small 
number of 15 species of marine mammals (comprised of 16 stocks) by 
Level B harassment only. Neither Atlantic Shores nor NMFS expects 
serious injury or mortality to result from this activity; therefore, an 
IHA is appropriate.

Description of Activities

Overview

    As part of its overall marine site characterization survey 
operations, Atlantic Shores will conduct high-resolution geophysical 
(HRG) surveys in and around the Lease Area (OCS)-A 0499 and along 
potential submarine cable routes (ECRs North and South) to a landfall 
location in either New York or New Jersey.
    The purpose of these surveys are to support the site 
characterization, siting, and engineering design of offshore wind 
facilities including wind turbine generators, offshore substations, and 
submarine cables within the Lease Area and along export cable routes 
(ECRs). As many as three survey vessels may operate concurrently. 360 
days of survey days are planned with vessels operating for 24-hours as 
part of the planned surveys (Table 1). Underwater sound resulting from 
Atlantic Shores' planned site characterization survey activities, 
specifically certain acoustic sources operating at <180 kilohertz 
(kHz), has the potential to result in incidental take of marine mammals 
in the form of behavioral harassment (Table 2).

Table 1--Number of Survey Days That Atlantic Shores Plans To Perform the
                     Described HRG Survey Activities
------------------------------------------------------------------------
                                                              Number  of
                                                                active
                        Survey area                          survey days
                                                               expected
                                                                 \1\
------------------------------------------------------------------------
Lease Area.................................................          120
ECR North..................................................          180
ECR South..................................................           60
                                                            ------------
    Total..................................................          360
------------------------------------------------------------------------
\1\ Surveys in each area may temporally overlap; therefore, actual
  number of days of activity in a given year would be less than 360.


[[Page 24104]]


                          Table 2--Summary of Representative Equipment Specifications With Operating Frequencies Below 180 kHz
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                                                                                            Operational
                                                                                           source level      Beamwidth     Typical pulse       Pulse
  HRG survey equipment  (sub-bottom        Representative         Operating  frequency        ranges          ranges       durations RMS    repetition
              profiler)                    equipment type            ranges  (kHz)          (dBRMS) \b\      (degrees)     (millisecond)    rate  (Hz)
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker (impulsive).................  Applied Acoustics Dura-  0.01 to 1.9..............             203             180             3.4               2
                                       Spark 240 \a\.
                                      Geo Marine Geo-Source..  0.2 to 5.................             195             180             7.2            0.41
CHIRPs (non-impulsive)..............  Edgetech 2000-DSS......  2 to 16..................             195              24             6.3              10
                                      Edgetech 216...........  2 to 16..................             179   17, 20, or 24              10              10
                                      Edgetech 424...........  4 to 24..................             180              71               4               2
                                      Edgetech 512i..........  0.7 to 12................             179              80               9               8
                                      Pangeosubsea Sub-Bottom  4 to 12.5................             190             120             4.5              44
                                       Imager\TM\.
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Note--Two sources with potential for use by Atlantic Shores (i.e., the INNOMAR SES-2000 Medium-100 Parametric and the INNOMAR deep-36 Parametric) are
  not expected to result in take due to their higher frequencies and extremely narrow beamwidths. Because of this, these sources were not considered
  when calculating the Level B harassment isopleths and are not discussed further in this notice. Acoustic parameters on these parametric sub-bottom
  profilers can be found in Atlantic Shores' IHA application on NMFS' website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable).
\a\ Atlantic Shores discussed with NMFS and include information in their application that while the Applied Acoustics Dura-Spark 240 is planned to be
  used during survey activities, the equipment specifications and subsequent analysis are based on the SIG ELC 820 with a power level of 750 joules (J)
  at a 5 meter depth (Crocker and Fratantonio (2016)). However, Atlantic Shores expects a more reasonable power level to be 500-600 J based on prior
  experience with HRG surveys; 750 J was used as a worst-case scenario to conservatively account for take of marine mammals as these higher electrical
  outputs would only be used in areas with denser substrates (700-800 J).
\b\ Root mean square (RMS) = 1 microPa.

    Mitigation, monitoring, and reporting measures are described in 
detail later in this document (please see Mitigation and Monitoring and 
Reporting).
    A detailed description of the planned surveys by Atlantic Shores 
are provided in the Federal Register notice of the proposed IHA (87 FR 
4200; January 27, 2022). Since that time, no changes have been made to 
the survey activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specified activities.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Atlantic Shores was 
published in the Federal Register on January 27, 2022 (87 FR 4200). 
That proposed notice described, in detail, Atlantic Shores' activities, 
the marine mammal species that may be affected by the activities, and 
the anticipated effects on marine mammals. In that notice, we requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization, and any other aspect of the 
notice of proposed IHA, and requested that interested persons submit 
relevant information, suggestions, and comments. This proposed notice 
was available for a 30-day public comment period.
    NMFS received 11 individual comments from private citizens. Eight 
of these expressed general opposition to or support for the IHA and the 
underlying associated activities and two specifically addressed 
concerns regarding construction of a wind energy facility itself, which 
is outside the scope of NMFS' action considered herein. We do not 
specifically address these comments, or non-substantive comments 
expressing general opposition or support from private citizens, in 
further detail. Additionally, NMFS received two letters from 
environmental non-governmental organizations (eNGOs) (Oceana, Inc. and 
Clean Ocean Action (COA)) and one letter from a local citizen group 
(Save Long Beach Island (LBI)). All substantive comments, and NMFS' 
responses, are provided below, and the letters are available online at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0). Please review the 
corresponding public comment link for full details regarding the 
comments, letters, and underlying justification.
    Comment 1: Oceana made comments objecting to NMFS' renewal process 
regarding the extension of any one-year IHA with a truncated 15-day 
public comment period, and suggested an additional 30-day public 
comment period is necessary for any renewal request.
    NMFS' response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about IHA renewals (e.g., 
84 FR 52464; October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, and, further, promotes NMFS' goals of improving conservation 
of marine mammals and increasing efficiency in the MMPA compliance 
process. Therefore, we intend to continue implementing the renewal 
process.
    The Notice of the proposed IHA published in the Federal Register on 
January 27, 2022 (87 FR 4200) made clear that the agency was seeking 
comment on the proposed IHA and the potential issuance of a renewal for 
this survey. Because any renewal is limited to another year of 
identical or nearly identical activities in the same location or the 
same activities that were not completed within the 1-year period of the 
initial IHA, reviewers have the information needed to effectively 
comment on both the immediate proposed IHA and a possible 1-year 
renewal, should the IHA holder choose to request one in the coming 
months.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-day public comment 
period provides the public an opportunity to review these few 
documents, provide any additional pertinent information and comment on 
whether they think the criteria for a renewal have been met. Between 
the initial 30-day comment period on these same activities and the

[[Page 24105]]

additional 15 days, the total comment period for a renewal is 45 days.
    In addition to the IHA renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress' intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for renewals in the regulations, description of the process 
and express invitation to comment on specific potential renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
Renewals respectively, NMFS has ensured that the public is ``invited 
and encouraged to participate fully in the agency's decision-making 
process'', as Congress intended.
    Comment 2: Oceana and COA remarked that NMFS must utilize the best 
available science. The commenters further suggest that NMFS has not 
done so, specifically, referencing information regarding the NARW such 
as updated population estimates and recent habitat usage patterns in 
Atlantic Shores' survey area. The commenters specifically asserted that 
NMFS is not using the best available science with regards to the North 
Atlantic right whale (NARW) population estimate and state that NMFS 
should be using the 336 estimate presented in the recent North Atlantic 
Right Whale Report Card (https://www.narwc.org/report-cards.html).
    NMFS' response: While NMFS agrees that the best available science 
should be used for assessing NARW abundance estimates, we disagree that 
the North Atlantic Right Whale Report Card (i.e., Pettis et al. (2022)) 
study represents the most recent and best available estimate for NARW 
abundance. Rather the revised abundance estimate (368; 95 percent with 
a confidence interval of 356-378) published by Pace (2021) (and 
subsequently included in the 2021 draft Stock Assessment Reports (SARs; 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), which was used in the 
proposed IHA, provides the most recent and best available estimate, and 
introduced improvements to NMFS' right whale abundance model. 
Specifically, Pace (2021) looked at a different way of characterizing 
annual estimates of age-specific survival. NMFS considered all relevant 
information regarding NARW, including the information cited by the 
commenters. However, NMFS relies on the SAR. Recently (after 
publication of the notice of proposed IHA), NMFS has updated its 
species web page to recognize the population estimate for NARWs is now 
below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). We anticipate that this information will be 
presented in the draft 2022 SAR. We note that this change in abundance 
estimate would not change the estimated take of NARWs or authorized 
take numbers, nor affect our ability to make the required findings 
under the MMPA for Atlantic Shores' survey activities.
    NMFS further notes that the commenters seem to be conflating the 
phrase ``best available data'' with ``the most recent data.'' The MMPA 
specifies that the ``best available data'' must be used, which does not 
always mean the most recent. As is NMFS' prerogative, we referenced the 
best available NARW abundance estimate of 368 from the draft 2021 SARs 
as NMFS's determination of the best available data that we relied on in 
our analysis. The Pace (2021) results strengthened the case for a 
change in mean survival rates after 2010-2011, but did not 
significantly change other current estimates (population size, number 
of new animals, adult female survival) derived from the model. 
Furthermore, NMFS notes that the SARs are peer reviewed by other 
scientific review groups prior to being finalized and published and 
that the North Atlantic Right Whale Report Card (Pettis et al., 2022) 
does not undertake this process.
    The commenters also noted their concern regarding NARW habitat 
usage, stating that NMFS was not appropriately considering relevant 
information on this topic. While this survey specifically intersects 
migratory habitat for NARWs, year-round ``core'' NARW foraging habitat 
(Oleson et al., 2020) located much further north in the southern area 
of Martha's Vineyard and Nantucket Islands where both visual and 
acoustic detections of NARWs indicate a nearly year-round presence 
(Oleson et al., 2020). NMFS notes that prey for NARWs are mobile and 
broadly distributed throughout the survey area; therefore, NARW 
foraging efforts are not likely to be disturbed given the location of 
these planned activities in relation to the broader area that NARWs 
migrate through and the northern areas where NARWs primarily forage. 
There is ample foraging habitat further north of this survey area that 
will not be ensonified by the acoustic sources used by Atlantic Shores, 
such as in the Great South Channel and Georges Bank Shelf Break feeding 
biologically important area (BIA). Furthermore, and as discussed in the 
proposed Notice, the spatial acoustic footprint of the survey is very 
small relative to the spatial extent of the available foraging habitat.
    Lastly, as we stated in the proposed Notice, any impacts to marine 
mammals are expected to be temporary and minor and, given the relative 
size of the survey area compared to the overall migratory route leading 
to foraging habitat (which is not affected by the specified activity). 
Comparatively, the survey area is approximately 5,868 square kilometers 
(km\2\) and the NARW migratory BIA is 269,448 km\2\. Because of this, 
and in context of the minor, low-level nature of the impacts expected 
to result from the planned survey, such impacts are not expected to 
result in disruption to biologically important behaviors.
    Comment 3: Oceana noted that chronic stressors are an emerging 
concern for NARW conservation and recovery, and stated that chronic 
stress may result in energetic effects for NARWs. Oceana suggested that 
NMFS has not fully considered both the use of the area and the effects 
of both acute and chronic stressors on the health and fitness of NARWs, 
as disturbance responses in NARWs could lead to chronic stress or 
habitat displacement, leading to an overall decline in their health and 
fitness.
    NMFS' response: NMFS agrees with Oceana that both acute and chronic 
stressors are of concern for NARW conservation and recovery. We 
recognize that acute stress from acoustic exposure is one potential 
impact of these surveys, and that chronic stress can have fitness, 
reproductive, etc. impacts at the population-level scale. NMFS has 
carefully reviewed the best available scientific information in 
assessing impacts to marine mammals, and recognizes that the surveys 
have the potential to impact marine mammals through behavioral effects, 
stress responses, and auditory masking. However, NMFS does not expect 
that the generally short-term, intermittent, and transitory marine site 
characterization survey activities planned by Atlantic Shores would 
create conditions of acute or chronic acoustic exposure leading to 
long-term physiological stress responses in marine mammals. NMFS has 
also prescribed a robust suite of mitigation measures, including 
extended distance shutdowns for NARW, that are expected to further 
reduce the duration and intensity of acoustic exposure, while limiting 
the potential severity of any possible

[[Page 24106]]

behavioral disruption. The potential for chronic stress was evaluated 
in making the determinations presented in NMFS's negligible impact 
analyses. Because NARWs generally use this location in a transitory 
manner, specifically for migration, any potential impacts from these 
surveys are lessened for other behaviors due to the brief periods where 
exposure is possible. In context of these expected low-level impacts, 
which are not expected to meaningfully affect important behavior, we 
also refer again to the large size of the migratory corridor (BIA of 
269,448 km\2\) compared with the survey area (5,868 km\2\). Thus, the 
transitory nature of NARWs at this location means it is unlikely for 
any exposure to cause chronic effects as Atlantic Shores' planned 
survey area and ensonified zones are much smaller than the overall 
migratory corridor. Because of this, NMFS does not expect acute or 
cumulative stress to be a detrimental factor to NARWs from Atlantic 
Shores' described survey activities.
    Comment 4: Oceana and COA asserted that NMFS must fully consider 
the discrete effects of each activity and the cumulative effects of the 
suite of approved, proposed and potential activities on marine mammals 
and NARWs in particular and ensure that the cumulative effects are not 
excessive before issuing or renewing an IHA.
    NMFS' response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of other unrelated activities and 
their impacts on populations. The preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989) states in response to 
comments that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline, e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and other relevant 
stressors. The 1989 final rule for the MMPA implementing regulations 
also addressed public comments regarding cumulative effects from 
future, unrelated activities. There NMFS stated that such effects are 
not considered in making findings under section 101(a)(5) concerning 
negligible impact. In this case, this IHA, as well as other IHAs 
currently in effect or proposed within the specified geographic region, 
are appropriately considered an unrelated activity relative to the 
others. The IHAs are unrelated in the sense that they are discrete 
actions under section 101(a)(5)(D), issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Atlantic Shores was the applicant for the IHA, and we 
are responding to the specified activity as described in that 
application (and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated (1) that we would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) that reasonably foreseeable cumulative effects would also be 
considered under section 7 of the ESA for ESA-listed species, as 
appropriate. Accordingly, NMFS has written Environmental Assessments 
(EA) that addressed cumulative impacts related to substantially similar 
activities, in similar locations, e.g., the 2017 Ocean Wind, LLC EA for 
site characterization surveys off New Jersey; the 2018 Deepwater Wind 
EA for survey activities offshore Delaware, Massachusetts, and Rhode 
Island; the 2019 Avangrid EA for survey activities offshore North 
Carolina and Virginia; and the 2019 Orsted EA for survey activities 
offshore southern New England. Cumulative impacts regarding issuance of 
IHAs for site characterization survey activities such as those planned 
by Atlantic Shores have been adequately addressed under NEPA in prior 
environmental analyses that support NMFS' determination that this 
action is appropriately categorically excluded from further NEPA 
analysis. NMFS independently evaluated the use of a categorical 
exclusion for issuance of Atlantic Shores' IHA, which included 
consideration of extraordinary circumstances. Please see our response 
to Comment #21 below for more details.
    Separately, the cumulative effects of substantially similar 
activities in the same geographic region have been analyzed in the past 
under section 7 of the ESA when NMFS has engaged in formal intra-agency 
consultation, such as the 2013 programmatic Biological Opinion for BOEM 
Lease and Site Assessment Rhode Island, Massachusetts, New York, and 
New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities include those for which NMFS issued 
Atlantic Shores' 2020 IHA and subsequent 2021 renewal IHA (85 FR 21198; 
April 16, 2020 and 86 FR 21289; April 22, 2021), which are 
substantially similar to those planned by Atlantic Shores under this 
current IHA request. This Biological Opinion determined that NMFS' 
issuance of IHAs for site characterization survey activities associated 
with leasing, individually and cumulatively, are not likely to 
adversely affect listed marine mammals. NMFS notes, that while issuance 
of this IHA is covered under a different consultation, this BiOp 
remains valid and the surveys currently planned by Atlantic Shores from 
2022 to 2023 could have fallen under the scope of those analyzed 
previously.
    Comment 5: LBI has concluded that NMFS should include nearby survey 
activities in the analysis of this IHAs, specifically activities 
occurring in the Ocean Wind 1 (OCS-A 0498), as Atlantic Shores' survey 
activities are occurring during similar timeframes in similar spatial 
locations to the lease owned by Orsted Wind Power North America, LLC 
(Orsted). They noted that this was specifically important given the 
large number of offshore wind-related activities being considered in 
the northeast region and to appropriately assess cumulative impacts 
between projects.
    NMFS' response: NMFS disagrees with LBI's statement that activities 
occurring by Orsted and Atlantic Shores' should be considered together 
in the MMPA action on that basis that they share a similar location 
geographically. We reiterate that under the MMPA, we are required to 
consider applications upon request. To date, NMFS has not received any 
joint application from Orsted and Atlantic Shores regarding their site 
characterization surveys off of New Jersey. While an individual company 
owning multiple lease areas may apply for a single authorization to 
conduct site characterization surveys across a combination of those 
lease areas, such as what was done by Orsted in their recent surveys 
from New York to Massachusetts (see 85 FR 63508, October 8, 2020; 87 FR 
13975, March 11, 2022), this is not applicable in this case to the 
leases owned by Atlantic Shores and Orsted found off New Jersey. In the

[[Page 24107]]

future, if applicants wish to undertake this approach, NMFS is open to 
the receipt of joint applications and additional discussions on joint 
actions.
    Furthermore, NMFS notes that the site characterization surveys 
covered under the current IHA (86 FR 26465; May 14, 2021) in Ocean 
Wind's lease are due to expire on May 9, 2022. While Ocean Wind has 
requested a renewal IHA and NMFS is seeking public comment on that 
request (87 FR 21098; April 11, 2022), NMFS has not yet made a decision 
to issue a final renewal IHA, entailing minimal current temporal 
overlap in activities performed under this IHA by Atlantic Shores to 
Ocean Wind's existing action (approximately 19 days of overlap). 
However, NMFS again notes that these both of these actions (Atlantic 
Shores' and Orsted's site characterization surveys) are occurring in 
spatially distinct areas and that it is highly unlikely for both 
entity's survey activities to occur in the same location at any one 
time. NMFS continues to reaffirm that any other authorization issued to 
Orsted relating to activities in OCS-A 0498 would be considered a 
discrete activity (refer back to the discussion in Comment #4) with its 
own separate and independent action.
    Comment 6: Oceana states that NMFS must make an assessment of which 
activities, technologies and strategies are truly necessary to provide 
information to inform development of Atlantic Shores and which are not 
critical, asserting that NMFS should prescribe the appropriate survey 
techniques. In general, Oceana stated that NMFS must require that all 
IHA applicants minimize the impacts of underwater noise to the fullest 
extent feasible, including through the use of best available technology 
and methods to minimize sound levels from geophysical surveys.
    NMFS' response: The MMPA requires that an IHA include measures that 
will effect the least practicable adverse impact on the affected 
species and stocks and, in practice, NMFS agrees that the IHA should 
include conditions for the survey activities that will first avoid 
adverse effects on NARWs in and around the survey site, where 
practicable, and then minimize the effects that cannot be avoided. NMFS 
has determined that the IHA meets this requirement to effect the least 
practicable adverse impact. Oceana does not make any specific 
recommendations of measures to add to the IHA. As part of the analysis 
for all marine site characterization survey IHAs, NMFS evaluated the 
effects expected as a result of the specified activity, made the 
necessary findings, and prescribed mitigation requirements sufficient 
to achieve the least practicable adverse impact on the affected species 
and stocks of marine mammals. It is not within NMFS' purview to make 
judgments regarding what may be appropriate techniques or technologies 
for an operator's survey objectives.
    Comment 7: Oceana suggests that PSOs complement their survey 
efforts using additional technologies, such as infrared detection 
devices when in low-light conditions.
    NMFS' response: NMFS agrees with Oceana regarding this suggestion 
and a requirement to utilize a thermal (infrared) device during low-
light conditions was included in the proposed Federal Register Notice. 
That requirement is included as a requirement of the issued IHA.
    Comment 8: Oceana and COA recommended that NMFS restrict all 
vessels of all sizes associated with the proposed survey activities to 
speeds less than 10 knots (kn) at all times due to the risk of vessel 
strikes to NARWs and other large whales.
    NMFS' response: While NMFS acknowledges that vessel strikes can 
result in injury or mortality, we have analyzed the potential for ship 
strike resulting from Atlantic Shores' activity and have determined 
that based on the nature of the activity and the required mitigation 
measures specific to vessel strike avoidance included in the IHA, 
potential for vessel strike is so low as to be discountable. These 
mitigation measures, most of which were included in the proposed IHA 
and all of which are required in the final IHA, include: A requirement 
that all vessel operators comply with 10 kn (18.5 km/hour) or less 
speed restrictions in any SMA, DMA or Slow Zone while underway, and 
check daily for information regarding the establishment of mandatory or 
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and 
information regarding NARW sighting locations; a requirement that all 
vessels greater than or equal to 19.8 m in overall length operating 
from November 1 through April 30 operate at speeds of 10 kn (18.5 km/
hour) or less; a requirement that all vessel operators reduce vessel 
speed to 10 kn (18.5 km/hour) or less when any large whale, any mother/
calf pairs, pods, or large assemblages of non-delphinid cetaceans are 
observed near the vessel; a requirement that all survey vessels 
maintain a separation distance of 500 m or greater from any ESA-listed 
whales or other unidentified large marine mammals visible at the 
surface while underway; a requirement that, if underway, vessels must 
steer a course away from any sighted ESA-listed whale at 10 kn or less 
until the 500 m minimum separation distance has been established; a 
requirement that, if an ESA-listed whale is sighted in a vessel's path, 
or within 500 m of an underway vessel, the underway vessel must reduce 
speed and shift the engine to neutral; a requirement that all vessels 
underway must maintain a minimum separation distance of 100 m from all 
non-ESA-listed baleen whales; and a requirement that all vessels 
underway must, to the maximum extent practicable, attempt to maintain a 
minimum separation distance of 50 m from all other marine mammals, with 
an understanding that at times this may not be possible (e.g., for 
animals that approach the vessel). We have determined that the ship 
strike avoidance measures in the IHA are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. 
Furthermore, no documented vessel strikes have occurred for any marine 
site characterization surveys which were issued IHAs from NMFS during 
the survey activities themselves or while transiting to and from survey 
sites.
    Comment 9: Oceana suggests that NMFS require vessels maintain a 
separation distance of at least 500 m from NARWs at all times.
    NMFS' response: NMFS agrees with Oceana regarding this suggestion 
and a requirement to maintain a separation distance of at least 500 m 
from NARWs at all times was included in the proposed Federal Register 
Notice and was included as a requirement in the issued IHA.
    Comment 10: Oceana recommended that the IHA should require all 
vessels supporting site characterization to be equipped with and using 
Class A Automatic Identification System (AIS) devices at all times 
while on the water. Oceana suggested this requirement should apply to 
all vessels, regardless of size, associated with the survey.
    NMFS' response: NMFS is generally supportive of the idea that 
vessels involved with survey activities be equipped with and using 
Class A Automatic Identification System (devices) at all times while on 
the water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, these activities carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Atlantic Shores, with the potential for 
both Level A and Level B harassment take. Given the small

[[Page 24108]]

isopleths and small numbers of take authorized by this IHA, NMFS does 
not agree that the benefits of requiring AIS on all vessels associated 
with the survey activities outweighs and warrants the cost and 
practicability issues associated with this requirement.
    Comment 11: Oceana asserts that the IHA must include requirements 
to hold all vessels associated with site characterization surveys 
accountable to the IHA requirements, including vessels owned by the 
developer, contractors, employees, and others regardless of ownership, 
operator, and contract. They state that exceptions and exemptions will 
create enforcement uncertainty and incentives to evade regulations 
through reclassification and redesignation. They recommend that NMFS 
simplify this by requiring all vessels to abide by the same 
requirements, regardless of size, ownership, function, contract or 
other specifics.
    NMFS' response: NMFS agrees with Oceana and required these measures 
in the proposed IHA and final IHA. The IHA requires that a copy of the 
IHA must be in the possession of Atlantic Shores, the vessel operators, 
the lead PSO, and any other relevant designees of Atlantic Shores 
operating under the authority of this IHA. The IHA also states that 
Atlantic Shores must ensure that the vessel operator and other relevant 
vessel personnel, including the Protected Species Observer (PSO) team, 
are briefed on all responsibilities, communication procedures, marine 
mammal monitoring protocols, operational procedures, and IHA 
requirements prior to the start of survey activity, and when relevant 
new personnel join the survey operations.
    Comment 12: Oceana stated that the IHA must include a requirement 
for all phases of the Atlantic Shores site characterization to 
subscribe to the highest level of transparency, including frequent 
reporting to federal agencies, requirements to report all visual and 
acoustic detections of NARWs and any dead, injured, or entangled marine 
mammals to NMFS or the Coast Guard as soon as possible and no later 
than the end of the PSO shift. Oceana states that to foster stakeholder 
relationships and allow public engagement and oversight of the 
permitting, the IHA should require all reports and data to be 
accessible on a publicly available website.
    NMFS' response: NMFS agrees with the need for reporting and indeed, 
the MMPA calls for IHAs to incorporate reporting requirements. As 
included in the proposed IHA, the final IHA includes requirements for 
reporting that supports Oceana's recommendations. Atlantic Shores is 
required to submit a monitoring report to NMFS within 90 days after 
completion of survey activities that fully documents the methods and 
monitoring protocols, summarizes the data recorded during monitoring, 
and describes, assesses and compares the effectiveness of monitoring 
and mitigation measures. PSO datasheets or raw sightings data must also 
be provided with the draft and final monitoring report. Further the 
draft IHA and final IHA stipulate that if a NARW is observed at any 
time by any survey vessels, during surveys or during vessel transit, 
Atlantic Shores must immediately report sighting information to the 
NMFS North Atlantic Right Whale Sighting Advisory System and to the 
U.S. Coast Guard, and that any discoveries of injured or dead marine 
mammals be reported by Atlantic Shores to the Office of Protected 
Resources, NMFS, and to the New England/Mid-Atlantic Regional Stranding 
Coordinator as soon as feasible. All reports and associated data 
submitted to NMFS are included on the website for public inspection.
    Comment 13: Oceana and LBI recommended increasing the Exclusion 
Zone to either 1,000 m or 2,500 m, respectively, for NARWs.
    NMFS' response: NMFS notes that the 500 m Exclusion Zone for NARWs 
exceeds the modeled distance to the largest 160 dB Level B harassment 
isopleth distance (141 m during sparker use) by a substantial margin. 
Commenters do not provide a compelling rationale for why the Exclusion 
Zone should be even larger. Given that these surveys are relatively low 
impact and that, regardless, NMFS has prescribed a NARW Exclusion Zone 
that is significantly larger (500 m) than the conservatively estimated 
largest harassment zone (141 m), NMFS has determined that the Exclusion 
Zone is appropriate. Further, Level A harassment is expected to result 
even in the absence of mitigation, given the characteristics of the 
sources planned for use. As described in the Mitigation section, NMFS 
has determined that the prescribed mitigation requirements are 
sufficient to effect the least practicable adverse impact on all 
affected species or stocks.
    Comment 14: Oceana and LBI recommended that NMFS should require PAM 
at all times to maximize the probability of detection for NARWs. 
Commenters provided recommendations that NMFS should require Passive 
Acoustic Monitoring (PAM) at all times, both day and night, to maximize 
the probability of detection for NARWs, as well as other species and 
stocks. A private citizen also submitted a question regarding what 
other mitigation measures and approaches could be undertaken if a 
marine mammal is present in the area during survey activities but goes 
unobserved by PSOs.
    NMFS' response: The commenters do not explain why they expect that 
PAM would be effective in detecting vocalizing mysticetes, nor does 
NMFS agree that this measure is warranted, as it is not expected to be 
effective for use in detecting the species of concern. It is generally 
accepted that, even in the absence of additional acoustic sources, 
using a towed passive acoustic sensor to detect baleen whales 
(including NARWs) is not typically effective because the noise from the 
vessel, the flow noise, and the cable noise are in the same frequency 
band and will mask the vast majority of baleen whale calls. Vessels 
produce low-frequency noise, primarily through propeller cavitation, 
with main energy in the 5-300 Hertz (Hz) frequency range. Source levels 
range from about 140 to 195 decibel (dB) re 1 [mu]Pa (micropascal) at 1 
m (NRC, 2003; Hildebrand, 2009), depending on factors such as ship 
type, load, and speed, and ship hull and propeller design. Studies of 
vessel noise show that it appears to increase background noise levels 
in the 71-224 Hz range by 10-13 dB (Hatch et al., 2012; McKenna et al., 
2012; Rolland et al., 2012). PAM systems employ hydrophones towed in 
streamer cables approximately 500 m behind a vessel. Noise from water 
flow around the cables and from strumming of the cables themselves is 
also low-frequency and typically masks signals in the same range. 
Experienced PAM operators participating in a recent workshop (Thode et 
al., 2017) emphasized that a PAM operation could easily report no 
acoustic encounters, depending on species present, simply because 
background noise levels rendered any acoustic detection impossible. The 
same workshop report stated that a typical eight-element array towed 
500 m behind a vessel could be expected to detect delphinids, sperm 
whales, and beaked whales at the required range, but not baleen whales, 
due to expected background noise levels (including seismic noise, 
vessel noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be

[[Page 24109]]

ensonified above the Level B harassment threshold is relatively small 
(a maximum of 141 m); this reflects the fact that, to start with, the 
source level is comparatively low and the intensity of any resulting 
impacts would be lower level and, further, it means that inasmuch as 
PAM will only detect a portion of any animals exposed within a zone, 
the overall probability of PAM detecting an animal in the harassment 
zone is low. Together these factors support the limited value of PAM 
for use in reducing take with smaller zones. PAM is only capable of 
detecting animals that are actively vocalizing, while many marine 
mammal species vocalize infrequently or during certain activities, 
which means that only a subset of the animals within the range of the 
PAM would be detected (and potentially have reduced impacts). 
Additionally, localization and range detection can be challenging under 
certain scenarios. For example, odontocetes are fast moving and often 
travel in large or dispersed groups which makes localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for NARWs and other low frequency cetaceans, species for 
which PAM has limited efficacy), and the cost and impracticability of 
implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat. NMFS has previously provided discussions on why PAM isn't a 
required monitoring measure during HRG survey IHAs in past Federal 
Register notices (see 86 FR 21289, April 22, 2021 and 87 FR 13975, 
March 11, 2022 for examples).
    Regarding monitoring for species that may be present yet go 
unobserved, NMFS recognizes that visual detection based mitigation 
approaches are not 100 percent effective. Animals are missed because 
they are underwater (availability bias) or because they are available 
to be seen, but are missed by observers (perception and detection 
biases) (e.g., Marsh and Sinclair, 1989). However, visual observation 
remains one of the best available methods for marine mammal detection. 
Although it is likely that some marine mammals may be present yet 
unobserved within the harassment zone, all expected take of marine 
mammals has been appropriately authorized. For mysticete species in 
general, it is unlikely that an individual would occur within the 
estimated 141 m harassment zone and remain undetected. For NARW in 
particular, the required Exclusion Zone is 500 m and, therefore, it is 
even less likely that an individual would approach the harassment zone 
undetected.
    Comment 15: Oceana recommends a shutdown requirement if a NARW or 
other ESA-listed species is detected in the clearance zone as well as a 
publically available explanation of any exemptions as to why the 
applicant would not be able to shutdown in these situations.
    NMFS' response: There are several shutdown requirements described 
in the Federal Register notice of the proposed IHA (87 FR 4200, January 
27, 2022), and which are included in the final IHA, including the 
stipulation that geophysical survey equipment must be immediately shut 
down if any marine mammal is observed within or entering the relevant 
Exclusion Zone while geophysical survey equipment is operational. There 
is no exemption for the shutdown requirement. In regards to reporting, 
Atlantic Shores must notify NMFS if a NARW is observed at any time by 
any survey vessels during surveys or during vessel transit. 
Additionally, Atlantic Shores is required to report the relevant survey 
activity information, such as such as the 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.) as well as the estimated distance to 
an animal and its heading relative to the survey vessel at the initial 
sighting and survey activity information. As documented in Atlantic 
Shores' preliminary monitoring report for the surveys completed under 
the previous 2020-2021 IHA (report available on our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization), 34 events 
occurred where a shutdown was necessitated. We note that if a right 
whale is detected within the Exclusion Zone before a shutdown is 
implemented, the right whale and its distance from the sound source, 
including if it is within the Level B harassment zone, would be 
reported in Atlantic Shores' final monitoring report and made publicly 
available on NMFS' website. Atlantic Shores is required to immediately 
notify NMFS of any sightings of NARWs and report upon survey activity 
information. NMFS believes that these requirements address the 
commenter's concerns.
    Comment 16: Oceana recommended that when HRG surveys are allowed to 
resume after a shutdown event, the surveys should be required to use a 
ramp-up procedure to encourage any nearby marine life to leave the 
area.
    NMFS' response: NMFS agrees with this recommendation and included 
in the Federal Register notice of the proposed IHA (87 FR 4200, January 
27, 2022) and this final IHA a stipulation that when technically 
feasible, survey equipment must be ramped up at the start or restart of 
survey activities. Ramp-up must begin with the power of the smallest 
acoustic equipment at its lowest practical power output appropriate for 
the survey. When technically feasible the power must then be gradually 
turned up and other acoustic sources added in a way such that the 
source level would increase gradually. NMFS notes that ramp-up would 
not be required for short periods where acoustic sources were shut down 
(i.e., less than 30 minutes) if PSOs have maintained constant visual 
observation and no detections of marine mammals occurred within the 
applicable Exclusion Zones.
    Comment 17: COA and LBI assert that Level A harassment may occur, 
and that this was not accounted for in the proposed Notice.
    NMFS' response: NMFS acknowledges the concerns brought up by the 
commenters regarding the potential for Level A harassment of marine 
mammals. However, no Level A harassment is expected to result, even in 
the absence of mitigation, given the characteristics of the sources 
planned for use. This is additionally supported by the required 
mitigation and very small estimated Level A harassment zones described 
in Atlantic Shores' 2020 Federal Register notice (85 FR 21198, April 
16, 2020) and carried through to the 2021 renewal IHA (86 FR 21289, 
April 22, 2021). Furthermore, the commenters do not provide any support 
for the apparent contention that Level A harassment is a potential 
outcome of these activities. As discussed in the notice of proposed 
IHA, NMFS considers this category of survey operations to be near de 
minimis, with the potential for Level A harassment for any species to 
be discountable.
    Comment 18: COA is concerned that habitat displacement could 
significantly increase the risk of ship-strike to NARWs from outside 
the survey area.
    NMFS' response: NMFS does not anticipate that NARWs would be 
displaced from the area where Atlantic Shores' marine site 
characterization

[[Page 24110]]

surveys would occur, and COA does not provide evidence that this effect 
should be a reasonably anticipated outcome of the specified activity. 
Similarly, NMFS is not aware of any scientific information suggesting 
that the survey activity would drive marine mammals into shipping 
lanes, and disagrees that this would be a reasonably anticipated effect 
of the specified activities. The take by Level B harassment authorized 
by NMFS is precautionary but considered unlikely, as NMFS' take 
estimation process does not account for the use of extremely 
precautionary mitigation measures, e.g., the requirement for Atlantic 
Shores to implement a Shutdown Zone that is more than 3 times as large 
as the estimated harassment zone. These requirements are expected to 
largely eliminate the actual occurrence of Level B harassment events 
and, to the extent that harassment does occur, would minimize the 
duration and severity of any such events. Therefore, even if a NARW was 
in the area of the cable corridor surveys, a displacement impact is not 
anticipated.
    Although the primary stressor to marine mammals from the specified 
activities is acoustic exposure to the sound source, NMFS takes 
seriously the risk of vessel strike and has prescribed measures 
sufficient to avoid the potential for ship strike to the extent 
practicable. NMFS has required these measures despite a very low 
likelihood of vessel strike; vessels associated with the survey 
activity will add a discountable amount of vessel traffic to the 
specific geographic region and, furthermore, vessels towing survey gear 
travel at very slow speeds (i.e., roughly 4-5 kn).
    Comment 19: COA is concerned regarding the number of species that 
could be impacted by the activities, as well as a lack of baseline data 
being available for species in the area. In addition, COA has stated 
that NMFS did not adequately address the potential for cumulative 
impacts to bottlenose dolphins from Level B harassment over several 
years of project activities.
    NMFS' response: We appreciate the concern expressed by COA. NMFS 
utilizes the best available science when analyzing which species may be 
impacted by an applicant's proposed activities. Based on information 
found in the scientific literature, as well as based on density models 
developed by Duke University, all marine mammal species included in the 
proposed Federal Register Notice have some likelihood of occurring in 
Atlantic Shores' survey areas. Furthermore, the MMPA requires us to 
evaluate the effects of the specified activities in consideration of 
the best scientific evidence available and, if the necessary findings 
are made, to issue the requested take authorization. The MMPA does not 
allow us to delay decision making in hopes that additional information 
may become available in the future. Furthermore, NMFS notes that it has 
previously addressed discussions on cumulative impact analyses in 
previous comments and references COA back to these specific responses 
in this Notice.
    Regarding the lack of baseline information cited by COA, with 
specific concern pointed out for harbor seals, NMFS points towards two 
sources of information for marine mammal baseline information: the 
Ocean/Wind Power Ecological Baseline Studies, January 2008-December 
2009 completed by the New Jersey Department of Environmental Protection 
in July 2010 (https://dspace.njstatelib.org/xmlui/handle/10929/68435) 
and the Atlantic Marine Assessment Program for Protected Species 
(AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that cover the areas across the 
Atlantic Ocean. NMFS has duly considered this and all available 
information.
    Based on the information presented, NMFS has determined that no new 
information has become available, nor do the commenters present 
additional information, that would change our determinations since the 
publication of the proposed notice.
    Comment 20: COA and LBI indicated that they believe the survey area 
to be too large for the described proposed surveys as the geographical 
scope of the survey does not seem to match up with the stated site 
characterization survey area. Commenters justify this by saying that 
the export cable routes were not previously described in the Bureau of 
Ocean Energy Management's (BOEM) Construction and Operations Plans 
(COP) and Notice of Intent (NOI) and therefore cannot be included in 
the scope of activities requested by Atlantic Shores.
    NMFS' response: It is not in NMFS' jurisdiction to dictate how and 
where an applicant's activities should be performed. Under the MMPA, 
NMFS must analyze and make findings, if possible, based on the 
specified activity as described by the applicant. Any comments by 
stakeholders regarding the geographical scope and size of survey 
activities, or what information is or is not included in BOEM's COP and 
NOI (i.e., inclusion of the export cable routes) are out of scope for 
the described proposed action as BOEM, not NMFS, is in charge of 
leasing and activities occurring within a defined area and region.
    Comment 21: LBI states its opposition to the use of a categorical 
exclusion under NEPA, asserting that, at minimum, an Environmental 
Assessment is the appropriate level of review.
    NMFS' response: NMFS does not agree with LBI's comment. A 
categorical exclusion (CE) is a category of actions that an agency has 
determined does not individually or cumulatively have a significant 
effect on the quality of the human environment, and is appropriately 
applied for such categories of actions so long as there are no 
extraordinary circumstances present that would indicate that the 
effects of the action may be significant. Extraordinary circumstances 
are situations for which NOAA has determined further NEPA analysis is 
required because they are circumstances in which a normally excluded 
action may have significant effects. A determination of whether an 
action that is normally excluded requires additional evaluation because 
of extraordinary circumstances focuses on the action's potential 
effects and considers the significance of those effects in terms of 
both context (consideration of the affected region, interests, and 
resources) and intensity (severity of impacts). Potential extraordinary 
circumstances relevant to this action include (1) adverse effects on 
species or habitats protected by the MMPA that are not negligible; (2) 
highly controversial environmental effects; (3) environmental effects 
that are uncertain, unique, or unknown; and (4) the potential for 
significant cumulative impacts when the proposed action is combined 
with other past, present, and reasonably foreseeable future actions.
    The relevant NOAA CE associated with issuance of incidental take 
authorizations is CE B4, ``Issuance of incidental harassment 
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the 
incidental, but not intentional, take by harassment of marine mammals 
during specified activities and for which no serious injury or 
mortality is anticipated.'' This action falls within CE B4. In 
determining whether a CE is appropriate for a given incidental take 
authorization, NMFS considers the applicant's

[[Page 24111]]

specified activity and the potential extent and magnitude of takes of 
marine mammals associated with that activity along with the 
extraordinary circumstances listed in the Companion Manual for NAO 216-
6A and summarized above. The evaluation of whether extraordinary 
circumstances (if present) have the potential for significant 
environmental effects is limited to the decision NMFS is responsible 
for, which is issuance of the incidental take authorization. While 
there may be environmental effects associated with the underlying 
action, potential effects of NMFS' action are limited to those that 
would occur due to the authorization of incidental take of marine 
mammals. NMFS prepared numerous Environmental Assessments (EAs) 
analyzing the environmental impacts of the categories of activities 
encompassed by CE B4 which resulted in Findings of No Significant 
Impacts (FONSIs) and, in particular, numerous EAs prepared in support 
of issuance of IHAs related to similar survey actions are part of NMFS' 
administrative record supporting CE B4. These EAs demonstrate the 
issuance of a given incidental harassment authorization does not affect 
other aspects of the human environment because the action only affects 
the marine mammals that are the subject of the incidental harassment 
authorization. These EAs also addressed factors in 40 CFR 1508.27 
regarding the potential for significant impacts and demonstrate the 
issuance of incidental harassment authorization for the categories of 
activities encompassed by CE B4 do not individually or cumulatively 
have a significant effect on the human environment.
    Specifically for this action, NMFS independently evaluated the use 
of the CE for issuance of Atlantic Shores' IHA, which included 
consideration of extraordinary circumstances. As part of that analysis, 
NMFS considered including whether this IHA issuance would result in 
cumulative impacts that could be significant. In particular, the 
issuance of an IHA to Atlantic Shores is expected to result in minor, 
short-term behavioral effects on marine mammal species due to exposure 
to underwater sound from site characterization survey activities. 
Behavioral disturbance is expected to occur intermittently in the 
vicinity of Atlantic Shores' survey area during the one-year timeframe. 
Level B harassment will be reduced through use of mitigation measures 
described herein. Additionally, as discussed elsewhere, NMFS has 
determined that Atlantic Shores' activities fall within the scope of 
activities analyzed in GARFO's programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021), which concluded surveys such as those planned by Atlantic Shores 
are not likely to adversely affect endangered listed species or 
adversely modify or destroy critical habitat. Accordingly, NMFS has 
determined that the issuance of this IHA will result in no more than 
negligible (as that term is defined by the Companion Manual for NAO 
216-6A) adverse effects on species protected by the ESA and the MMPA.
    Further, the issuance of this IHA will not result in highly 
controversial environmental effects or result in environmental effects 
that are uncertain, unique, or unknown because numerous entities have 
been engaged in site characterization surveys that result in Level B 
harassment of marine mammals in the United States. This type of 
activity is well documented; prior authorizations and analysis 
demonstrates issuance of an IHA for this type of action only affects 
the marine mammals that are the subject of the specific authorization 
and, thus, no potential for significant cumulative impacts are 
expected, regardless of past, present, or reasonably foreseeable 
actions, even though the impacts of the action may not be significant 
by itself. Based on this evaluation, we concluded that the issuance of 
the IHA qualifies to be categorically excluded from further NEPA 
review.
    Comment 22: LBI asserts that the notice of proposed IHA does not 
address compliance with the ESA, and states their assumption that NMFS 
relies on the 2013 Biological Assessment (BA) and Biological Opinion 
(BO), which can be found at https://repository.library.noaa.gov/view/noaa/29291. LBI goes on to find fault with the analysis conducted in 
support of the 2013 Opinion and states that NMFS cannot rely on the 
analysis for the necessary ESA compliance.
    NMFS' response: LBI is incorrect. NMFS did not utilize the 2013 BA 
and BO for Atlantic Shores' 2022 site characterization surveys. As 
described in the notice of proposed IHA (87 FR 4217, 4225), NMFS 
determined that its proposed action of issuing an IHA in relation to 
the activities described in the application fell within the scope of 
the Programmatic Consultation regarding geophysical surveys along the 
U.S. Atlantic coast in the three Atlantic Renewable Energy Regions, 
developed by the NMFS Greater Atlantic Regional Office (GARFO) in 2021. 
Furthermore, the Programmatic Consultation covered the region that 
Atlantic Shores' survey will occur in and also covered the equipment 
Atlantic Shores anticipates using during their surveys. The 
Programmatic Consultation further prescribed marine mammal-relevant 
specific Project Design Criteria (PDCs). Pursuant to section 7 of the 
ESA, NMFS has required compliance with these PDCs in the final IHA. 
This information can be found in both the proposed Federal Register 
Notice and the final Notice. More information can be found on GARFO's 
website (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation) as well as on the NMFS' website 
for Atlantic Shores' specific action (https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0).
    Comment 23: LBI asserts that NMFS has not been sufficiently clear 
with regard to its use of density data, and expresses concern that the 
density data used may not be sufficiently conservative.
    NMFS' response: As discussed in greater detail in the notice of 
proposed IHA, NMFS relied upon the best available scientific 
information in assessing the likelihood of occurrence for all 
potentially impacted marine mammal species, including the NARW. 
Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016b, 2017, 2018, 2021) 
represent the best available information regarding marine mammal 
densities in the survey area. Density data for all taxa are available 
for 10 km x 10 km grid cells over the entire survey area and, for most 
species (including NARW), are available for each of 12 months. For the 
exposure analysis, these density data were mapped using a geographic 
information system (GIS) for each of the survey areas (i.e., Lease 
Area, ECR North, ECR South). Densities of each species were then 
averaged by season; thus, a density was calculated for each species for 
spring, summer, fall and winter. To be conservative, the greatest 
seasonal density calculated for each species was then carried forward 
in the exposure analysis. All density information used by NMFS is 
publicly available through Duke University's OBIS-SEAMAP website: 
https://seamap.env.duke.edu/models/Duke/EC/.
    We note that LBI does not discuss what it means by stating that the

[[Page 24112]]

analysis may not be ``conservative,'' and does not connect this concern 
to the relevant requirements of the MMPA. However, NMFS believes that 
its approach to use of the density information, which was described in 
full in the notice of proposed IHA, addresses any such concerns.
    Comment 24: LBI asserts that NMFS' assessment of the potential for, 
and the impacts of, masking (in particular for the NARW) is 
insufficient.
    NMFS' response: NMFS disagrees that the potential impacts of 
masking were not properly considered. NMFS acknowledges our 
understanding of the scientific literature that LBI cited but, 
fundamentally, the masking effects to any one individual whale from one 
survey are expected to be minimal. Masking is referred to as a chronic 
effect because one of the key harmful components of masking is its 
duration--the fact that an animal would have reduced ability to hear or 
interpret critical cues becomes much more likely to cause a problem the 
longer it is occurring. Also, inherent in the concept of masking is the 
fact that the potential for the effect is only present during the times 
that the animal and the source are in close enough proximity for the 
effect to occur (and further this time period would need to coincide 
with a time that the animal was utilizing sounds at the masked 
frequency) and, as our analysis (both quantitative and qualitative 
components) indicates, because of the relative movement of whales and 
vessels, we do not expect these exposures with the potential for 
masking to be of a long duration within a given day. Further, because 
of the relatively low density of mysticetes, and relatively large area 
over which the vessels travel, we do not expect any individual whales 
to be exposed to potentially masking levels from these surveys for more 
than a few days in a year.
    As noted above, any masking effects of this survey are expected to 
be limited and brief, if present. Given the likelihood of significantly 
reduced received levels beyond even short distances from the survey 
vessel, combined with the short duration of potential masking and the 
lower likelihood of extensive additional contributors to background 
noise offshore and within these short exposure periods, we believe that 
the incremental addition of the survey vessel is unlikely to result in 
more than minor and short-term masking effects, likely occurring to 
some small number of the same individuals captured in the estimate of 
behavioral harassment.
    Comment 25: LBI requests that NMFS explain why a 20 dB propagation 
loss coefficient was applicable to the analysis presented in the 
proposed Notice or to go back and rerun the analysis using a 15 dB 
propagation loss coefficient.
    NMFS' response: LBI states that NMFS' assumption that use of a 
20logR transmission loss factor (i.e., spherical spreading) is 
inappropriate, and states that ``According to a number of scientific 
sources, the use of a noise propagation loss coefficient of 20 dB per 
tenfold increase in distance represents ``spherical spreading'' and is 
only appropriate in the ``near field'' where the calculated horizontal 
distance is comparable with the water depth.'' However, LBI does not 
cite any such scientific sources, so NMFS must evaluate LBI's 
recommendations based only on its comment.
    A major component of transmission loss is spreading loss and, from 
a point source in a uniform medium, sound spreads outward as spherical 
waves (``spherical spreading'') (Richardson et al., 1995). In water, 
these conditions are often thought of as being related to deep water, 
where more homogenous conditions may be likely. However, the 
theoretical distinction between deep and shallow water is related more 
to the wavelength of the sound relative to the water depth, versus to 
water depth itself. Therefore, when the sound produced is in the 
kilohertz range, where wavelength is relatively short, much of the 
continental shelf may be considered ``deep'' for purposes of evaluating 
likely propagation conditions.
    As described in the notice of proposed IHA, the area of water 
ensonified at or above the root mean square (RMS) 160 dB threshold was 
calculated using a simple model of sound propagation loss, which 
accounts for the loss of sound energy over increasing range. Our use of 
the spherical spreading model (where propagation loss = 20 * log 
[range]; such that there would be a 6-dB reduction in sound level for 
each doubling of distance from the source) is a reasonable 
approximation over the relatively short ranges involved. Even in 
conditions where cylindrical spreading (where propagation loss = 10 * 
log [range]; such that there would be a 3-dB reduction in sound level 
for each doubling of distance from the source) may be appropriate 
(e.g., non-homogenous conditions where sound may be trapped between the 
surface and bottom), this effect does not begin at the source. In any 
case, spreading is usually more or less spherical from the source out 
to some distance, and then may transition to cylindrical (Richardson et 
al., 1995). For these types of surveys, NMFS has determined that 
spherical spreading is a reasonable assumption even in relatively 
shallow waters (in an absolute sense) as the reflected energy from the 
seafloor will be much weaker than the direct source and the volume 
influenced by the reflected acoustic energy would be much smaller over 
the relatively short ranges involved.
    In support of its position, LBI cites several examples of use of 
practical spreading (a useful real-world approximation of conditions 
that may exist between the theoretical spreading modes of spherical and 
cylindrical; 15logR) in asserting that this approach is also 
appropriate here. However, these examples (U.S. Navy construction at 
Newport, RI, and NOAA construction in Ketchikan, AK) are not relevant 
to the activity at hand. First, these actions occur in even shallower 
water (e.g., less than 10 m for Navy construction). Of greater 
relevance to the action here, pile driving activity produces sound with 
longer wavelengths than the sound produced by the acoustic sources 
planned for use here. As noted above, a determination of appropriate 
spreading loss is related to the ratio of wavelength to water depth 
more than to a strict reading of water depth. NMFS indeed uses 
practical spreading in typical coastal construction applications, but 
for reasons described here, uses spherical spreading when evaluating 
the effects of HRG surveys on the continental shelf.
    In addition, this analysis is likely conservative for other 
reasons, e.g., the lowest frequency was used for systems that are 
operated over a range of frequencies and other sources of propagation 
loss are neglected.
    NMFS has determined that spherical spreading is the most 
appropriate form of propagation loss for these surveys and has relied 
on this approach for past IHAs with similar equipment, locations, and 
depths. Please refer back to the Garden State HRG IHA (83 FR 14417; 
April 4, 2018) and the 2019 Skipjack HRG IHA (84 FR 51118; September 
27, 2019) for examples. Prior to the issuance of these IHAs 
(approximately 2018 and older), NMFS typically relied upon practical 
spreading for these types of survey activities. However, as additional 
scientific evidence became available, including numerous sound source 
verification reports, NMFS determined that this approach was 
inappropriately conservative and, since that time, as consistently used 
spherical spreading. Furthermore, NMFS' User Spreadsheet tool assumes a 
``safe distance''

[[Page 24113]]

methodology for mobile sources where propagation loss is spherical 
spreading (20LogR) (https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null), and NMFS calculator tool for 
estimating isopleths to Level B harassment thresholds also incorporates 
the use of spherical spreading.
    Comment 26: LBI suggests that NMFS utilize a source level of 211 dB 
instead of the 203 dB for the Dura-Spark 240, as was cited in the 
proposed Federal Register Notice. NMFS notes that as LBI did not 
provide the metric for the source levels that they refer to in their 
letter, NMFS will use the one that was referenced in the proposed 
Federal Register Notice.
    NMFS' response: NMFS disagrees with LBI's recommendation, and has 
determined that the 203 dB source level is the most appropriate for use 
herein. As discussed in the notice of proposed IHA, the Applied 
Acoustics Dura-Spark was included and measured in Crocker and 
Fratantonio (2016), but not with an energy setting near 800 J, the 
energy setting which was determined as the ``worst-case scenario'' by 
Atlantic Shores for use in the presence of denser substrates. The SIG 
ELC 820 sparker was deemed as a similar alternative to the Dura-Spark 
based on information in Table 9 of Crocker and Fratantonio (2016), and 
where higher energy setting of 750 J (at a 5 m depth) had been 
measured. We also note that using the SIG ELC as a surrogate system has 
been previously documented and employed in other issued IHAs, such as 
the Mayflower Wind HRG surveys (86 FR 38033, July 19, 2021). NMFS 
further based this decision on further information on the SIG acoustic 
source, Crocker and Fratantonio (2016), and other IHA applications (see 
Mayflower Wind's application at https://media.fisheries.noaa.gov/2021-02/Mayflower-2021HA_Appl_OPR1.pdf?null=). The frequency ranges provided 
for the SIG ELC represent a broad range (0.01-1.9 kHz), which includes 
the highest bandwidth at the 750 J reported in Crocker and Fratantonio 
(2016).
    We also note that, based on additional discussion with Atlantic 
Shores, a power level of 750 J was likely an overestimate and that 500-
600 J was more likely to be used during the HRG surveys and that 750 
was a conservative overestimate. NMFS included this information in the 
proposed Federal Register Notice under Table 2. The use of information 
that appropriately addresses the potential for use at the higher power 
level means that the analysis herein, including the selection of source 
level, is conservative for most typical applications of the acoustic 
sources.
    Comment 27: LBI asserts that NMFS has not appropriately considered 
the location of NARW migratory habitat in relation to the survey and, 
in so doing, has not correctly evaluated the potential for impacts to 
NARW migratory habitat.
    NMFS' response: NMFS disagrees in LBI's assertion regarding NARW 
migratory habitat. As we previously stated above in response to Comment 
#2, the migratory habitat of the NARW is very large in comparison to 
the overall size of Atlantic Shores' survey area but also, importantly, 
we do not expect any meaningful or significant impacts to important 
behavior that may occur within the portion of this habitat that may be 
impacted by the specified activity. Because of this, we expect that any 
potential exposures NARWs may experience when transiting the migratory 
corridor would not result in more than behavioral harassment to a minor 
degree. As is necessary for authorizations issued under the MMPA, we 
have fully evaluated any potential impacts to both the important 
behaviors of marine mammals (including NARWs) and to their important 
habitats to make our negligible impact determination.
    Comment 28: LBI suggests that NMFS should use more conservative 
information related to the acoustic output of the sources planned for 
use (i.e., a higher source level and a lower transmission loss 
coefficient), and performed its own analysis of these alternative 
scenarios. LBI notes that these changes would increase the size of the 
estimated Level B harassment zone and, as a result, increase the 
expected take numbers. LBI also recommends, as a result of their 
analysis, that the Exclusion Zone be increased to 2,500 m.
    NMFS' response: NMFS disagrees that the changes suggested by LBI 
are appropriate. We have addressed use of the alternate source level 
and the recommendation of lower assumed propagation loss in previous 
responses to comments herein. While NMFS acknowledges that, if one 
assumes the most conservative values at every opportunity, the analysis 
will produce higher estimates of harassment zone size and of incidental 
take. However, the assumptions made by LBI are not realistic, and LBI 
does not adequately justify the assumptions made in its overly 
conservative analysis.
    Comment 29: LBI asserts that the potential for Level A harassment, 
serious injury and/or death impacts have been insufficiently addressed 
in NMFS' analysis. LBI also suggests that NMFS must perform a 
``cumulative PTS analysis''.
    NMFS' response: The commenter appears to mistakenly reference NMFS' 
historical Level A harassment threshold of 180 dB rms SPL received 
level in addressing this issue. However, in 2018, NMFS published 
Technical Guidance for Assessing the Effects of Anthropogenic Sound on 
Marine Mammal Hearing, which updated the 180 dB SPL Level A harassment 
threshold. Since that time, NMFS has been applying dual threshold 
criteria based on both peak pressure and cumulative sound exposure 
level thresholds. This dual criteria approach requires that the more 
conservative of the two hearing group-specific threshold criteria be 
applied in evaluating the potential for Level A harassment. Therefore, 
NMFS has considered the potential for Level A harassment on the basis 
of cumulative sound exposure level (as well as peak pressure) in the 
way suggested by LBI.
    As described in the Estimated Take section, NMFS has established a 
PTS (Level A harassment) threshold of 183 dB cumulative SEL for low 
frequency specialists. In support of a previous IHA request (see the 
proposed 2020 Notice (85 FR 7926; February 12, 2020) and the final 2020 
Notice (85 FR 21198, April 16, 2020)), Atlantic Shores provided 
estimated Level A harassment zones for similar equipment (i.e., the 
Applied Acoustics Dura-Spark 240 sparker). Despite assuming a higher 
source level than is used herein, the result of this analysis shows 
that a NARW would have to come within 1 m of the sparker to potentially 
incur PTS. NMFS has reviewed the analysis found in Atlantic Shores' 
2020 HRG IHA application and confirmed that it is accurate and relevant 
to this action. This application can be found on NMFS' website at 
https://media.fisheries.noaa.gov/dam-migration/atlanticshores_2020_app_opr1.pdf.
    Not only are NARWs migrating through the area, meaning that their 
occurrence in the area is expected to be of relatively brief duration 
and the likelihood of exposures of longer duration or at closer range 
minimized, Atlantic Shores is also required to not approach any NARW 
within 500 m or operate the sparker within 500 m of a NARW (see 87 FR 
4217 of the proposed Notice). As such, there is essentially no 
potential for a NARW to experience PTS (i.e., Level A harassment) from 
the described surveys.
    Comment 30: LBI insists that NMFS do an in-depth analysis of any 
potential serious injury and/or death to NARWs that could occur during 
Atlantic Shores'

[[Page 24114]]

surveys. They further state that any serious injury or mortality could 
occur directly from the NARW's migration being impacted by cumulative 
sound exposure leading to PTS, any adverse reactions from behavioral 
disruption, and masking.
    NMFS' response: The best available science indicates that Level B 
harassment, or disruption of behavioral patterns, may occur. No 
mortality or serious injury is expected to occur as a result of the 
planned surveys, and there is no scientific evidence indicating that 
any marine mammal could experience these as a direct result of noise 
from geophysical survey activity. Authorization of mortality and 
serious injury may not occur via IHAs, only within Incidental Take 
Regulations (ITRs), and such authorization was neither requested nor 
proposed. NMFS notes that in its history of authorizing take of marine 
mammals, there has never been a report of any serious injuries or 
fatalities of a marine mammal related to the site characterization 
surveys, including for NARWs. We emphasize that an estimate of take 
numbers alone is not sufficient to assess impacts to a marine mammal 
population. Take numbers must be viewed contextually with other 
factors, as explained in the ``Negligible Impact Analyses and 
Determinations'' section of this Notice.
    Comment 31: LBI states that to properly make a negligible impact 
determination, NMFS should develop/provide criteria to avoid 
jeopardizing the existence and survival of the NARW. LBI states that 
this would ideally include no instances of fatality or serious injury 
from survey noise and meet that strict criterion with high statistical 
confidence. LBI notes that they believe the current proposed Notice for 
Atlantic Shores' surveys does not meet this criteria.
    NMFS' response: LBI's comment is founded on the presumption, absent 
evidence, that serious injury or mortality is a reasonably anticipated 
outcome of Atlantic Shores' specified activity. NMFS emphasizes that 
there is no credible scientific evidence available suggesting that 
mortality and/or serious injury is a potential outcome of the planned 
survey activity, and LBI provides no information to the contrary. We 
also refer LBI to the GARFO 2021 Programmatic Consultation, which finds 
that these survey activities are in general not likely to adversely 
affect ESA-listed marine mammal species, i.e., GARFO's analysis 
conducted pursuant to the ESA finds that marine mammals are not likely 
to be taken at all (as that term is defined under the ESA), much less 
be taken by serious injury or mortality. That document is found here: 
https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation.
    Comment 32: LBI states that it believes NMFS' negligible impact 
finding for NARWs to be insufficient given the analysis LBI included in 
their letter, which produced higher take numbers for marine mammals, 
including NARWs. LBI also states that, based on their assertion that 
serious injury and/or mortality is a potential outcome of the specified 
activity for NARWs, a Rulemaking (Incidental Take Regulation with 
subsequent Letters of Authorization) would be necessary to undertake 
Atlantic Shores' site characterization surveys due to LBI's premise 
that take by serious injury and/or mortality may occur.
    NMFS' response: NMFS acknowledges that authorization under section 
101(a)(5)(A) of the MMPA would be required were mortality or serious 
injury an expected outcome of the action. However, as noted previously, 
there is no scientific evidence suggesting that such outcomes are 
possible and, therefore, an IHA issued under section 101(a)(5)(D) is 
appropriate. Similarly, if the analysis presented by LBI were 
considered credible, the results would necessitate a revision to NMFS' 
negligible impact determination. However, as detailed in previous 
comment responses, the LBI analysis is not based on the best scientific 
evidence available, and NMFS does not consider it to be a credible 
analysis. Separately, it appears that LBI equates Level A harassment 
with serious injury and mortality in suggesting that Incidental Take 
Regulations are required. As discussed herein, Level A harassment is 
not an expected outcome of the specified activity. However, we clarify 
that section 101(a)(5)(D) of the MMPA, which governs the issuance of 
IHAs, indicates that the ``the Secretary shall authorize . . . . taking 
by harassment [. . . .]'' The definition of ``harassment'' in the MMPA 
clearly includes both Level A and Level B harassment.
    LBI further suggested that NMFS should promulgate programmatic 
Incidental Take Regulations for site characterization activities. 
Although NMFS is open to this approach, we have not received a request 
for such regulations and NMFS reminds LBI that the MMPA only allows for 
the development of Incidental Take Regulations upon request. LBI states 
that this would be necessary based on the potential for serious injury 
or mortality that was assumed in LBI's letter. However, as discussed 
previously, NMFS does not expect any serious injury or mortality, even 
absent mitigation efforts, because of the nature of the activities 
described in the proposed Federal Register Notice. Furthermore, NMFS 
included a vessel strike analysis in the proposed Notice under the 
Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat section. We identified that at average transit speed for 
geophysical survey vessels, the probability of serious injury or 
mortality resulting from a strike is low enough to be discountable. 
However, the likelihood of a strike actually happening is again low 
given the smaller size of these vessels and generally slower speeds 
during transit. Further, Atlantic Shores is required to implement 
monitoring and mitigation measures during transit, including observing 
for marine mammals and maintaining defined separation distances between 
the vessel and any marine mammal (see the Mitigation and Monitoring and 
Reporting sections). Finally, despite several years of marine site 
characterization surveys occurring off the U.S. east coast, no vessels 
supporting offshore wind development have struck a marine mammal either 
in transit or during surveying. Because vessel strikes are not 
reasonably expected to occur, no such take is authorized. The 
mitigation measures in the IHA related to vessel strike avoidance are 
not limited to vessels operating within the survey area or cable 
corridors and therefore apply to transiting vessels. Because of these 
reasons and the addition of mitigation efforts, including required 
vessel separation distances to further reduce any risk, we do not find 
that a Rulemaking is necessary for Atlantic Shores' HRG surveys.
    Comment 33: LBI suggests that as a means of effecting the Least 
Practicable Adverse Impacts, as required under the MMPA, survey 
activities should be prohibited from January through April, as well as 
in November. Furthermore, LBI suggests that an annual Seasonal 
Management Area (SMA) be established in and adjacent to the survey area 
to mitigate against any vessel strike.
    NMFS' response: NMFS assumes this is regarding the NARW and shares 
concern with LBI regarding the status of the NARW, given that a UME has 
been in effect for this species since June of 2017 and that there have 
been a number of recent mortalities. NMFS appreciates the value of 
seasonal restrictions under some circumstances. However, in this

[[Page 24115]]

case, we have determined seasonal restrictions are not warranted. We 
reiterate a response from earlier where NARW occurrence in this area is 
generally low most of the year. Furthermore, NMFS has already stated 
that this area consists only of migratory habitat for the NARW, 
consisting of no primary foraging habitat, which would further reduce 
the risks of exposure and impacts. Further, NMFS is requiring Atlantic 
Shores to comply with restrictions associated with identified SMAs and 
they must comply with DMAs, if any DMAs are established near the survey 
area. Finally, significantly shortening Atlantic Shores work season is 
impracticable given the number of survey days planned for the specified 
activity for this IHA.
    NMFS wishes to clarify that existing and permanent SMAs have been 
previously established under a different rulemaking (73 FR 60173 and 
can also be found on NMFS' website at https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#speedlimit), but that NMFS appreciates the 
suggestion provided by LBI and will take the comment of developing 
additional SMAs under consideration.

Changes From the Proposed IHA to Final IHA

    Since publication of the Notice of proposed IHA, NMFS has 
acknowledged that the population estimate of NARWs is now under 350 
animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). However, as discussed in our response to Comment #2 above, NMFS 
has determined that this change in abundance estimate would not change 
the estimated take of NARWs or authorized take numbers, nor affect our 
ability to make the required findings under the MMPA for Atlantic 
Shores' survey activities. The status and trends of the NARW population 
remain unchanged.
    NMFS considered all public comments received and determined that no 
changes to the final IHA were necessary.

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-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 for which take is authorized 
for this action, and summarizes information related to the population 
or stock, including regulatory status under the MMPA and Endangered 
Species Act (ESA) and potential biological removal (PBR), where known. 
For taxonomy, 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 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 most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's draft 2021 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock 
Assessment. 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/marine-mammal-stock-assessments.

           Table 3--Marine Mammal Species Likely To Occur Near the Survey Area That May Be Affected by Atlantic Shores' Planned HRG Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..........  Eubalaena glacialis....  Western Atlantic Stock.  E/D, Y              \5\ 368 (0; 364; 2019)        0.7        7.7
Humpback whale......................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,396 (0; 1,380; 2016)         22      12.15
Fin whale...........................  Balaenoptera physalus..  Western North Atlantic   E/D, Y              6,802 (0.24; 5,573;            11        1.8
                                                                Stock.                                       2016).
Sei whale...........................  Balaenoptera borealis..  Nova Scotia Stock......  E/D, Y              6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
Minke whale.........................  Balaenoptera             Canadian East Coastal    -/-, N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.           Stock.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale.........................  Physeter macrocephalus.  North Atlantic Stock...  E/D, Y              4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Long-finned pilot whale.............  Globicephala melas.....  Western North Atlantic   -/-, N              39,215 (0.3; 30,627;          306         29
                                                                Stock.                                       2016).
Atlantic white-sided dolphin........  Lagenorhynchus acutus..  Western North Atlantic   -/-, N              93,233 (0.71; 54,443;         544        227
                                                                Stock.                                       2016).
Bottlenose dolphin..................  Tursiops truncatus.....  Western North Atlantic   -/D, Y              6,639 (0.41; 4,759;            48  12.2-21.5
                                                                Northern Migratory                           2016).
                                                                Coastal Stock.
                                                               Western North Atlantic   -/-, N              62,851 (0.23; 51,914;         519         28
                                                                Offshore Stock.                              2016).
Common dolphin......................  Delphinus delphis......  Western North Atlantic   -/-, N              172,974 (0.21,              1,452        390
                                                                Stock.                                       145,216, 2016).
Atlantic spotted dolphin............  Stenella frontalis.....  Western North Atlantic   -/-, N              39,921 (0.27; 32,032;         320          0
                                                                Stock.                                       2016).

[[Page 24116]]

 
Risso's dolphin.....................  Grampus griseus........  Western North Atlantic   -/-, N              35,215 (0.19; 30,051;         301         34
                                                                Stock.                                       2016).
Harbor porpoise.....................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-, N              95,543 (0.31; 74,034;         851        164
                                                                Fundy Stock.                                 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.........................  Phoca vitulina.........  Western North Atlantic   -/-, N              61,336 (0.08; 57,637;       1,729        339
                                                                Stock.                                       2018).
Gray seal \4\.......................  Halichoerus grypus.....  Western North Atlantic   -/-, N              27,300 (0.22; 22,785;       1,389      4,453
                                                                Stock.                                       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 and serious
  injury (M/SI) exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or
  stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused M/SI plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual mortality and serious injury (M/SI) value given is for the total stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
  below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).

    A detailed description of the species likely to be affected by 
Atlantic Shores' activities, including information regarding population 
trends and threats, and local occurrence, were provided in the Federal 
Register notice for the proposed IHA (87 FR 4200; January 27, 2022). 
Since that time, we are not aware of any changes in the status of these 
species and stocks or other relevant new information; therefore, 
detailed descriptions are not provided here. Please refer to that 
Federal Register notice for those descriptions. Please also refer to 
NMFS's website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 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, 2013).

[[Page 24117]]

    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Fifteen marine mammal species (13 cetacean and 2 pinniped (both phocid) 
species) have the reasonable potential to co-occur with the survey 
activities. Please refer back to Table 3. Of the cetacean species that 
may be present, five are classified as low-frequency cetaceans (i.e., 
all mysticete species), seven are classified as mid-frequency cetaceans 
(i.e., all delphinid species and the sperm whale), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the deployed acoustic sources 
have the potential to result in behavioral harassment of marine mammals 
in the vicinity of the study area. The Federal Register notice for the 
proposed IHA (87 FR 4200; January 27, 2022) included a discussion of 
the effects of anthropogenic noise, ship strike, stress, and potential 
impacts on marine mammals and their habitat, therefore that information 
is not repeated here; please refer to the Federal Register notice (87 
FR 4200; January 27, 2022) for that information.

Estimated Take

    This section provides the number of incidental takes authorized 
through this IHA, which will inform both NMFS' consideration of ``small 
numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes will 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 and the required mitigation measures, 
Level A harassment is neither anticipated nor will be authorized. Take 
by Level A harassment (injury) is considered unlikely, even absent 
mitigation, based on the characteristics of the signals produced by the 
acoustic sources planned for use, and will not be authorized. 
Implementation of required mitigation further reduces this potential. 
Furthermore and as previously described, no serious injury or mortality 
is anticipated or will 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 authorized take 
estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007, Ellison et al., 2012). 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 may be behaviorally harassed (i.e., Level 
B harassment) when exposed to underwater anthropogenic noise above 
received levels of 160 dB re 1 [mu]Pa (rms) for the impulsive sources 
(i.e., sparkers) and non-impulsive, intermittent sources (e.g., CHIRPs) 
evaluated here for Atlantic Shores' survey activities.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(NMFS, 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). These thresholds are provided 
in the table below (Table 5). The references, analysis, and methodology 
used in the development of the thresholds are described in NMFS (2018) 
Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.

[[Page 24118]]

 
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound pressure as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

    Similar to the past IHAs issued to Atlantic Shores and published in 
the Federal Register (see the 2020 notice (85 FR 7926; February 12, 
2020)), the planned activities for 2022 include the use of impulsive 
(i.e., sparkers) and non-impulsive (e.g., CHIRPs) sources. Carrying 
through the same logic as the locations, species, survey durations, 
equipment used, and source levels are all of a similar scope previously 
analyzed for Atlantic Shores' surveys, and as discussed previously, 
NMFS has concluded that Level A harassment is not a reasonably likely 
outcome for marine mammals exposed to noise through use of the sources 
planned for use here due to the mitigation measures Atlantic Shores 
will implement, and the potential for Level A harassment is not 
evaluated further in this document. Atlantic Shores did not request 
authorization of take by Level A harassment, and no take by Level A 
harassment will be authorized 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.
    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the frequency-dependent absorption coefficient (see Table 
6).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 2 shows the HRG equipment 
types that may be used during the planned surveys and the source levels 
associated with those HRG equipment types. The computations and results 
from the Level B ensonified area analysis are displayed in Tables 6 and 
7 below.

       Table 6--Inputs Into the Level B Harassment Spreadsheet for High Resolution Geophysical Sources Using a Transmission Loss Coefficient of 20
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Input values in spreadsheet                         Computed values
                                                              -----------------------------------------------------------------         (meters)
                                                                                                                               -------------------------
                         Source name                            Threshold      Source     Frequency    Beamwidth   Water depth     Slant      Horizontal
                                                                  level        level         (kH)      (degrees)        (m)     distance of   threshold
                                                                              (dBrms)                                             threshold   range  (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
SIG ELC 820 Sparker at 750J *................................          160          203         0.01          180            5          141          141
Geo Marine Survey System 2D SUHRS at 400J....................          160          195          0.2          180            5           56           56
Edgetech 2000-DSS............................................          160          195            2           24            5           56            1
Edgetech 216.................................................          160          179            2           24            5            9            1
Edgetech 424.................................................          160          180            4           71           10           10            6
Edgetech 512i................................................          160          179          0.7           80           10            9            6
Pangeosubsea Sub-Bottom Imager \TM\..........................          160          190            4          120            5           32            9
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Used as a proxy for the Applied Acoustics Dura-Spark 240 because the specific energy setting is not described in Crocker and Franantonio (2016).


[[Page 24119]]


 Table 7--Maximum Distances to Level B 160 dBRMS Threshold by Equipment
                      Type Operating Below 180 kHz
------------------------------------------------------------------------
                                                           Distances to
  HRG survey equipment  (sub-         Representative          level B
        bottom profiler)              equipment type      threshold  (m)
------------------------------------------------------------------------
Sparker........................  Applied Acoustics Dura-             141
                                  Spark 240.
                                 Geo Marine Survey                    56
                                  System 2D SUHRS.
CHIRP..........................  Edgetech 2000-DSS......              56
                                 Edgetech 216...........               9
                                 Edgetech 424...........              10
                                 Edgetech 512i..........               9
                                 Pangeosubsea Sub-Bottom              32
                                  Imager \TM\.
------------------------------------------------------------------------

    Results of modeling using the methodology described and shown above 
indicated that, of the HRG survey equipment planned for use by Atlantic 
Shores that has the potential to result in Level B harassment of marine 
mammals, the Applied Acoustics Dura-Spark 240 would produce the largest 
Level B harassment isopleth (141 m; please refer back to Table 7 above, 
as well as Table 6-1 in Atlantic Shores' IHA application). Estimated 
Level B harassment isopleths associated with the CHIRP equipment 
planned for use are also found in Table 7. All CHIRPs equipment 
produced Level B harassment isopleths much smaller than the Applied 
Acoustics Dura-Spark 240 sparker did.
    Although Atlantic Shores does not expect to use sparker sources on 
all planned survey days and during the entire duration that surveys are 
likely to occur, Atlantic Shores assumed, for purposes of analysis, 
that the sparker would be used on all survey days and across all hours. 
This is a conservative approach, as the actual sources used on 
individual survey days will likely produce smaller harassment 
distances.

Marine Mammal Occurrence

    In this section, we provide the information about 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 and the Marine-life Data and Analysis 
Team, based on the best available marine mammal data from 1992-201 
obtained in a collaboration between Duke University, the Northeast 
Regional Planning Body, the University of North Carolina Wilmington, 
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et 
al., 2016a; Curtice et al., 2018), represent the best available 
information regarding marine mammal densities in the survey area. More 
recently, these data have been updated with new modeling results and 
include density estimates for pinnipeds (Roberts et al., 2016b, 2017, 
2018).
    The density data presented by Roberts et al. (2016b, 2017, 2018, 
2020) incorporates aerial and shipboard line-transect survey data from 
NMFS and other organizations and incorporates data from eight 
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., 2016a). 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., 2016b, 2017, 
2018, 2020). The updated models incorporate additional sighting data, 
including sightings from NOAA's Atlantic Marine Assessment Program for 
Protected Species (AMAPPS) surveys.
    For the exposure analysis, density data from Roberts et al. (2016b, 
2017, 2018, 2021) were mapped using a geographic information system 
(GIS). For each of the survey areas (i.e., Lease Area, ECR North, ECR 
South), the densities of each species as reported by Roberts et al. 
(2016b, 2017, 2018, 2021) were averaged by season; thus, a density was 
calculated for each species for spring, summer, fall and winter. To be 
conservative, the greatest seasonal density calculated for each species 
was then carried forward in the exposure analysis. Estimated seasonal 
densities (animals per km\2\) of all marine mammal species that may be 
taken during the planned survey activities, for all survey areas are 
shown in Tables C-1, C-2 and C-3 in Appendix C of Atlantic Shores' IHA 
application. The maximum seasonal density values used to estimate take 
numbers are shown in Table 8 below. Below, we discuss how densities 
were assumed to apply to specific species for which the Roberts et al. 
(2016b, 2017, 2018, 2021) models provide results at the genus or guild 
level.

Table 8--Maximum Seasonal Marine Mammal Densities (Number of Animals per
                     100 km\2\) in the Survey Areas
            [Appendix C of Atlantic Shores' IHA application]
------------------------------------------------------------------------
                                            Maximum seasonal densities
                                        --------------------------------
    Species groups          Species        Lease
                                            area    ECR north  ECR south
------------------------------------------------------------------------
Cetaceans............  North Atlantic        0.499      0.182      0.179
                        right whale.
                       Humpback whale..      0.076      0.082      0.103
                       Fin whale.......      0.100      0.080      0.057
                       Sei whale.......      0.004      0.004      0.002
                       Minke whale.....      0.055      0.017      0.019
                       Sperm whale.....      0.013      0.005      0.003
                       Long-finned           0.036      0.012      0.009
                        pilot whale.
                       Bottlenose        .........     21.675     58.524
                        dolphin
                        (Western North
                        Atlantic
                        coastal--migrat
                        ory).

[[Page 24120]]

 
                       Bottlenose           21.752     21.675     58.524
                        dolphin
                        (Western North
                        Atlantic--offsh
                        ore).
                       Common dolphin..      3.120      1.644      1.114
                       Atlantic white-       0.487      0.213      0.152
                        sided dolphin.
                       Atlantic spotted      0.076      0.059      0.021
                        dolphin.
                       Risso's dolphin.      0.010      0.001      0.002
                       Harbor porpoise.      2.904      7.357      2.209
Pinnipeds............  Gray seal.......      4.918      9.737      6.539
                       Harbor seal.....      4.918      9.737      6.539
------------------------------------------------------------------------
Note: Many of the densities provided in this table have been previously
  used and applied during the 2020 IHA to Atlantic Shores and its
  subsequent renewal and remain applicable.

    For bottlenose dolphin densities, Roberts et al. (2016b, 2017, 
2018) does not differentiate by stock. The Western North Atlantic 
northern migratory coastal stock is generally expected to occur only in 
coastal waters from the shoreline to approximately the 20 m (65 ft) 
isobath (Hayes et al., 2018). As the Lease Area is located within 
depths exceeding 20 m, where the offshore stock would generally be 
expected to occur, all calculated bottlenose dolphin exposures within 
the Lease Area were assigned to the offshore stock. However, both 
stocks have the potential to occur in the ECR North and ECR South 
survey areas. To account for the potential for mixed stocks within ECR 
North and South, the survey areas ECR North and South were divided 
approximately along the 20 m depth isobath, which roughly corresponds 
to the 10-fathom contour on NOAA navigation charts. As approximately 33 
percent of ECR North and ECR South are 20 m or less in depth, 33 
percent of the estimated take calculation for bottlenose dolphins was 
applied to the Western North Atlantic northern migratory coastal stock 
and the remaining 67 percent was applied to the offshore stock.
    For these surveys, Atlantic Shores used the same pilot whale 
densities that were previously used in the 2020 and subsequent 2021 
(renewal) IHAs. To better estimate the number of pilot whales that 
could potentially be impacted by the planned surveys, although exposure 
is noted as unlikely to occur in the IHA application, Atlantic Shores 
adjusted the take estimate by average group size.
    Because the seasonality, feeding preferences, and habitat use by 
gray seals often overlaps with that of harbor seals in the survey 
areas, it was assumed that modeled takes of seals could occur to either 
of the respective species. Furthermore, as the density models produced 
by Roberts et al. (2016b, 2017, 2018) do not differentiate between the 
different pinniped species, the same density estimates were applied to 
both seal species. Because of this, pinniped density values reported in 
Atlantic Shores' IHA application are described as ``seals'' and not 
species-specific.
    Since Atlantic Shores' 2020 and 2021 (renewal) IHAs for HRG surveys 
were completed, the NARW density data has been updated. This is due to 
the inclusion of three new datasets: 2011-2015 Northeast Large Pelagic 
Survey Cooperative, 2017-2018 Marine Mammal Surveys of the Wind Energy 
Areas conducted by the New England Aquarium, and 2017-2018 New York 
Bight Whale Monitoring Program surveys conducted by the New York State 
Department of Environmental conservation (NYSDEC). This new density 
data shows distribution changes that are likely influenced by 
oceanographic and prey covariates in the whale density model (Roberts 
et al., 2021).

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to Level B harassment 
thresholds are calculated, as described above. The maximum distance 
(i.e., 141 m distance associated with the Applied Acoustics Dura-Spark 
240) to the Level B harassment criterion and the estimated distance 
traveled per day by a given survey vessel (i.e., 55 km (34.2 mi)) are 
then used to calculate the daily ensonified area, or zone of influence 
(ZOI) around the survey vessel.
    Atlantic Shores estimates that surveys will achieve a maximum daily 
track line distance of 55 km per day (24-hour period) during the IHA 
effective period. This distance accounts for the vessel traveling at 
approximately 3.5 knots and accounts for non-active survey periods. 
Based on the maximum estimated distance to the Level B harassment 
threshold of 141 m (Table 7) and the maximum estimated daily track line 
distance of 55 km across all survey sites, an area of 15.57 km\2\ would 
be ensonified to the Level B harassment threshold per day across all 
survey sites during Atlantic Shores' HRG surveys (Table 9) based on the 
following formula:

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

Where:

Distance/day = the maximum distance a survey vessel could travel in 
a 24-hour period; and
r = the maximum radial distance from a given sound source to the 
NOAA Level A or Level B harassment thresholds.


[[Page 24121]]



                     Table 9--Maximum HRG Survey Area Distances for Atlantic Shores' Surveys
----------------------------------------------------------------------------------------------------------------
                                     Number of        Survey      Maximum radial  Calculated ZOI   Total annual
           Survey area             active survey   distances per   distance (r)       per day       ensonified
                                       days       day in km (mi)     in m (ft)        (km\2\)      area (km\2\)
----------------------------------------------------------------------------------------------------------------
Lease Area......................             120       55 (34.2)       141 (463)           15.57         1,868.4
ECR North.......................             180  ..............  ..............  ..............         2,802.6
ECR South.......................              60  ..............  ..............  ..............           934.2
----------------------------------------------------------------------------------------------------------------

    As described above, this is a conservative estimate as it assumes 
the HRG source that results in the greatest isopleth distance to the 
Level B harassment threshold would be operated at all times during the 
entire survey, which may not ultimately occur.
    The number of marine mammals expected to be incidentally taken per 
day is then calculated by estimating the number of each species 
predicted to occur within the daily ensonified area (animals/km\2\), 
incorporating the maximum seasonal estimated marine mammal densities as 
described above. Estimated numbers of each species taken per day across 
all survey sites are then multiplied by the total number of survey days 
(i.e., 360). The product is then rounded, to generate an estimate of 
the total number of instances of harassment expected for each species 
over the duration of the survey. A summary of this method is 
illustrated in the following formula with the resulting take of marine 
mammals is shown below in Table 10:

Estimated Take = D x ZOI x # of days

Where:

D = average species density (per km\2\); and
ZOI = maximum daily ensonified area to relevant thresholds.


   Table 10--Numbers of Incidental Takes of Marine Mammals Authorized and Authorized Takes as a Percentage of
                                                   Population
----------------------------------------------------------------------------------------------------------------
                                                                                               Total
                                                                                 -------------------------------
                                                    Calculated    Takes proposed                    Authorized
                                                     takes by       for Level B     Authorized    takes (Level B
                     Species                          Level B      harassment to  takes (Level B  harassment) as
                                                  harassment \e\   be authorized    harassment)    a percentage
                                                                        \f\             \g\       of population/
                                                                                                   stock \a\ \g\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................              17              17              17            4.62
Humpback whale..................................               4           \c\ 8               8            0.57
Fin whale.......................................               5               5               5            0.07
Sei whale.......................................               2               2               2            0.03
Minke whale.....................................               2               2               2            0.01
Sperm whale.....................................               1               1               1            0.03
Long-finned pilot whale.........................              20              20              20            0.05
Bottlenose dolphin (W.N. Atlantic Coastal                    385             385             385            5.80
 Migratory).....................................
Bottlenose dolphin (W.N. Atlantic Offshore).....           1,175           1,175           1,175            1.87
Common dolphin (short-beaked)...................             406         \b\ 560             560            0.32
Atlantic white-sided dolphin....................              17              17              17            0.02
Atlantic spotted dolphin........................              50         \d\ 100             100            0.25
Risso's dolphin.................................              30              30              30            0.08
Harbor porpoise.................................             282             282             282            0.30
Harbor seal.....................................             426             426             426            0.56
Gray seal.......................................             426             426             426            1.56
----------------------------------------------------------------------------------------------------------------
\a\ Calculated percentages of population/stock were based on the population estimates (Nest) found in the NMFS's
  draft 2021 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment on NMFS's website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports).
\b\ Based on information obtained from the monitoring report provided to NMFS after the completion of the 2020
  survey, as well as information provided by Atlantic Shores (P. Phifer, personal communication, October 29,
  2021), NMFS had proposed to increase the number of authorized takes (by Level B harassment only) for common
  dolphins.
\c\ Based on recent data from King et al. (2021) where humpback whales were the most commonly sighted species in
  the New York Bight, NMFS had proposed to increase the take of humpback whales by assuming that Atlantic
  Shores' four modeled exposures would be of groups rather than individuals, and therefore multiplied by an
  average group size of two to yield eight.
\d\ Based on information obtained from the monitoring report provided to NMFS after the completion of the 2020
  survey, as well as information provided by Atlantic Shores (P. Phifer, personal communication, October 29,
  2021), NMFS had proposed to increase the number of authorized takes (by Level B harassment only) for Atlantic
  spotted dolphins.
\e\ These values were originally proposed by Atlantic Shores.
\f\ These values were proposed by NMFS.
\g\ These values have been authorized by NMFS.

    The original take numbers calculated and requested by Atlantic 
Shores, the proposed take numbers from NMFS, and the authorized take 
numbers are shown in Table 10. As noted within Atlantic Shores' IHA 
application and discussed within the renewal IHA application (see 
Atlantic Shores Offshore Wind, 2021), Atlantic Shores made an 
adjustment for Risso's dolphins, common dolphins, and long-finned pilot 
whales based on typical pod and group sizes, which

[[Page 24122]]

yielded the values described above. NMFS agrees with this approach for 
these three species, as described in the IHA applications.
    In the proposed notice (87 FR 4200; January 27, 2022), NMFS 
proposed an adjustment for three cetacean species: Humpback whales, 
common dolphins, and Atlantic spotted dolphins. Below we describe our 
authorized take numbers based on these adjustments.
    Estimated takes of common dolphins were increased from the density-
based estimate based on information provided by Atlantic Shores (P. 
Phifer, personal communication, October 29, 2021) and sightings 
described in the 2020 monitoring report. Based on these previous 
observations, exposures of common dolphins above the 160-dB harassment 
threshold were estimated at 1.55 per day. Assuming that this same 
exposure rate continues for the presently planned activity yields the 
estimate provided in Table 10.
    Based on recent information from King et al. (2021) that 
demonstrated that the humpback whale is commonly sighted along the New 
York Bight area, NMFS determined that the humpback whale take request 
may be too low given the occurrence of animals near the survey area. 
Because of this, NMFS proposes to double the requested take to account 
for underestimates to the actual occurrence of this species within the 
density data.
    Previously, 100 takes of Atlantic spotted dolphins, by Level B 
harassment, were authorized to Atlantic Shores during their 2020 IHA. 
Based on a lack of sightings in the 2020 field season per the submitted 
monitoring report, Atlantic Shores had requested and been authorized 
half of these takes (50 Level B harassment) during their 2021 field 
season for their renewal IHA. However, based on information provided by 
Atlantic Shores (P. Phifer, personal communication, October 29, 2021) 
as the monitoring report for the 2021 field season is not yet 
available, NMFS has increased the take previously requested by Atlantic 
Shores from 50 to 100 to account for the numerous sightings of Atlantic 
spotted dolphins that had already occurred early into Atlantic Shores' 
2021 field season (17 takes out of 50 authorized for the renewal IHA).
    As described above, Roberts et al. (2018) produced density models 
for all seals and did not differentiate by seal species. The take 
calculation methodology as described above resulted in an estimate of 
852 total seal takes for both species. Based on this estimate, Atlantic 
Shores has requested 852 takes total for pinnipeds (426 each species), 
based on the use of the same density for both species as they are known 
to overlap in habitat use, foraging, and spatial scale. Furthermore, as 
the density estimates were not split by species in Roberts et al. 
(2016b, 2017, 2018) this approach assumes that the likelihood of either 
species occurring during the survey is equal. We think this is a 
reasonable approach and therefore propose to authorize the requested 
amount of take, as shown in Table 10.
    Worth noting is the authorized take of NARWs, which stems from an 
increase in the density of NARWs at the survey site. Atlantic Shores 
used information from Roberts et al. (2020) that demonstrated that the 
density of NARWs has increased by approximately 40 percent in some 
portions of the survey area compared to the 2020 IHA (see Table 11), 
which justifies the total take number presented above in Table 10. 
While past monitoring reports (see the 2020 report on NMFS' website) 
have reported no observations of NARWs during the 2020 surveys, NMFS 
agrees with the approach taken by Atlantic Shores as using the best 
available science to be conservative and authorizes 17 takes by Level B 
harassment only of NARWs during the surveys.

   Table 11--Changes in North Atlantic Right Whale Densities in the Survey Sites From the 2020 IHA to the 2022 IHA per Data From Roberts et al. (2020)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Winter                    Spring                    Summer                     Fall
                                                 -------------------------------------------------------------------------------------------------------
                                                    2020 IHA     2022 IHA     2020 IHA     2022 IHA     2020 IHA     2022 IHA     2020 IHA     2022 IHA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lease Area......................................        0.087        0.499        0.060        0.426        0.008        0.002        0.006        0.009
Northern ECR....................................        0.068        0.182        0.056        0.149        0.008        0.001        0.006        0.011
Southern ECR....................................        0.073        0.179        0.055        0.097        0.007        0.000        0.006        0.005
--------------------------------------------------------------------------------------------------------------------------------------------------------

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, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation Measures

    NMFS requires the following mitigation measures be implemented 
during Atlantic Shores' marine site characterization surveys. 
Additionally, Atlantic Shores must abide by all the marine mammal 
relevant conditions in

[[Page 24123]]

the NOAA Fisheries Greater Atlantic Regional Office (GARFO) 
programmatic consultation (specifically Project Design Criteria (PDC) 
4, 5, and 7) regarding geophysical surveys along the U.S. Atlantic 
coast in the three Atlantic Renewable Energy Regions (NOAA GARFO, 2021; 
https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation), pursuant to Section 7 of the Endangered Species Act.
Marine Mammal Exclusion Zones and Level B Harassment Zones
    Marine mammal Exclusion Zones will be established around the HRG 
survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive: 
Sparkers; non-impulsive: Non-parametric sub-bottom profilers), a 
minimum of one PSO must be on duty, per source vessel, during daylight 
hours and two PSOs must be on duty, per source vessel, during nighttime 
hours. These PSO will monitor Exclusion Zones based upon the radial 
distance from the acoustic source rather than being based around the 
vessel itself. The Exclusion Zone distances are as follows:
     A 500 m Exclusion Zone for NARWs during use of specified 
acoustic sources (impulsive: Sparkers; non-impulsive: Non-parametric 
sub-bottom profilers).
     A 100 m Exclusion Zone for all other marine mammals 
(excluding NARWs) during use of specified acoustic sources (except as 
specified below). All visual monitoring must begin no less than 30 
minutes prior to the initiation of the specified acoustic source and 
must continue until 30 minutes after use of specified acoustic sources 
ceases.
    If a marine mammal were detected approaching or entering the 
Exclusion Zones during the HRG survey, the vessel operator will adhere 
to the shutdown procedures described below to minimize noise impacts on 
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.
Ramp-Up of Survey Equipment and Pre-Clearance of the Exclusion Zones
    When technically feasible, a ramp-up procedure will be used for HRG 
survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. A ramp-up will begin with the powering up 
of the smallest acoustic HRG equipment at its lowest practical power 
output appropriate for the survey. The ramp-up procedure will be used 
in order to provide additional protection to marine mammals near the 
survey area by allowing them to vacate the area prior to the 
commencement of survey equipment operation at full power. When 
technically feasible, the power will then be gradually turned up and 
other acoustic sources would be added. All ramp-ups shall be scheduled 
so as to minimize the time spent with the source being activated.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective Exclusion Zone. Ramp-up will continue if the animal has been 
observed exiting its respective Exclusion Zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals; 30 minutes for all other species).
    Atlantic Shores will implement a 30 minute pre-clearance period of 
the Exclusion Zones prior to the initiation of ramp-up of HRG 
equipment. The operator must notify a designated PSO of the planned 
start of ramp-up where the notification time should not be less than 60 
minutes prior to the planned ramp-up. This will allow the PSOs to 
monitor the Exclusion Zones for 30 minutes prior to the initiation of 
ramp-up. Prior to ramp-up beginning, Atlantic Shores must receive 
confirmation from the PSO that the Exclusion Zone is clear prior to 
proceeding. During this 30 minute pre-start clearance period, the 
entire applicable Exclusion Zones must be visible. The exception to 
this would be in situations where ramp-up may occur during periods of 
poor visibility (inclusive of nighttime) as long as appropriate visual 
monitoring has occurred with no detections of marine mammals in 30 
minutes prior to the beginning of ramp-up. Acoustic source activation 
may only occur at night where operational planning cannot reasonably 
avoid such circumstances.
    During this period, the Exclusion Zone will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective Exclusion 
Zone. If a marine mammal is observed within an Exclusion Zone during 
the pre-clearance period, ramp-up may not begin until the animal(s) has 
been observed exiting its respective Exclusion Zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and pinnipeds; 30 minutes for all other 
species). If a marine mammal enters the Exclusion Zone during ramp-up, 
ramp-up activities must cease and the source must be shut down. Any PSO 
on duty has the authority to delay the start of survey operations if a 
marine mammal is detected within the applicable pre-start clearance 
zones.
    The pre-clearance zones will be:
     500 m for all ESA-listed species (North Atlantic right, 
sei, fin, sperm whales); and
     100 m for all other marine mammals.

If any marine mammal species that are listed under the ESA are observed 
within the clearance zones, the 30 minute clock must be paused. If the 
PSO confirms the animal has exited the zone and headed away from the 
survey vessel, the 30 minute clock that was paused may resume. The pre-
clearance clock will reset to 30 minutes if the animal dives or visual 
contact is otherwise lost.
    If the acoustic source is shut down for brief periods (i.e., less 
than 30 minutes) for reasons other than implementation of prescribed 
mitigation (e.g., mechanical difficulty), it may be activated again 
without ramp-up if PSOs have maintained constant visual observation and 
no detections of marine mammals have occurred within the applicable 
Exclusion Zone. For any longer shutdown, pre-start clearance 
observation and ramp-up are required.
    Activation of survey equipment through ramp-up procedures may not 
occur when visual detection of marine mammals within the pre-clearance 
zone is not expected to be effective (e.g., during inclement conditions 
such as heavy rain or fog).
    The acoustic source(s) must be deactivated when not acquiring data 
or preparing to acquire data, except as necessary for testing. 
Unnecessary use of the acoustic source shall be avoided.
Shutdown Procedures
    An immediate shutdown of the impulsive HRG survey equipment (Table 
7) will be required if a marine mammal is sighted entering or within 
its respective Exclusion Zone(s). Any PSO on duty has the authority to 
call for a shutdown of the acoustic source if a marine mammal is 
detected within the applicable Exclusion Zones. Any disagreement 
between the PSO and vessel operator should be discussed only after 
shutdown has occurred. The vessel operator would establish and maintain 
clear lines of communication directly between PSOs on duty and crew 
controlling the HRG source(s) to ensure that shutdown commands are 
conveyed swiftly while allowing PSOs to maintain watch.

[[Page 24124]]

    The shutdown requirement is waived for small delphinids (belonging 
to the genera of the Family Delpinidae: Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) and pinnipeds if they are visually detected 
within the applicable Exclusion Zones. 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 applicable Level B 
harassment zone, shutdown will occur. In the event of uncertainty 
regarding the identification of a marine mammal species (i.e., such as 
whether the observed marine mammal belongs to Delphinus, 
Lagenorhynchus, Stenella, or Tursiops for which shutdown is waived, 
PSOs must use their best professional judgement in making the decision 
to call for a shutdown.
    Specifically, if a delphinid from the specified genera or a 
pinniped is visually detected approaching the vessel (i.e., to bow 
ride) or towed equipment, shutdown is not required.
    Upon implementation of a shutdown, the source may be reactivated 
after the marine mammal has been observed exiting the applicable 
Exclusion Zone or following a clearance period of 15 minutes for harbor 
porpoises and 30 minutes for all other species where there are no 
further detections of the marine mammal.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., parametric sub-bottom profilers) other than non-parametric sub-
bottom profilers (e.g., CHIRPs). Pre-clearance and ramp-up, but not 
shutdown, are required when using non-impulsive, non-parametric sub-
bottom profilers.
Seasonal Operating Requirements
    As described in the proposed Notice, a section of the survey area 
partially overlaps with a portion of a North Atlantic right whale SMA 
off the port of New York/New Jersey. This SMA is active from November 1 
through April 30 of each year. All survey vessels, regardless of 
length, would be required to adhere to vessel speed restrictions (<10 
knots) when operating within the SMA during times when the SMA is 
active. In addition, between watch shifts, members of the monitoring 
team would consult NMFS' NARW reporting systems for the presence of 
NARWs throughout survey operations. Members of the monitoring team 
would also monitor the NMFS NARW reporting systems for the 
establishment of Dynamic Management Areas (DMA). NMFS may also 
establish voluntary right whale Slow Zones any time a right whale (or 
whales) is acoustically detected. Atlantic Shores should be aware of 
this possibility and remain attentive in the event a Slow Zone is 
established nearby or overlapping the survey area (Table 12).

      Table 12--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                      Restrictions Within the Survey Areas
----------------------------------------------------------------------------------------------------------------
           Survey area                  Species        DMA restrictions       Slow zones       SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area......................  North Atlantic          If established by NMFS, all of      N/A.
                                   right whale          Atlantic Shores' vessels will abide
                                   (Eubalaena              by the described restrictions.
                                   glacialis).
ECR North.......................                                                              November 1 through
                                                                                               July 31 (Raritan
                                                                                               Bay).
ECR South.......................                                                              N/A.
----------------------------------------------------------------------------------------------------------------
Note: More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS'
  website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales.

    There are no known marine mammal rookeries or mating or calving 
grounds in the survey area that would otherwise potentially warrant 
increased mitigation measures for marine mammals or their habitat (or 
both). The survey activities would occur in an area that has been 
identified as a biologically important area for migration for NARWs. 
However, given the small spatial extent of the survey area relative to 
the substantially larger spatial extent of the right whale migratory 
area and the relatively low amount of noise generated by the survey, 
the survey is not expected to appreciably reduce the quality of 
migratory habitat nor to negatively impact the migration of NARWs, thus 
mitigation to address the survey's occurrence in NARW migratory habitat 
is not warranted.
Vessel Strike Avoidance
    Vessel operators must comply with the below measures except under 
extraordinary circumstances when the safety of the vessel or crew is in 
doubt or the safety of life at sea is in question. 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.
    Survey vessel crewmembers responsible for navigation duties will 
receive site-specific training on marine mammals sighting/reporting and 
vessel strike avoidance measures. Vessel strike avoidance measures 
would include the following, except under circumstances when complying 
with these requirements would put the safety of the vessel or crew at 
risk:
     Atlantic Shores will ensure that vessel operators and crew 
maintain a vigilant watch for cetaceans and pinnipeds and slow down, 
stop their vessels, or alter course, as appropriate and regardless of 
vessel size, to avoid striking any marine mammal. A single marine 
mammal at the surface may indicate the presence of additional submerged 
animals in the vicinity of the vessel; therefore, precautionary 
measures should always be exercised. A visual observer aboard the 
vessel must monitor a vessel strike avoidance zone around the vessel 
(species-specific distances detailed 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 marine mammal 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 mammals. All vessels, regardless of size, must observe a 
10-knot speed restriction in specific areas designated by NMFS for the 
protection of NARWs from vessel strikes, including seasonal management 
areas (SMAs) and dynamic management areas (DMAs) when in effect. See 
www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail 
regarding these areas.
     All vessels must reduce their speed to 10-knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel;
     All vessels must maintain a minimum separation distance of 
500 m

[[Page 24125]]

(1,640 ft) from right whales and other ESA-listed species. If an ESA-
listed species is sighted within the relevant separation distance, the 
vessel must steer a course away at 10-knots or less until the 500 m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species that is not ESA-listed, the vessel 
operator must assume that it is an ESA-listed species and take 
appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m (328 ft) from non-ESA-listed baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m (164 ft) from 
all other marine mammals, with an understanding that, at times, this 
may not be possible (e.g., for animals that approach the vessel, bow-
riding species).
     When marine mammal 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, reduce speed and shift the engine 
to neutral). This does not apply to any vessel towing gear or any 
vessel that is navigationally constrained.
    Members of the monitoring team will consult NMFS NARW reporting 
system and Whale Alert, daily and as able, for the presence of NARWs 
throughout survey operations, and for the establishment of a DMA. If 
NMFS should establish a DMA in the survey area during the survey, the 
vessels will abide by speed restrictions in the DMA.
Training
    All PSOs must have completed a PSO training program and received 
NMFS approval to act as a PSO for geophysical surveys. Documentation of 
NMFS approval and most recent training certificates of individual PSOs' 
successful completion of a commercial PSO training course must be 
provided upon request. Further information can be found at 
www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers. In the event where third-party PSOs are 
not required, crew members serving as lookouts must receive training on 
protected species identification, vessel strike minimization 
procedures, how and when to communicate with the vessel captain, and 
reporting requirements.
    Atlantic Shores shall instruct relevant vessel personnel with 
regard to the authority of the marine mammal monitoring team, and shall 
ensure that relevant vessel personnel and the marine mammal monitoring 
team participate in a joint onboard briefing (hereafter PSO briefing), 
led by the vessel operator and lead PSO, prior to beginning survey 
activities to ensure that responsibilities, communication procedures, 
marine mammal monitoring protocols, safety and operational procedures, 
and IHA requirements are clearly understood. This PSO briefing must be 
repeated when relevant new personnel (e.g., PSOs, acoustic source 
operator) join the survey operations before their responsibilities and 
work commences.
    Survey-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. All vessel crew members must be 
briefed in the identification of protected species that may occur in 
the survey area and in regulations and best practices for avoiding 
vessel collisions. Reference materials must be available aboard all 
survey vessels for identification of listed species. The expectation 
and process for reporting of protected species sighted during surveys 
must be clearly communicated and posted in highly visible locations 
aboard all survey vessels, so that there is an expectation for 
reporting to the designated vessel contact (such as the lookout or the 
vessel captain), as well as a communication channel and process for 
crew members to do so. Prior to implementation with vessel crews, the 
training program will be provided to NMFS for review and approval. 
Confirmation of the training and understanding of the requirements will 
be documented on a training course log sheet. Signing the log sheet 
will certify that the crew member understands and will comply with the 
necessary requirements throughout the survey activities.
    Based on our evaluation of Atlantic Shores' measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
required mitigation measures provide the means effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical to both 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).
     Mitigation and monitoring effectiveness.

Monitoring Measures

    Atlantic Shores must use independent, dedicated, trained PSOs, 
meaning that the PSOs must be employed by a third-party observer 
provider, must 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 mammal and mitigation 
requirements (including brief alerts regarding maritime hazards), and

[[Page 24126]]

must have successfully completed an approved PSO training course for 
geophysical surveys. Visual monitoring must be performed by qualified, 
NMFS-approved PSOs. PSO resumes must be provided to NMFS for review and 
approval prior to the start of survey activities.
    PSO names must be provided to NMFS by the operator for review and 
confirmation of their approval for specific roles prior to commencement 
of the survey. For prospective PSOs not previously approved, or for 
PSOs whose approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, would coordinate duty 
schedules and roles for the PSO team, and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or 
greater) a written and/or oral examination developed for the training 
program.
    PSOs must coordinate to ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and shall conduct 
visual observations using binoculars or night-vision equipment and the 
naked eye while free from distractions and in a consistent, systematic, 
and diligent manner.
    PSOs may be on watch for a maximum of four consecutive hours 
followed by a break of at least two hours between watches and may 
conduct a maximum of 12 hours of observation per 24-hour period.
    Any observations of marine mammal by crew members aboard any vessel 
associated with the survey shall be relayed to the PSO team.
    Atlantic Shores must work with the selected third-party PSO 
provider to ensure PSOs have all equipment (including backup equipment) 
needed to adequately perform necessary tasks, including accurate 
determination of distance and bearing to observed marine mammals, and 
to ensure that PSOs are capable of calibrating equipment as necessary 
for accurate distance estimates and species identification. Such 
equipment, at a minimum, shall include:
     At least one thermal (infrared) imagine device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global Positioning Units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 300 
millimeter (mm) or equivalent on a full-frame single lens reflex (SLR) 
(at least one plus backups). The camera or lens should also have an 
image stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-part PSO provider, or the operator, but Atlantic Shores is 
responsible for ensuring PSOs have the proper equipment required to 
perform the duties specified in the IHA.
    During good conditions (e.g., daylight hours; Beaufort sea state 3 
or less), PSOs shall conduct observations when the specified acoustic 
sources are not operating for comparison of sighting rates and behavior 
with and without use of the specified acoustic sources and between 
acquisition periods, to the maximum extent practicable.
    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 PSO(s) 
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.
    Atlantic Shores plans to utilize six PSOs across each vessel to 
account for shift changes, with a total of 18 during these surveys (six 
PSOs per vessel x three vessels). At a minimum, during all HRG survey 
operations (e.g., any day on which use of an HRG source is planned to 
occur), 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) and two PSOs will 
be on watch during nighttime operations. The PSO(s) would ensure 
360[deg] visual coverage around the vessel from the most appropriate 
observation posts and would conduct visual observations using 
binoculars and/or night vision goggles and the naked eye while free 
from distractions and in a consistent, systematic, and diligent manner. 
PSOs may be on watch for a maximum of four consecutive hours followed 
by a break of at least two hours between watches and may conduct a 
maximum of 12 hours of observation per 24-hr 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

[[Page 24127]]

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 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements (see Reporting Measures). This 
would include dates, times, and locations of survey operations; dates 
and times of observations, location and weather; details of marine 
mammal sightings (e.g., species, numbers, behavior); and details of any 
observed marine mammal behavior that occurs (e.g., noted behavioral 
disturbances).

Reporting Measures

    Atlantic Shores shall submit a draft comprehensive report on all 
activities and monitoring results within 90 days of the completion of 
the survey or expiration of the IHA, whichever comes sooner. The report 
must describe all activities conducted and sightings of marine mammals, 
must provide full documentation of methods, results, and interpretation 
pertaining to all monitoring, and must summarize the dates and 
locations of survey operations and all marine mammals sightings (dates, 
times, locations, activities, associated survey activities). The draft 
report shall also include geo-referenced, time-stamped vessel 
tracklines for all time periods during which acoustic sources were 
operating. Tracklines should include points recording any change in 
acoustic source status (e.g., when the sources began operating, when 
they were turned off, or when they changed operational status such as 
from full array to single gun or vice versa). GIS files shall be 
provided in ESRI shapefile format and include the UTC date and time, 
latitude in decimal degrees, and longitude in decimal degrees. All 
coordinates shall be referenced to the WGS84 geographic coordinate 
system. In addition to the report, all raw observational data shall be 
made available. The report must summarize the information submitted in 
interim monthly reports (if required) as well as additional data 
collected. A final report must be submitted within 30 days following 
resolution of any comments on the draft report. All draft and final 
marine mammal and acoustic monitoring reports must be submitted to 
[email protected] and [email protected].
    PSOs must use standardized electronic data forms to record data. 
PSOs shall record detailed information about any implementation of 
mitigation requirements, including the distance of marine mammal to the 
acoustic source and description of specific actions that ensued, the 
behavior of the animal(s), any observed changes in behavior before and 
after implementation of mitigation, and if shutdown was implemented, 
the length of time before any subsequent ramp-up of the acoustic 
source. If required mitigation was not implemented, PSOs should record 
a description of the circumstances. At a minimum, the following 
information must be recorded:
    1. Vessel names (source vessel and other vessels associated with 
survey), vessel size and type, maximum speed capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. The lease number;
    4. PSO names and affiliations;
    5. Date and participants of PSO briefings;
    6. Visual monitoring equipment used;
    7. PSO location on vessel and height of observation location above 
water surface;
    8. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    9. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    10. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval;
    11. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    12. Water depth (if obtainable from data collection software);
    13. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    14. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions); and
    15. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.).
    Upon visual observation of any marine mammal, the following 
information must be recorded:
    1. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    2. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    3. PSO who sighted the animal;
    4. Time of sighting;
    5. Initial detection method;
    6. Sightings cue;
    7. Vessel location at time of sighting (decimal degrees);
    8. Direction of vessel's travel (compass direction);
    9. Speed of the vessel(s) from which the observation was made;
    10. 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;
    11. Species reliability (an indicator of confidence in 
identification);
    12. Estimated distance to the animal and method of estimating 
distance;
    13. Estimated number of animals (high/low/best);
    14. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    15. 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);
    16. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    17. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    18. Equipment operating during sighting;

[[Page 24128]]

    19. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and
    20. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a NARW is observed at any time by PSOs or personnel on any 
survey vessels, during surveys or during vessel transit, Atlantic 
Shores must report the sighting information to the NMFS North Atlantic 
Right Whale Sighting Advisory System (866-755-6622) within two hours of 
occurrence, when practicable, or no later than 24 hours after 
occurrence. NARW sightings in any location may also be reported to the 
U.S. Coast Guard via channel 16 and through the WhaleAlert app (https://www.whalealert.org).
    In the event that Atlantic Shores personnel discover an injured or 
dead marine mammal, regardless of the cause of injury or death. In the 
event that personnel involved in the survey activities discover an 
injured or dead marine mammal, Atlantic Shores must report the incident 
to NMFS as soon as feasible by phone (866-755-6622) and by email 
([email protected] and [email protected]) as 
soon as feasible. The report must include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. 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, Atlantic 
Shores must report the incident to NMFS by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]) as soon as feasible. The report 
would include the following information:
    1. Time, date, and location (latitude/longitude) of the incident;
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Vessel's speed during and leading up to the incident;
    4. Vessel's course/heading and what operations were being conducted 
(if applicable);
    5. Status of all sound sources in use;
    6. 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;
    7. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    8. Estimated size and length of animal that was struck;
    9. Description of the behavior of the marine mammal immediately 
preceding and/or following the strike;
    10. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    11. 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
    12. 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 3, given that NMFS expects the anticipated effects of the 
survey activities to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the NARW--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 will be authorized.
    As discussed in the Potential Effects section of the proposed 
Federal Register Notice, 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 Exclusion Zone for certain activities. Because of this, no 
Level A harassment has been authorized.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m. Although this distance is assumed 
for all survey activity in estimating take numbers authorized and 
evaluated here, in reality, the Applied Acoustics Dura-Spark 240 would 
likely not be used across the entire 24-hour period and across all 360 
days. As noted in Table 7, the other acoustic sources Atlantic Shores 
has included in their application produce Level B harassment zones 
below 60 m. Therefore, the ensonified area surrounding each vessel is 
relatively small compared to the overall distribution of the animals in 
the area and their use of the habitat. Feeding behavior is not likely 
to be significantly impacted as prey species are mobile and are broadly 
distributed throughout the survey area; therefore, marine mammals that 
may be temporarily displaced during survey activities are expected to 
be able to resume foraging once they have moved away from areas with 
disturbing levels of underwater noise. Because of the temporary nature 
of the

[[Page 24129]]

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 NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW 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, Atlantic Shores' survey 
area overlaps a migratory corridor BIA for NARWs. We note that the 
survey area is relatively small compared with the migratory BIA area 
(approximately 5,868 km\2\ and the NARW migratory BIA is 269,448 km\2\) 
and, importantly, that the effects of the activity are sufficiently 
low-level as to not meaningfully impact important behavior, including 
migratory behavior. Due to the fact that the described survey 
activities are temporary and the spatial extent of sound produced by 
the survey would be very small relative to the spatial extent of the 
available migratory habitat in the BIA, right whale migration is not 
expected to be impacted by the described activities. Further, given the 
relatively small size of the ensonified area (141 m), it is unlikely 
that prey availability would be adversely affected by HRG survey 
operations. Required vessel strike avoidance measures will also 
decrease risk of ship strike during migration; no ship strike is 
expected to occur during Atlantic Shores' survey activities. The 500 m 
Exclusion Zone for right whales is conservative, considering the Level 
B harassment isopleth for the most impactful acoustic source (i.e., 
sparker) is estimated to be 141 m, and thereby minimizes the potential 
for behavioral harassment of this species.
    As noted previously, Level A harassment is not expected due to the 
small PTS zones associated with HRG equipment types planned for use. 
The authorized levels of Level B harassment takes of NARW are not 
expected to exacerbate or compound upon the ongoing UME. The limited 
NARW Level B harassment takes to be authorized are expected to be of a 
short duration, and given the number of estimated takes, repeated 
exposures of the same individual are not expected. Further, given the 
relatively small size of the ensonified area during Atlantic Shores' 
survey activities, it is unlikely that NARW prey availability would be 
adversely affected. Accordingly, NMFS does not anticipate NARWs takes 
that would result from Atlantic Shores' survey activities would impact 
annual rates of recruitment or survival. Thus, any takes that occur 
would not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Atlantic Shores' survey area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and have occurred across Maine, New 
Hampshire, and Massachusetts. Based on tests conducted so far, the main 
pathogen found in the seals is phocine distemper virus, although 
additional testing to identify other factors that may be involved in 
this UME are underway. The UME does not yet provide cause for concern 
regarding population-level impacts to any of these stocks. For harbor 
seals, the population abundance is over 75,000 and annual M/SI (350) is 
well below PBR (2,006) (Hayes et al., 2020). The population abundance 
for gray seals in the United States is over 27,000, with an estimated 
abundance, including seals in Canada, of approximately 450,000. In 
addition, the abundance of gray seals is likely increasing in the U.S. 
Atlantic as well as in Canada (Hayes et al., 2020).
    The required mitigation measures are expected to reduce the number 
and/or severity of authorized takes for all species listed in Tables 3 
and 10, 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. As discussed previously, take by Level A harassment 
(injury) is considered unlikely, even absent mitigation, based on the 
characteristics of the signals produced by the acoustic sources planned 
for use. Implementation of required mitigation would further reduce 
this potential. Therefore, NMFS is not authorizing any Level A 
harassment.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.

Biologically Important Areas for Other Species

    As previously discussed, impacts from the survey are expected to be 
localized to the specific area of activity and only during periods of 
time where Atlantic Shores' acoustic sources are active. While areas of 
biological importance to fin whales, humpback whales, and harbor seals 
can be found off the coast of New Jersey and New York, NMFS does not 
expect these activities to affect these areas. This is due to the 
combination of the mitigation and monitoring measures being required of 
Atlantic Shores as well as the location of these biologically important 
areas. All of these important areas are found outside of the range of 
this survey area, as is the case with fin whales and

[[Page 24130]]

humpback whales (BIAs found further north), and, therefore, not 
expected to be impacted by Atlantic Shores' survey activities.
    Three major haul-out sites exist for harbor seals within ECR North 
along New Jersey, including at Great Bay, Sand Hook, and Barnegat Inlet 
(CWFNJ, 2015). As hauled out seals would be out of the water, no in-
water effects are expected.

Determinations

    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated nor will be 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or will be authorized;
     Foraging success is not likely to be 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 NARWs, the activities would occur in such a comparatively small 
area such that any avoidance of the survey area due to activities would 
not affect migration; and
     The described mitigation measures, including effective 
visual monitoring, and shutdowns, are expected to minimize potential 
impacts to marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
described survey activities will have a negligible impact on all 
affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS authorizes incidental take (by Level B harassment only) of 15 
marine mammal species (with 16 managed stocks). The total amount of 
takes authorized relative to the best available population abundance is 
less than 6 percent for all stocks (Table 10). Therefore, NMFS finds 
that small numbers of marine mammals may be taken relative to the 
estimated overall population abundances for those stocks.
    Based on the analysis contained herein of the described activities 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS Office of Protected Resources (OPR) consults internally whenever 
we propose to authorize take for endangered or threatened species.
    NMFS is authorizing the incidental take of four species of marine 
mammals which are listed under the ESA, including the North Atlantic 
right, fin, sei, and sperm whale, and has determined that these 
activities fall within the scope of activities analyzed in GARFO's 
programmatic consultation regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021). The consultation 
concluded that NMFS' issuance of incidental take authorization related 
to these activities are not likely to adversely affect ESA-listed 
marine mammals.

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 action (i.e., the issuance of an IHA) with respect 
to potential impacts on the human environment. This action is 
consistent with categories of activities identified in Categorical 
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of 
the Companion Manual for NOAA Administrative Order 216-6A, which do not 
individually or cumulatively have the potential for significant impacts 
on the quality of the human environment and for which we have not 
identified any extraordinary circumstances that would preclude this 
categorical exclusion. Accordingly, NMFS has determined that the 
issuance of the final IHA qualifies to be categorically excluded from 
further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Atlantic Shores for conducting site characterization surveys off New 
York and New Jersey from April 20, 2022 through April 19, 2023, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. The final IHA and Atlantic Shores' IHA 
application can be found on NMFS' website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0.

    Dated: April 18, 2022.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-08653 Filed 4-21-22; 8:45 am]
BILLING CODE 3510-22-P