[Federal Register Volume 87, Number 98 (Friday, May 20, 2022)]
[Notices]
[Pages 30872-30890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10928]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC010]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys 
Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC

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

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

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SUMMARY: NMFS has received a request from Vineyard Northeast, LLC 
(Vineyard Northeast) for authorization to take marine mammals 
incidental to marine site characterization surveys offshore from 
Massachusetts to New Jersey, including the area of Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas) 
and potential offshore export cable corridor (OECC) routes to landfall 
locations. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an incidental harassment 
authorization (IHA) to incidentally take marine mammals during the 
specified activities. NMFS is also requesting comments on a possible 
one-time, one-year renewal that could be issued under certain 
circumstances and if all requirements are met, as described in Request 
for Public Comments at the end of this notice. NMFS will consider 
public comments prior to making any final decision on the issuance of 
the requested MMPA authorizations and agency responses will be 
summarized in the final notice of our decision.

DATES: Comments and information must be received no later than June 21, 
2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25 megabyte file size. All comments received are a part of 
the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable without change. 
All personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected 
Resources, NMFS, (301) 427-8421. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: www.fisheries.noaa.gov/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

[[Page 30873]]

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.

National Environmental Policy Act

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

Summary of Request

    On December 17, 2021, NMFS received a request from Vineyard 
Northeast for an IHA to take marine mammals incidental to marine site 
characterization surveys offshore from Massachusetts to New Jersey, in 
the area of Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and 
OCS-A 0544 (Lease Areas) and potential offshore export cable corridor 
(OECC) routes to landfall locations. Following NMFS' review of the 
draft application, a revised version was submitted on February 15, 
2022, and again on April 4, 2022. The April 4, 2022, revised version 
was deemed adequate and complete on April 18, 2022. Vineyard 
Northeast's request is for take of 19 species (with 20 managed stocks) 
of marine mammals, by Level B harassment only. Neither Vineyard 
Northeast nor NMFS expects serious injury or mortality to result from 
this activity and, therefore, and IHA is appropriate.
    NMFS previously issued an IHA (85 FR 42357; July 14, 2020) and a 
renewal of that IHA (86 FR 38296; July 20, 2021) to Vineyard Wind, LLC 
(Vineyard Wind) for similar marine site characterization surveys. 
Vineyard Wind has split into several corporate entities which now 
include Vineyard Wind, Vineyard Wind 1, LLC (Vineyard Wind 1), and 
Vineyard Northeast. NMFS issued an IHA for similar surveys to Vineyard 
Wind 1 on July 28, 2021 (86 FR 40469). Although the surveys analyzed in 
this proposed IHA to Vineyard Northeast would occur in an area that 
overlaps with a portion of the project areas included in the previous 
Vineyard Wind IHA and Renewal IHA, and Vineyard Wind 1 IHA (and 
potentially a renewal, if appropriate), this proposed IHA would be 
issued to a separate corporate entity (Vineyard Northeast). The 
proposed IHA would be effective June 22, 2022, through June 21, 2023.

Description of Proposed Activity

Overview

    As part of its overall marine site characterization survey 
operations, Vineyard Northeast proposes to conduct high-resolution 
geophysical (HRG) surveys in the Lease Areas and along potential OECC's 
from northern Massachusetts to southern New Jersey. (Figure 1)
    The purpose of the marine site characterization surveys is to 
obtain an assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of planned offshore wind facility development areas. Surveys 
are also conducted to inform and support engineering design and to map 
unexploded ordnance. Underwater sound resulting from Vineyard 
Northeast's proposed site characterization survey activities, 
specifically HRG surveys, has the potential to result in incidental 
take of marine mammals in the form of behavioral harassment.

Dates and Duration

    Vineyard Northeast anticipates that HRG survey activities would 
occur on approximately 869 vessel days, with an assumed daily survey 
distance of 80 km per vessel. This schedule is based on assumed 24-hour 
operations. Each day that a vessel surveys approximately 80 km within 
24 hours would count as a single survey day, e.g., two survey vessels 
operating on the same day would count as two survey days. The use of 
concurrently surveying vessels would facilitate completion of all 869 
vessel days within one year. Vineyard Northeast proposes to begin 
survey activities upon receipt of an IHA and continue for up to one 
year (though the actual duration will likely be shorter, particularly 
given the use of multiple vessels). The IHA would be effective for one 
year from the date of issuance.

Specific Geographic Region

    Vineyard Northeast's proposed HRG survey activities are planned to 
occur in both Federal offshore waters (including Lease Areas OCS-A 0522 
and OCS-A 0544) and along potential OECCs in both Federal and State 
nearshore waters of Massachusetts, Rhode Island, Connecticut, New York, 
and New Jersey, as shown in Figure 1. The 536 square kilometer (km\2\) 
(132,370 acre) Lease Area OCS-A 0522 is located approximately 24 
kilometers (km) (15 miles; mi) from the southeast corner of Martha's 
Vineyard, within the Massachusetts Wind Energy Area (WEA). The 174 
km\2\ (43,056 acre) Lease Area OCS-A 0544 is located approximately 38 
km (24 mi) from Long Island, New York, within BOEM's Mid-Atlantic 
planning area. Surveys outside of the Lease Areas would extend from 
northern Massachusetts to southern New Jersey, including the 
Massachusetts/Rhode Island WEA as well as the northern portion of the 
Mid-Atlantic planning area. Water depths across the proposed Survey 
Area range from approximately 35 to 60 meters (m) (115 to 197 feet 
[ft]) in the Lease Areas, and from 2.5 m to >35 m (8 to >115 ft) along 
the proposed OECCs.
BILLING CODE 3510-22-P

[[Page 30874]]

[GRAPHIC] [TIFF OMITTED] TN20MY22.000

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Vineyard Northeast proposes to conduct HRG survey operations, 
including single and multibeam depth sounding, seafloor imaging, and 
shallow and medium penetration sub-bottom profiling. The HRG surveys 
may be conducted using any or all of the following equipment types: 
Side scan sonar, multibeam echosounder, magnetometers and gradiometers, 
parametric sub-bottom profiler (SBP), compressed high intensity radar 
pulse (CHIRP) SBP, boomers, or sparkers. Vessels would generally 
conduct survey effort at a transit speed of approximately 4 knots (kn; 
2.1 meters per sec, m/s), which equates to 110 km per 24-hr period. 
However, based on past survey experience (i.e., knowledge of typical 
daily downtime due to weather, system malfunctions, etc.), Vineyard 
Northeast assumes 80 km as the average distance surveyed per 24 hours. 
On this basis (and as mentioned previously), a total of 869 survey days 
are expected. However, in nearshore waters (i.e., <30 m), vessels may 
survey during daylight hours only, with a corresponding assumption that 
the daily survey distance would be halved (i.e., 40 km). Approximately 
35 survey days (i.e., 70 12-hr survey days) are planned for nearshore 
(i.e., <30 m water depth) waters; surveys conducted on the remaining 
834 vessel days in waters >30 m will operate 24 hours per day.
    To facilitate completion of all 869 survey days across the large 
Survey Area (see Figure 1) within one year, Vineyard Northeast 
anticipates operating multiple vessels simultaneously (i.e., up to two 
in a Lease Area and up to two along OECC routes, including nearshore 
Survey Areas). The number of vessels operating at the same time may 
increase or decrease as the survey campaign progresses.
    Acoustic sources planned for use during the proposed HRG survey 
activities include the following (operating frequencies are presented 
in hertz (Hz) and kilohertz (kHz)):
     Shallow penetration non-impulsive, non-parametric sub-
bottom profilers (i.e., CHIRP SBPs) are used to map the near-surface 
stratigraphy (top 0 to 5 m [0 to 16 feet (ft)]) of sediment below 
seabed). A CHIRP system emits sonar pulses that increase in frequency 
from about 2 to 20 kHz over time. The frequency range can be adjusted 
to meet project variables. Rather than being towed, these sources are 
typically mounted on a pole or the hull of the vessel, reducing the 
likelihood that an animal would be exposed to the signal.
     Medium penetration, impulsive sources (i.e., boomers and 
sparker) are used to map deeper subsurface stratigraphy. A boomer is a 
broadband source operating in the 3.5 Hz to 10 kHz frequency range. 
Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 kHz 
that can penetrate several hundred meters into the seafloor. These 
sources are typically towed behind the vessel.
    Operation of the following survey equipment types is not expected 
to present reasonable risk of marine mammal take, and will not be 
discussed further beyond the brief summaries provided below.
     Non-impulsive, parametric SBPs are used for providing high 
density data in sub-bottom profiles that are typically required for 
cable routes, very shallow water, and archaeological surveys. These 
sources generate short, very narrow-beam (1[deg] to 3.5[deg]) signals 
at high frequencies (generally around 85-100 kHz). The narrow beamwidth

[[Page 30875]]

significantly reduces the potential that a marine mammal could be 
exposed to the signal, while the high frequency of operation means that 
the signal is rapidly attenuated in seawater. These sources are 
typically mounted on the hull of the vessel or deployed from a side 
pole rather than towed behind the vessel.
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by the vessel transceiver and a transponder 
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several 
transponders mounted on other survey equipment. USBLs are expected to 
produce extremely small acoustic propagation distances in their typical 
operating configuration.
     Single and Multibeam echosounders (MBESs) are used to 
determine water depths and general bottom topography. The proposed 
MBESs all have operating frequencies >180 kHz and are therefore outside 
the general hearing range of marine mammals.
     Side scan sonar (SSS) is used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The proposed SSSs all have operating 
frequencies >180 kHz and are therefore outside the general hearing 
range of marine mammals.
    Table 1 identifies all representative proposed survey equipment 
that has the potential to result in harassment of marine mammals (i.e., 
expected to operate at or below 180 kHz). The make and model of the 
listed geophysical equipment may vary depending on availability and the 
final equipment choices will vary depending upon the final survey 
design, vessel availability, and survey contractor selection. Please 
see Table A-3 in Appendix A of the IHA application for specifications 
on all active acoustic equipment with the potential for use during 
Vineyard Northeast's site characterization surveys.

                                                  Table 1--Summary of Representative HRG Equipment \1\
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                                                                                                                             In-beam source level (dB)
                         System                              Frequency      Beam width    Pulse duration    Repetition   -------------------------------
                                                               (kHz)          ([deg])          (ms)          rate (Hz)          RMS             Pk
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Shallow subbottom profiler (non-impulsive):
    EdgeTech Chirp 216..................................            2-16              65               2            3.75             178             182
Deep seismic profiler (impulsive):
    Applied Acoustics AA251 Boomer......................          0.2-15             180             0.8               2             205             212
    GeoMarine Geo Spark 2000 (400 tip)..................          0.05-3             180             3.4               1             203             213
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\1\ Edge Tech Chirp 512i used as proxy source for Edge Tech 216, as Chirp 512i has similar operation settings as Chirp 216. SIG ELC 820 Sparker used as
  proxy for GeoMarine Geo Spark 2000 (400 tip), as SIG ELC 820 has similar operation settings as Geo Spark 2000. See Crocker and Fratantonio (2016) and
  Table A-3 in Appendix A of Vineyard Northeast's application for more information.

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

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of Vineyard Northeast's application summarize 
available information regarding status and trends, distribution and 
habitat preferences, and behavior and life history, of the potentially 
affected species. Additional information regarding population trends 
and threats may be found in NMFS' Stock Assessment Reports (SARs; 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about 
these species (e.g., physical and behavioral descriptions) may be found 
on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, NMFS follows 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' SARs). While no 
mortality is anticipated or authorized here, PBR, and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represents the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic and Gulf of Mexico Stock Assessment (SARs). All 
values presented in Table 2 are the most recent available at the time 
of publication and are available in the Draft 2021 SARs (Hayes et al., 
2021), available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports).

[[Page 30876]]



               Table 2--Marine Mammals Likely To Occur in the Project Area That May Be Affected by Vineyard Northeast's Proposed Activity
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                                                                                         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\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Blue whale \4\......................  Balaenoptera musculus..  Western North Atlantic.  E/D, Y              402 (unk, 402; 2008...        0.8          0
North Atlantic right whale..........  Eubalaena glacialis....  Western North Atlantic.  E/D, Y              368 (0; 364; 2019)....        0.7        7.7
Humpback whale......................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,396 (0; 1,380; 2016)         22      12.15
Fin whale...........................  Balaenoptera physalus..  Western North Atlantic.  E/D, Y              6,802 (0.24; 5,573;            11        1.8
                                                                                                             2016).
Sei whale...........................  Balaenoptera borealis..  Nova Scotia............  E/D, Y              6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
Minke whale.........................  Balaenoptera             Canadian Eastern         -/-, N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.           Coastal.                                     2016).
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Sperm whale.........................  Physeter macrocephalus.  North Atlantic.........  E/D, Y              4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Long-finned pilot whale.............  Globicephala melas.....  Western North Atlantic.  -/-, N              39,215 (0.3; 30,627;          306         29
                                                                                                             2016).
Orca (killer whale) \4\.............  Orcinus Orca...........  Western North Atlantic.  -/-, N              unk (unk; unk; 2016)..        unk          0
False killer whale \4\..............  Pseudorca crassidens...  Western North Atlantic.  -/-, N              1,791 (0.56; 1,154;            12          0
                                                                                                             2016).
Atlantic spotted dolphin............  Stenella frontalis.....  Western North Atlantic.  -/-, N              39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
Atlantic white-sided dolphin........  Lagenorhynchus acutus..  Western North Atlantic.  -/-, N              93,233 (0.71; 54,443;         544        227
                                                                                                             2016).
Bottlenose dolphin..................  Tursiops truncatus.....  Western North Atlantic   -/D, Y              6,639 (0.41; 4,759;            48  12.2-21.5
                                                                Northern Migratory                           2016).
                                                                Coastal.
                                                               Western North Atlantic   -/-, N              62,851 (0.23; 51,914;         519         28
                                                                Offshore.                                    2016).
Common dolphin......................  Delphinus delphis......  Western North Atlantic.  -/-, N              172,974 (0.21,              1,452        390
                                                                                                             145,216, 2016).
Risso's dolphin.....................  Grampus griseus........  Western North Atlantic.  -/-, N              35,215 (0.19; 30,051;         301         34
                                                                                                             2016).
White-beaked dolphin \4\............  Lagenorhynchus           Western North Atlantic.  -/-, N              536,016 (0.31;              4,153          0
                                       albirostris.                                                          415,344; 2016).
Harbor porpoise.....................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-, N              95,543 (0.31; 74,034;         851        164
                                                                Fundy.                                       2016).
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                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.........................  Phoca vitulina.........  Western North Atlantic.  -/-, N              61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
Gray seal \5\.......................  Halichoerus grypus.....  Western North Atlantic.  -/-, N              27,300 (0.22; 22,785;       1,389      4,453
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ Rare (or not likely to occur) species.
\5\ NMFS' gray seal stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in
  Canada) is approximately 451,431. The annual mortality and serious injury (M/SI) value given is for the total stock.

    Table 2 includes 15 species (with 16 managed stocks) that 
temporally and spatially co-occur with the activity to the degree that 
take is reasonably likely to occur. Vineyard Northeast is also 
requesting take of four species that are considered rare (or not likely 
to occur) in the Survey Area (i.e., blue whale, killer whale, false 
killer whale, and white-beaked dolphin), based on recent detections 
(acoustic and/or visual) of those species in the Survey Area. In total, 
Vineyard Northeast is requesting take of 19 species (with 20 managed 
stocks). In addition to what is included in Sections 3 and 4 of the 
application, the SARS, and NMFS' website, further detail informing the 
baseline for select species (i.e., information regarding current 
Unusual Mortality Events (UME) and important habitat areas) is provided 
below.

North Atlantic Right Whale

    The North Atlantic right whale is considered one of the most 
critically endangered populations of large whales in the world and has 
been listed as a Federal endangered species since 1970. The Western 
Atlantic stock is considered depleted under the MMPA (Hayes et al. 
2021). There is a recovery plan (NOAA Fisheries 2017) for the North 
Atlantic right whale, and relatively recently there was a five-year 
review of the species (NOAA Fisheries 2017). The North Atlantic right 
whale had only a 2.8 percent recovery rate between 1990 and 2011 (Hayes 
et al. 2021).
    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017, along the U.S. and Canadian coast with the leading 
category for the cause of death for this UME determined to be ``human 
interaction,'' specifically from entanglements or vessel strikes. As of 
May X, 2022, a total of 34 confirmed dead stranded whales (21 in 
Canada; 13 in the United States) have been documented. The cumulative 
total number of animals in the North Atlantic right whale UME has been 
updated to 50 individuals to include both the confirmed mortalities 
(dead stranded or floaters) (n=34) and seriously injured free-swimming 
whales (n=16) to better

[[Page 30877]]

reflect the confirmed number of whales likely removed from the 
population during the UME, and more accurately reflect the population 
impacts. More information about this UME is available online at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    NMFS' regulations at 50 CFR part 224.105 designated nearshore 
waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal 
Management Areas (SMAs) for North Atlantic right whales in 2008. SMAs 
were developed to reduce the threat of collisions between ships and 
North Atlantic right whales around their migratory route and calving 
grounds. The Survey Area overlaps with the Cape Cod Bay (active between 
January 1 and May 15), Off Race Point (active between March 1 and April 
30), Great South Channel (active between April 1 and July 31), and Mid-
Atlantic Migratory (active between November 1 and April 30) SMAs.
    The proposed Survey Area also partially overlaps with previously 
identified North Atlantic right whale feeding Biologically Important 
Areas (BIAs) and part of the migratory corridor BIA for North Atlantic 
right whales (March-April and November-December) that extends from the 
coast to the continental shelf break, and from Massachusetts to Florida 
(LeBrecque et al., 2015). A map showing designated BIAs is available 
at: https://cetsound.noaa.gov/biologically-important-area-map. In 
addition to currently designated feeding BIAs, Oleson et al. (2020) 
identified the area south of Martha's Vineyard and Nantucket, referred 
to as ``South of the Islands,'' as a newer, year-round, core North 
Atlantic right whale foraging habitat. The South of the Islands area is 
also within the bounds of Vineyard Northeast's Survey Area.

Humpback Whale

    NMFS recently evaluated the status of the species, and on September 
8, 2016, NMFS divided the species into 14 distinct population segments 
(DPS), removed the species-level listing, and in its place listed four 
DPSs as endangered and one DPS as threatened (81 FR 62260; September 8, 
2016). The remaining nine DPSs were not listed. The West Indies DPS, 
which is not listed under the ESA, is the only DPS of humpback whale 
that is expected to occur in the Survey Area. Bettridge et al. (2015) 
estimated the size of this population at 12,312 (95 percent CI 8,688-
15,954) whales in 2004-05, which is consistent with previous population 
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; 
Smith et al., 1999) and the increasing trend for the West Indies DPS 
(Bettridge et al., 2015). Whales occurring in the Survey Area are 
considered to be from the West Indies DPS but are not necessarily from 
the Gulf of Maine feeding population managed as a stock by NMFS. Barco 
et al., 2002 estimated that, based on photo-identification, only 39 
percent of individual humpback whales observed along the mid- and south 
Atlantic U.S. coast are from the Gulf of Maine stock.
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. Partial or 
full necropsy examinations have been conducted on approximately half of 
the 156 known cases (as of May X, 2022). Of the whales examined, about 
50 percent had evidence of human interaction, either ship strike or 
entanglement. While a portion of the whales have shown evidence of pre-
mortem vessel strike, this finding is not consistent across all whales 
examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    The northern and most eastern portions of the proposed Survey Area 
partially overlap with the humpback whale feeding BIA (March through 
December), which extends throughout the Gulf of Maine, Stellwagen Bank, 
and Great South Channel (LeBrecque et al., 2015).

Minke Whale

    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 122 strandings (as of May X, 2022). This event has been 
declared a UME. Full or partial necropsy examinations were conducted on 
more than 60 percent of the whales. Preliminary findings in several of 
the whales have shown evidence of human interactions or infectious 
disease, but these findings are not consistent across all of the whales 
examined, so more research is needed. More information is available at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.
    The northern and most eastern portions of the proposed Survey Area 
partially overlap with one of the minke whale feeding BIAs (March 
through November), which includes the southern and southwestern section 
of the Gulf of Maine, including Georges Bank, the Great South Channel, 
Cape Cod Bay and Massachusetts Bay, Stellwagen Bank, Cape Anne, and 
Jeffreys Ledge (LeBrecque et al., 2015).

Seals

    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire and 
Massachusetts. This event has been declared a UME. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers; therefore, the UME investigation now 
encompasses all seal strandings from Maine to Virginia. Ice seals (harp 
and hooded seals) have also been stranding with clinical signs, again 
not in elevated numbers, and those two seal species have also been 
added to the UME investigation. A total of 3,152 reported strandings 
(of all species) had occurred from July 1, 2018, through March 13, 
2020. Full or partial necropsy examinations have been conducted on some 
of the seals and samples have been collected for testing. Based on 
tests conducted thus far, the main pathogen found in the seals is 
phocine distemper virus. NMFS is performing additional testing to 
identify any other factors that may be involved in this UME. Closure of 
this UME is pending. Information on this UME is available online at: 
www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and

[[Page 30878]]

other data. Note that no direct measurements of hearing ability have 
been successfully completed for mysticetes (i.e., low-frequency 
cetaceans). Subsequently, NMFS (2018) described generalized hearing 
ranges for these marine mammal hearing groups. Generalized hearing 
ranges were chosen based on the approximately 65 decibel (dB) threshold 
from the normalized composite audiograms, with the exception for lower 
limits for low-frequency cetaceans where the lower bound was deemed to 
be biologically implausible and the lower bound from Southall et al. 
(2007) retained. Marine mammal hearing groups and their associated 
hearing ranges are provided in Table 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (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).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth, 2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Fifteen species of marine mammal species (13 cetacean and 2 pinniped 
(both phocid) species) have the reasonable potential to co-occur with 
the proposed survey activities and four rare, or not likely to occur, 
species (all cetacean) may be encountered during the proposed survey 
activities. Please refer back to Table 2. Of the cetacean species that 
may be present, six are classified as low-frequency cetaceans (i.e., 
all mysticete species), ten are classified as mid-frequency cetaceans 
(i.e., all delphinid species and the sperm whale), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. Detailed descriptions of the potential effects of 
similar specified activities have been provided in other Federal 
Register notices, including for survey activities using the same 
methodology, over a similar amount of time, and occurring within the 
same specified geographical region (e.g., 85 FR 21198, April 16, 2020; 
85 FR 42357, July 14, 2020; 85 FR 63508, October 8, 2020; 85 FR 71058, 
November 6, 2020; 86 FR 21289, April 22, 2021; 86 FR 38296, July 20, 
2021; 86 FR 40469, July 28, 2021; 87 FR 13975, March 11, 2022; 87 FR 
24103, April 22, 2022). No significant new information is available, 
and we refer the reader to these documents rather than repeating the 
details here.
    The Estimated Take section includes a quantitative analysis of the 
number of individuals that are expected to be taken by Vineyard 
Northeast's activities. The Negligible Impact Analysis and 
Determination section considers the potential effects of the specified 
activity, the Estimated Take section, and the Proposed Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks.

Background on Active Acoustic Sound Sources and Acoustic Terminology

    This subsection contains a brief technical background on sound, on 
the characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to the summary of the potential effects of the specified 
activity on marine mammals. For general information on sound and its 
interaction with the marine environment, please see, e.g., Au and 
Hastings (2008); Richardson et al. (1995); Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz or cycles per second. Wavelength is the distance 
between two peaks or corresponding points of a sound wave (length of 
one cycle). Higher frequency sounds have shorter wavelengths than lower 
frequency sounds, and typically attenuate (decrease) more rapidly, 
except in certain cases in shallower water. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound and is typically 
described using the relative unit of the decibel. A sound pressure 
level (SPL) in dB is described as the ratio between a measured pressure 
and a reference pressure (for underwater sound, this is 1 microPascal 
([mu]Pa)), and is a logarithmic unit that accounts for large variations 
in amplitude. Therefore, a relatively small change in dB corresponds to 
large changes in sound pressure. The source level (SL) represents the 
SPL referenced at a distance of 1-m from the source (referenced to 1 
[mu]Pa), while the received level is the SPL at the listener's position 
(referenced to 1 [mu]Pa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.

[[Page 30879]]

    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy in a stated frequency band over a stated 
time interval or event and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event. Peak sound pressure (also referred to 
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous 
sound pressure measurable in the water at a specified distance from the 
source and is represented in the same units as the rms sound pressure.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner like ripples on the surface of a pond and may be directed either 
in a beam or in beams or may radiate in all directions (omnidirectional 
sources). The compressions and decompressions associated with sound 
waves are detected as changes in pressure by aquatic life and man-made 
sound receptors such as hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. Several sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz 
and, if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but on the ability of sound to 
propagate through the environment. In turn, sound propagation is 
dependent on the spatially and temporally varying properties of the 
water column and sea floor and is frequency dependent. As a result of 
the dependence on many varying factors, ambient sound levels can be 
expected to vary widely over both coarse and fine spatial and temporal 
scales. Sound levels at a given frequency and location can vary by 10-
20 dB from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Details of source types are described in the following text.
    Sounds are often considered to fall into one of two general types: 
Pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly regarding hearing 
(e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al. 
(2007) for an in-depth discussion of these concepts. The distinction 
between these two sound types is not always obvious, as certain signals 
share properties of both pulsed and non-pulsed sounds. A signal near a 
source could be categorized as a pulse, but due to propagation effects 
as it moves farther from the source, the signal duration becomes longer 
(e.g., Greene and Richardson, 1988).
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998) and occur either as 
isolated events or repeated in some succession. Pulsed sounds are all 
characterized by a relatively rapid rise from ambient pressure to a 
maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems. The 
duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment.
    Sparkers and boomers produce pulsed signals with energy in the 
frequency ranges specified in Table 1. The amplitude of the acoustic 
wave emitted from sparker sources is equal in all directions (i.e., 
omnidirectional), while other sources planned for use during the 
proposed surveys have some degree of directionality to the beam, as 
specified in Table 1. Finally, CHIRP SBPs should be considered non-
impulsive, intermittent sources.

Summary on Specific Potential Effects of Acoustic Sound Sources

    Underwater sound from active acoustic sources can include one or 
more of the following: Temporary or permanent hearing impairment, 
behavioral disturbance, masking, stress, and non-auditory physical 
effects. The degree of effect is intrinsically related to the signal 
characteristics, received level, distance from the source, and duration 
of the sound exposure. Marine mammals exposed to high-intensity sound, 
or to lower-intensity sound for prolonged periods, can experience 
hearing threshold shift (TS), which is the loss of hearing sensitivity 
at certain frequency ranges (Finneran, 2015). TS can be permanent (PTS; 
permanent threshold shift), in which case the loss of hearing 
sensitivity is not fully recoverable, or temporary (TTS; temporary 
threshold shift), in which case the animal's hearing threshold would 
recover over time (Southall et al. 2007).

[[Page 30880]]

    Animals in the vicinity of Vineyard Northeast's proposed HRG survey 
activity are unlikely to incur even TTS due to the characteristics of 
the sound sources, which include relatively low source levels (178 to 
205 dB re 1 [micro]Pa m), and generally very short pulses and potential 
duration of exposure. These characteristics mean that instantaneous 
exposure is unlikely to cause TTS, as it is unlikely that exposure 
would occur close enough to the vessel for received levels to exceed 
peak pressure TTS criteria, and that the cumulative duration of 
exposure would be insufficient to exceed cumulative sound exposure 
level (SEL) criteria. Even for high-frequency cetacean species (e.g., 
harbor porpoises), which have the greatest sensitivity to potential 
TTS, individuals would have to make a very close approach and also 
remain very close to vessels operating these sources in order to 
receive multiple exposures at relatively high levels, as would be 
necessary to cause TTS. Intermittent exposures--as would occur due to 
the brief, transient signals produced by these sources--require a 
higher cumulative SEL to induce TTS than would continuous exposures of 
the same duration (i.e., intermittent exposure results in lower levels 
of TTS). Moreover, most marine mammals would more likely avoid a loud 
sound source rather than swim in such close proximity as to result in 
TTS. Kremser et al. (2005) noted that the probability of a cetacean 
swimming through the area of exposure when a sub-bottom profiler emits 
a pulse is small--because if the animal was in the area, it would have 
to pass the transducer at close range in order to be subjected to sound 
levels that could cause TTS and would likely exhibit avoidance behavior 
to the area near the transducer rather than swim through at such a 
close range. Further, the restricted beam shape of the Edge Tech 216 
Chirp planned for use (Table 1) makes it unlikely that an animal would 
be exposed more than briefly during the passage of the vessel.
    Behavioral disturbance may include a variety of effects, including 
subtle changes in behavior (e.g., minor or brief avoidance of an area 
or changes in vocalizations), more conspicuous changes in similar 
behavioral activities, and more sustained and/or potentially severe 
reactions, such as displacement from or abandonment of high-quality 
habitat. Behavioral responses to sound are highly variable and context-
specific and any reactions depend on numerous intrinsic and extrinsic 
factors (e.g., species, state of maturity, experience, current 
activity, reproductive state, auditory sensitivity, time of day), as 
well as the interplay between factors. Available studies show wide 
variation in response to underwater sound; therefore, it is difficult 
to predict specifically how any given sound in a particular instance 
might affect marine mammals perceiving the signal.
    In addition, sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, navigation). Masking occurs when the receipt of a 
sound is interfered with by another coincident sound at similar 
frequencies and at similar or higher intensity and may occur whether 
the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., shipping, sonar, seismic 
exploration) in origin. Marine mammal communications would not likely 
be masked appreciably by the acoustic signals given the directionality 
of the signals for most HRG survey equipment types planned for use 
(Table 1) and the brief period when an individual mammal is likely to 
be exposed.
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, and zooplankton) (i.e., effects to marine mammal 
habitat). Prey species exposed to sound might move away from the sound 
source, experience TTS, experience masking of biologically relevant 
sounds, or show no obvious direct effects. The most likely impacts (if 
any) for most prey species in a given area would be temporary avoidance 
of the area. Surveys using active acoustic sound sources move through 
an area, limiting exposure to multiple pulses. In all cases, sound 
levels would return to ambient once a survey ends and the noise source 
is shut down and, when exposure to sound ends, behavioral and/or 
physiological responses are expected to end relatively quickly. 
Finally, the HRG survey equipment will not have significant impacts to 
the seafloor and does not represent a source of pollution.

Vessel Strike

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

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor proposed to be authorized. 
Consideration of the

[[Page 30881]]

anticipated effectiveness of the mitigation measures (i.e., pre-start 
clearance and shutdown measures), discussed in detail below in the 
Proposed Mitigation section, further strengthens the conclusion that 
Level A harassment is not a reasonably expected outcome of the survey 
activity. As previously described, no serious injury or mortality is 
anticipated or proposed to be authorized for this activity. Below we 
describe how take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the proposed take 
estimates.

Acoustic Thresholds

    NMFS uses acoustic thresholds that identify the received level of 
underwater sound above which exposed marine mammals would be reasonably 
expected to be behaviorally harassed (equated to Level B harassment) or 
to incur PTS of some degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007, Ellison et al., 2012). Based on what 
the available science indicates and the practical need to use a 
threshold based on a factor that is both predictable and measurable for 
most activities, NMFS uses a generalized acoustic threshold based on 
received level to estimate the onset of behavioral harassment. NMFS 
predicts that marine mammals may be behaviorally harassed (i.e., Level 
B harassment) when exposed to underwater anthropogenic noise above 
received levels of 160 dB re 1 [mu]Pa (rms) for impulsive sources 
(i.e., boomers, sparkers) and non-impulsive, intermittent sources 
(e.g., CHIRP SBPs) evaluated here for Vineyard Northeast'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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Vineyard Northeast's proposed activity includes the use of 
impulsive (i.e., boomers and sparkers) and non-impulsive (e.g., CHIRP 
SBPs) sources. However, as discussed above, NMFS has concluded that 
Level A harassment is not a reasonably likely outcome for marine 
mammals exposed to noise from the sources proposed for use here, and 
the potential for Level A harassment is not evaluated further in this 
document. Please see Vineyard Northeast's application for a 
quantitative Level A exposure analysis exercise. The results indicated 
that maximum estimated distances to Level A harassment isopleths were 
less than 5 m for all sources and hearing groups, with the exception of 
an estimated 53 m distance to the Level A harassment isopleth for high-
frequency cetaceans (i.e., harbor porpoises) during use of the Applied 
Acoustics AA251 Boomer (see Table 1 for source characteristics). 
Vineyard Northeast did not request authorization of take by Level A 
harassment and no take by Level A harassment is proposed for 
authorization by NMFS.

Ensonified Area

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the frequency-dependent absorption coefficient (Table 1).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate distances to harassment isopleths. 
In cases when the source level for a specific type of HRG equipment is 
not provided in Crocker and Fratantonio (2016), NMFS recommends that 
either the source levels provided by the manufacturer be used, or, in 
instances where source levels provided by the manufacturer are 
unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) 
be used instead. Table 1 shows the HRG equipment types that may be used 
during the proposed surveys and the source parameters associated with 
each type of equipment. Appendix A of Vineyard Northeast's IHA 
application provides detailed information on the acoustic source 
parameters used to calculate distances to regulatory thresholds.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Vineyard Northeast 
that has the potential to result in Level B harassment of marine 
mammals, the Applied Acoustics AA251 Boomer would produce the largest 
distance to the Level B harassment isopleth (178 m). Estimated 
distances to the Level B harassment isopleth for all source types 
evaluated here, including the boomer, are provided in Table 4. Although 
Vineyard Northeast does not expect to use the AA251 Boomer source on 
all planned survey days, it proposes to assume, for purposes of 
analysis, that the boomer sources would be used on all survey days and 
across all hours within a given survey day. This is a conservative 
approach, as the actual sources used on individual survey days, or 
during a portion of a survey day, may produce smaller distances to the 
Level B harassment isopleth.

            Table 4--Distances to Level B Harassment Isopleth
------------------------------------------------------------------------
                                                            Distance to
                                                              Level B
                        Equipment                           harassment
                                                           isopleth (m)
------------------------------------------------------------------------
Edge Tech Chirp 216.....................................             4.3
GeoMarine Geo Spark 2000 (400 tip)......................             141
Applied Acoustics AA 251 Boomer.........................             178
------------------------------------------------------------------------


[[Page 30882]]

Marine Mammal Occurrence

    In this section, we provide the information about presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2021) 
represent the best available information regarding marine mammal 
densities in the Survey Area. The density data presented by Roberts et 
al. (2016, 2017, 2018, 2021) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates 
data from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at seamap.env.duke .edu/models/Duke-EC-GOM-2015/.
    Density estimates for all species within the Survey Area were 
derived from habitat-based density modeling results reported by Roberts 
et al. (2016; 2017; 2018; 2021). Those data provide abundance estimates 
for species or species guild within 10 km x 10 km grid cells (100 
km\2\) or, in the case of North Atlantic right whale densities, within 
5 km x 5 km grid cells, on a monthly or annual basis, depending on the 
species. Using a GIS (ESRI 2017), the proposed Survey Area and the 
North Atlantic right whale Cape Cod Bay SMA polygon shown in Figure 1 
were used to select grid cells from the Roberts et al. (2016; 2017; 
2018; 2021) data that contain the most recent monthly or annual 
estimates for each species for the months of May through December. For 
the months of January through April, only the proposed Survey Area 
polygon was used to select density grid cells since it excludes waters 
within Cape Cod Bay, where no surveys will occur while the Cape Cod Bay 
SMA is active from January 1 through May 15. The average monthly 
abundance for each species was calculated as the mean value of all grid 
cells within the Survey Area and then converted to density 
(individuals/1 km\2\) by dividing by 100 km\2\. Finally, an average 
annual density was calculated by taking the mean across all 12 months 
for each species. See Table 8 in Vineyard Northeast's IHA application 
for all density information. When determining requested take numbers, 
Vineyard Northeast also considered average group sizes based on 
Protected Species Observer (PSO) sighting reports from previous surveys 
in the region.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. In order to estimate 
the number of marine mammals predicted to be exposed to sound levels 
that would result in harassment, radial distances to predicted 
isopleths corresponding to harassment thresholds are calculated, as 
described above. The maximum distance (i.e., 178 m distance associated 
with boomers) to the Level B harassment criterion and the estimated 
trackline distance traveled per day by a given survey vessel (i.e., 80 
km) are then used to calculate the daily ensonified area, or zone of 
influence (ZOI) around the survey vessel.
    The ZOI is a representation of the maximum extent of the ensonified 
area around a HRG sound source over a 24-hr period. The ZOI for each 
piece of equipment operating at or below 180 kHz was calculated per the 
following formula:

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

    Where r is the linear distance from the source to the harassment 
isopleth.
    The largest daily ZOI (28.6 km\2\), associated with the proposed 
use of boomers, was applied to all planned survey days.
    Potential Level B density-based harassment exposures are estimated 
by multiplying the average annual density of each species within the 
Survey Area by the daily ZOI. That product is then multiplied by the 
number of planned survey days (869), and the product is rounded to the 
nearest whole number. These results are shown in Table 5.
    For other less common species, the predicted densities from Roberts 
et al. (2016; 2017; 2018; 2021) are very low and the resulting density-
based estimate is less than a single animal or a typical group size for 
the species. In such cases, the density-based exposure estimate is 
increased to the mean group size for the species to account for a 
chance encounter during an activity. Mean group sizes for each species 
were calculated from recent aerial and/or vessel-based surveys (Kraus 
et al., 2016; Palka et al. 2017) as shown in Table 5 (below) and Table 
10 of the IHA application.
    The larger of the two estimates from the approaches described 
above, density-based exposure estimates or mean group size, was 
selected as the amount of requested take as shown in Table 5. 
Additionally, based on observational data collected during prior HRG 
surveys in this area, the density of common dolphins predicted by the 
Roberts et al. (2018) model does not appear to adequately reflect the 
number of common dolphins that may be encountered during the planned 
surveys. Data collected by PSOs on survey vessels operating in 2020-
2021 showed that an average of approximately 16 common dolphins may be 
observed within 200 m of a vessel (the approximate Level B harassment 
isopleth distance) per survey day (Vineyard-Wind 2021). Multiplying the 
anticipated 869 survey days by 16 common dolphins per day results in an 
estimated take of 13,904 common dolphins, so this has been used as the 
requested take of common dolphins shown in Table 5.
    The estimated monthly density of seals provided in Roberts et al. 
(2018) includes all seal species present in the region as a single 
guild. To split the resulting ``seal'' density-based exposure estimate 
by species, Vineyard Northeast multiplied the estimate by the 
proportion of the combined abundance attributable to each species. 
Specifically, Vineyard Northeast summed the SAR Nbest 
abundance estimates (Hayes et al. 2021) for the two species (gray seal 
= 27,300, harbor seal = 61,336; total = 88,636) and divided the total 
by the estimate for each species to get the proportion of the total for 
each species (gray seal = 0.308; harbor seal = 0.692). The total 
estimated exposure from the ``seal'' density provide by Roberts et al. 
(2018) was then multiplied by these proportions to get the species-
specific density-based exposure estimates.
    Given that most of the surveying will occur offshore (i.e., water 
depths >30 m), bottlenose dolphins encountered in the Survey Area would 
likely belong to the Western North Atlantic Offshore stock; therefore, 
all takes are being requested from this stock. However, it is possible 
that a few bottlenose dolphins encountered during nearshore surveys off 
the coast of New Jersey could be from the North Atlantic Northern 
Migratory Coastal stock. Similarly, the distributions of short- and 
long-finned pilot whales based on sighting data from the Ocean 
Biodiversity Information System database (OBIS 2021) indicate that 
pilot whale sightings in the Survey Area would most likely be long-
finned pilot whales, so all requested pilot whale takes are for long-
finned pilot whales.

[[Page 30883]]

    Species considered to be rare or not expected to occur in the 
Survey Area were not included in Vineyard Northeast's previous exposure 
estimates because the densities would be too low to provide meaningful 
results. Nonetheless, species considered to be rare are occasionally 
encountered. For example, white-beaked dolphins were observed in both 
2019 and 2020 during marine site characterization surveys in the Survey 
Area (Vineyard Wind 2019, 2020), with the sighting of white-beaked 
dolphins in 2019 consisting of 30 animals. Other rare species 
encountered in the Survey Area during previous surveys include the 
false killer whale in 2019 (5 individuals) and 2021 (1 individual) 
(Vineyard Wind 2019, 2021), and orca (killer whale) in 2022 (2 
individuals; data not yet submitted). Vineyard Northeast is requesting 
take of each of these three species, based on the largest number of 
individuals observed within one year (Table 5).
    Finally, recent deployments of passive acoustic devices in the New 
York Bight yielded detections of blue whale vocalizations approximately 
20 nautical miles (nm) (37 km) southeast of the entrance to New York 
Harbor during the months of January, February, and March (Muirhead et 
al. 2018); blue whale vocalizations have also been recorded off the 
coast of Rhode Island during acoustic surveys (Kraus et al. 2016). More 
recently, during three years of monthly aerial surveys in the New York 
Bight (2017-2020), Zoidis et al. (2021) reported 3 sightings of blue 
whales, totaling 5 individuals. Although sightings of blue whales in 
the Survey Area are rare, in light of these recent observations of blue 
whales, Vineyard Northeast is requesting take of one blue whale based 
on the average group size (Palka et al., 2017) (Table 5).

                                               Table 5--Summary of Take Numbers Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Annual
                                                              average     Density- based    Mean  group   Takes by Level                  Proposed takes
                         Species                              density         exposure       size \1\      B  harassment     Abundance    as  percent of
                                                              (km\2\)        estimate                        requested                      stock  (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale \2\..........................................         0.00000             0.2             1.0               1             402             0.2
Fin whale...............................................         0.00149            54.0             1.8              55           6,802             0.8
Humpback whale..........................................         0.00084            32.5             2.0              33           1,396             2.4
Minke whale.............................................         0.00062            29.0             1.2              30          21,968             0.1
North Atlantic right whale..............................         0.00164            27.7             2.4              28             368             7.6
Sei whale...............................................         0.00005             3.4             1.6               4           6,292             0.1
Sperm whale.............................................         0.00006             8.4             1.5               9           4,349             0.2
Orca (killer whale) \2\.................................  ..............  ..............  ..............               2             Unk             0.0
False killer whale \2\..................................  ..............  ..............  ..............               5           1,791             0.3
Atlantic spotted dolphin................................          0.0008            13.6            29.0              29          39,921             0.1
Atlantic white-sided dolphin............................         0.02226           791.1            27.9             792          92,233             0.9
Bottlenose dolphin (Western North Atlantic offshore               0.0403           507.1             7.8             508          62,851             0.8
 stock).................................................
Bottlenose dolphin (Western North Atlantic northern       ..............  ..............  ..............  ..............  ..............  ..............
 migratory coastal stock)...............................
Common dolphin..........................................          0.0544           816.4            34.9          24,480         172,974             0.1
Long-finned pilot whale.................................         0.00459           285.1             8.4             286          39,215             0.7
White-beaked dolphin \2\................................  ..............  ..............  ..............              30         536,016             0.0
Risso's dolphin.........................................         0.00012            70.5             5.4              71          35,493             0.2
Harbor porpoise.........................................         0.02858          1431.3             2.7           1,432          95,543             0.1
Gray seal...............................................         0.09784           294.2             0.4             295          27,131             1.0
Harbor seal.............................................                           661.1             1.0             662          75,834             0.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Mean group size based on Kraus et al., 2016 (fin, humpback, minke, North Atlantic right, sei, and pilot whales; Atlantic white-sided, bottlenose,
  and common dolphins; harbor porpoise) or Palka et al., 2017 (blue and sperm whales; Atlantic spotted and Risso's dolphin; harbor and gray seals).
\2\ Rare (or unlikely to occur) species.

    The take numbers shown in Table 5 are those requested by Vineyard 
Northeast. NMFS concurs with the requested take numbers and proposes to 
authorize them.

Proposed Mitigation

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

[[Page 30884]]

personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

    NMFS proposes the following mitigation measures be implemented 
during Vineyard Northeast's proposed marine site characterization 
surveys. Pursuant to section 7 of the ESA, Vineyard Northeast would 
also be required to adhere to relevant Project Design Criteria (PDC) of 
the NMFS' Greater Atlantic Regional Fisheries Office (GARFO) 
programmatic consultation (specifically PDCs 4, 5, and 7) regarding 
geophysical surveys along the U.S. Atlantic coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Marine Mammal Shutdown Zones and Level B Harassment Zone

    Marine mammal shutdown zones (SZs) would be established around the 
HRG survey equipment and monitored by PSOs:
     500-m SZ for North Atlantic right whales;
     100-m SZ for all other marine mammals.
    If a marine mammal is detected approaching or entering the SZs 
during the HRG survey, the vessel operator would adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated requirements will be included in the site-specific 
training provided to the survey team.

Pre-Start Clearance

    Marine mammal clearance zones (CZs) would be established around the 
HRG survey equipment and monitored by PSOs:
     500-m CZ for all ESA-listed marine mammals; and
     100-m CZ for all other marine mammals.
    Vineyard Northeast would implement a 30-minute pre-start clearance 
period prior to initiation of ramp-up of specified HRG equipment. 
During this period, CZs would be monitored by PSOs, using the 
appropriate visual technology. Ramp-up may not be initiated if any 
marine mammal(s) is within its respective CZ. If a marine mammal is 
observed within its CZ during the pre-start clearance period, ramp-up 
may not begin until the animal(s) has been observed exiting its 
respective CZ or until an additional time has elapsed with no further 
sighting (i.e., 15 minutes for small odontocetes and seals, and 30 
minutes for all other species).

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure would be used for 
HRG survey equipment capable of adjustment of energy levels at the 
start or restart of survey activities. The ramp-up procedure would be 
used at the beginning of HRG survey activities to provide additional 
protection to marine mammals in or near the Survey Area by allowing 
them to vacate the area prior to the commencement of survey equipment 
operation at full power. A ramp-up would begin with the powering up of 
the smallest acoustic HRG equipment at its lowest practical power 
output appropriate for the survey. When technically feasible, the power 
would then be gradually turned up and other acoustic sources would be 
added.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective CZ. Ramp-up will continue if the animal has been observed 
exiting its respective CZ or until an additional period has elapsed 
with no additional sightings (i.e., 15 minutes for small odontocetes 
and seals, and 30 minutes for all other species).
    Activation of survey equipment through ramp-up procedures may not 
occur when visual observation of the pre-start clearance/shutdown zone 
is not expected to be effective using the appropriate visual technology 
(i.e., during inclement conditions such as heavy rain or fog).

Shutdown Procedures

    An immediate shutdown of the specified HRG survey equipment would 
be required if a marine mammal is sighted entering or within its 
respective SZ. The vessel operator must comply immediately with any 
call for shutdown by the PSO. Any disagreement between the 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 SZ or until an 
additional time has elapsed (i.e., 15 minutes for harbor porpoise, 30 
minutes for all other species).
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
applicable Level B harassment zone (Table 4), shutdown would occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective SZs. If the acoustic source is shut down for a period 
longer than 30 minutes, then pre-start clearance and ramp-up procedures 
will be initiated as described in the previous section.
    The shutdown requirement would be waived for pinnipeds and for 
small delphinids of the following genera: Delphinus, Lagenorhynchus, 
Stenella, and Tursiops. Specifically, if a delphinid from the specified 
genera or a pinniped is visually detected approaching the vessel (i.e., 
to bow ride) or towed equipment, shutdown is not required. Furthermore, 
if there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived), PSOs must use best 
professional judgement in making the decision to call for a shutdown. 
Additionally, shutdown is required if a delphinid or pinniped detected 
in the shutdown zone and belongs to a genus other than those specified.
    Shutdown, pre-start clearance, and ramp-up procedures would not be 
required during HRG survey operations using only non-impulsive sources 
(e.g., echosounders), other than non-parametric sub-bottom profilers 
(e.g., CHIRP SBPs).

Vessel Strike Avoidance

    Vineyard Northeast must ensure that vessel operators and crew 
maintain a vigilant watch for cetaceans and pinnipeds and slow down or 
stop their vessels to avoid striking these species. Survey vessel crew 
members responsible for navigation duties will receive site-specific 
training on marine mammals sighting/reporting and vessel strike 
avoidance measures. Vessel strike avoidance measures include the 
following, except under circumstances when complying with these 
requirements would put the safety of the vessel or crew at risk:
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel(s), 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).

[[Page 30885]]

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 North Atlantic right whale, other 
whale (defined in this context as sperm whales or baleen whales other 
than North Atlantic right whales), or other marine mammal.
     Members of the monitoring team will consult NMFS North 
Atlantic right whale reporting system and Whale Alert at the start of 
every PSO shift, for situational awareness regarding the presence of 
North Atlantic right whales throughout the Survey Area, and for the 
establishment of Slow Zones (including visual-detection-triggered 
dynamic management areas (DMAs) and acoustically-triggered slow zones) 
within or near the Survey Area.
     All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes, 
including SMAs and DMAs when in effect;
     All vessels greater than or equal to 19.8 m in overall 
length operating from November 1 through April 30 will operate at 
speeds of 10 knots or less at all times;
     All vessels must reduce their speed to 10 knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel;
     All vessels must maintain a minimum separation distance of 
500 m from North Atlantic right whales and other ESA-listed species. If 
an ESA-listed species is sighted within the relevant separation 
distance, the vessel must steer a course away at 10 knots or less until 
the 500-m separation distance has been established. If a whale is 
observed but cannot be confirmed as a species that is not ESA-listed, 
the vessel operator must assume that it is an ESA-listed species and 
take appropriate action.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 100 m from all 
non-ESA listed whales,
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel).
     When marine mammals are sighted while a vessel is 
underway, the vessel must 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.

Seasonal Restrictions

    Vineyard Northeast proposes to refrain from conducting survey 
activities using HRG equipment operating at or below 180 kHz from 
January 1 through May 15 within the North Atlantic right whale SMA in 
Cape Cod Bay.

Crew Training

    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. Prior to implementation with 
vessel crews, the training program will be provided to NMFS for review 
and approval. Confirmation of the training and understanding of the 
requirements will be documented on a training course log sheet. Signing 
the log sheet will certify that the crew member understands and will 
comply with the necessary requirements throughout the survey 
activities.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

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

Proposed 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. Vineyard Northeast 
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. 
On a case-by-case basis, non-independent observers may be approved by 
NMFS for limited, specific duties in support of

[[Page 30886]]

approved, independent PSOs on smaller vessels with limited crew 
capacity operating in nearshore waters. Section 5 of the draft IHA 
contains further details regarding PSO approval.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including shutdown zones, during all HRG survey operations. 
PSOs will visually monitor and identify marine mammals, including those 
approaching or entering the established shutdown zones during survey 
activities. It will be the responsibility of the Lead PSO on duty to 
communicate the presence of marine mammals to the vessel operator 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 a 
specified 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-hr 
period. In cases where multiple vessels are surveying concurrently, any 
observations of marine mammals would be communicated to PSOs on all 
nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to shutdown zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort Sea State 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements. 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).

Proposed 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. A final report must be submitted within 30 
days following resolution of any comments on the draft report. All 
draft and final marine mammal and acoustic monitoring reports must be 
submitted to [email protected] and [email protected]. 
The report must contain at minimum, the following:
     PSO names and affiliations;
     Dates of departures and returns to port with port name;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-start 
clearance survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during

[[Page 30887]]

surveys or during vessel transit, Vineyard Northeast would report 
sighting information to the NMFS North Atlantic Right Whale Sighting 
Advisory System (866) 755-6622) within two hours of occurrence, when 
practicable, or no later than 24 hours after occurrence. North Atlantic 
right whale sightings in any location may also be reported to the U.S. 
Coast Guard via channel 16.
    In the event that Vineyard Northeast personnel discover an injured 
or dead marine mammal, Vineyard Northeast would report the incident to 
the NMFS Office of Protected Resources (OPR) and the NMFS New England/
Mid-Atlantic Stranding Coordinator as soon as feasible. The report 
would include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Vineyard 
Northeast would report the incident to the NMFS OPR and the NMFS New 
England/Mid-Atlantic Stranding Coordinator as soon as feasible. The 
report would include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 5, given that NMFS expects the anticipated effects of the 
proposed survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
NMFS does not anticipate that serious injury or mortality would occur 
as a result from HRG surveys, even in the absence of mitigation, and no 
serious injury or mortality is proposed to be authorized. As discussed 
in the Potential Effects section, non-auditory physical effects and 
vessel strike are not expected to occur. NMFS expects that all 
potential Level B harassment takes would be 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, even absent mitigation, given the 
nature of the operations and the estimated size of the Level A 
harassment zones.
    In addition to being temporary, the maximum behavioral harassment 
zone radius is 178 m (associated with the Applied Acoustics AA251 
Boomer). When estimating Level B harassment take numbers, Vineyard 
Northeast made the conservative assumption that this maximum zone size 
applied to all 869 survey days when, in reality, the Applied Acoustics 
AA251 Boomer would not be used throughout the entire 24 hours of every 
proposed survey day. The other acoustic sources with the potential to 
result in take of marine mammals produced Level B harassment zones with 
even smaller radii (141 m, Edge Tech CHIRP 216; 4 m, GeoMarine Geo 
Spark 2000). Therefore, the ensonified area surrounding each acoustic 
source is relatively small compared to the overall distribution of the 
animals in the area and their use of the habitat.
    The planned Survey Area encompasses, or is in close proximity to, 
feeding BIAs for North Atlantic right whales (February-April/April-
June), humpback whales (March-December), fin whales (March-October), 
sei whales (May-November), and minke whales (March-November), as well 
as the migratory BIA for North Atlantic right whales (November 1-April 
30) (LaBrecque et al., 2015). Most of these feeding BIAs are extensive 
and sufficiently large (e.g., 705 km\2\ and 3,149 km\2\ for North 
Atlantic right whales; 47,701 km\2\ for humpback whales; 2,933 km\2\ 
for fin whales; 56,609 km\2\ for sei whales), and the acoustic 
footprint of the planned survey is sufficiently small that feeding 
opportunities for these species would not be reduced appreciably. In 
addition, feeding behavior is not likely to be significantly impacted 
as prey species are mobile and are broadly distributed

[[Page 30888]]

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 proposed Survey 
Area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As noted 
previously, elevated North Atlantic right whale mortalities began in 
June 2017 and there is currently an active UME. Overall, preliminary 
findings support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of North Atlantic 
right whales.
    The proposed Survey Area partially overlaps with the migratory 
corridor BIA and migratory route SMA for North Atlantic right whales, 
which extends from Massachusetts to Florida, from the coast to beyond 
the shelf break. That the spatial acoustic footprint of the proposed 
survey is very small relative to the spatial extent of the available 
migratory habitat supports the expectation that North Atlantic right 
whale migration will not be impacted by the proposed survey. Required 
vessel strike avoidance measures will also decrease risk of ship strike 
during migration. Additionally, Vineyard Northeast would be required to 
adhere to a 10-knot speed restriction in the migratory corridor SMA, 
and in any DMA(s), should NMFS establish one (or more) in the Survey 
Area.
    The most northern and northeastern portions of the proposed Survey 
Area overlap with Cape Cod Bay (January 1-May 15), Off Race Point 
(March 1-April 30), and Great South Channel (April 1-July 31) SMAs. 
Vineyard Northeast's proposed seasonal restriction on survey activities 
in Cape Cod Bay (which is also part of a feeding BIA (February 1-April 
30) and designated critical foraging habitat for North Atlantic right 
whales) when the SMA is active minimizes potential impacts on the 
species' foraging when densities of North Atlantic right whales and 
their prey are expected to be highest in that section of the Survey 
Area. The seasonal restriction also minimizes the likelihood that 
survey activities would occur during the Off Race Point SMA, which 
overlaps in time with and is in close proximity to the Cape Cod Bay 
SMA. Finally, although the eastern edge of Survey Area partially 
overlaps with the western-most portion of the Great South Channel 
feeding BIA, SMA, and critical foraging habit, the relatively small 
size of the ensonified area relative to the foraging habitat available 
to North Atlantic right whales, it is unlikely that foraging 
opportunities and behavior would be adversely affected by survey 
operations.
    The slow survey speed (approximately 4 knots) and required vessel 
strike avoidance measures will decrease risk of ship strike such that 
no ship strike is expected to occur during Vineyard Northeast's 
proposed activities. The 500-m shutdown zone for North Atlantic right 
whales is conservative (considering the distance to the Level B 
harassment isopleth for the most impactful acoustic source (i.e., 
boomer) is estimated to be 178 m) and thereby minimizes the potential 
for behavioral harassment of this species.
    Again, Level A harassment is not expected due to the small PTS 
zones associated with HRG equipment types proposed for use. The 
proposed behavioral harassment takes of North Atlantic right whale are 
not expected to exacerbate or compound upon the ongoing UME. The 
limited North Atlantic right whale behavioral harassment takes proposed 
for authorization are expected to be of a short duration, and given the 
number of estimated takes, repeated exposures of the same individual 
are not expected. As stated previously, it is unlikely that North 
Atlantic right whale prey availability would be adversely affected 
given the relatively small size of the ensonified area during Vineyard 
Northeast's proposed survey activities. Accordingly, NMFS does not 
anticipate potential take of North Atlantic right whales that would 
result from Vineyard Northeast's proposed activities would impact 
annual rates of recruitment or survival. Thus, any takes that occur 
would not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted above, there are several active UMEs occurring in the 
vicinity of Vineyard Northeast's proposed Survey Area. Elevated 
humpback whale mortalities have occurred along the Atlantic coast from 
Maine through Florida since January 2016. Of the cases examined, 
approximately half had evidence of human interaction (ship strike or 
entanglement). The UME does not yet provide cause for concern regarding 
population-level impacts. Despite the UME, the relevant population of 
humpback whales (the West Indies breeding population, or DPS) remains 
stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and have occurred across Maine, New 
Hampshire, and Massachusetts. Based on tests conducted so far, the main 
pathogen found in the seals is phocine distemper virus, although 
additional testing to identify other factors that may be involved in 
this UME are underway. The UME does not yet provide cause for concern 
regarding population-level impacts to any of these stocks. For harbor 
seals, the population abundance is over 61,000 and annual M/SI (339) is 
well below PBR (1,729) (Hayes et al., 2021). The population abundance 
for gray seals in the United States is over 27,000, with an estimated 
abundance, including seals in Canada, of approximately 450,000. In 
addition, the abundance of gray seals is likely increasing in the U.S. 
Atlantic as well as in Canada (Hayes et al., 2021).
    The required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in Table 5, 
including those with active UMEs, to the level of least practicable 
adverse impact. In particular, ramp-up procedures would provide animals 
in the vicinity of the survey vessel the opportunity to move away from 
the sound source before HRG survey equipment reaches full energy, thus 
preventing them from being exposed to sound levels that have the 
potential to cause injury (Level A harassment) or more severe Level B 
harassment. As discussed previously, take by Level A harassment 
(injury) is considered unlikely, even absent mitigation, based on the 
characteristics of the signals produced by the acoustic sources planned 
for use. Implementation of the required mitigation would further reduce 
this

[[Page 30889]]

potential. Therefore, NMFS is not proposing any Level A harassment for 
authorization.
    NMFS expects that takes would be in the form of short-term 
behavioral harassment by way of temporary vacating of the area, or 
decreased foraging (if such activity was occurring)--reactions that (at 
the scale and intensity anticipated here) are considered to be of low 
severity, with no lasting biological consequences. Since both the 
sources and marine mammals are mobile, animals would only be exposed 
briefly to a small ensonified area that might result in take. 
Additionally, required mitigation measures would further reduce 
exposure to sound that could result in more severe behavioral 
harassment.

Biologically Important Areas for Other Species

    As previously discussed, impacts from the proposed project are 
expected to be localized to the specific area of activity and only 
during periods of time where Vineyard Northeast's acoustic sources are 
active. While areas of biological importance to foraging fin whales, 
sei whales, minke whales, and humpback whales exist within the proposed 
Survey Area, NMFS does not expect this proposed action to affect these 
areas or any species' ability to utilize prey resources within the 
BIAs, given the nature of the survey activity, and the combination of 
the mitigation and monitoring measures being required of Vineyard 
Northeast.
    Several major haul-out sites exist for harbor seals within the 
Survey Area along the New Jersey coast (e.g., Great Bay, Sandy Hook, 
and Barnegat Inlet), New York Coast (e.g., Montauk Island), and Rhode 
Island coast (e.g., Narragansett Bay), and for gray and harbor seals 
along the Massachusetts coast (e.g., Cape Cod, Monomoy Island) 
(DiGiovanni and Sabrosky 2010). However, as hauled-out seals would be 
out of the water, no in-water effects are expected.

Preliminary Determinations

    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or proposed 
to be authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed for authorization;
     Any foraging interruptions are expected to be short term 
and unlikely to be cause significant impacts;
     Impacts on marine mammal habitat and species that serve as 
prey for marine mammals are expected to be minimal and the alternate 
areas of similar habitat value for marine mammals are readily 
available;
     Take is anticipated to be by Level B behavioral harassment 
only, consisting of brief startling reactions and/or temporary 
avoidance of the Survey Area;
     Survey activities would occur in such a comparatively 
small portion of the BIA for North Atlantic right whale migration, 
including a small area of designated critical habitat, that any 
avoidance of the area due to survey activities would not affect 
migration. In addition, the mitigation measure to shut down at 500 m to 
minimize potential for Level B behavioral harassment would limit both 
the number and severity of take of the species.
     Similarly, due to the relatively small footprint of the 
survey activities in relation to the size of BIAs for North Atlantic 
right, humpback, fin, sei, and minke whale foraging, the survey 
activities would not affect foraging behavior of these species; and
     Proposed mitigation measures, including visual monitoring 
and shutdowns, are expected to minimize the intensity of potential 
impacts to marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is less than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take (by Level B harassment 
only) of 19 marine mammal species (with 20 managed stocks). The total 
amount of takes proposed for authorization relative to the best 
available population abundance is less than 8 percent for all stocks, 
less than 3 percent for 19 stocks, and less than 1 percent for 18 
stocks (Table 5). Therefore, NMFS preliminarily finds that small 
numbers of marine mammals may be taken relative to the estimated 
overall population abundances for those stocks.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

[[Page 30890]]

June 29, 2021; revised September 2021). NMFS GARFO concurred with this 
determination.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Vineyard Northeast authorizing take, by Level B 
harassment incidental to conducting marine site characterization 
surveys off the coast from Massachusetts to New Jersey from June 22, 
2022, through June 21, 2023, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed site 
characterization surveys. We also request at this time comment on the 
potential Renewal of this proposed IHA as described in the paragraph 
below. Please include with your comments any supporting data or 
literature citations to help inform decisions on the request for this 
proposed IHA or a subsequent Renewal IHA.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
Renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical, or nearly identical, activities as described in the 
Description of Proposed Activities section of this notice is planned or 
(2) the activities as described in the Description of Proposed 
Activities section of this notice would not be completed by the time 
the IHA expires and a Renewal would allow for completion of the 
activities beyond that described in the Dates and Duration section of 
this notice, provided all of the following conditions are met:
     A request for Renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for Renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for Renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: May 17, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-10928 Filed 5-19-22; 8:45 am]
BILLING CODE 3510-22-P