[Federal Register Volume 87, Number 141 (Monday, July 25, 2022)]
[Notices]
[Pages 44087-44106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15765]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC115]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to New England Wind, Phase 1 Park City 
Wind Marine Site Characterization Surveys

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

ACTION: Notice; Issuance of an incidental harassment authorization.

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

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Park City Wind, LLC (Park City Wind) to incidentally harass marine 
mammals during marine site characterization surveys offshore of 
Massachusetts south through Long Island, New York.

DATES: This Authorization is effective from September 1, 2022 through 
August 31, 2023.

FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-new-england-wind-project-phase-1-marine. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

    On December 17, 2021, NMFS received a request from Park City Wind 
for an IHA to take marine mammals incidental to marine site 
characterization surveys in waters offshore of Massachusetts south 
through Long Island, New York. The application was deemed adequate and 
complete on March 25, 2022. On May 27 2022, NMFS published a proposed 
IHA for public comment (87 FR 32123). Park City Wind's request is for 
take of 16 species of marine mammals, by Level B harassment only. 
Neither Park City Wind nor NMFS expect serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate. There 
are no changes from the proposed IHA to the final IHA.

Description of Planned Activity

Overview

    Park City Wind surveys are phase 1 of the New England Wind project 
located in the BOEM Lease Area OCS-A0534. The New England Wind project 
is comprised of Phase 1 Park City Wind and Phase 2 Commonwealth Wind 
(CW), along with associated offshore and onshore cabling, onshore 
substations, and onshore operations and maintenance (O&M) facilities 
(Figure1). Phase 2 is not part of this application. As part of its 
overall marine site characterization survey operations, Park City Wind 
plans to conduct high-resolution geophysical (HRG) surveys in the Lease 
Area.
    The purpose of the marine site characterization surveys are to 
obtain an assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of a planned offshore wind facility development area. 
Underwater sound resulting from Park City Wind's planned site 
characterization survey activities, specifically HRG surveys, has the 
potential to result in incidental take of marine mammals in the form of 
Level B harassment.

Dates and Duration

    Park City Wind anticipates that HRG survey activities will occur on 
approximately 636 ``vessel days,'' with an assumed daily survey 
distance of 80 km per vessel. This schedule is based on up to 24-hour 
operations. Each day that a vessel surveys up to approximately 80 
kilometers (km) within 24 hours will count as a single survey day, 
e.g., two survey vessels operating on the same day will count as two 
survey days. The use of concurrently surveying vessels will facilitate 
completion of all 636 vessel days within one year. Park City Wind plans 
to begin survey activities upon receipt of an IHA and continue for up 
to one year (though the actual duration will likely be shorter, because 
Park City Wind intends to use up to 3 vessels concurrently). Park City 
Wind and NMFS calculated the number of active sound source days by 
dividing the total survey trackline (50,880 km) by the approximate 
survey distance per day (80 km) anticipated to be achieved.

Specific Geographic Region

    HRG survey activities are planned to occur in both Federal offshore 
waters (including Lease Area OCS-A 0534) and along potential offshore 
export cable corridors (OECC) in both Federal and State nearshore 
waters of Massachusetts, Rhode Island, Connecticut, and New York. The 
planned survey will be active within the area illustrated in Figure 1. 
Water depths in the lease area range from about 35 to 60 meters (m) 
(115 to 197 feet (ft)). Water depths along the

[[Page 44088]]

potential OECCs range from 2.5 m to >35 m (8 to >115 ft).
[GRAPHIC] [TIFF OMITTED] TN25JY22.000

Detailed Description of Specific Activity

    Park City Wind plans to conduct HRG survey operations, which may 
include 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 will 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.), Park City 
Wind assumes 80 km as the average distance surveyed per 24 hours. On 
this basis (and as mentioned previously), a total of 636 survey days 
are expected.
    To facilitate completion of all 636 survey days across the survey 
area within one year, Park City Wind plans to use multiple vessels to 
acquire the HRG survey data. Up to three HRG vessels are planned to 
operate concurrently within the survey area. HRG survey activities will 
be conducted by vessels that can accomplish the survey goals in 
specific survey areas. Each vessel will maintain both the required 
course and a survey speed required to cover approximately 80 km (43 nm) 
per day during line acquisition, with consideration to weather delays, 
equipment maintenance, and crew availability.
    Acoustic sources planned for use during the HRG survey activities 
include the following (operating frequencies are presented in hertz 
(Hz) and kilohertz (kHz):
    [ssquf] 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 will be exposed to the signal; and,
    [ssquf] 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.
    [ssquf] 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 44089]]

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.
    [ssquf] 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.
    [ssquf] Single and Multibeam echosounders (MBESs) are used to 
determine water depths and general bottom topography. The MBESs all 
have operating frequencies > 180 kHz and are therefore outside the 
general hearing range of marine mammals.
    [ssquf] Side scan sonar (SSS) is used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The SSSs all have operating frequencies >180 
kHz and are therefore outside the general hearing range of marine 
mammals.
    HRG survey activities will occur in discrete segments corresponding 
to the following general areas:
    [ssquf] Lease Area OCS-A 0534--Inclusive of potential wind turbine 
generator (WTG) locations, electrical service platform (ESP) 
location(s), and inter-array cable corridors; and
    [ssquf] OECC route--One or more potential OECC routes through 
Federal and State waters located within the Potential Survey Area from 
northern Massachusetts to Long Island as shown in Figure 1.
    The maximum survey area has been selected to provide operational 
flexibility and to cover the possibility of multiple landfall locations 
associated with the OECC. Track line spacing for HRG survey activities 
will align with BOEM Guidelines for Providing Archaeological and 
Historic Property Information pursuant to 30 CFR part 585 (March 2017) 
and for Providing Geophysical, Geotechnical, and Geohazard Information 
pursuant to 30 CFR part 585 (July 2015) (BOEM 2015). Surveys are 
planned to support standard geophysical, geotechnical, and geohazard 
investigations as well as potential unexploded ordnance (UXO) and 
benthic habitat studies.

                                                    Table 1--Summary of Representative HRG Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         In-Beam                         Out-of-Beam
                                                                                                 ----------------------            ---------------------
                                                                   Beam      Pulse                              Peak                              Peak
           Equipment                   System         Frequency    width    duration  Repetition    Source     source   Correction    Source     source
                                                        (kHz)     ([deg])     (ms)    rate  (Hz)    level      level       (dB)       level      level
                                                                                                   (dB re 1   (dB re 1               (dB re 1   (dB re 1
                                                                                                  [mu]Pa m)  [mu]Pa m)              [mu]Pa m)  [mu]Pa m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shallow subbottom profiler.....  EdgeTech Chirp 216        2-16        65          2        3.75        178        182        -8.1      169.9      173.9
Deep seismic profiler..........  Applied Acoustics       0.2-15       180        0.8           2        205        212         0.0      205.0      212.0
                                  AA251 Boomer.
                                 GeoMarine Geo           0.05-3       180        3.4           1        203        213         0.0      203.0      213.0
                                  Spark 2000 (400
                                  tip).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: 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 Appendix A of Park City Wind's application for more information.
dB--decibel, RMS--Root mean square, 1 [mu]Pa--1 microPascal.

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

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Park City Wind was 
published in the Federal Register on May 27, 2022 (87 FR 32123). That 
notice described, in detail, Park City Wind's activities, the marine 
mammal species that may be affected by the activities, and the 
anticipated effects on marine mammals. In that notice, we requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization, and any other aspect of the 
notice of proposed IHA, and requested that interested persons submit 
relevant information, suggestions, and comments. This proposed notice 
was available for a 30-day public comment period.
    NMFS received letters from two environmental non-governmental 
organizations (eNGOs) (Oceana, Inc. and Clean Ocean Action (COA)). All 
comments, and NMFS' responses, are provided below, and the letters are 
available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-new-england-wind-project-phase-1-marine). Please review the letters for full details regarding the 
comments and underlying justification.
    Comment 1: Oceana objects to NMFS' renewal process regarding the 
extension of any one-year IHA with a truncated 15-day public comment 
period, and suggested an additional 30-day public comment period is 
necessary for any renewal request. In addition, they state that IHA 
renewal must be sure to use the most recent and best available science.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about IHA renewals (e.g., 
84 FR 52464; October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, and further, promotes NMFS' goals of improving conservation 
of marine mammals and increasing efficiency in the MMPA compliance 
process. Therefore, we intend to continue implementing the renewal 
process.
    In particular, we emphasize that any Renewal IHA does ultimately 
have a 30-day public comment period, and in fact, each Renewal IHA is 
made available for a total 45-day public comment period. The notice of 
the proposed IHA published in the Federal Register on May 27, 2022 (87 
FR 32123) made clear that NMFS was seeking comment on the proposed IHA 
and the potential issuance of a renewal for this survey. As detailed in 
the Federal Register notice for the proposed IHA and on the

[[Page 44090]]

agency's website, any renewal is limited to another year of identical 
or nearly identical activities in the same location or the same 
activities that were not completed within the 1-year period of the 
initial IHA. NMFS' analysis of the anticipated impacts on marine 
mammals caused by the applicant's activities covers both the Initial 
IHA period and the possibility of a one-year renewal. Therefore a 
member of the public considering commenting on a proposed Initial IHA 
also knows exactly what activities (or subset of activities) would be 
included in a proposed Renewal IHA, the potential impacts of those 
activities, the maximum amount and type of take that could be caused by 
those activities, the mitigation and monitoring measures that would be 
required, and the basis for the agency's negligible impact 
determinations, least practicable adverse impact findings, small 
numbers findings, and (if applicable) the no unmitigable adverse impact 
on subsistence use finding--all the information needed to provide 
complete and meaningful comments on a possible renewal at the time of 
considering the proposed Initial IHA. Reviewers have the information 
needed to meaningfully comment on both the immediate proposed IHA and a 
possible 1-year renewal, should the IHA holder choose to request one.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-day public comment 
period, which includes NMFS' direct notice to anyone who commented on 
the proposed Initial IHA, provides the public an opportunity to review 
these few documents, provide any additional pertinent information and 
comment on whether they think the criteria for a renewal have been met. 
Between the initial 30-day comment period on these same activities and 
the additional 15 days, the total comment period for a renewal is 45 
days.
    In addition to the IHA renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress' intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for renewals in the regulations, description of the process 
and express invitation to comment on specific potential renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
renewals respectively, NMFS has ensured that the public is ``invited 
and encouraged to participate fully in the agency's decision-making 
process'', as Congress intended.
    In reference to Oceana's comment requiring the renewal process use 
most recent and best available science, see comment 2 for further 
discussion on NMFS use of most recent and best available science.
    Comment 2: Oceana stated that NMFS must utilize the best available 
science, and suggested that NMFS has not done so, specifically 
referencing information regarding the North Atlantic right whale (NARW) 
such as updated population estimates, habitat usage in the survey area, 
and seasonality information. Oceana specifically asserted that NMFS is 
a steward of the remaining NARWs that swim along our coasts and, as the 
agency responsible for their recovery, should ensure that the 
authorization is based on the best scientific information available and 
that strong protections are in place before approving this or any 
proposed activity that may take, harass, or cause stress to NARWs.
    Response: NMFS agrees that the best available science should be 
used for assessing NARW when analyzing whether or not to authorize 
incidental takes. NMFS considered the best available science regarding 
both recent habitat usage patterns for the study area and up-to-date 
seasonality information in the notice of the proposed IHA, including 
consideration of existing BIAs and densities provided by Roberts et al. 
(2021). While the commenter has suggested that NMFS consider best 
available information for recent habitat usage patterns and 
seasonality, it has not offered any additional information which it 
suggests should be considered best available information in place of 
what NMFS considered in its notice of proposed IHA (87 FR 32123; May 
27, 2022).
    Lastly, as we stated in the notice of proposed IHA (87 FR 32123; 
May 27, 2022), any impacts to marine mammals are expected to be 
temporary and minor and, given the relative size of the survey area 
compared to the overall migratory route leading to foraging habitat 
(which is not affected by the specified activity). Comparatively, the 
survey area is small (approximately 18,177 km\2\ total area) compared 
to the size of the NARW migratory BIA (269,448 km\2\). Because of this, 
and in context of the minor, low-level nature of the impacts expected 
to result from the planned survey, such impacts are not expected to 
result in disruption to biologically important behaviors.
    Comment 3: Oceana noted that chronic stressors are an emerging 
concern for NARW conservation and recovery, and stated that chronic 
stress may result in energetic effects for NARWs. Oceana suggested that 
NMFS has not fully considered both the use of the area and the effects 
of both acute and chronic stressors on the health and fitness of NARWs, 
as disturbance responses in NARWs could lead to chronic stress or 
habitat displacement, leading to an overall decline in their health and 
fitness.
    Response: NMFS agrees with Oceana that both acute and chronic 
stressors are of concern for NARW conservation and recovery. We 
recognize that acute stress from acoustic exposure is one potential 
impact of these surveys, and that chronic stress can have fitness, 
reproductive, etc. impacts at the population-level scale. NMFS has 
carefully reviewed the best available scientific information in 
assessing impacts to marine mammals, and recognizes that the surveys 
have the potential to impact marine mammals through behavioral effects, 
stress responses, and auditory masking.
    However, NMFS does not expect that the generally short-term, 
intermittent, and transitory marine site characterization survey 
activities planned by Park City Wind will create conditions of acute or 
chronic acoustic exposure leading to long-term physiological stress 
responses in marine mammals. NMFS has also prescribed a robust suite of 
mitigation measures, including extended distance shutdowns for NARW, 
that are expected to further reduce the duration and intensity of 
acoustic exposure, while limiting the

[[Page 44091]]

potential severity of any possible behavioral disruption. The potential 
for chronic stress was evaluated in making the determinations presented 
in NMFS' negligible impact analyses. Because NARWs generally use this 
location in a transitory manner, specifically for migration, any 
potential impacts from these surveys are lessened for other behaviors 
due to the brief periods where exposure is possible. In context of 
these low-level impacts, which are not expected to meaningfully affect 
important behavior, we also refer again to the large size of the 
migratory corridor compared with the survey area (the overlap between 
the BIA and the proposed survey area will cover approximately 18,177 
km\2\ total area of the 269,448 km\2\ BIA). Thus, the transitory nature 
of NARWs at this location means it is unlikely for any exposure to 
cause chronic effects, as Park City Wind's planned survey area and 
ensonified zones are much smaller than the overall migratory corridor. 
As such, NMFS does not expect acute or cumulative stress to be a 
detrimental factor to NARWs from Park City Wind's described survey 
activities.
    Comment 4: Oceana and COA asserted that NMFS must fully consider 
the discrete effects of each activity and the cumulative effects of the 
suite of approved, proposed and potential activities on marine mammals 
and NARWs in particular and ensure that the cumulative effects are not 
excessive before issuing or renewing an IHA.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for a separate ``cumulative effects'' analysis of 
other unrelated activities and their impacts on populations. The 
preamble for NMFS' implementing regulations (54 FR 40338; September 29, 
1989) states in response to comments that the impacts from other past 
and ongoing anthropogenic activities are to be incorporated into the 
negligible impact analysis via their impacts on the baseline. 
Consistent with that direction, NMFS has factored into its negligible 
impact analysis the impacts of other past and ongoing anthropogenic 
activities via their impacts on the baseline, e.g., as reflected in the 
density/distribution and status of the species, population size and 
growth rate, and other relevant stressors. The 1989 final rule for the 
MMPA implementing regulations also addressed public comments regarding 
cumulative effects from future, unrelated activities. There NMFS stated 
that such effects are not considered in making findings under section 
101(a)(5) concerning negligible impact. In this case, this IHA, as well 
as other IHAs currently in effect or proposed within the specified 
geographic region, are appropriately considered an unrelated activity 
relative to the others. The IHAs are unrelated in the sense that they 
are discrete actions under section 101(a)(5)(D), issued to discrete 
applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Park City Wind was the applicant for the IHA, and we 
are responding to the specified activity as described in that 
application (and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated that (1) we would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) reasonably foreseeable cumulative effects would also be 
considered under section 7 of the Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written 
Environmental Assessments (EA) that addressed cumulative impacts 
related to substantially similar activities, in similar locations, 
e.g., the 2017 Ocean Wind, LLC EA for site characterization surveys off 
New Jersey and the 2018 Deepwater Wind EA for survey activities 
offshore Delaware, Massachusetts, and Rhode Island. Cumulative impacts 
regarding issuance of IHAs for site characterization survey activities 
such as those planned by Park City Wind have been adequately addressed 
under NEPA in prior environmental analyses that support NMFS' 
determination that this action is appropriately categorically excluded 
from further NEPA analysis. NMFS independently evaluated the use of a 
categorical exclusion (CE) for issuance of Park City Wind's IHA, which 
included consideration of extraordinary circumstances.
    For ESA-listed species, the cumulative effects of substantially 
similar activities in the northwest Atlantic Ocean have been analyzed 
in the past under section 7 of the ESA when NMFS has engaged in formal 
intra-agency consultation, such as the 2013 programmatic Biological 
Opinion for BOEM Lease and Site Assessment Rhode Island, Massachusetts, 
New York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562; July 7, 
2017, 85 FR 21198; April 16, 2020 and 86 FR 26465; May 10, 2021), which 
are similar to those planned by Park City Wind under this current IHA 
request. This Biological Opinion determined that NMFS' issuance of IHAs 
for site characterization survey activities associated with leasing, 
individually and cumulatively, are not likely to adversely affect 
listed marine mammals. NMFS notes that, while issuance of this IHA is 
covered under a different consultation, this Biological Opinion remains 
valid.
    Comment 5: Oceana suggests that Protected Species Observers (PSOs) 
complement their survey efforts using additional technologies, such as 
infrared detection devices when in low-light conditions.
    Response: NMFS agrees with Oceana regarding this suggestion and a 
requirement to utilize a thermal (infrared) device during low-light 
conditions was included in the proposed Federal Register notice. That 
requirement is included as a requirement of the issued IHA.
    Comment 6: Oceana recommended that NMFS restrict all vessels of all 
sizes associated with the proposed survey activities to speeds less 
than 10 kn (5.14 m/s) at all times with no exceptions due to the risk 
of vessel strikes to NARWs and other large whales.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for vessel strike 
resulting from Park City Wind's activity and have determined that based 
on the nature of the activity and the required mitigation measures 
specific to vessel strike avoidance included in the IHA, potential for 
vessel strike is so low as to be discountable. The required mitigation 
measures, all of which were included in the proposed IHA and are now 
required in the final IHA, include: A requirement that all vessel 
operators comply with 10 kn (18.5 km/hour) or less speed restrictions 
in any Seasonal Management Area (SMA), Dynamic Management Area (DMA) or 
Slow Zone while underway, and check daily for information regarding the 
establishment of mandatory or voluntary vessel strike avoidance areas 
(SMAs, DMAs, Slow Zones) and information regarding NARW sighting 
locations; a requirement

[[Page 44092]]

that all vessels greater than or equal to 19.8 m in overall length 
operating from November 1 through April 30 operate at speeds of 10 kn 
(18.5 km/hour) or less; a requirement that all vessel operators reduce 
vessel speed to 10 kn (18.5 km/hour) or less when any large whale, any 
mother/calf pairs, pods, or large assemblages of non-delphinid 
cetaceans are observed near the vessel; a requirement that all survey 
vessels maintain a separation distance of 500 m or greater from any 
ESA-listed whales or other unidentified large marine mammals visible at 
the surface while underway; a requirement that, if underway, vessels 
must steer a course away from any sighted ESA-listed whale at 10 kn 
(18.5 km/hr) or less until the 500 m minimum separation distance has 
been established; a requirement that, if an ESA-listed whale is sighted 
in a vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral; a requirement 
that all vessels underway must maintain a minimum separation distance 
of 100 m from all non-ESA-listed baleen whales; and a requirement that 
all vessels underway must, to the maximum extent practicable, attempt 
to maintain a minimum separation distance of 50 m from all other marine 
mammals, with an understanding that at times this may not be possible 
(e.g., for animals that approach the vessel). We have determined that 
the vessel strike avoidance measures in the IHA are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. Furthermore, no documented vessel strikes have occurred 
for any marine site characterization surveys for which IHAs were issued 
from NMFS during the survey activities themselves or while transiting 
to and from survey sites.
    Comment 7: Oceana suggests that NMFS require vessels to maintain a 
separation distance of at least 500 m from NARW at all times.
    Response: NMFS agrees with Oceana regarding this suggestion and a 
requirement to maintain a separation distance of at least 500 m from 
NARWs at all times was included in the proposed Federal Register notice 
and was included as a requirement in the issued IHA.
    Comment 8: Oceana recommended that the IHA should require all 
vessels supporting site characterization be equipped with and use Class 
A Automatic Identification System (AIS) devices at all times while on 
the water. Oceana suggested this requirement should apply to all 
vessels, regardless of size, associated with the survey.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and use Class A 
Automatic Identification System (devices) at all times while on the 
water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, those activities carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Park City Wind, with the potential for 
both Level A and Level B harassment take. Given the small isopleths and 
small numbers of take authorized by this IHA, NMFS does not agree that 
the benefits of requiring AIS on all vessels associated with the survey 
activities outweighs and warrants the cost and practicability issues 
associated with this requirement.
    Comment 9: Oceana asserts that the IHA must include requirements to 
hold all vessels associated with site characterization surveys 
accountable to the IHA requirements, including vessels owned by the 
developer, contractors, employees, and others regardless of ownership, 
operator, and contract. They state that exceptions and exemptions will 
create enforcement uncertainty and incentives to evade regulations 
through reclassification and redesignation. They recommend that NMFS 
simplify this by requiring all vessels to abide by the same 
requirements, regardless of size, ownership, function, contract or 
other specifics.
    Response: NMFS agrees with Oceana and required these measures in 
the proposed IHA and final IHA. The IHA requires that a copy of the IHA 
must be in the possession of Park City Wind, the vessel operators, the 
lead PSO, and any other relevant designees of Park City Wind operating 
under the authority of this IHA. The IHA also states that Park City 
Wind must ensure that the vessel operator and other relevant vessel 
personnel, including the Protected Species Observer (PSO) team, are 
briefed on all responsibilities, communication procedures, marine 
mammal monitoring protocols, operational procedures, and IHA 
requirements prior to the start of survey activity, and when relevant 
new personnel join the survey operations.
    Comment 10: Oceana stated that the IHA must include a requirement 
for all phases of the site characterization to subscribe to the highest 
level of transparency, including frequent reporting to federal 
agencies. Oceana recommended requirements to report all visual and 
acoustic detections of NARWs and any dead, injured, or entangled marine 
mammals to NMFS or the Coast Guard as soon as possible and no later 
than the end of the PSO shift. Oceana states that to foster stakeholder 
relationships and allow public engagement and oversight of the 
permitting, the IHA should require all reports and data to be 
accessible on a publicly available website.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA calls for IHAs to incorporate reporting requirements. As included 
in the proposed IHA, the final IHA includes requirements for reporting 
that address Oceana's recommendations. Park City Wind is required to 
submit a monitoring report to NMFS within 90 days after completion of 
survey activities that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring. PSO 
datasheets or raw sightings data must also be provided with the draft 
and final monitoring report. This final monitoring report is then made 
available to the public on NMFS website.
    Further, the draft IHA and final IHA stipulate that if a NARW is 
observed at any time by any survey vessels, during surveys or during 
vessel transit, Park City Wind must immediately report sighting 
information to the NMFS NARW Sighting Advisory System within two hours 
of occurrence, when practicable, or no later than 24 hours after 
occurrence. Park City Wind may also report the sighting to the U.S. 
Coast Guard. Additionally, Park City Wind must report any discoveries 
of injured or dead marine mammals to the Office of Protected Resources, 
NMFS, and to the New England/Mid-Atlantic Regional Stranding 
Coordinator as soon as feasible. This includes entangled animals. All 
reports and associated data submitted to NMFS are included on the 
website for public inspection.
    Comment 11: Oceana recommends a shutdown requirement if a NARW or 
other ESA-listed species is detected in the clearance zone as well as a 
publicly available explanation of any exemptions as to why the 
applicant would not be able to shut down in these situations.
    Response: There are several shutdown requirements described in the 
Federal Register notice of the proposed IHA (87 FR 32123; May 27, 
2022), and which are included in the final IHA, including the 
stipulation that geophysical survey equipment must be immediately shut 
down if any marine mammal is observed within or entering the relevant 
Exclusion Zone while geophysical survey equipment is operational. 
Oceana mentions an exemption to the shutdown for human safety, however,

[[Page 44093]]

there is no exemption for the shutdown requirement for NARW, ESA-listed 
species, or any other species.
    Park City Wind is required to implement a 30-minute pre-start 
clearance period prior to the initiation of ramp-up of specified HRG 
equipment. During this period, clearance zones will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective clearance 
zone. If a marine mammal is observed within an clearance zone during 
the pre-start clearance period, ramp-up may not begin until the 
animal(s) has been observed exiting its respective exclusion zone or 
until an additional time period has elapsed with no further sighting 
(i.e., 15 minutes for small odontocetes and seals, and 30 minutes for 
all other species). 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 exclusion zones.
    In regards to reporting, Park City Wind must notify NMFS if a NARW 
is observed at any time by any survey vessels during surveys or during 
vessel transit. Additionally, Park City Wind is required to report the 
relevant survey activity information, such as such as the type of 
survey equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.) as well as the 
estimated distance to an animal and its heading relative to the survey 
vessel at the initial sighting and survey activity information. We note 
that if a NARW is detected within the Exclusion Zone before a shutdown 
is implemented, the NARW and its distance from the sound source, 
including if it is within the Level B harassment zone, would be 
reported in Park City Wind's final monitoring report and made publicly 
available on NMFS' website. Park City Wind is required to immediately 
notify NMFS of any sightings of NARWs and report upon survey activity 
information. NMFS believes that these requirements address the 
commenter's concerns.
    Comment 12: Oceana recommended that when HRG surveys are allowed to 
resume after a shutdown event, the surveys should be required to use a 
ramp-up procedure to encourage any nearby marine life to leave the 
area.
    Response: NMFS agrees with this recommendation and included in the 
Federal Register notice of the proposed IHA (87 FR 32123; May 27, 2022) 
and this final IHA a stipulation that when technically feasible, survey 
equipment must be ramped up at the start or restart of survey 
activities. A ramp-up procedure, involving a gradual increase in source 
level output, is required at all times as part of the activation of the 
acoustic source when technically feasible. Operators should ramp up 
sources to half power for 5 minutes and then proceed to full power. A 
30-minute pre-start clearance observation period must occur prior to 
the start of ramp-up (or initiation of source use if ramp-up is not 
technically feasible). NMFS notes that ramp-up is not required for 
short periods where acoustic sources were shut down (i.e., less than 30 
minutes) if PSOs have maintained constant visual observation and no 
detections of marine mammals occurred within the applicable Exclusion 
Zones.
    Comment 13: Oceana recommended increasing the Exclusion Zone to 
1,000m for NARWs with requirements for HRG survey vessels to use PSOs 
and Passive Acoustic Monitoring (PAM) to establish and monitor these 
zones.
    Response: NMFS notes that the 500 m Exclusion Zone for NARWs 
exceeds the modeled distance to the largest 160 dB Level B harassment 
isopleth (178 m during sparker use) by a conservative margin to be 
extra cautious. Commenters do not provide a compelling rationale for 
why the Exclusion Zone should be even larger. Given that these surveys 
are relatively low impact and that, regardless, NMFS has prescribed a 
precautionary NARW Exclusion Zone that is larger (500 m) than the 
conservatively estimated largest harassment zone (178 m), NMFS has 
determined that the Exclusion Zone is appropriate.
    Regarding the use of acoustic monitoring to implement the exclusion 
zones, NMFS does not anticipate that acoustic monitoring would be 
effective for a variety of reasons discussed below and therefore has 
not required it in this IHA. As described in the Mitigation section, 
NMFS has determined that the prescribed mitigation requirements are 
sufficient to effect the least practicable adverse impact on all 
affected species or stocks.
    The commenters do not explain why they expect that PAM would be 
effective in detecting vocalizing mysticetes, nor does NMFS agree that 
this measure is warranted, as it is not expected to be effective for 
use in detecting the species of concern. It is generally accepted that, 
even in the absence of additional acoustic sources, using a towed 
passive acoustic sensor to detect baleen whales (including NARWs) is 
not typically effective because the noise from the vessel, the flow 
noise, and the cable noise are in the same frequency band and will mask 
the vast majority of baleen whale calls. Vessels produce low-frequency 
noise, primarily through propeller cavitation, with main energy in the 
5-300 Hertz (Hz) frequency range. Source levels range from about 140 to 
195 decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; 
Hildebrand, 2009), depending on factors such as ship type, load, and 
speed, and ship hull and propeller design. Studies of vessel noise show 
that it appears to increase background noise levels in the 71-224 Hz 
range by 10-13 dB (Hatch et al. 2012; McKenna et al. 2012; Rolland et 
al. 2012). PAM systems employ hydrophones towed in streamer cables 
approximately 500 m behind a vessel. Noise from water flow around the 
cables and from strumming of the cables themselves is also low 
frequency and typically masks signals in the same range. Experienced 
PAM operators participating in a recent workshop (Thode et al. 2017) 
emphasized that a PAM operation could easily report no acoustic 
encounters, depending on species present, simply because background 
noise levels rendered any acoustic detection impossible. The same 
workshop report stated that a typical eight-element array towed 500 m 
behind a vessel could be expected to detect delphinids, sperm whales, 
and beaked whales at the required range, but not baleen whales, due to 
expected background noise levels (including seismic noise, vessel 
noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (a maximum of 178 m); this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low. Together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species

[[Page 44094]]

vocalize infrequently or during certain activities, which means that 
only a subset of the animals within the range of the PAM would be 
detected (and potentially have reduced impacts). Additionally, 
localization and range detection can be challenging under certain 
scenarios. For example, odontocetes are fast moving and often travel in 
large or dispersed groups which makes localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for NARWs and other low frequency cetaceans, species for 
which PAM has limited efficacy), and the cost and impracticability of 
implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat. NMFS has previously provided discussions on why PAM isn't a 
required monitoring measure during HRG survey IHAs in past Federal 
Register notices (see 86 FR 21289, April 22, 2021 and 87 FR 13975, 
March 11, 2022 for examples).
    Comment 14: Oceana states that the IHA must include conditions for 
the survey activities that will avoid adverse effects on NARWs in and 
around the survey site and minimize and mitigate the effects that 
cannot be avoided.
    Response: The MMPA requires that an IHA include measures that will 
effect the least practicable adverse impact on the affected species and 
stocks, and NMFS agrees that the IHA should include conditions for the 
survey activities that will first avoid adverse effects on NARWs in and 
around the survey site, where practicable, and then minimize the 
effects that cannot be avoided. NMFS has determined that the IHA meets 
this requirement to effect the least practicable adverse impact. As 
part of the analysis for all marine site characterization survey IHAs, 
NMFS evaluated the effects expected as a result of the specified 
activity, made the necessary findings, and prescribed mitigation 
requirements sufficient to achieve the least practicable adverse impact 
on the affected species and stocks of marine mammals.
    Comment 15: COA is concerned regarding the number of species that 
could be impacted by the activities, as well as a lack of baseline data 
being available for harbor seals in the area. In addition, COA has 
stated that NMFS did not adequately account for the severity of effects 
of activities on common dolphins.
    Response: We appreciate the concern expressed by COA. NMFS utilizes 
the best available science when analyzing which species may be impacted 
by an applicant's proposed activities. Based on information found in 
the scientific literature, as well as based on density models developed 
by Duke University, all marine mammal species included in the proposed 
Federal Register notice have some likelihood of occurring in Park City 
Winds' survey areas. Furthermore, the MMPA requires us to evaluate the 
effects of the specified activities in consideration of the best 
scientific evidence available and, if the necessary findings are made, 
to issue the requested take authorization. The MMPA does not allow us 
to delay decision making in hopes that additional information may 
become available in the future.
    Regarding the lack of baseline information cited by COA, with 
specific concern pointed out for harbor seals, NMFS doesn't expect this 
activity to have any impacts on animals in New Jersey waters, as Park 
City Wind's survey activities are not located off of New Jersey.
    Comment 16: COA asserts that Level A harassment may occur, and that 
this was not accounted for in the proposed Notice.
    Response: NMFS acknowledges the concerns brought up by the 
commenters regarding the potential for Level A harassment of NARW. 
However, no Level A harassment is expected to result, even in the 
absence of mitigation, given the characteristics of the sources planned 
for use. This is additionally supported by the required mitigation and 
very small estimated Level A harassment zones described in NMFS's 
Federal Register notice (87 FR 32123, May 27, 2022). Furthermore, the 
commenters do not provide any support for the apparent contention that 
Level A harassment is a potential outcome of these activities. As 
discussed in the notice of proposed IHA, NMFS considers this category 
of survey operations to be near de minimis, with the potential for 
Level A harassment for NARW and any species to be discountable.
    Comment 17: COA does not agree with NMFS' negligible impact 
determination for NARWs and states that NMFS provides an inaccurate 
characterization of impacts to NARW.
    Response: NMFS disagrees with the COA's position regarding the 
negligible impact analysis, and they do not provide a reasoned basis 
for finding that the effects of the specified activity would be greater 
than negligible on NARW. The Negligible Impact Analysis and 
Determination section of the proposed IHA (87 FR 32123) provides a 
detailed qualitative discussion supporting NMFS' determination that any 
anticipated impacts from this action would be negligible. The section 
contains a number of factors that were considered by NMFS based on the 
best available scientific data and why we concluded that impacts 
resulting from the specified activity are not reasonably expected to, 
or reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.
    With specific regard to NARW, we note that take is authorized for 
only a very small percentage of the right whale population (see Table 
5). However, the numbers of potential incidents of take or animals 
taken are only part of an assessment and are not, alone, decisively 
indicative of the degree of impact. In order to adequately evaluate the 
effects of noise exposure at the population level, the total number of 
take incidents must be further interpreted in context of relevant 
biological and population parameters and other biological, 
environmental, and anthropogenic factors and in a spatially and 
temporally explicit manner. The effects to individuals of a ``take'' 
are not necessarily equal. Some take events represent exposures that 
only just exceed a Level B harassment threshold, which would be 
expected to result in lower-level impacts, while other exposures occur 
at higher received levels and would typically be expected to have 
comparatively greater potential impacts on an individual. Further, 
responses to similar received levels may result in significantly 
different impacts on an individual dependent upon the context of the 
exposure or the status of the individuals (e.g., if it occurred in an 
area and time where concentrated feeding was occurring, or to 
individuals weakened by other effects). In this case, NMFS reiterates 
that no such higher level takes are expected to occur. The maximum 
anticipated Level B harassment zone is 178 m, a distance smaller than 
the precautionary shutdown zone of 500 m. To the extent that any 
exposure of NARW does occur, it would be expected to result in lower-
level impacts that are unlikely to result in significant or long-
lasting impacts to the exposed individual and, given the relatively 
small amount of exposures expected to occur, it is unlikely that these 
exposures would result in population-level impacts. NMFS

[[Page 44095]]

acknowledges that impacts of a similar degree on a proportion of the 
individuals in a stock may have differing impacts to the stock based on 
its status, i.e., smaller stocks may be less able to absorb deaths or 
reproductive suppression and maintain similar growth rates as larger 
stocks. However, even given the precarious status of the NARW, the low-
level nature of the impacts expected to occur from this action and the 
small number of individuals affected supports NMFS' determination that 
population-level impacts will not occur. The commenters provide no 
substantive reasoning to contradict this finding, and do not support 
their assertions of effects greater than NMFS has assumed may occur.
    Comment 18: COA asserted that NMFS is overestimating the population 
abundance for NARW.
    Response: NMFS agrees that the most up to date population estimate 
should be used for assessing NARW abundance estimates. The revised 
abundance estimate (368; 95 percent with a confidence interval of 356-
378) published by Pace (2021) (and subsequently included in the 2021 
draft Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), which was used in the proposed IHA, provides the most recent 
and best available estimate, and introduced improvements to NMFS' right 
whale abundance model. Specifically, Pace (2021) looked at a different 
way of characterizing annual estimates of age-specific survival. NMFS 
considered all relevant information regarding NARW, including the 
information cited by the commenters. However, NMFS relies on the SAR. 
Recently, NMFS updated its species web page to recognize the population 
estimate for NARWs is now below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale), as COA 
mentioned. We anticipate that this information will be presented in the 
draft 2022 SAR. We note that this change in abundance estimate would 
not change the estimated take of North Atlantic right whales or 
authorized take numbers, nor affect our ability to make the required 
findings under the MMPA for Park City Wind's survey activities.
    NMFS further notes that the MMPA specifies that the ``best 
available data'' must be used, which does not always mean the most 
recent. As is NMFS' prerogative, we referenced the best available NARW 
abundance estimate of 368 from the draft 2021 SARs as NMFS' 
determination of the best available data that we relied on in our 
analysis. The Pace (2021) results strengthened the case for a change in 
mean survival rates after 2010-2011, but did not significantly change 
other current estimates (population size, number of new animals, adult 
female survival) derived from the model.
    Lastly, as we stated previously and in the notice of proposed IHA 
(87 FR 32123; May 27, 2022), any impacts to marine mammals are expected 
to be temporary and minor and, given the relative size of the survey 
area compared to the overall migratory route and foraging habitat 
(which is not affected by the specified activity). The survey area is 
small (approximately 18,177 km\2\ total area) compared to the size of 
the NARW migratory BIA (269,448 km\2\). Because of this, and in context 
of the minor, low-level nature of the impacts expected to result from 
the planned survey, such impacts are not expected to result in 
disruption to biologically important behaviors.
    Comment 19: Oceana states that Park City Wind's activities will 
increase vessel traffic in and around the project area and that the IHA 
must include a vessel traffic plan to minimize the effects of increased 
vessel traffic.
    Response: NMFS disagrees with Oceana's statement that the IHA must 
require a vessel traffic plan. During HRG surveys there are no service 
vessels required. NMFS agrees that a vessel plan may be potentially 
appropriate for project construction, but it is not needed for marine 
site characterization surveys.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
those descriptions, incorporated here by reference. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; 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 
will be authorized for this activity, 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. 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 serious injury or 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 represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock's range. 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 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 online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

[[Page 44096]]



                                              Table 2--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance  (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale \4\..  Eubalaena glacialis....  Western North Atlantic   E/D; Y              368 (0; 364; 2019)....        0.7        7.7
                                                                (WNA).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0.15; 1,375;            22         58
                                                                                                             2016).
    Fin whale.......................  Balaenoptera physalus..  WNA....................  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.02; 3,098;           6.2        1.2
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -/-; N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.                                                        2016).
    Blue whale......................  Balaenoptera musculus..  WNA....................  E/D; Y              Unknown (unknown; 402;        0.8          0
                                                                                                             2019).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E/D; Y              4,349 (0.28;3,451;            3.9          0
                                                                                                             2016).
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  WNA....................  -/-; N              39,215 (0.30; 30,627;         306         29
                                                                                                             2016).
    Short finned pilot whale........  Globicephala             WNA....................  -/-; N              28,924 (0.24; 23,637;         236        136
                                       macrorhynchus.                                                        2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  WNA Offshore...........  -/-; N              62,851 (0.23; 51,914;         519         28
                                                               WNA Northern Migratory   -/D;Y                2016).                        48  12.2-21.5
                                                                Coastal.                                    6,639 (0.41, 4,759,
                                                                                                             2016).
    Common dolphin..................  Delphinus delphis......  WNA....................  -/-; N              172,974 (0.21;              1,452        390
                                                                                                             145,216; 2016).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  WNA....................  -/-; N              93,233 (0.71; 54,443;         544         27
                                                                                                             2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  WNA....................  -/-; N              39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  WNA....................  -/-; N              35,215 (0.19; 30,051;         303       54.3
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \5\...................  Halichoerus grypus.....  WNA....................  -/-; N              27,300 (0.22; 22,785,       1,458      4,453
                                                                                                             2029).
    Harbor seal.....................  Phoca vitulina.........  WNA....................  -/-; N              61,336 (0.08; 57,637,       1,729        339
                                                                                                             2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 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 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\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
  below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).
\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 450,000. The annual M/SI value given is for the total stock.

    A detailed description of the species likely to be affected by Park 
City Wind's activities, including information regarding population 
trends and threats, and local occurrence, were provided in the Federal 
Register notice for the proposed IHA (87 FR 32123, May 27, 2022). Since 
that time, we are not aware of any changes in the status of these 
species and stocks or other relevant new information; therefore, 
detailed descriptions are not provided here. Please refer to that 
Federal Register notice for those descriptions.

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. 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, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). 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.

[[Page 44097]]



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

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid) 
species) have the reasonable potential to co-occur with the survey 
activities. Please refer to Table 2. Of the cetacean species that may 
be present, six are classified as low-frequency cetaceans (i.e., all 
mysticete species), seven are classified as mid-frequency cetaceans 
(i.e., all delphinid species and the sperm whale), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the deployed acoustic sources 
have the potential to result in behavioral harassment of marine mammals 
in the vicinity of the study area. The Federal Register notice for the 
proposed IHA (87 FR 32123; May 27, 2022) included a discussion of the 
effects of anthropogenic noise, ship strike, stress, and potential 
impacts on marine mammals and their habitat, therefore that information 
is not repeated here; please refer to the Federal Register notice for 
that information.

Estimated Take

    This section provides the number of incidental takes authorized 
through this IHA, which will inform both NMFS' consideration of ``small 
numbers'' and the negligible impact determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes will be by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor authorized. Consideration of 
the anticipated effectiveness of the mitigation measures (i.e., pre-
start clearance and shutdown measures), discussed in detail below in 
the Mitigation section, further strengthens the conclusion that Level A 
harassment is not a reasonably anticipated outcome of the survey 
activity. As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take is estimated.
    For acoustic impacts, 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) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
will be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur Permanent Threshold Shift (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 or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS predicts that marine mammals may be 
behaviorally harassed (i.e., Level B harassment) when exposed to 
underwater anthropogenic noise above received levels of 160 dB re 1 
[mu]Pa (rms) for the impulsive sources (i.e., boomers, sparkers) and 
non-impulsive, intermittent sources (e.g., CHIRP SBPs) evaluated here 
for Park City Wind's planned activity.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on

[[Page 44098]]

Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) 
identifies dual criteria to assess auditory injury (Level A harassment) 
to five different marine mammal groups (based on hearing sensitivity) 
as a result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). For more information, see NMFS' 2018 
Technical Guidance, which may be accessed at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Park City Wind's planned activity includes the use of impulsive 
(i.e., sparkers and boomers) and non-impulsive (e.g., CHIRP SBP) 
sources. However, as discussed above, NMFS has concluded that Level A 
harassment is not a reasonably likely outcome for marine mammals 
exposed to noise through use of the sources planned for use here, and 
the potential for Level A harassment is not evaluated further in this 
document. Please see Park City Wind's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated Level A harassment exposures. 
Maximum estimated Level A harassment isopleths were less than 4 m for 
all sources and hearing groups with the exception of an estimated 53 m 
zone calculated for high-frequency cetaceans during use of the Boomer, 
respectively. Park City Wind did not request authorization of take by 
Level A harassment, and no take by Level A harassment is authorized 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 equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
types that may be used during the surveys and the source parameters 
associated with those HRG equipment types.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Park City Wind 
that has the potential to result in Level B harassment of marine 
mammals, the Applied Acoustics AA251 Boomer will produce the largest 
Level B harassment isopleth (178 m). Estimated Level B harassment 
isopleths for all sources evaluated here are provided in Table 4. 
Although Park City Wind does not expect to use the AA251 Boomer source 
on all planned survey days, it assumes, for purposes of analysis, that 
the boomer sources will 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 Threshold
                                                  [160 dB rms]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Level B
                                                                                   Source level     harassment
           Equipment                 System          Frequency      Beam width       (dB re 1       horizontal
                                                       (kHz)          ([deg])        [mu]Pa m)        impact
                                                                                                   distance (m)
----------------------------------------------------------------------------------------------------------------
Shallow subbottom profiler....  EdgeTech Chirp              2-16              65             178               4
                                 216.
Deep seismic profiler.........  Applied                   0.2-15             180             205             178
                                 Acoustics AA251
                                 Boomer.
                                GeoMarine Geo             0.05-3             180             203             141
                                 Spark 2000 (400
                                 tip).
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section, NMFS provides information about the presence, 
density, or group dynamics of marine mammals that informs 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/.
    Marine mammal density estimates in the survey area (animals/km\2\) 
were obtained using the most recent model results for all taxa (Roberts 
et al., 2016, 2017, 2018, 2021). The updated models incorporate 
additional sighting data, including sightings from NOAA's Atlantic 
Marine Assessment Program for Protected Species (AMAPPS) surveys. Those 
data provide abundance estimates for species or species guilds within 
10 km x 10 km grid cells (100 km\2\), or in the case of NARW densities 
within 5 km x 5 km grid cells, on a monthly or annual basis, depending 
on the species. Using geographic information system (GIS) (ESRI 2017), 
the survey area and the NARW SMA polygons 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

[[Page 44099]]

months of May through December. For the months of January through 
April, only the survey area polygon was used to select density grid 
cells since it excludes waters within Cape Cod Bay where no surveys 
will occur 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/
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 of the application).
    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, the estimate was multiplied by the proportion of the 
combined abundance attributable to each species. Specifically, the SAR 
abundance estimates (Hayes et al. 2021) were summed for the two species 
(gray seal = 27,300, harbor seal = 61,336; total = 88,636) and the 
total divided 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 exposure estimates.
    Densities from each of the selected density blocks were averaged 
for each month available to provide monthly density estimates for each 
species (when available based on the temporal resolution of the model 
products), along with the average annual density. Please see Tables 8 
and 9 of Park City Wind's application for density values used in the 
exposure estimation process. Additional data regarding average group 
sizes from survey effort in the region was considered to ensure 
adequate take estimates are evaluated (see Table 10 of the 
application).

Take Calculation Estimation

    Here NMFS describes 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 will result in harassment, radial distances to predicted isopleths 
corresponding to Level B harassment thresholds are calculated, as 
described above. The maximum distance (i.e., 178 m distance associated 
with the boomer) to the Level B harassment criterion and the estimated 
trackline distance traveled per day by a given survey vessel (i.e., 80 
km) was used to calculate the daily ensonified area, or zone of 
influence (ZOI) around the survey vessel. This distance was multiplied 
by two times the average daily survey distance (80 km) and the area of 
a circle with radius 178 m was added to the result to calculate the 
daily ZOI (28.6 km\2\). The daily ZOI was then multiplied by the total 
number of expected survey days (636) to estimate the total ZOI for the 
surveys (18,177 km\2\).
    Potential Level B harassment exposures are estimated by multiplying 
the average annual density of each species within either the Lease Area 
or potential ECR area by the total ZOI for the planned surveys. Those 
results are shown in Table 5.
    The larger of the two estimates from the approaches described 
above: density-based exposure estimates or mean group size was then 
selected as the authorized take as shown in Table 5. In cases where the 
calculations resulted in a non-integer, the result was rounded up to 
the nearest whole number since it is not logical to request a partial 
take. 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 dolphins that may be encountered during the planned 
surveys. Data collected by PSOs on survey vessels operating in 2020-
2021 showed an average of approximately 16 common dolphins may be 
observed within 200 m of a vessel (the approximate Level B harassment 
distance) per survey day. Multiplying the anticipated 636 survey days 
by 16 common dolphins per day results in a potential estimated take of 
10,176 common dolphins so this has been used as the requested take of 
common dolphins shown in Table 5.
    For the ``seal'' guild in the Roberts et al. (2018) densities, the 
exposure estimate was split by species using the relative abundance for 
the two species to produce the species-specific requested take.
    For Bottlenose dolphins, the offshore morphotype inhabits the outer 
continental slope and shelf edge regions from Georges Bank to the 
Florida Keys, while the coastal morphotype is continuously distributed 
along the Atlantic Coast from south of New York to the Florida 
Peninsula (Hayes et al. 2020)). Offshore common bottlenose dolphin 
sightings occur from Cape Hatteras to the eastern end of Georges Bank 
(Kenney 1990). The western North Atlantic offshore stock is distributed 
primarily along the OCS and continental slope, from Georges Bank to 
Cape Hatteras during spring and summer (CeTAP 1982). Bottlenose 
dolphins encountered in the survey area will likely belong to the 
Western North Atlantic Offshore stock, so all takes are being requested 
from this stock. However, it is possible that a few animals encountered 
during the surveys could be from the North Atlantic Northern Migratory 
Coastal stock, but chance of occurrence is low, and no take from this 
species is authorized. Similarly, based on the distributions described 
in Hayes et al. (2020, 2021b), pilot whale sightings in the Lease Area 
will most likely be long-finned pilot whales, so all pilot whale takes 
being requested are for long-finned pilot whales.
    For NARWs, the implementation of a 500 m acoustic shutdown zone and 
the 500 m vessel separation distance identified in the vessel strike 
avoidance measures means that the likelihood of an exposure to received 
sound levels greater than 160 dB SPLrms is very low. As a precautionary 
measure, takes by Level B harassment are requested for the survey.

                                 Table 5--Takes by Level B Harassment and Percentages of Each Species or Stock Abundance
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Density                   Take by
          Taxonomic group                 Common name          Stock (NEST) \a\       based     Mean  group    Level B           Percent of stock
                                                                                    exposures       size      harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cetacean (Mysticete)...............  NARW.................  Western Atlantic                29          2.4           30  8.2.
                                                             Stock (368).
                                     Blue whale...........  Western North                    0          1.0            1  Less than 1 percent.
                                                             Atlantic Stock (402).
                                     Fin whale............  Western North                   59          1.8           60  Less than 1 percent.
                                                             Atlantic Stock
                                                             (6,802).
                                     Sei whale............  Nova Scotia Stock                5          1.6            5  Less than 1 percent.
                                                             (6,292).
                                     Minke whale..........  Canadian East Coastal           37          1.2           37  Less than 1 percent.
                                                             Stock (21,968).

[[Page 44100]]

 
                                     Humpback whale.......  West Indies DPS                 45          2.0           46  3.3.
                                                             (1,396).
Cetacean (Odontocete)..............  Sperm whale..........  North Atlantic Stock             2          1.5            5  Less than 1 percent.
                                                             (4,349).
                                     Atlantic white-sided   Western North                1,014         27.9        1,014  Less than 2 percent.
                                      dolphin.               Atlantic Stock
                                                             (93,233).
                                     Atlantic spotted       Western North                    4         29.0           29  Less than 1 percent.
                                      dolphin.               Atlantic Stock
                                                             (39,921).
                                     Common bottlenose      Western North                  398          7.8          399  Less than 1 percent.
                                      dolphin.               Atlantic Offshore
                                                             Stock (62,851).
                                     Long-finned pilot      Western North                   86          8.4           86  Less than 1 percent.
                                      whale.                 Atlantic Stock
                                                             (68,139).
                                     Risso's dolphin......  Western North                    4          5.4           30  Less than 1 percent.
                                                             Atlantic Stock
                                                             (35,215).
                                     Common dolphin (short- Western North                1,081         34.9       10,176  5.9.
                                      beaked).               Atlantic Stock
                                                             (172,974).
                                     Harbor porpoise......  Western North                  759          2.7          759  Less than 1 percent.
                                                             Atlantic Stock
                                                             (95,543).
Pinniped (Phocid)..................  Gray seal............  Western North                  399          0.4          400  Less than 2 percent.
                                                             Atlantic Stock
                                                             (27,300).
                                     Harbor seal..........  Western North                  897          1.0          897  Less than 2 percent.
                                                             Atlantic Stock
                                                             (61,336).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Source--(Hayes et al. 2021).

Rare Species

    Species considered to be rare or not expected to occur in the area 
were not included in the previous exposure estimates because the 
densities would be too low to provide meaningful density-based 
exposures. Nonetheless, species considered to be rare are occasionally 
encountered. For example, white-beaked dolphins were recorded in both 
2019 and 2020 during HRG surveys in this 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 HRG surveys include false killer whale in 2019 (five 
individuals) and 2021 (one individual) (Vineyard-Wind 2019, 2021) and 
orca (killer whale) in 2022 (two individuals; data not yet submitted). 
When species not listed in an IHA are encountered and may be taken, it 
is necessary to cease survey operations to avoid unauthorized take. To 
avoid this potential disruption to survey operations, Park City Wind is 
requesting and NMFS is proposing take by Level B harassment for these 
three rare species based on the largest number of individuals observed 
within one year: 30 white-beaked dolphins, 5 false killer whales, and 2 
killer whales.
    The take numbers shown in Table 5 are those requested by Park City 
Wind. NMFS concurs with the requested take numbers and proposes to 
authorize them. Previous monitoring data compiled by Park City Wind 
(available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-marine-site-characterization-surveys-offshore-new) suggests that the take numbers for authorization are sufficient.

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, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS has prescribed the following mitigation measures to be 
implemented during Park City Wind's marine site characterization 
surveys. Pursuant to section 7 of the ESA, Park City Wind will 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, 7, and 8) 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) will be established around the 
HRG survey equipment and monitored by PSOs:
     500-m SZ for NARWs
     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 will adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated

[[Page 44101]]

requirements will be included in the site-specific training provided to 
the survey team.

Pre-Start Clearance

    Marine mammal clearance zones (CZs) will 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
    Park City Wind will implement a 30-minute pre-start clearance 
period prior to initiation of ramp-up of specified HRG equipment. 
During this period, CZs will 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 will be used for HRG 
survey equipment capable of adjustment of energy levels at the start or 
restart of survey activities. The ramp-up procedure will 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 procedure, involving a gradual increase in source 
level output, is required at all times as part of the activation of the 
acoustic source when technically feasible. Operators should ramp up 
sources to half power for 5 minutes and then proceed to full power. A 
30-minute pre-start clearance observation period must occur prior to 
the start of ramp-up (or initiation of source use if ramp-up is not 
technically feasible). 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 is 
prohibited 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 will be 
required if a marine mammal is sighted entering or within its 
respective SZ, subject to certain limited exceptions. The vessel 
operator must comply immediately with any call for shutdown by the PSO. 
Any disagreement between the PSO and vessel operator will 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 (178 m) (Table 4), shutdown will 
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 will 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. 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 will not be 
required during HRG survey operations using only non-impulsive sources 
(e.g., echosounders), except for non-parametric sub-bottom profilers 
(e.g., CHIRP SBPs).

Vessel Strike Avoidance

    Park City Wind 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). 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 NARW, other whale (defined in this 
context as sperm whales or baleen whales other than NARWs), or other 
marine mammal.
     Members of the monitoring team will consult NMFS' NARW 
reporting system and Whale Alert at the start of every PSO shift, for 
situational awareness regarding the presence of NARWs throughout the 
Survey Area, and for the establishment of Slow Zones (including visual-
detection-triggered DMAs and acoustically-triggered slow zones) within 
or near the Survey Area.
     All survey vessels, regardless of size, must observe a 10-
kn (5.14 m/s) speed restriction in specific areas designated by NMFS 
for the protection of NARWs 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 kn (5.14 m/s) 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

[[Page 44102]]

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

    Park City Wind proposes to refrain from conducting survey 
activities using HRG equipment operating at or below 180 kHz from 
January 1 through May 15 within the NARW 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 measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

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

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Park City Wind will 
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 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 as well as to communicate 
the action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations and during periods of poor visibility. The PSO(s) will 
ensure 360[deg] visual coverage around the vessel from the most 
appropriate observation posts and will conduct visual observations 
using binoculars and/or night vision goggles, infrared cameras 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

[[Page 44103]]

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 will 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 will be used. Position data will 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 will 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 will be relayed to 
the PSO team. Data on all PSO observations will be recorded based on 
standard PSO collection requirements. This will include dates, times, 
and locations of survey operations; dates and times of observations, 
location and weather; details of marine mammal sightings (e.g., 
species, numbers, behavior); and details of any observed marine mammal 
behavior that occurs (e.g., noted behavioral disturbances).

Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a final technical report will be 
provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys (including what type of mitigation and the species and number 
of animals that prompted the mitigation action, when known), and 
provides an interpretation of the results and effectiveness of all 
mitigation and monitoring. 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], [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 will 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 NARW is observed at any time by PSOs or personnel on any 
project vessels, during surveys or during vessel transit, Park City 
Wind must immediately report sighting information to the NMFS NARW 
Sighting Advisory System: (866) 755-6622. NARW sightings in any 
location may also be reported to the U.S. Coast Guard via channel 16.
    In the event that Park City Wind personnel discover an injured or 
dead marine mammal, Park City Wind will 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 will 
include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Park City 
Wind will report the incident to the NMFS OPR and the NMFS New England/
Mid-Atlantic Stranding Coordinator as soon as feasible. The report will 
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;

[[Page 44104]]

     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338; 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, 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 
survey to be similar in nature. Where there are meaningful differences 
between species or stocks--as is the case of the NARW--they are 
included as separate subsections below. NMFS does not anticipate that 
serious injury or mortality will occur as a result from HRG surveys, 
even in the absence of mitigation, and no serious injury or mortality 
is authorized. As discussed in the Potential Effects of Specified 
Activities on Marine Mammals and their Habitat section, non-auditory 
physical effects and vessel strike are not expected to occur. NMFS 
expects that all potential takes will be in the form of short-term 
Level B behavioral harassment in the form of temporary avoidance of the 
area or decreased foraging (if such activity was occurring), reactions 
that are considered to be of low severity and with no lasting 
biological consequences (e.g., Southall et al., 2007). Even repeated 
Level B harassment of some small subset of an overall stock is unlikely 
to result in any significant decrease in viability for the affected 
individuals, and thus will not result in any adverse impact to the 
stock as a whole. As described above, Level A harassment is not 
expected to occur given the nature of the operations and the estimated 
size of the Level A harassment zones.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 178 m. Although this distance is assumed 
for all survey activity in estimating take numbers authorized and 
evaluated here, other survey activity will involve use of acoustic 
sources with a reduced acoustic harassment zone producing expected 
effects of particularly low(er) severity. Therefore, the ensonified 
area surrounding each vessel is relatively small compared to the 
overall distribution of the animals in the area and their use of the 
habitat. Feeding behavior is not likely to be significantly impacted as 
prey species are mobile and are broadly distributed throughout the 
survey area; therefore, marine mammals that may be temporarily 
displaced during survey activities are expected to be able to resume 
foraging once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the survey area. 
However, there are BIAs for large whales, which overlap with the survey 
area. As discussed earlier in this document, there are two BIAs for 
feeding fin whales that flank the survey area, a BIA for feeding 
humpback whales northeast of the survey area, and a portion of the 
minke and sei whale feeding BIAs within the survey area. Migration and 
feeding BIAs for NARW are present in the survey area and are discussed 
in the NARW subsection below.
    Due to the fact that the survey activities are temporary and the 
spatial extent of sound produced by the survey will be very small 
relative to the spatial extent of the available feeding habitat in the 
BIAs for large whales (as previously discussed), feeding for large 
whales is not expected to be impacted by the survey. Given the 
relatively small size of the ensonified area, it is unlikely that prey 
availability will be adversely affected by HRG survey operations.

NARWs

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW mortalities began in June 2017 and there is an active Unusual 
Mortality Event (UME). Overall, preliminary findings support human 
interactions, specifically vessel strikes and entanglements, as the 
cause of death for the majority of NARWs. As noted previously, the 
survey area overlaps migratory and feeding BIAs and critical habitat 
for NARW. Because the survey activities are temporary and the spatial 
extent of sound produced by the survey will be very small relative to 
the spatial extent of the available migratory and feeding habitats in 
the BIAs and critical habitat, NARW migration is not expected to be 
impacted by the survey. Given the relatively small size of the 
ensonified area, it is unlikely that prey availability for NARW will be 
adversely affected by HRG survey operations. Required vessel strike 
avoidance measures will also decrease risk of ship strike during 
migration; no ship strike is expected to occur during Park City Wind's 
activities. Additionally, only very limited take by Level B harassment 
of NARW has been

[[Page 44105]]

requested and is being authorized by NMFS, as HRG survey operations are 
required to maintain a 500 m EZ and shutdown if a NARW is sighted at or 
within the EZ. The 500 m shutdown zone for NARWs is conservative, 
considering 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. As 
noted previously, Level A harassment is not expected due to the small 
PTS zones associated with HRG equipment types for use. NMFS does not 
anticipate NARWs takes that will result from Park City Wind's 
activities will impact annual rates of recruitment or survival. Thus, 
any takes that occur will not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Park City Wind's survey area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales and 
has been stable despite the UME.
    The required mitigation measures are expected to reduce the number 
and/or severity of planned takes for all species listed in Table 5, 
including those with active UMEs, to the level of least practicable 
adverse impact. In particular, they will provide animals the 
opportunity to move away from the sound source throughout the survey 
area before HRG survey equipment reaches full energy, thus preventing 
them from being exposed to sound levels that have the potential to 
cause injury (Level A harassment) or more severe Level B harassment. No 
Level A harassment is anticipated, even in the absence of mitigation 
measures, or anticipated or authorized.
    NMFS expects that takes will be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals will only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures will 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
     While the survey area is within areas noted as migratory 
and feeding area BIAs and designated critical habitat for NARWs, the 
activities will occur in such a comparatively small area such that any 
avoidance of the survey area due to activities will not affect 
migration or feeding. In addition, mitigation measures to shut down at 
500 m to minimize potential for Level B behavioral harassment will 
limit the severity of any take that occurs;
     While the survey area is within areas noted as feeding 
area BIAs for large whales, the activities will occur in such a 
comparatively small area such that any avoidance of the survey area due 
to activities will not affect prey availability or foraging activities.
     The mitigation measures, including visual monitoring and 
shutdowns, are expected to minimize potential impacts to marine 
mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS has authorized incidental take of 16 marine mammal species. 
The total amount of takes relative to the best available population 
abundance is less than 9 percent for NARW, less than 6 percent for 
common dolphin, less than 4 percent for humpback whales, and less than 
2 percent for all other species and stocks, which NMFS finds are small 
numbers of marine mammals relative to the estimated overall population 
abundances for those stocks. Please see Table 5.
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

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

[[Page 44106]]

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with NMFS Greater 
Atlantic Regional Fisheries Office (GARFO).
    NMFS OPR is authorizing the incidental take of four species of 
marine mammals which are listed under the ESA: North Atlantic right, 
fin, sei, and sperm whales. On June 29, 2021 (revised September 2021), 
GARFO completed an informal programmatic consultation on the effects of 
certain site assessment and site characterization activities to be 
carried out to support the siting of offshore wind energy development 
projects off the U.S. Atlantic coast. Part of the activities considered 
in the consultation are geophysical surveys such as those proposed by 
Park City Wind for which we have authorized take. GARFO concluded site 
assessment surveys (and issuance of associated IHAs) are not likely to 
adversely affect endangered species or adversely modify or destroy 
critical habitat. NMFS has determined that issuance of the IHA is 
covered under the programmatic consultation.

National Environmental Policy Act

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

Authorization

    As a result of these determinations, NMFS is issuing an IHA to Park 
City Wind for conducting marine site characterization surveys off the 
coast of Massachusetts south to Long Island, New York, incorporating 
the previously mentioned mitigation, monitoring, and reporting 
requirements. The IHA can be found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-park-city-wind-llc-new-england-wind-project-phase-1-marine.

    Dated: July 19, 2022.
Shannon Bettridge,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-15765 Filed 7-22-22; 8:45 am]
BILLING CODE 3510-22-P