[Federal Register Volume 87, Number 83 (Friday, April 29, 2022)]
[Notices]
[Pages 25452-25467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09186]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB895]


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

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

ACTION: Notice; 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 Kitty Hawk Wind, LLC (Kitty Hawk Wind), 
to incidentally harass marine mammals during marine site 
characterization surveys off North Carolina and Virginia in and around 
the area of Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf Lease Area (OCS)-A 0508.

DATES: The IHA is effective from August 1, 2022 through July 31, 2023.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and 
supporting documents 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 July 19, 2021, NMFS received a request from Kitty Hawk Wind, a 
subsidiary of Avangrid Renewables (Avangrid), for an IHA to take marine 
mammals incidental to conducting marine site characterization surveys 
off of the Atlantic Coast. Kitty Hawk Wind's overall lease area (OCS-A 
0508) is located approximately 44 kilometers (km) offshore of Corolla, 
North Carolina, in Federal waters. The proposed survey activities will 
occur within the wind development area (WDA) and along the electric 
cable corridor (ECC) to landfall locations in North Carolina and 
Virginia. We received a final, revised version of Kitty Hawk Wind's 
application on January 12, 2022 and deemed it adequate and complete on 
January 13, 2022. Kitty Hawk Wind's request is for take of 17 species 
of marine mammals, by Level B harassment only. Neither Kitty Hawk Wind 
nor NMFS expects serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to Avangrid, prior to it establishing 
Kitty Hawk Wind, for similar work in the same geographic area on June 
3, 2019 (84 FR 31032) with effectives dates from June 1, 2019 through 
May 31, 2020 and to Kitty Hawk Wind specifically on July

[[Page 25453]]

21, 2021 with effective dates from July 23, 2021 through October 31, 
2021 (86 FR 43212; August 6, 2021). Avangrid/Kitty Hawk Wind complied 
with all the requirements (e.g., mitigation, monitoring, and reporting) 
of the previous IHAs and information regarding their monitoring results 
may be found in the Estimated Take section. Avangrid and Kitty Hawk 
Wind's final marine mammal monitoring reports submitted pursuant to 
those IHAs can be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-avangrid-renewables-llc-marine-site-characterization-surveys.

Description of Proposed Activity

    Kitty Hawk Wind is planning to conduct marine site characterization 
surveys with the use of high-resolution geophysical (HRG) survey 
equipment in the Atlantic Ocean off of North Carolina and Virginia (we 
note only limited survey work will extend into waters off Virginia). 
Kitty Hawk will also conduct surveys in the inshore sounds of North 
Carolina, including Bogue, Pamlico, Albemarle, and Currituck Sounds (as 
part of the ECC); however, those surveys will use equipment operating 
at frequencies above 180 kilohertz (kHz) (outside marine mammal hearing 
range) and therefore will not result in harassment to marine mammals. 
For this reason, survey work in inshore sounds is not further discussed 
in this notice. In addition to Kitty Hawk South surveys, there will be 
a small amount of residual survey effort from the Kitty Hawk North WDA 
and ECC (the area surveyed under the previous IHAs) included in this 
survey effort due to inability to complete previous surveys as a result 
of unsuitable weather.

Dates and Duration

    Kitty Hawk Wind plans to commence the surveys in August 2022 and 
continue for 1 year. Based on 24-hour operations, the HRG survey 
activities (excluding those in inshore sounds) are expected to require 
273 vessel days which represents the sum of the total number of days 
each vessel operates (not calendar days). Three vessels using equipment 
that has the potential to result in harassment to marine mammals would 
operate during the survey.
    A detailed description of the planned surveys by Kitty Hawk Wind 
are provided in the Federal Register notice of the proposed IHA (87 FR 
7139; February 8, 2022). Since that time, no changes have been made to 
the project activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specified activities. Here, we provide brief 
information on the effort and sound sources Kitty Hawk would use during 
the surveys (Table 1 and Table 2). We note that all decibel (dB) levels 
included in this notice are referenced to 1 microPascal (1 [mu]Pa). The 
root mean square decibel level (dBrms) represents the square 
root of the average of the pressure of the sound signal over a given 
duration. The peak dB level (dBpeak) represents the range in 
pressure between zero and the greatest pressure of the signal. 
Operating frequencies are presented in kilohertz (kHz).

                                         Table 1--Survey Segment Details
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                                     Location and line     Predominant HRG
              Vessel                       kms *                source                     Duration
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Vessel A..........................  WDA: 7,562 kms;      Multi-channel        WDA: 42 days; ECC: 4.
                                     ECC: 590.            Seismic (Sparker).
Vessel A..........................  ECC Alternative A:   Single Channel       17 days.
                                     3,107 kms.           Seismic (Boomer).
Vessel A..........................  Expanded OECC:       Single Channel       33 days.
                                     5,843.               Seismic (Boomer).
Vessel B..........................  WDA/ECC: 15,715 kms  Single Channel       80 days.
                                                          Seismic (Boomer).
Vessel C..........................  ECC Base Case:       Single Channel       96 days.
                                     16,071 kms.          Seismic (Boomer).
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                                                      Total
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3 vessels.........................  48,888 km..........  ...................  273 days.
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* Does not include survey transect line distance in Bogue, Pamlico, Albemarle, and Currituck Sounds.


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


[[Page 25454]]

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

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Kitty Hawk Wind was 
published in the Federal Register on February 8, 2022 (87 FR 7139). 
That proposed notice described, in detail, Kitty Hawk Wind's 
activities, the marine mammal species that may be affected by the 
activities, and the anticipated effects on marine mammals. This 
proposed notice was available for a 30-day public comment period. 
During this period, NMFS received a comment letter from Oceana. A 
summary of Oceana's comments and NMFS' responses are as follows:
    Comment 1: Oceana opposes NMFS' renewal process and suggested NMFS 
should end its approach to renewing IHAs with a 15-day comment period, 
instead providing a full 30-day comment period for a renewal notice to 
ensure adequate public engagement.
    Response: Several statements provided by Oceana suggest it believes 
erroneously that NMFS is proposing to issue a renewal IHA to Kitty Hawk 
Wind and allowed a 15-day public comment period. The public comment 
period for issuance of the proposed IHA to Kitty Hawk Wind was February 
8, 2022 through March 10, 2022 which constituted 30 days and the action 
is issuance of a new IHA to Kitty Hawk, not a renewal IHA. While NMFS 
also solicited public comments on the potential for issuance of a 
renewal IHA, should Kitty Hawk Wind request one, that action would come 
later in time. Should Kitty Hawk request, and NMFS propose, to issue a 
renewal IHA, NMFS will provide an additional 15-day public comment 
period on that action for a total of a 45-day public comment period. 
Because any renewal (as explained in the Request for Public Comments 
section of the proposed IHA) is limited to another year of identical or 
nearly identical activities in the same location (as described in the 
Description of the Proposed Activity section of the proposed IHA) 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.
    While there are additional documents submitted with a renewal 
request, for a qualifying renewal these are limited to documentation 
that NMFS will 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 will also 
confirm, among other things, that the activities will 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 must also contain a preliminary 
monitoring report, but that is 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. NMFS also will provide direct 
notice of the proposed renewal to those who commented on the initial 
IHA, to provide an opportunity to submit any additional comments. 
Between the initial 30-day comment period on these same activities and 
the 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's 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 this, 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 decision-making 
process.''
    In prior responses to comments about IHA renewals (e.g., 84 FR 
52464, October 02, 2019; 85 FR 53342, August 28, 2020; 86 FR 33664, 
June 25, 2021; 87 FR 806, January 6, 2022), 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, provides 
additional efficiencies beyond the use of abbreviated notices, 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. For 
more information, NMFS has published a description of the renewal 
process on our website (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals).
    Comment 2: Oceana notes that the IHA must rely upon the most recent 
and best available science for the North Atlantic right whale (NARW), 
including updated population estimates, recent habitat use patterns for 
the study area, and a revised discussion of acute and cumulative stress 
of whales in the region, and asserts that NMFS does not do so. 
Specifically, for population estimates, Oceana suggests the NARW 
Consortium's Annual Report Card (Report Card) is the best available 
science.
    Response: NMFS has used the best available science regarding 
population abundance and trends, habitat use of the survey area, and a 
sufficiently comprehensive review of existing stressors on NARWs, 
including data related to the ongoing unusual mortality event in 
issuing the IHA. NMFS also considers the best science available when 
considering renewals as well.
    The Federal Register notice of proposed IHA (87 FR 7139, February 
8, 2022) identifies that the NARW population is endangered, discusses 
habitat use of the survey area, identifies current stressors on the 
population (e.g., entanglement in fishing gear and vessel strikes), and 
identifies potential impacts of the proposed survey, including effects 
of stress, on NARWs. The notice of proposed IHA cites the NMFS draft 
2021 stock assessment report (SAR) as the best available science with 
respect to NARW population estimates (n = 356-368). The SARs are peer-
reviewed by the Atlantic Scientific Review Group whereas the Report 
Card, available at https://www.narwc.org/report-cards.html, is 
published independently by Consortium members without peer review. 
Although the 2021 NARW Report Card is available and indicates the NARW 
population is slightly lower than indicated in the draft 2021 SAR, 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-

[[Page 25455]]

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 
Kitty Hawk Wind's survey activities.
    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 in a NARW migratory habitat would create conditions 
of acute or chronic acoustic exposure leading to stress responses that 
would result in meaningful impacts to marine mammals. NMFS has also 
prescribed a robust suite of mitigation measures, such as time-area 
limitations and extended distance shutdowns for certain species that 
are expected to further reduce the duration and intensity of acoustic 
exposure, while limiting the potential severity of any possible 
behavioral disruption. The potential for chronic stress was evaluated 
in making the determinations presented in NMFS's negligible impact 
analyses.
    Comment 3: Oceana asserted that NMFS should fully consider the 
discrete effects of each activity and the cumulative effects of the 
suite of approved, proposed, and potential activities on marine 
mammals, including NARWs, and ensure that the cumulative effects are 
not excessive before issuing or renewing an IHA.
    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. Section 101(a)(5)(D) of the MMPA requires NMFS to modify, 
suspend, or revoke the IHA if it finds that the activity is having more 
than a negligible impact on the affected species or stocks of marine 
mammals. NMFS will closely monitor baseline conditions before and 
during the period when the IHA is effective and will exercise this 
authority if appropriate. 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, both this IHA, as well as 
other IHAs currently in effect or proposed within the specified 
geographic region, are appropriately considered unrelated activities 
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, Kitty Hawk Wind 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, 
we also indicated (1) that NMFS 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. 
Cumulative impacts regarding issuance of IHAs for site characterization 
survey activities such as those planned by Kitty Hawk Wind have been 
adequately addressed under NEPA in prior environmental analyses that 
support the basis for 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 Kitty Hawk Wind's IHA, which included consideration of extraordinary 
circumstances.
    Comment 4: Oceana indicated the IHA must include conditions for the 
survey activities that will first avoid impacts on NARWs and then 
minimize and mitigate effects. Oceana suggested that NMFS should permit 
Kitty Hawk Wind to utilize lower impact techniques or technology if 
those provide information about the site without adverse effects.
    Response: Kitty Hawk Wind has indicated the equipment needed to 
conduct the survey is that contained within the IHA application and 
NMFS has prescribed measures to reduce impacts to the maximum extent 
practicable. NMFS has included measures in the IHA measures that will 
minimize impacts on NARWs, including a 500-m clearance and shutdown 
zone. The takes of NARWs authorized are included as a precaution in 
recognition of potential circumstances where whales are not detected in 
time to shut down; however, upon detection, equipment would be shut 
down, limiting exposure time and potentially avoiding harassment. NMFS 
finds the measures prescribed through the IHA result in the least 
practicable adverse impacts on marine mammals.
    Comment 5: Oceana suggested that during low light conditions, the 
IHA should require complimenting protected species observer (PSO) 
efforts with additional monitoring technologies such as infrared (IR) 
techology, a 500-m separation distance between vessels and NARWs, and 
requiring sources to ramp up.
    Response: NMFS agrees with Oceana. The proposed IHA made available 
for public comment and the issued IHA include a requirement that during 
reduced visibility conditions, including nighttime operations, PSOs 
must utilize enhanced detection technology, that all vessels maintain a 
500-m separation distance from NARWs at all times, and where 
technically feasible (e.g., equipment is not on a binary on/off 
switch), a ramp-up procedure will be used for HRG survey equipment 
capable of adjusting energy levels at the start or restart of HRG 
survey activities. Kitty Hawk Wind has confirmed both the boomers and 
sparkers used during the survey have the capability to be ramped-up, 
thus, they will do so.

[[Page 25456]]

    Comment 6: Oceana recommended that the IHA should limit all vessels 
of all sizes associated with the proposed survey activity to speeds 
less than 10 knots (kn; 18.5 kilometers (km)/hour) at all times with no 
exceptions.
    Response: NMFS acknowledges that vessel strikes can result in 
injury, serious injury, or mortality and reducing the risk of vessel 
strikes to NARWs is a key priority. We have analyzed the potential for 
ship strike resulting from Kitty Hawk Wind's activity and have 
determined that based on the nature of the activity (e.g., survey 
vessel speeds during operations are approximately 4 kn (4.6 miles per 
hour)) 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. Specific to NARWs, these mitigation measures, all 
of which were included in the proposed IHA and are contained 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 Seasonal 
Management Area (SMA; November 1 through April 30) or Dynamic 
Management Area (DMA) and check daily for information regarding the 
establishment of mandatory or voluntary vessel strike avoidance areas 
and information regarding NARW sighting locations; 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 within 100 meters (m) of an underway 
vessel; 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; 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; and, 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. We have determined that the ship strike avoidance 
measures in the IHA are sufficient to ensure the least practicable 
adverse impact on NARWs. Furthermore, no documented vessel strikes of 
any marine mammal species, including NARWs, have occurred during any 
marine site characterization surveys, including transiting, for which 
NMFS has issued an IHA.
    Comment 7: Oceana recommended that, to support oversight and 
enforcement, the IHA should require all vessels to be equipped with and 
using a Class A Automatic Identification System (AIS) device at all 
times while on the water.
    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 (83 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 Kitty Hawk Wind, with the potential for 
both Level A and Level B harassment take. Given the small 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.
    The large majority of HRG vessels used by Kitty Hawk Wind have AIS 
onboard. There are some instances in which small vessels (approximately 
10 m (33 feet (ft) or smaller) are used in shallow water and these may 
or may not have an AIS installed. These small vessels would primarily 
work in the inshore sounds and very shallow coastal waters where the 
larger vessels cannot access. NMFS does not agree it is necessary to 
install AIS on these small vessels.
    Comment 8: Oceana recommended the IHA must require all vessels 
associated with the project, at all phases of development, follow the 
vessel plan and rules regardless of ownership, operator, contract and 
that developers are explicitly liable for behavior of all employees, 
contractors, subcontractors, consultants, and associated vessels and 
machinery.
    Response: The conditions in the IHA are relevant to all vessels and 
personnel participating in Kitty Hawk Wind's survey activities for the 
time period that the IHA is effective.
    Comment 8: Oceana asserts that the IHA should include a requirement 
for all phases of the 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. They also recommend all reports and data be accessible on a 
publicly available website.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA calls for IHAs to incorporate reporting requirements. The proposed 
IHA and issued IHA include requirements for reporting that support 
Oceana's recommendations. Kitty Hawk Wind 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 both visual and passive acoustic 
monitoring, estimates the number of marine mammals that may have been 
taken during survey activities, 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. We note acoustic detections will not be reported as 
no passive acoustic monitoring is required in the IHA (see response to 
Comment 10).
    Further, the IHA stipulates that if a NARW is observed at any time 
by any project vessels, during surveys or during vessel transit, Kitty 
Hawk Wind must immediately report sighting information to the NMFS NARW 
Sighting Advisory System and to the U.S. Coast Guard, and that any 
discoveries of injured or dead marine mammals be reported by Kitty Hawk 
Wind to the Office of Protected Resources, NMFS, and to the Southeast 
Regional Stranding Coordinator as soon as feasible. All reports and 
associated data submitted to NMFS are included available for public 
inspection at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    Comment 9: Oceana recommended the IHA include requirements to use 
effective reactive restrictions that are triggered by detection of 
protected species by visual, acoustic, or other means before or during 
site characterization activities. Specifically, they suggested 
requiring a 1,000 m clearance zone and shutdown zone for NARWs with 
immediate notification to NMFS if this measure is triggered. Oceana did 
not provide reasoning for this zone size.
    NMFS Response: NMFS disagrees with this recommendation. The 500-m 
clearance and shutdown zones for NARWs exceeds the modeled distance to 
the largest 160-dB Level B harassment isopleth distance at highest 
power (445 m). Given that calculated Level B harassment isopleths are 
likely conservative, and NMFS considers impacts from HRG survey 
activities to be near de minimis, the 500-m clearance

[[Page 25457]]

and shutdown zones is sufficiently protective to effect the least 
practicable adverse impact on NARWs. The issued IHA maintains the 500-m 
clearance and shutdown zone requirement, as contained within the 
proposed IHA. In addition, the IHA requires Kitty Hawk Wind to ramp-up 
sources prior to operating at full power when sources allow for such an 
action (sources with binary on/off switches cannot be ramped-up).
    Comment 10: Oceana recommended Kitty Hawk Wind use passive acoustic 
monitoring (PAM) to aid in NARW detection and trigger mitigation 
measures such as shutdowns.
    NMFS Response: There are several reasons why we do not agree that 
use of PAM is warranted for Kitty Hawk Wind's 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 the proposed HRG survey activities is limited. Oceana's 
recommendation involves extremely costly and time consuming (i.e., 
impracticable) monitoring and mitigation measures that are not 
warranted based on the best available science indicating extremely low 
densities of NARWs during the effective period of the IHA and the 
extremely small harassment zones which would likely not meaningfully 
enhance detection, and the practical limitations of identifying precise 
locations of whales to trigger mitigation at such close distances to 
the vessel. We explain below, in detail, why PAM is not warranted for 
this survey.
    It is generally well-accepted that using towed passive acoustic 
sensors 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 
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 Kitty Hawk Wind's survey activities. 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 ensonified above the Level B 
harassment threshold is relatively small (a maximum of 445 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, alone 
and without a corresponding visual detection, 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 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.

Changes From the Proposed IHA to Final IHA

    In their application, Kitty Hawk Wind indicated they would start 
the proposed surveys in April 2022 with the goal of completing them 
prior to November 1, 2022. In the notice of proposed IHA, NMFS noted 
this survey schedule would reduce impacts to NARWs given their 
migratory patterns although we did not propose a mitigation measure 
that the surveys must be completed by November and the take estimates 
we calculated assuming year-round surveys. Since that time, Kitty Hawk 
has informed NMFS that due to unforeseen changes in the schedule, the 
surveys are now scheduled to start in August 2022 and surveys are 
likely to run through the winter. The schedule change does not impact 
take estimates for NARWs (n=2) or for any other marine mammal nor does 
this change our findings given the impacts from these types of surveys 
are already minimal and the authorized take of NARWs in only 2.
    Since publication of the notice of proposed IHA, NMFS has 
acknowledged that the population estimate of NARWs in 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 Kitty Hawk 
Wind's survey activities. The status and trends of the NARW population 
remain unchanged.

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. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. 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.,

[[Page 25458]]

physical and behavioral descriptions) may be found on NMFS's website 
(https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks that may occur within the 
survey area and summarizes information related to the population or 
stock, including regulatory status under the MMPA and Endangered 
Species Act (ESA) and potential biological removal (PBR), where known. 
For taxonomy, we follow Committee on Taxonomy (2021). PBR is defined by 
the MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS's SARs). While no serious injury or 
mortality is anticipated or issued, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates. For some species, this geographic 
area may extend beyond U.S. waters. All managed stocks in this region 
are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., 
Hayes et al., 2019, 2020). All values presented in Table 3 are the most 
recent available at the time of publication and are available in the 
draft 2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                              Table 3--Species Likely Impacted by the Specified 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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western North Atlantic.  E/D; Y              368 (-; 356; 2020) \4\        0.8       18.6
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0; 1,375; 2016)         22         58
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.02; 3,098;           6.2        1.2
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -/-; N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.                                                        2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Ziphiidae:
    Cuvier's beaked Whale...........  Ziphius cavirostris....  Western North Atlantic.  -/-; N              5,744 (0.36, 4,282,            43        0.2
                                                                                                             2016).
    Blainville's beaked Whale.......  Mesoplodon densirostris  Western North Atlantic.  -/-; N              10,107 (0.27, 8,085,           81          0
                                                                                                             2016).
    True's beaked whale.............  Mesoplodon mirus.......  Western North Atlantic.  -/-; N              81....................          0
    Gervais' beaked whale...........  Mesoplodon europaeus...  Western North Atlantic.  -/-; N              81....................          0
    Sowerby's beaked whale..........  Mesoplodon bidens......  Western North Atlantic.  -/-; N              81....................          0
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -/-; N              39,215 (0.30; 30,627;         306         21
                                                                                                             See SAR).
    Short finned pilot whale........  Globicephala             Western North Atlantic.  -/-;Y               28,924 (0.24; 23,637;         236        160
                                       macrorhynchus.                                                        2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -/-; N              62,851 (0.23; 51,914,         519         28
                                                                Offshore.                                    2016).
                                                               W.N.A. Southern          -/-;Y               6,639 (0.41, 4,759,            48  12.2-21.5
                                                                Migratory Coastal.                           2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -/-; N              172,947 (0.21;              1,452        399
                                                                                                             145,216; 2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -/-; N              39,921 (0.27; 32,032;         320          0
                                                                                                             2012).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -/-; N              35,493 (0.19; 30,289;         303       54.3
                                                                                                             2016).
    Rough-toothed dolphin...........  Steno bredanensis......  Western North Atlantic.  -/-; N              136 (1; 67; 2016).....          0        0.7
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality 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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused M/SI plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated
  with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species webpage to recognize the population estimate for NARWs is now
  below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).

    As indicated above, all 17 species (with 18 managed stocks) in 
Table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. In addition to what is 
included in Sections 3 and 4 of the application, the SARs, and NMFS' 
website, further detail informing the baseline for select species 
(i.e., information regarding current Unusual Mortality Events (UME) and 
important habitat areas) was provided in the notice of proposed IHA (87 
FR 7139; February 8, 2022) and is not repeated here. No new information 
is available since publication of that notice.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to

[[Page 25459]]

anthropogenic sound can have deleterious effects. To appropriately 
assess the potential effects of exposure to sound, it is necessary to 
understand the frequency ranges marine mammals are able to hear. 
Current data indicate that not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007) recommended that marine mammals be divided into functional 
hearing groups based on directly measured or estimated hearing ranges 
on the basis of available behavioral response data, audiograms derived 
using auditory evoked potential techniques, anatomical modeling, and 
other data. Note that no direct measurements of hearing ability have 
been successfully completed for mysticetes (i.e., low-frequency 
cetaceans). Subsequently, NMFS (2018) described generalized hearing 
ranges for these marine mammal hearing groups. Generalized hearing 
ranges were chosen based on the approximately 65 dB threshold from the 
normalized composite audiograms, with the exception for lower limits 
for low-frequency cetaceans where the lower bound was deemed to be 
biologically implausible and the lower bound from Southall et al. 
(2007) retained. Marine mammal hearing groups and their associated 
hearing ranges are provided in Table 4.

                  Table 4--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

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 7139; February 8, 2022) included a discussion of 
the effects of anthropogenic noise on marine mammals and their habitat, 
therefore that information is not repeated here; please refer to the 
Federal Register notice (87 FR 7139; February 8, 2022) for that 
information.

Estimated Take

    This section provides the process by which the estimated takes were 
devised and the number of incidental takes NMFS authorized in the IHA, 
which informs both NMFS' consideration of ``small numbers'' and the 
negligible impact determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor authorized. Consideration of 
the anticipated effectiveness of the mitigation measures (i.e., 
exclusion zones and shutdown measures), discussed in detail below in 
the Mitigation section, further strengthens the conclusion that Level A 
harassment is not a reasonably anticipated outcome of the survey 
activity. As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the

[[Page 25460]]

source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007, Ellison et al., 2012). Based on what 
the available science indicates and the practical need to use a 
threshold based on a factor that is both predictable and measurable for 
most activities, NMFS uses a generalized acoustic threshold based on 
received level to estimate the onset of behavioral harassment. NMFS 
predicts that marine mammals are likely to be behaviorally harassed in 
a manner we consider Level B harassment when exposed to underwater 
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms) 
for the impulsive sources (i.e., sparkers and boomers) evaluated here 
for Kitty Hawk Wind's proposed activity.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). For more 
information, see NMFS' 2018 Technical Guidance, which may be accessed 
at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Kitty Hawk Wind's proposed activity includes the use of impulsive 
sources. However, as discussed above, NMFS has concluded that Level A 
harassment is not a reasonably likely outcome for marine mammals 
exposed to noise through use of the sources proposed for use here, and 
the potential for Level A harassment is not evaluated further in this 
document. Please see Kitty Hawk Wind's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated Level A harassment exposures. Kitty 
Hawk Wind did not request authorization of take by Level A harassment, 
and no take by Level A harassment is authorized.

Ensonified Area

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

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

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

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) 
represent the best available information regarding marine mammal 
densities in the survey area. The density data presented by Roberts et 
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates 
data from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at https://seamap.env.duke.edu/models/Duke/EC/. 
Marine mammal density estimates in the survey area (animals/km\2\) were 
obtained using the most recent model results for all taxa (Roberts et 
al., 2016, 2017, 2018, 2020). The updated models incorporate additional 
sighting data, including sightings from NOAA's Atlantic Marine 
Assessment Program for Protected Species (AMAPPS) surveys.
    Monthly density grids (e.g., rasters) for each species were 
overlain with the Survey Area and values from all grid cells that 
overlapped the Survey Area were averaged to determine monthly mean 
density values for each species. Monthly mean density values within the 
Survey Area were averaged by season (Winter (December, January, 
February), Spring (March, April, May), Summer

[[Page 25461]]

(June, July, August), Fall (September, October, November)) to provide 
seasonal density estimates. Within each survey segment (WDA and 
offshore export cable corridor), the highest seasonal density estimates 
during the duration of the survey were used to estimate take.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    For most species, the amount of take authorized is equal to the 
calculated take amount resulting from the following equation: D x ZOI x 
d where d equals the number of days each source is dominant (i.e., 47 
days for the sparker and 226 days for the boomer). We note the 
densities provided in Table 5 represent the number of animals/100 km; 
therefore, the density is normalized to 1 km in the equation. However, 
for some species, this equation does not reflect those species that can 
travel in large groups--an important parameter to consider that is not 
captured by density values. The equation also does not capture the 
propensity of some delphinid species to be attracted to the vessel and 
bowride. Therefore, to account for these real-world situations, the 
authorized take is a product of group size. For large groups of spotted 
and common dolphins knowing their affinity for bow riding (and 
therefore coming very close to the vessel), Kitty Hawk Wind assumed one 
group could be taken each day of sparker and/or boomer operations 
(273). Based on marine mammal sighting data collected during previous 
survey efforts, as described in Avangrid's previous monitoring report, 
Kitty Hawk Wind assumes an average group size for spotted dolphins is 
16 in the survey area. For common dolphins, the overall average 
reported group size was 4 in all survey areas but the average group 
size during prior geotechnical surveys was 17 individuals. For Risso's 
dolphin and pilot whales, average group size for these species are 25 
and 20, respectively (Reeves et al. 2002).
    For bottlenose dolphin densities, Roberts et al. (2016a, 2016b, 
2017, 2018, 2020) does not differentiate by individual stock. The WDA 
is located within depths exceeding 20 m. Therefore, given the southern 
coastal migratory stock propensity to be found shallower than the 20 m 
depth isobath north of Cape Hatteras (Reeves et al., 2002; Waring et 
al., 2016), take of the southern coastal migratory stock would be 
unlikely. Therefore, all work in the WDA was allocated to the offshore 
stock.
    Table 6 provides the total amount of take authorized in the IHA. 
For details of take per survey segment, please see Table 8 in Kitty 
Hawk's application.

                                Table 6--Marine Mammal Density and Take Estimates
----------------------------------------------------------------------------------------------------------------
                                                                    Calculated      Authorized      Percent of
                Species                           Stock                take            take         population
----------------------------------------------------------------------------------------------------------------
N Atlantic right whale................  Western North Atlantic..               2               2              <1
Humpback whale........................  Gulf of Maine...........              15              15              <1
Fin whale.............................  Western North Atlantic..              18              18              <1
Sei whale.............................  Western North Atlantic..               1               1  ..............
Minke whale...........................  Canadian East Coast.....              22              22              <1
Pilot whales..........................  Western North Atlantic..              32              32              <1
Cuvier's Beaked Whale.................  Western North Atlantic..               5               5              <1
Mesoplodon spp \1\....................  Western North Atlantic..               3               3              <1
Bottlenose dolphin....................  Western North Atlantic,              823             823              <1
                                         offshore,.
                                        Western North Atlantic               226             226             6.0
                                         southern migratory
                                         coastal.
Common dolphin \a\....................  Western North Atlantic..             365           9,282             5.3
Atlantic spotted dolphin \a\..........  Western North Atlantic..             418            8736              <1
Risso's dolphin \a\...................  Western North Atlantic..               8              25              <1
Rough-toothed dolphin \a\.............  Western North Atlantic..               1              20            14.7
Harbor porpoise.......................  Gulf of Maine/Bay of                  39              39              <1
                                         Fundy.
----------------------------------------------------------------------------------------------------------------
\1\ Mesoplodon spp represent Blainsville beaked whales (Mesoplodon densirostris), True's beaked whales
  (Mesoplodon europaeus), and/or Sowerby's beaked whales (Mesoplodon bidens).
\2\ Multiplier applied to increase calculated take to account for two large group size, an average pod size of
  16 individuals encountered in Survey Area (Milne 2019, 2021) has been included for spotted dolphin and 17
  individuals have also been included for common dolphin (Milne 2019, 2021). Pod size adjustments of 25 and 20
  individuals (average pod size from Reeves et al. [2002]) have been included for Risso's and rough-toothed
  dolphins, respectively.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.

[[Page 25462]]

Mitigation for Marine Mammals and Their Habitat

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

Pre-Clearance of the Shutdown Zones

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

Ramp-Up

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

Marine Mammal Shutdown Zones

    An immediate shutdown of a sparker or boomer is required if a 
marine mammal is sighted entering or within its respective exclusion 
zone. The vessel operator must comply immediately with any call for 
shutdown by the Lead PSO. Any disagreement between the Lead PSO and 
vessel operator should be discussed only after shutdown has occurred. 
Subsequent restart of the survey equipment can be initiated if the 
animal has been observed exiting its respective exclusion zone or 30 
minutes has passed without subsequent detection of a large whale or 15 
minutes for a smaller cetacean or seal. Table 6 provides the required 
shutdown zones.

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

Shutdown Procedures

    The vessel operator must comply immediately with any call for 
shutdown by the Lead PSO. Any disagreement between the Lead PSO and 
vessel operator should be discussed only after shutdown has occurred. 
Subsequent restart of the survey equipment can be initiated if the 
animal has been observed exiting its respective shutdown zone or the 
relevant time period has lapsed without re-detection (15 minutes for 
small odontocetes and seals, and 30 minutes for all other species).
    The shutdown requirement is waived for small delphinids of the 
following genera: Delphinus, Stenella (frontalis only), and Tursiops. 
Furthermore, if there is uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which shutdown is waived), 
PSOs must use best professional judgement in making the decision to 
call for a shutdown. Additionally, shutdown is required if a delphinid 
detected in the exclusion zone and belongs to a genus other than those 
specified.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again only if the PSOs have maintained constant 
observation and the shutdown zone is clear of marine mammals. If the 
source is turned off for more than 30 minutes, it may only be restarted 
after PSOs have cleared the shutdown zones for 30 minutes.
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (445 m), shutdown is required.

Vessel Strike Avoidance

    Kitty Hawk Wind will ensure that vessel operators and crew maintain 
a vigilant watch for marine mammals and slow down or stop their vessels 
to avoid striking these species. All personnel responsible for 
navigation and marine mammal observation duties will receive site-
specific training on marine mammals sighting/reporting and vessel 
strike avoidance measures. Vessel strike avoidance measures would 
include the following, except under circumstances when complying with 
these requirements would put the safety of the vessel or crew at risk:
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated below). Visual observers 
monitoring the vessel strike avoidance zone may be third-party 
observers (i.e., PSOs) or crew members, but crew members responsible 
for these duties must be provided sufficient training to (1) 
distinguish protected species from other phenomena and (2) broadly to 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal;

[[Page 25463]]

     All vessel operators will monitor the NARW Reporting 
Systems (e.g., the Early Warning System, Sighting Advisory System, and 
Mandatory Ship Reporting System) daily throughout the entire survey 
period for the presence of NARWs during activities conducted in support 
of plan submittal;
     All vessel operators will comply with the 10 knot (18.5 
km/hr) or less speed restrictions when operating in any SMA from 
November 1 through April 30;
     All vessels, regardless of size, must observe a 10-knot 
speed restriction in a NARW DMA;
     All survey vessels will maintain a separation distance of 
500 m or greater from any sighted NARW or other ESA-listed whale;
     If underway, vessels must steer a course away from any 
sighted NARW at 10 kn (18.5 km/hr) or less until the 500 m minimum 
separation distance has been established. If a NARW is sighted in a 
vessel's path, or within 100 m to an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Engines will 
not be engaged until the NARW has moved outside of the vessel's path 
and beyond 100 m. If stationary, the vessel must not engage engines 
until the NARW has moved beyond 100 m;
     All vessels will maintain a separation distance of 100 m 
or greater from any sighted non-delphinid cetacean. If sighted, the 
vessel underway must reduce speed and shift the engine to neutral, and 
must not engage the engines until the non-delphinid cetacean has moved 
outside of the vessel's path and beyond 100 m. If a survey vessel is 
stationary, the vessel will not engage engines until the non-delphinid 
cetacean has moved out of the vessel's path and beyond 100 m;
     All vessel operators will comply with 10 knot (18.5 km/hr) 
or less speed restrictions when mother/calf pairs, pods, or large 
assemblages of non-delphinid cetaceans are observed near an underway 
vessel;
     All vessels will maintain a separation distance of 50 m or 
greater from any sighted delphinid cetacean and pinniped. Any vessel 
underway will remain parallel to a sighted delphinid cetacean or 
pinniped's course whenever possible and avoid excessive speed or abrupt 
changes in direction. Any vessel underway reduces vessel speed to 10 kn 
(18.5 km/hr) or less when pods (including mother/calf pairs) or large 
assemblages of delphinid cetaceans are observed. Vessels may not adjust 
course and speed until the delphinid cetaceans have moved beyond 50 m 
and/or the abeam of the underway vessel;
     All vessels underway will not divert or alter course in 
order to approach any marine mammal. Any vessel underway will avoid 
excessive speed or abrupt changes in direction to avoid injury to the 
sighted cetacean or pinniped;
     All vessels must reduce their speed to 10 kn or less when 
mother/calf pairs, pods, or large assemblages of cetaceans are observed 
near a vessel underway;
     All vessels must maintain a minimum separation distance of 
500 m from right whales. If a whale is observed but cannot be confirmed 
as a species other than a right whale, the vessel operator must assume 
that it is a right whale and take appropriate action;
     All vessels must maintain a minimum separation distance of 
100 m from or greater from any sighted non-delphinid cetacean;
     All vessels shall attempt to maintain a separation 
distance of 50 m or greater from any sighted delphinid cetacean and 
pinniped, with an understanding that at times this may not be possible 
(e.g., for animals that approach the vessel); and
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
    These requirements do not apply in any case where compliance would 
create an imminent and serious threat to a person or vessel or to the 
extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. Prior to implementation with 
vessel crews, the training program will be provided to NMFS for review 
and approval. Confirmation of the training and understanding of the 
requirements will be documented on a training course log sheet. Signing 
the log sheet will certify that the crew member understands and will 
comply with the necessary requirements throughout the survey 
activities. In addition to the aforementioned measures, Kitty Hawk will 
abide by all marine mammal relevant conditions in the Greater Atlantic 
Regional Office's (GARFO) informal programmatic consultation, dated 
June 29, 2021 (revised September 2021), pursuant to section 7 of the 
ESA. These include the relevant best management practices of project 
design criteria (PDCs) 4, 5, and 7.
    Based on our evaluation of the measures contained within the IHA, 
NMFS has determined that the mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

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

[[Page 25464]]

cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Kitty Hawk Wind would 
employ independent, dedicated, trained PSOs, meaning that the PSOs must 
(1) be employed by a third-party observer provider, (2) have no tasks 
other than to conduct observational effort, collect data, and 
communicate with and instruct relevant vessel crew with regard to the 
presence of marine mammals and mitigation requirements (including brief 
alerts regarding maritime hazards), and (3) have successfully completed 
an approved PSO training course appropriate for their designated task.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established exclusion zones 
during survey activities. It will be the responsibility of the Lead PSO 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) would ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and would conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least 2 hours between 
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying 
concurrently, any observations of marine mammals would be communicated 
to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 3 
or less), to the maximum extent practicable, PSOs would also conduct 
observations when the acoustic source is not operating for comparison 
of sighting rates and behavior with and without use of the active 
acoustic sources. Any observations of marine mammals by crew members 
aboard any vessel associated with the survey would be relayed to the 
PSO team.
    Data on all PSO observations would be recorded based on standard 
PSO collection requirements. This would include dates, times, and 
locations of survey operations; dates and times of observations, 
location and weather; details of marine mammal sightings (e.g., 
species, numbers, behavior); and details of any observed marine mammal 
behavior that occurs (e.g., noted behavioral disturbances).

Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a final technical report will be 
provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys (including what type of mitigation and the species and number 
of animals that prompted the mitigation action, when known), and 
provides an interpretation of the results and effectiveness of all 
mitigation and monitoring. Any recommendations made by NMFS must be 
addressed in the final report prior to acceptance by NMFS. All draft 
and final marine mammal and acoustic monitoring reports must be 
submitted to [email protected] and [email protected]. 
The report must contain at minimum, the following:
     PSO names and affiliations;
     Dates of departures and returns to port with port name;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions);
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);

[[Page 25465]]

     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other);
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a NARW is observed at any time by PSOs or personnel on any 
project vessels, during surveys or during vessel transit, Kitty Hawk 
Wind must immediately report sighting information to the NMFS NARW 
Sighting Advisory System: (866) 755-6622. NARW sightings in any 
location must also be reported to the U.S. Coast Guard via channel 16.
    In the event that Kitty Hawk Wind personnel discover an injured or 
dead marine mammal, Kitty Hawk Wind would report the incident to the 
NMFS Office of Protected Resources (OPR) and the NMFS Southeast Marine 
Mammal Stranding Network (1-877-942-5343) if the sighting is in North 
Carolina or the Northeast Stranding Network (1-866-755-6622) if the 
sighting is in Virginia as soon as feasible. The report would include 
the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Kitty Hawk 
Wind would report the incident to the NMFS OPR and the NMFS Southeast 
Marine Mammal Stranding Network (1-877-942-5343) if the sighting is in 
North Carolina or the Northeast Stranding Network (1-866-755-6622) if 
the sighting is in Virginia as soon as feasible but within 24 hours. 
The report would include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     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 impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), 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' 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 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 and serious injury, or ambient noise 
levels).
    To avoid repetition, the majority of our analysis applies to the 
species listed in Table 6, given that many of the anticipated effects 
of the survey to be similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of the 
authorized take on the population due to differences in population 
status, or impacts on habitat, they are included in a separate sub-
section. For all species, NMFS does not anticipate that mortality, 
serious injury, or injury would occur as a result from HRG surveys, 
even in the absence of mitigation, and no serious injury or mortality 
is authorized.
    As discussed in the Potential Effects of Specified Activities on 
Marine Mammals and their Habitat section above, non-auditory physical 
effects and vessel strike are not expected to occur. NMFS expects that 
all potential takes would be in the form of short-term Level B 
behavioral harassment in the form of temporary avoidance of the area or 
decreased foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007). Even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole. As described above, Level A harassment is not 
expected to occur given the nature of the operations, the estimated 
size of the Level A harassment zones, and the required shutdown zones 
for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel from sparker use is 445 m and 13 m from 
boomer use. The ensonified area surrounding each vessel is relatively 
small compared to the overall distribution of the animals in

[[Page 25466]]

the area and their use of the habitat. Feeding behavior is not likely 
to be significantly impacted as the impacts of the surveys are limited 
to very small areas around each vessel, prey species are mobile and are 
broadly distributed throughout the survey area; therefore, marine 
mammals that may be temporarily displaced during survey activities are 
expected to be able to resume foraging once they have moved away from 
areas with disturbing levels of underwater noise. Because of the 
temporary nature of the disturbance and the availability of similar 
habitat and resources in the surrounding area, the impacts to marine 
mammals and the food sources that they utilize are not expected to 
cause significant or long-term consequences for individual marine 
mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the survey area and 
there are no feeding areas known to be biologically important to marine 
mammals within the survey area. There is no designated critical habitat 
for any ESA-listed marine mammals in the survey area.

North Atlantic Right Whales

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As discussed in the notice of 
proposed IHA (87 FR 7139; February 8, 2022), 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, the survey area overlaps a migratory corridor BIA 
for NARWs. Due to the fact that the survey activities are temporary and 
the spatial extent of sound produced by the survey will be very small 
relative to the spatial extent of the available migratory habitat in 
the BIA, right whale migration is not expected to be impacted by the 
survey. Given the relatively small size of the ensonified area, it is 
unlikely that prey availability would be adversely affected by Kitty 
Hawk Wind's proposed survey operations. Required vessel strike 
avoidance measures would also decrease risk of ship strike during 
migration; no ship strike is expected to occur during Kitty Hawk Wind's 
proposed activities. Additionally, only very limited take by Level B 
harassment of NARWs has been authorized by NMFS and we anticipate a 
very low level of harassment, should it occur, because Kitty Hawk Wind 
would be required to maintain a shutdown zone of 500 m if a NARW is 
observed. The authorized take accounts for any missed animals wherein 
the survey equipment is not shutdown immediately. Because shutdown 
would occur immediately upon detection (if the whale is within 500 m), 
it is likely the exposure time would be very limited and received 
levels would not be much above harassment thresholds. Further, the 500 
m shutdown zone for right whales is conservative, considering the Level 
B harassment isopleth for the most impactful acoustic source (i.e., 
sparker- which may not be used on all survey days) is estimated to be 
445 m, and thereby minimizes the potential for behavioral harassment of 
this species. As noted previously, Level A harassment is not expected 
due to the characteristics of the signals produced by the acoustic 
sources planned for use; this finding is further enforced by the 
proposed mitigation measures. NMFS does not anticipate NARW takes that 
would result from Kitty Hawk Wind's activities would impact annual 
rates of recruitment or survival. Thus, any takes that occur will not 
result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As discussed above, there are several active UMEs occurring in the 
vicinity of Kitty Hawk Wind's survey area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    The mitigation measures are expected to reduce the number and/or 
severity of takes for all species listed in Table 6, including those 
with active UMEs, to the level of least practicable adverse impact. In 
particular they would provide animals the opportunity to move away from 
the sound source throughout the survey area before HRG survey equipment 
reaches full energy, thus preventing them from being exposed to sound 
levels that have the potential to cause injury (Level A harassment) or 
more severe Level B harassment. No Level A harassment is anticipated, 
even in the absence of mitigation measures, or authorized.
    NMFS expects that takes will be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals will only be exposed briefly to a small ensonified area that 
might result in take. Additionally, the mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors support 
our determination that the impacts resulting from this activity are not 
expected to adversely affect the species or stock through effects on 
annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be 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 will occur in such a comparatively small 
area such that any avoidance of the survey area due to activities will 
not affect migration. In addition, the requirement to shut down at 500 
m to minimize potential for Level B behavioral harassment would limit 
the effects of the action on migratory behavior of the species; and
     The mitigation measures, including visual monitoring and 
shutdowns, are expected to minimize potential impacts to marine 
mammals.

[[Page 25467]]

    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities. For this IHA, take of 
all species or stocks is below one third of the estimated stock 
abundance (in fact, take of individuals is less than 7 percent of the 
abundance for all affected stocks).
    Based on the analysis contained herein of the proposed activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
would 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 1973 (ESA; 16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS is authorizing take, by Level B harassment only, of NARWs, fin 
whales, and sei whales which are listed under the ESA. On June 29, 2021 
(revised September 2021), GARFO completed an informal programmatic 
consultation on the effects of certain site assessment and site 
characterization activities to be carried out to support the siting of 
offshore wind energy development projects off the U.S. Atlantic coast. 
Part of the activities considered in the consultation are geophysical 
surveys such as those proposed by Kitty Hawk Wind and for which we are 
proposing to authorize take. GARFO concluded site assessment surveys 
are not likely to adversely affect endangered species or adversely 
modify or destroy critical habitat. NMFS has determined issuance of the 
IHA is covered under the programmatic consultation; therefore, ESA 
consultation has been satisfied.

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 
Kitty Hawk Wind for conducting marine site characterization surveys off 
the coast of North Carolina and Virginia, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated. The final IHA and supporting documents can be found at 
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

    Dated: April 25, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-09186 Filed 4-28-22; 8:45 am]
BILLING CODE 3510-22-P