[Federal Register Volume 87, Number 157 (Tuesday, August 16, 2022)]
[Notices]
[Pages 50293-50316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17522]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC153]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys Off 
New Jersey and New York in the Area of the Atlantic Shores Lease Area 
(OCS-A 0541)

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Atlantic Shores Offshore Wind Bight, LLC (Atlantic Shores Bight) to 
incidentally harass marine mammals during site characterization surveys 
off New Jersey and New York in the area of Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Area (OCS-A 0541). There are no changes from 
the proposed authorization in this final authorization.

DATES: This Authorization is effective August 10, 2022 to August 9, 
2023.

FOR FURTHER INFORMATION CONTACT: Jessica Taylor, 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/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. 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 IHA 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 April 8, 2022, NMFS received a request from Atlantic Shores 
Bight for an IHA to take marine mammals incidental to marine site 
characterization survey activities off New Jersey and New York. The 
application was deemed adequate and complete on May 23, 2022. Atlantic 
Shores Bight's request is for take of 15 species of marine mammals by 
Level B harassment only. Neither Atlantic Shores Bight nor NMFS expect 
serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.
    NMFS previously issued three IHAs to Atlantic Shores, the parent 
company of Atlantic Shores Bight, for similar work in a comparable 
geographic region (85 FR 21198, April 16, 2020; 86 FR 21289, April 22, 
2021; 87 FR 24103, April 20, 2022). The 2020 monitoring report 
confirmed that Atlantic Shores had previously implemented the required 
mitigation and monitoring, and demonstrated that no impacts of a scale 
or nature not previously analyzed or authorized had occurred as a 
result of the activities conducted under the 2020

[[Page 50294]]

IHA. At the time of developing this IHA for Atlantic Shores Bight, the 
Atlantic Shores 2021 (Renewal) monitoring report was not available as 
the renewal IHA expired on April 19, 2022 (86 FR 21289; April 22, 
2021). There are no changes from the proposed IHA to the final IHA.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered right 
whales from vessel collisions, which are a leading cause of the 
species' decline and a primary factor in an ongoing Unusual Mortality 
Event (87 FR 46921). Should a final vessel speed rule be issued and 
become effective during the effective period of this IHA (or any other 
MMPA incidental take authorization), the authorization holder would be 
required to comply with any and all applicable requirements contained 
within the final rule. Specifically, where measures in any final vessel 
speed rule are more protective or restrictive than those in this or any 
other MMPA authorization, authorization holders would be required to 
comply with the requirements of the rule. Alternatively, where measures 
in this or any other MMPA authorization are more restrictive or 
protective than those in any final vessel speed rule, the measures in 
the MMPA authorization would remain in place. These changes would 
become effective immediately upon the effective date of any final 
vessel speed rule and would not require any further action on NMFS's 
part.

Description of Activity

Overview

    As part of its overall marine site characterization survey 
operations, Atlantic Shores Bight will conduct high-resolution 
geophysical (HRG) surveys in the Lease Area (OCS)-A 0451 and along 
potential submarine export cable routes (ECR) to a landfall location in 
either New York or New Jersey. These two areas are collectively 
referred to as the survey area. The survey area is approximately 
1,375,710 acres (5,567.3 km\2\) and extends from 11 nautical miles (20 
km) offshore of New Jersey and New York out to a maximum distance of 
approximately 40 nautical miles (74 km).
    The purpose of the surveys is to support the site characterization, 
siting, and engineering design of offshore wind project facilities 
including wind turbine generators, offshore substations, and submarine 
cables within the Lease Area and along ECRs. A maximum of three survey 
vessels may operate at any one time during the surveys. Underwater 
sound resulting from Atlantic Shores Bight's site characterization 
survey activities, specifically HRG surveys, has the potential to 
result in incidental take of marine mammals in the form of behavioral 
harassment. Atlantic Shores Bight will conduct HRG surveys within the 
lease area and ECR survey areas over a period of up to 12 months.
    Table 1 identifies the representative survey equipment that may be 
used in support of planned geophysical survey activities. Operational 
parameters presented in Table 1 were obtained from the following 
sources: Crocker and Fratantonio (2016); manufacturer specifications; 
personal communication with manufacturers; agency correspondence; and 
Atlantic Shores/Atlantic Shores Bight. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending upon the final survey design, 
vessel availability, and survey contractor selection. Geophysical 
surveys are expected to use several equipment types concurrently in 
order to collect multiple aspects of geophysical data along one 
transect. Selection of equipment combinations is based on specific 
survey objectives. All categories of representative HRG survey 
equipment shown in Table 1 work with operating frequencies <180 
kiloHertz (kHz).

                          Table 1--Summary of Representative Equipment Specifications With Operating Frequencies Below 180 kHz
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                                                                                                                           Typical pulse
                                                                             Operating      Operational      Beamwidth       durations         Pulse
           HRG survey equipment               Representative equipment       frequency     source level       ranges           RMS90        repetition
                                                                           ranges (kHz)       (dBRMS)        (degrees)     (millisecond)     rate (Hz)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker...................................  Applied Acoustics Dura-Spark     0.01 to 1.9             203             180             3.4               2
                                             240 [caret].
                                            Geo Marine Geo-Source.......        0.2 to 5             195             180             7.2            0.41
CHIRPs....................................  Edgetech 2000-DSS...........         2 to 16             195              24             6.3              10
                                            Edgetech 216................         2 to 16             179   17, 20, or 24              10              10
                                            Edgetech 424................         4 to 24             180              71               4               2
                                            Edgetech 512i...............       0.7 to 12             179              80               9               8
                                            Pangeosubsea Sub-Bottom            4 to 12.5             190             120             4.5              44
                                             ImagerTM.
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Note: The operational source level for the Dura-Spark 240 is assigned based on the value closest to the field operational history of the Dura-Spark 240
  [operating between 500-600 J] found in Table 10 in Crocker and Fratantonio (2016), which reports a 203 dBRMS (decibels root mean square) for 500 J
  source setting and 400 tips. Because Crocker and Fratantonio (2016) did not provide other source levels for the Dura-Spark 240 near the known
  operational range, the SIG ELC 820 @750 J at 5m depth assuming an omnidirectional beam width was considered as a proxy or comparison to the Dura-Spark
  240. The corresponding 203 dBRMS level is considered a realistic and conservative value that aligns with the history of operations of the Dura-Spark
  240 over three years of survey by Atlantic Shores.

    The deployment of HRG survey equipment, including the equipment 
planned for use during Atlantic Shores Bight's activities, produces 
sound in the marine environment that has the potential to result in 
harassment of marine mammals. Mitigation, monitoring, and reporting 
measures are described in detail later in this document (please see 
Mitigation and Monitoring and Reporting).
    A detailed description of the planned survey is provided in the 
Federal Register notice for the proposed IHA (87 FR 38067; June 27, 
2022). Since that time, no changes have been made to Atlantic Shores 
Bight's planned survey activities. Therefore, a detailed description is 
not provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Atlantic Shores Bight 
was published in the Federal Register on June 27, 2022 (87 FR 38067). 
This proposed notice described, in detail, Atlantic Shores Bight's 
activities, the marine mammal species that may be

[[Page 50295]]

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.
    During the 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-atlantic-shores-offshore-wind-bight-llc-marine-site. 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.
    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 have a 30-day 
public comment period, and in fact, each Renewal IHA is made available 
for a 45-day public comment period. The notice of the proposed IHA 
published in the Federal Register on June 27, 2022 (87 FR 38067) 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 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 1 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.
    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 
not using the best available science with regards to the NARW 
population estimate and state that NMFS should be using the estimate of 
336 individuals presented by the New England Aquarium (https://www.neaq.org/about-us/news-media/press-kit/press-releases/population-of-north-atlantic-right-whales-continues-its-downward-trajectory/?fbclid=IwAR3VJcauSifygKxU4ZICau0Cd_fo2t4KU6RSJIK7WSmkGRLYLGHpjz1_WkY).
    Response: While NMFS agrees that the best available science should 
be used for assessing NARW abundance estimates, we disagree that the 
New England Aquarium site represents the most recent and best available 
estimate for NARW abundance. Rather the revised abundance estimate 
(368; 95 percent with a confidence interval of 356-378) published by 
Pace (2021) (and subsequently included in the 2021 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 North Atlantic right whale, including the 
information cited by the

[[Page 50296]]

commenters. However, NMFS relies on the SAR. Recently (after 
publication of the notice of proposed IHA), NMFS updated its species 
web page to recognize the population estimate for NARW is now below 350 
animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). We anticipate that this information will be presented in the 
draft 2022 SAR. We note that this change in abundance estimate would 
not change the estimated take of NARW or authorized take numbers, nor 
affect our ability to make the required findings under the MMPA for 
Atlantic Shores Bight's survey activities.
    NMFS further notes that Oceana's comment seems to be conflating the 
phrase ``best available data'' with ``the most recent data.'' The MMPA 
specifies that the ``best available data'' must be used, which does not 
always mean the most recent. As is NMFS' prerogative, we referenced the 
best available NARW abundance estimate of 368 from the 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. Furthermore, NMFS notes that 
the SARs are peer reviewed by other scientific review groups prior to 
being finalized and published and that the New England Aquarium site 
referenced by the commenter does not undertake this process.
    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 biologically important area (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 38067; June 
27, 2022).
    Lastly, as we stated in the notice of proposed IHA (87 FR 38067; 
June 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 extremely small (approximately 5,567.3 km\2\) 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 NARW. 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 NARW, 
as disturbance responses in NARW 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 Atlantic Shores Bight 
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 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 NARW generally 
use this location in a transitory manner, specifically for migration, 
any potential impacts from these surveys are lessened for other 
behaviors due to the brief periods where exposure is possible. In 
context of these expected low-level impacts, which are not expected to 
meaningfully affect important behavior, we also refer again to the 
large size of the migratory corridor compared with the survey area (the 
overlap between the BIA and the proposed survey area will cover 
approximately 5,567.3 km\2\ of the 269,448 km\2\ BIA). Thus, the 
transitory nature of NARW at this location means it is unlikely for any 
exposure to cause chronic effects, as Atlantic Shores Bight'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 NARW from Atlantic Shores Bight's 
described survey activities.
    Lastly, NMFS disagrees that the effects of Atlantic Shores Bight's 
survey may contribute to stunted growth rates as suggested by Oceana's 
comments. The activities associated with Atlantic Shores Bight's survey 
are outside the scope of activities described in the Stewart et al. 
(2022) paper and NMFS does not expect impacts such as these to result 
from Atlantic Shores Bight'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 NARW 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 consideration of other unrelated activities and 
their impacts on populations. The preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989) states in response to 
comments that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline, e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and other relevant 
stressors. The 1989 final rule for the MMPA implementing regulations 
also addressed public comments regarding cumulative effects from 
future, unrelated activities. There NMFS stated that such effects are 
not considered in making findings under section 101(a)(5) concerning 
negligible impact. In this case, this IHA, as well as other IHAs 
currently in effect or proposed within the specified geographic region, 
are appropriately considered an unrelated activity relative to the 
others. The IHAs are unrelated in the sense that they are discrete 
actions

[[Page 50297]]

under section 101(a)(5)(D), issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Atlantic Shores Bight was the applicant for the IHA, 
and we are responding to the specified activity as described in that 
application (and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated (1) that we would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) that reasonably foreseeable cumulative effects would also be 
considered under section 7 of the 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. Cumulative impacts regarding issuance of IHAs for site 
characterization survey activities such as those planned by Atlantic 
Shores Bight 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 Atlantic Shores Bight's IHA, which 
included consideration of extraordinary circumstances.
    Separately, 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 Atlantic Shores Bight 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 states that NMFS must make an assessment of which 
activities, technologies and strategies are truly necessary to achieve 
site characterization to inform development of the offshore wind 
projects and which are not critical, asserting that NMFS should 
prescribe the appropriate survey techniques. In general, Oceana stated 
that NMFS must require that all IHA applicants minimize the impacts of 
underwater noise to the fullest extent feasible, including through the 
use of best available technology and methods to minimize sound levels 
from geophysical surveys such as through the use of technically and 
commercially feasible and effective noise reduction and attenuation 
measures.
    Response: The MMPA requires that an IHA include measures that will 
effect the least practicable adverse impact on the affected species and 
stocks and, in practice, NMFS agrees that the IHA should include 
conditions for the survey activities that will first avoid adverse 
effects on NARW 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. It is not within NMFS' purview to make judgments regarding 
what may be appropriate techniques or technologies for an operator's 
survey objectives.
    Comment 6: Oceana suggests that Protected Species Observer (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 7: Oceana recommended that NMFS restrict all vessels of all 
sizes associated with the proposed survey activities to speeds less 
than 10 knots (kn) at all times due to the risk of vessel strikes to 
NARW 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 Atlantic Shores Bight'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 knots (kn) (18.5 
kilometer/hour (km/hour)) or less speed restrictions in any Seasonal 
Management Areas (SMA), Dynamic Management Areas (DMA) or Slow Zone 
while underway, and check daily for information regarding the 
establishment of mandatory or voluntary vessel strike avoidance areas 
(SMAs, DMAs, Slow Zones) and information regarding NARW sighting 
locations; a requirement that all vessels greater than or equal to 19.8 
m in overall length operating from November 1 through April 30 operate 
at speeds of 10 kn (18.5 km/hour) or less; a requirement that all 
vessel operators reduce vessel speed to 10 kn (18.5 km/hour) or less 
when any large whale, any mother/calf pairs, pods, or large assemblages 
of non-delphinid cetaceans are observed near the vessel; a requirement 
that all survey vessels maintain a separation distance of 500 m or 
greater from any ESA-listed whales or other unidentified large marine 
mammals visible at the surface while underway; a requirement that, if 
underway, vessels must steer a course away from any sighted ESA-listed 
whale at 10 kn (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

[[Page 50298]]

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 which were issued IHAs from NMFS during 
the survey activities themselves or while transiting to and from survey 
sites.
    Comment 8: Oceana suggests that NMFS require vessels 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 
NARW at all times was included in the proposed Federal Register notice 
and was included as a requirement in the issued IHA.
    Comment 9: Oceana recommended that the IHA should require all 
vessels supporting site characterization to be equipped with and using 
Class A Automatic Identification System (AIS) devices at all times 
while on the water. Oceana suggested this requirement should apply to 
all vessels, regardless of size, associated with the survey.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and using Class A 
Automatic Identification System (devices) at all times while on the 
water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, these activities carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Atlantic Shores Bight, 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 10: 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 re-designation. 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 Atlantic Shores Bight, the vessel 
operators, the lead PSO, and any other relevant designees of Atlantic 
Shores Bight operating under the authority of this IHA. The IHA also 
states that Atlantic Shores Bight must ensure that the vessel operator 
and other relevant vessel personnel, including the 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 11: 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 recommends requirements to report all visual and 
acoustic detections of NARW 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 supports Oceana's recommendations.
    Further, the draft IHA and final IHA stipulate that if a NARW is 
observed at any time by any survey vessels, during surveys or during 
vessel transit, Atlantic Shores Bight 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. Atlantic Shores Bight may also report the sighting to the 
U.S. Coast Guard. Additionally, Atlantic Shores Bight 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.
    Daily visual and acoustic detections of NARW and other large whale 
species along the Eastern Seaboard, as well as Slow Zone locations, are 
publicly available on WhaleMap (https://whalemap.org/WhaleMap/). 
Further, recent acoustic detections of NARW and other large whale 
species are available to the public on NOAA's Passive Acoustic Cetacean 
Map website https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw.
    Comment 12: 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.
    NMFS reiterates that use of the planned sources is not expected to 
have any potential to cause injury of any species, including North 
Atlantic right whale, even in the absence of mitigation. Consideration 
of the anticipated effectiveness of the mitigation measures (i.e., 
exclusion zones and shutdown measures) discussed below and in the 
Mitigation section of this notice further strengthens the conclusion 
that injury is not a reasonably anticipated outcome of the survey 
activity. Nevertheless, there are several shutdown requirements 
described in the Federal Register notice of the proposed IHA (87 FR 
38067; July 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 shutdown zone while geophysical survey equipment 
is operational. There is no exemption for the shutdown requirement for 
NARW and ESA-listed species.
    Atlantic Shores Bight 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

[[Page 50299]]

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.
    Comment 13: Oceana recommended increasing the clearance zone to 
1,000 m for NARW 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 NARW exceeds 
the modeled distance to the largest 160 dB Level B harassment isopleth 
(141 m during sparker use) by a conservative margin to be extra 
cautious. Commenters do not provide a compelling rationale for why the 
clearance 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 (141 m), NMFS has 
determined that the clearance zone is appropriate.
    Regarding the use of acoustic monitoring to implement the clearance 
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 NARW) 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 141 m); this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low. Together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for NARW 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 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 38067; June 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 clearance 
zones.
    Comment 15: COA does not agree with NMFS' negligible impact 
determination for NARW 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 38067; June 27, 2022) 
provides a detailed qualitative discussion supporting NMFS'

[[Page 50300]]

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 
9). 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 141 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 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 16: COA is concerned that habitat displacement could 
significantly increase the risk of ship-strike to NARW from outside the 
survey area.
    Response: NMFS does not anticipate that NARW would be displaced 
from the area where Atlantic Shores Bight's marine site 
characterization surveys would occur, and COA does not provide evidence 
that this effect should be a reasonably anticipated outcome of the 
specified activity. Similarly, NMFS is not aware of any scientific 
information suggesting that the survey activity would drive marine 
mammals into shipping lanes, and disagrees that this would be a 
reasonably anticipated effect of the specified activities. The take by 
Level B harassment authorized by NMFS is precautionary but considered 
unlikely, as NMFS' take estimation process does not account for the use 
of extremely precautionary mitigation measures, e.g., the requirement 
for Atlantic Shores Bight to implement a shutdown zone that is more 
than three times as large as the estimated harassment zone. These 
requirements are expected to largely eliminate the actual occurrence of 
Level B harassment events and, to the extent that harassment does 
occur, would minimize the duration and severity of any such events. 
Therefore, even if a NARW was in the area of the cable corridor 
surveys, a displacement impact is not anticipated.
    Although the primary stressor to marine mammals from the specified 
activities is acoustic exposure to the sound source, NMFS takes 
seriously the risk of vessel strike and has prescribed measures 
sufficient to avoid the potential for ship strike to the extent 
practicable. NMFS has required these measures despite a very low 
likelihood of vessel strike; vessels associated with the survey 
activity will add a discountable amount of vessel traffic to the 
specific geographic region and, furthermore, vessels towing survey gear 
travel at very slow speeds (i.e., roughly 4-5 kn; 7.4-9.3 km/h).
    Comment 17: 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 
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 NARW 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 NARW or authorized take numbers, nor 
affect our ability to make the required findings under the MMPA for 
Atlantic Shores Bight's survey activities.
    As stated above, NMFS 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 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 38067; June 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 5,567.3 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

[[Page 50301]]

the impacts expected to result from the planned survey, such impacts 
are not expected to result in disruption to biologically important 
behaviors.
    Comment 18: Oceana states that Atlantic Shores Bight'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.
    Comment 19: COA is concerned regarding the number of harbor seals 
that could be impacted by the activities, as well as a lack of baseline 
data being available for harbor seals off New Jersey.
    Response: We appreciate the concern expressed by COA. NMFS utilizes 
the best available science when analyzing which species may be impacted 
by an applicant's proposed activities. Based on information found in 
the scientific literature, as well as based on density models developed 
by Duke University, all marine mammal species included in the proposed 
Federal Register notice have some likelihood of occurring in Atlantic 
Shores Bight's survey area. 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 points towards two 
sources of information for marine mammal baseline information: the 
Ocean/Wind Power Ecological Baseline Studies, January 2008--December 
2009 completed by the New Jersey Department of Environmental Protection 
in July 2010 (https://dspace.njstatelib.org/xmlui/handle/10929/68435) 
and the Atlantic Marine Assessment Program for Protected Species 
(AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that cover the areas across the 
Atlantic Ocean. NMFS has duly considered this and all available 
information.
    Based on the information presented, NMFS has determined that no new 
information has become available, nor do the commenters present 
additional information, that would change our determinations since the 
publication of the proposed notice.

Changes From the Proposed IHA to Final IHA

    NMFS considered all public comments received and determined that no 
changes to the final IHA were necessary.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' 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 
authorized for this action, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. 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, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species or 
stocks 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. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. 2021 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 2021 SARs (available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                          Table 2--Species Likely Impacted by the Specified Activities
----------------------------------------------------------------------------------------------------------------
                                                                                   Stock
                                                                                 abundance
                                                                                    (CV,
                                                                      ESA/MMPA     Nmin,
          Common name            Scientific name        Stock         status;       most       PBR     Annual M/
                                                                     strategic     recent                SI \3\
                                                                     (Y/N) \1\   abundance
                                                                                  survey)
                                                                                    \2\
----------------------------------------------------------------------------------------------------------------
                      Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale....  Eubalaena         Western Atlantic  E/D, Y         368 (0;        0.7        7.7
                                 glacialis.                                           364;
                                                                                 2019) \5\
Humpback whale................  Megaptera         Gulf of Maine...  -/-, Y       1,396 (0;         22      12.15
                                 novaeangliae.                                      1,380;
                                                                                     2016)

[[Page 50302]]

 
Fin whale.....................  Balaenoptera      Western North     E/D, Y           6,802         11        1.8
                                 physalus.         Atlantic.                        (0.24;
                                                                                    5,573;
                                                                                     2016)
Sei whale.....................  Balaenoptera      Nova Scotia.....  E/D, Y           6,292        6.2        0.8
                                 borealis.                                          (1.02;
                                                                                    3,098;
                                                                                     2016)
Minke whale...................  Balaenoptera      Canadian East     -/-, N          21,968        170       10.6
                                 acutorostrata.    Coastal.                         (0.31;
                                                                                   17,002;
                                                                                     2016)
----------------------------------------------------------------------------------------------------------------
        Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
----------------------------------------------------------------------------------------------------------------
Sperm whale...................  Physeter          North Atlantic..  E/D, Y           4,349        3.9          0
                                 macrocephalus.                                     (0.28;
                                                                                    3,451;
                                                                                     2016)
Long-finned pilot whale.......  Globicephala      Western North     -/-, N          39,215        306         29
                                 melas.            Atlantic.                         (0.3;
                                                                                   30,627;
                                                                                     2016)
Atlantic white-sided dolphin..  Lagenorhynchus    Western North     -/-, N          93,233        544         27
                                 acutus.           Atlantic.                        (0.71;
                                                                                   54,443;
                                                                                     2016)
Bottlenose dolphin............  Tursiops          Western North     -/-, N          62,851        519         28
                                 truncatus.        Atlantic                         (0.23;
                                                   Offshore.                       51,914;
                                                                                     2016)
Common dolphin................  Delphinus         Western North     -/-, N         172,974      1,452        390
                                 delphis.          Atlantic.                        (0.21,
                                                                                  145,216,
                                                                                     2016)
Atlantic spotted dolphin......  Stenella          Western North     -/-, N          39,921        320          0
                                 frontalis.        Atlantic.                        (0.27;
                                                                                   32,032;
                                                                                     2016)
Risso's dolphin...............  Grampus griseus.  Western North     -/-, N          35,215        301         34
                                                   Atlantic Sock.                   (0.19;
                                                                                   30,051;
                                                                                     2016)
Harbor porpoise...............  Phocoena          Gulf of Maine/    -/-, N          95,543        851        164
                                 phocoena.         Bay of Fundy.                    (0.31;
                                                                                   74,034;
                                                                                     2016)
----------------------------------------------------------------------------------------------------------------
                                     Order Carnivora--Superfamily Pinnipedia
----------------------------------------------------------------------------------------------------------------
Harbor seal...................  Phoca vitulina..  Western North     -/-, N          61,336      1,729        339
                                                   Atlantic.                        (0.08;
                                                                                   57,637;
                                                                                     2018)
Gray seal \4\.................  Halichoerus       Western North     -/-, N          27,300      1,389      4,453
                                 grypus.           Atlantic.                        (0.22;
                                                                                   22,785;
                                                                                     2018)
----------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species
  is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one
  for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and
  likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is the coefficient of variation; Nmin is the minimum estimate
  of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury
  from all sources combined (e.g., commercial fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. populations only. Total stock
  abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total
  stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the
  population estimate for NARWs is now below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).


[[Page 50303]]

    A detailed description of the species likely to be affected by 
Atlantic Shores Bight's activities, including information regarding 
population trends, threats, and local occurrence, was provided in the 
Federal Register notice for the proposed IHA (87 FR 38067; June 27, 
2022); since that time, we are not aware of any changes in the status 
of these species and stocks; therefore, detailed descriptions are not 
provided here. Please refer to that Federal Register notice for these 
descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. 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.

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

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
15 marine mammal species (13 cetaceans and 2 phocid pinniped species) 
have the reasonable potential to co-occur with the planned survey 
activities. Please refer to Table 2. Of the cetacean species that may 
be present, five are classified as low-frequency cetaceans (i.e., all 
mysticete species), seven are classified as mid-frequency cetaceans 
(i.e., all delphinids and the sperm whale), and one is classified as 
high-frequency cetaceans (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 38067; June 27, 2022) included a discussion of the 
effects of anthropogenic noise on marine mammals and their habitat, 
therefore that information is not repeated here; please refer to the 
Federal Register notice (87 FR 38067; June 27, 2022) for that 
information.

Estimated Take

    This section provides an estimate of 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 are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to HRG acoustic sources. Based on the nature of 
the activity, Level A harassment is neither anticipated (even absent 
mitigation) nor authorized. Level A harassment (injury) is considered 
unlikely based on the characteristics of the signals produced by the 
acoustic sources planned for use. Implementation of required mitigation 
detailed in the Mitigation section below further reduces the potential 
for Level A harassment. As described previously, no serious injury or 
mortality is anticipated or authorized for this activity. Below we 
describe how the authorized take numbers are 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

[[Page 50304]]

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 authorized 
take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--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 generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced 
to 1 micropascal (re 1 [mu]Pa)) when exposed to underwater 
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms) 
for the impulsive sources (i.e., sparkers) and non-impulsive, 
intermittent sources (e.g., CHIRPs) evaluated here for Atlantic Shores 
Bight's activities.
    Atlantic Shores Bight's HRG surveys include the use of non-
impulsive, intermittent (CHIRPs) and impulsive (sparkers) sources, and 
therefore the RMS SPL threshold of 160 dB re 1 [mu]Pa is applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). Atlantic 
Shores Bight's HRG survey activities include the use of impulsive 
(sparkers) and non-impulsive (CHIRPs) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                        PTS onset thresholds \*\ (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: L0-pk,flat: 219     Cell 2: LE,LF,24h: 199 dB.
                                          dB; LE,LF,24h: 183 dB..
Mid-Frequency (MF) Cetaceans...........  Cell 3: L0-pk,flat: 230     Cell 4: LE,MF,24h: 198 dB.
                                          dB; LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: L0-pk,flat: 202     Cell 6: LE, HF,24h: 173 dB.
                                          dB; LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: L0-pk.flat: 218     Cell 8: LE,PW,24h: 201 dB.
                                          dB; LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW).................  Cell 9: L0-pk,flat: 232     Cell 10: LE,OW,24h: 219 dB.
(Underwater)...........................   dB; LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
  onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
  associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (L0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,) has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to be
  more reflective of International Organization for Standardization standards (ISO 2017). The subscript ``flat''
  is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
  hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound
  exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
  cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted
  cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure
  levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the
  conditions under which these thresholds will be exceeded.

    The 2020 Federal Register notice of proposed IHA for Atlantic 
Shores' HRG surveys (85 FR 7926; February 12, 2020) previously analyzed 
the potential for Level A harassment (refer to Table 5 in that 
notification and additional discussion therein).
    Similar to the past IHAs issued to Atlantic Shores, the activities 
for 2022-2023 include the use of impulsive (i.e., sparkers) and non-
impulsive (e.g., CHIRPs) sources, and Atlantic Shores Bight did not 
request authorization of take by Level A harassment. The locations, 
species, survey durations, equipment used, and source levels authorized 
are all of a similar scope previously analyzed for Atlantic Shores' 
surveys. NMFS concluded for past surveys that Level A harassment was 
not a reasonably likely outcome for marine mammals exposed to noise 
through use of similar impulsive and non-impulsive HRG sources, 
therefore, the same conclusion applies to the sources authorized for 
use here. Therefore, the potential for Level A harassment is not 
evaluated further in this document and no take by Level A harassment is 
authorized by NMFS. Note that the mitigation measures will further 
reduce the potential for Level A harassment.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.

[[Page 50305]]

    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 scientific information on source levels 
associated with HRG survey equipment and, therefore, recommends that 
source levels provided by Crocker and Fratantonio (2016) be 
incorporated in the method described above to estimate isopleth 
distances to harassment thresholds. In cases where 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) may be used instead. Table 1 
shows the HRG equipment types that may be used during the authorized 
surveys and the source levels associated with those HRG equipment 
types. The computations and results from the Level B harassment 
ensonified area analysis are displayed in Table 5.

                    Table 5--Information Inputs and Resulting Distances to Level B Threshold (m) for Representative Acoustic Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Source information                                      Input values into spreadsheet                          Computed Values
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               Slant        Horizontal
                                                             Operating      Operational      Beamwidth                       threshold       threshold
     HRG survey equipment type         Representative       frequencies    source level       ranges        Water depth   range to Level  range to Level
                                          equipment        ranges (kHz)   ranges (dBRMS)     (degree)           (m)         B threshold     B threshold
                                                                                                                                (m)             (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker...........................  SIG ELC 820 sparker             0.01             203             180               5             141             141
                                     at 750J *.
                                    Geo Marine Survey                0.2             195             180               5              56              56
                                     System 2D SUHRS.
CHIRPs............................  Edgetech 2000-DSS...               2             195              24               5              56             1.1
                                    Edgetech 216........               2             179              24               5               9             1.1
                                    Edgetech 424........               4             180              71              10              10             5.8
                                    Edgetech 512i.......             0.7             179              80              10               9             5.8
                                    Pangeosubsea Sub-                  4             190             120               5              32             8.7
                                     Bottom ImagerTM.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Used as a proxy for the Applied Acoustics Dura-Spark 240 because the specific energy setting isn't described in Crocker and Franantonio (2016).

    Results of modeling using the methodology described and shown above 
indicated that, of the HRG survey equipment planned for use by Atlantic 
Shores Bight that has the potential to result in Level B harassment of 
marine mammals, the Applied Acoustics Dura-Spark 240 would produce the 
largest Level B harassment isopleth (141 m; please refer to Table 6).
    Although Atlantic Shores Bight does not expect to use sparker 
sources on all planned survey days and during the entire duration that 
surveys are likely to occur, Atlantic Shores Bight assumes, for 
purposes of analysis, that the sparker would be used on all survey 
days. This is a conservative approach, as the actual sources used on 
individual survey days may produce smaller harassment distances, and 
NMFS agrees with this approach.
    The Level B harassment isopleth distance of 141 m generated for the 
Dura-Spark 240 was used as the ``r'' input to calculate the zone of 
influence (ZOI) around the survey vessel, which is the maximum 
ensonified area around the sound source over a 24 hour period. The 
following formula for a mobile source was used to calculate the ZOI:

Mobile Source ZOI = (Distance/day x 2r) + [pi]r2

Where:

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

    For the purpose of the Atlantic Shores Bight HRG surveys, the total 
distance/day has been estimated to be approximately 55.0 km in the 
survey area. Based upon a daily survey distance of 55 km/day and a 
maximum radial distance to the Level B harassment threshold (141 m, see 
Tables 6, 7), an area of 15.57 km\2\ will be ensonified to the Level B 
harassment threshold across both survey sites during Atlantic Shores 
Bight's authorized surveys (Table 6).

                      Table 6--Maximum HRG Survey Area Distances and Daily Ensonified Areas
----------------------------------------------------------------------------------------------------------------
                                     Number of        Survey      Maximum radial    Calculated     Total annual
           Survey area             active survey   distances per   distance (r)    Isopleth per     ensonified
                                       days          day in km         in m         day (km\2\)    area (km\2\)
----------------------------------------------------------------------------------------------------------------
Lease Area......................             180              55             141           15.57         2,802.6
ECR Survey Area.................             180                                                         2,802.6
----------------------------------------------------------------------------------------------------------------


[[Page 50306]]

    As described above, this is a conservative estimate as it assumes 
the HRG source that results in the greatest isopleth distance to the 
Level B harassment threshold would be operated at all times during the 
entire survey, which is not expected to ultimately occur.

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information that 
will inform the take calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory and the Marine-life Data and Analysis 
Team, based on the best available marine mammal data from 1992-2019 
obtained in a collaboration between Duke University, the Northeast 
Regional Planning Body, the University of North Carolina Wilmington, 
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et 
al., 2016a; Curtice et al., 2018), represent the best available 
scientific information regarding marine mammal densities in the survey 
area. More recently, these data have been updated with new modeling 
results and include density estimates for pinnipeds (Roberts et al., 
2016b, 2017, 2018, 2020).
    The density data presented by Roberts et al., (2016b, 2017, 2018, 
2020) incorporates aerial and shipboard line-transect survey data from 
NMFS and other organizations and incorporates data from eight 
physiographic and 16 dynamic oceanographic and biological covariates, 
and controls for the influence of sea state, group size, availability 
bias, and perception bias on the probability of making a sighting. 
These density models were originally developed for all cetacean taxa in 
the U.S. Atlantic (Roberts et al., 2016a). In subsequent years, certain 
models have been updated based on additional data as well as certain 
methodological improvements. More information is available online at 
https://seamap.env.duke.edu/models/Duke/EC/. Marine mammal density 
estimates in the survey area (animals/km\2\) were obtained using the 
most recent model results for all taxa (Roberts et al., 2016b, 2017, 
2018, 2020). The updated models incorporate additional sighting data, 
including sightings from NOAA's Atlantic Marine Assessment Program for 
Protected Species (AMAPPS) surveys.
    For the exposure analysis, density data from Roberts et al., 
(2016b, 2017, 2018, 2020) were mapped using a geographic information 
system (GIS). For each of the survey areas (i.e., Lease Survey Area, 
ECR Survey Area), the densities of each species as reported by Roberts 
et al. (2016b, 2017, 2018, 2020) were averaged by season; thus, a 
density was calculated for each species for spring, summer, fall and 
winter. The seasons were defined as follows: Spring (March-May); summer 
(June-August); fall (September-November); winter (December-February). 
To be conservative, the greatest seasonal density calculated for each 
species was then carried forward in the exposure analysis. Estimated 
seasonal densities (animals per km\2\) of all marine mammal species 
that may be taken by the survey, for all survey areas are shown in 
Tables C-1, C-2 and C-3 in Appendix C of Atlantic Shores Bight's IHA 
application. The maximum seasonal density values used to estimate take 
numbers are shown in Table 7 below. Below, we discuss how densities 
were assumed to apply to specific species for which the Roberts et al. 
(2016b, 2017, 2018, 2020) models provide results at the genus or guild 
level.
    For bottlenose dolphin densities, Roberts et al. (2016b, 2017, 
2018) does not differentiate by individual stock. As the northern 
migratory coastal stock is not expected to occur in the survey area, 
densities and takes were only analyzed for the offshore stock.
    Pilot whale density models from Duke University (Roberts et al. 
2016a, 2016b, 2017) represent pilot whales as a `guild' rather than by 
species. However, since the survey area is only expected to contain 
long-finned pilot whales, it is assumed that pilot whale densities 
modeled by Roberts et al. (2016a, 2016b, 2017) in the survey area only 
reflect the presence of long-finned pilot whales.
    Recently, the Duke University density data have been updated with 
new modeling results, including updated NARW density data and density 
estimates for pinnipeds (Roberts et al., 2016b, 2017, 2018, 2020). 
Updated density estimates for the NARW are due to the inclusion of 
three new datasets: 2011-2015 Northeast Large Pelagic Survey 
Cooperative, 2017-2018 Marine Mammal Surveys of the Wind Energy Areas 
conducted by the New England Aquarium, and 2017-2018 New York Bight 
Whale Monitoring Program surveys conducted by the New York State 
Department of Environmental conservation (NYSDEC). This new density 
data shows distribution changes that are likely influenced by 
oceanographic and prey covariates in the whale density model (Roberts 
et al., 2021).
    Pinniped density data (as presented in Roberts et al., 2016b, 2017, 
2018) were used to estimate pinniped densities within the identified 
survey area. Since pinniped density models (Roberts et al., 2016b, 
2017, 2018) represent seals as a ``guild'' rather than by species, seal 
densities were apportioned for gray and harbor seals as 50 percent for 
each stock. These estimates were then applied to the average seasonal 
density values which were analyzed using the Roberts et al. (2018) 
data.
    Seasonal marine mammal densities across survey areas are shown in 
Table 7. Maximum densities used in exposure analysis are shown in Table 
8.

                                              Table 7--Marine Mammal Seasonal Densities Across Survey Sites
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Averaged seasonal densities (number of animals per 100 km\2\)
                                                 -------------------------------------------------------------------------------------------------------
                     Species                               Spring                    Summer                     Fall                     Winter
                                                 -------------------------------------------------------------------------------------------------------
                                                   Lease area      ECR       Lease area      ECR       Lease area      ECR       Lease area      ECR
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................        0.386        0.475        0.003        0.003        0.011        0.012        0.273        0.373
Humpback whale..................................        0.068        0.045        0.021        0.023        0.055        0.058        0.021        0.040
Fin whale.......................................        0.230        0.193        0.295        0.216        0.237        0.170        0.167        0.120
Sei whale.......................................        0.012        0.013        0.002        0.001        0.002        0.002        0.002        0.001
Minke whale.....................................        0.168        0.112        0.062        0.037        0.045        0.027        0.057        0.039
Sperm whale.....................................        0.003        0.003        0.030        0.042        0.021        0.023        0.002        0.001
Long-finned pilot whale.........................        0.354        0.256        0.354        0.256        0.354        0.256        0.354        0.256
Bottlenose dolphin (offshore stock).............        1.622        0.776        2.309        3.028        5.011        3.231        2.786        1.347
Common dolphin..................................        7.017        3.326        6.138        3.753        7.235        6.611       19.246       13.251
Atlantic white-sided dolphin....................        2.213        1.611        0.972        0.802        0.855        0.726        1.461        0.890
Atlantic spotted dolphin........................        0.062        0.036        0.513        0.327        0.409        0.267        0.026        0.015
Risso's dolphin.................................        0.012        0.005        0.089        0.038        0.024        0.012        0.032        0.015

[[Page 50307]]

 
Harbor porpoise.................................        6.657        6.059        0.034        0.049        0.215        0.556        3.927        5.635
Harbor seal.....................................        3.544        5.799        0.052        0.077        0.055        0.109        3.262        5.479
Gray seal.......................................        3.544        5.799        0.052        0.077        0.055        0.109        3.262        5.479
--------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 8--Maximum Seasonal Densities of Marine Mammals Used in Exposure
                                Analysis
------------------------------------------------------------------------
                                           Maximum seasonal density used
                                            (number of animals per 100
                                                      km\2\)
                 Species                 -------------------------------
                                                            ECR survey
                                            Lease area         area
------------------------------------------------------------------------
North Atlantic right whale..............           0.386           0.475
Humpback whale..........................           0.068           0.058
Fin whale...............................           0.295           0.216
Sei whale...............................           0.012           0.013
Minke whale.............................           0.168           0.112
Sperm whale.............................           0.030           0.042
Long-finned pilot whale.................           0.354           0.256
Bottlenose dolphin......................           5.011           3.231
Common dolphin..........................          19.246          13.251
Atlantic white-sided dolphin............           2.213           1.611
Atlantic spotted dolphin................           0.062           0.036
Risso's dolphin.........................           0.089           0.038
Harbor porpoise.........................           6.657           6.059
Harbor seal.............................           3.544           5.799
Gray seal...............................           3.544           5.799
------------------------------------------------------------------------

Take Estimation

    Here we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and authorized.
    The number of marine mammals expected to be incidentally taken per 
day is calculated by estimating the number of each species predicted to 
occur within the daily ensonified area (animals/km\2\), incorporating 
the maximum seasonal estimated marine mammal densities as described 
above. Estimated numbers of each species taken per day across all 
survey sites are then multiplied by the total number of survey days 
(i.e., 360). The product is then rounded, to generate an estimate of 
the total number of instances of harassment expected for each species 
over the duration of the survey. A summary of this method is 
illustrated in the following formula with the resulting authorized take 
of marine mammals is shown below in Table 9:

Estimated Take = D x ZOI x # of days

Where:

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


                              Table 9--Total Estimated and Authorized Take Numbers
                                          [By level B harassment only]
----------------------------------------------------------------------------------------------------------------
                                     Calculated take estimate                     Total adjusted
                                 --------------------------------  Combined take    authorized      Percent of
             Species                                ECR survey       estimate      take estimate   population to
                                    Lease area         area                              *           be taken
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......              11              13              24              24             6.5
Humpback whale *................               2               2               4               8             0.6
Fin whale.......................               9               7              16              16             0.2
Sei whale [supcaret]............             0.3             0.4             0.7               2            0.03
Minke whale.....................               5               3               8               8            0.04
Sperm whale.....................             0.9               2             2.9               3            0.07
Long-finned pilot whale *.......              10               8              18              20            0.07
Bottlenose dolphin (Offshore                 141              91             232             232             0.4
 stock).........................
Common dolphin..................             539             372             911             911             0.2
Atlantic white-sided dolphin....              62              46             108             108             0.5
Atlantic spotted dolphin *......               2               1               3             100             0.3
Risso's dolphin *...............               3               2               5              30             0.1
Harbor porpoise.................             187             170             357             357             0.4
Harbor seal.....................             100             163             263             263             0.4

[[Page 50308]]

 
Gray seal.......................             100             163             263             263             1.0
----------------------------------------------------------------------------------------------------------------
* Requested take adjusted for group size.
[supcaret] Based upon previous IHAs.

    NMFS has rounded decimal estimates to the nearest whole number in 
the event that a decimal was calculated for take. Therefore, take 
estimates for the sperm whale and sei whale were rounded up to three 
whales and two whales, respectively (Table 9). Requested take estimates 
were also adjusted to account for typical group sizes of humpback whale 
(King et al., 2021), Risso's dolphin (NOAA 2022), Atlantic spotted 
dolphin (Jefferson et al., 2008), and long-finned pilot whale (NOAA 
2022). A total of 30 takes of Risso's dolphin, 100 takes of Atlantic 
spotted dolphin, and 20 takes of long-finned pilot whales are 
requested. Adding these additional takes ensures the number of takes 
authorized is at least equal to the average group size.
    Based on recent information from King et al. (2021) that 
demonstrated that the humpback whale is commonly sighted along the New 
York Bight area, NMFS determined that the humpback whale take request 
may be too low given the occurrence of animals near the survey area. 
Because of this, NMFS doubled the requested take to account for 
underestimates to the actual occurrence of this species within the 
density data.
    Previously, 100 takes of Atlantic spotted dolphins, by Level B 
harassment, were authorized to Atlantic Shores during their 2020 IHA 
surveys (85 FR 7926; February 12, 2020). Early into the 2021 field 
season, Atlantic Shores observed large numbers of Atlantic spotted 
dolphins. A take of 100 Atlantic spotted dolphins was authorized for 
the Atlantic Shores 2022 IHA (87 FR 4200, January 27, 2022) to account 
for these numerous sightings. Based upon takes authorized for prior 
IHAs, NMFS adjusted the take estimate, by Level B harassment, from 3 to 
100 Atlantic spotted dolphins.
    One sei whale take was calculated (Table 9), however, Atlantic 
Shores Bight has requested to increase sei whale takes to two whales. 
This increase is based on the average group size of sei whales (NOAA 
2022). Therefore, NMFS adjusted the take estimate, by Level B 
harassment, from 1 sei whale to 2 sei whales.

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

Marine Mammal Shutdown Zones

    Marine mammal shutdown zones will be established around specified 
HRG survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive: 
Sparkers; non-impulsive: Non-parametric sub-bottom profilers), a 
minimum of one PSO must be on duty, per source vessel, during daylight 
hours and two PSOs must be on duty, per source vessel, during nighttime 
hours. These PSO will monitor shutdown zones based upon the radial 
distance from the acoustic source rather than being based around the 
vessel itself. The shutdown zone distances are as follows:
     A 500-m shutdown zone for NARW during use of specified 
acoustic sources (impulsive: Sparkers; non-impulsive: Non-parametric 
sub-bottom profilers).
     A 100-m shutdown zone for all other marine mammals 
(excluding NARWs and delphinids from the genera Delphinus, 
Lagenorhynchus, Stenella, or Tursiops that are visually detected as 
voluntarily approaching the vessel or towed equipment) during use of 
specified acoustic sources (as specified below). All visual monitoring 
must begin no less than 30 minutes prior to the initiation of the 
specified acoustic source and must continue until 30 minutes after use 
of specified acoustic sources ceases.
    If a marine mammal is detected approaching or entering the shutdown 
zones during the HRG survey, the vessel

[[Page 50309]]

operator will adhere to the shutdown procedures described below to 
minimize noise impacts on the animals. If a shutdown is required, a PSO 
will notify the survey crew immediately. Vessel operators and crews 
will comply immediately with any call for shutdown. Shutdown will 
remain in effect until the minimum separation distances (detailed 
above) between the animal and noise source are re-established. These 
stated requirements will be included in the site-specific training to 
be provided to the survey team.

Ramp Up of Survey Equipment and Pre-Clearance of the Shutdown Zones

    When technically feasible, a ramp-up procedure will be required for 
HRG survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. A ramp-up will begin with the powering up 
of the smallest acoustic HRG equipment at its lowest practical power 
output appropriate for the survey. The ramp-up procedure will be used 
in order to provide additional protection to marine mammals near the 
survey area by allowing them to vacate the area prior to the 
commencement of survey equipment operation at full power. When 
technically feasible, the power will then be gradually turned up and 
other acoustic sources will be added. All ramp-ups shall be scheduled 
so as to minimize the time spent with the source being activated.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective shutdown zone. Ramp-up will continue if the animal has been 
observed exiting its respective shutdown 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).
    Atlantic Shores Bight is required to implement a 30 minute pre-
clearance period of the shutdown zones prior to the initiation of ramp-
up of HRG equipment. The operator must notify a designated PSO of the 
planned start of ramp-up where the notification time should not be less 
than 60 minutes prior to the planned ramp-up. This will allow the PSOs 
to monitor the shutdown zones for 30 minutes prior to the initiation of 
ramp-up. Prior to ramp-up beginning, Atlantic Shores Bight must receive 
confirmation from the PSO that the shutdown zone is clear prior to 
proceeding. During this 30 minute pre-start clearance period, the 
entire applicable shutdown zones must be visible. The exception to this 
will be in situations where ramp-up may occur during periods of poor 
visibility (inclusive of nighttime) as long as appropriate visual 
monitoring has occurred with no detections of marine mammals in 30 
minutes prior to the beginning of ramp-up. Acoustic source activation 
may only occur at night where operational planning cannot reasonably 
avoid such circumstances.
    During this period, the shutdown zone will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective shutdown 
zone. If a marine mammal is observed within a shutdown zone during the 
pre-clearance period, ramp-up may not begin until the animal(s) has 
been observed exiting its respective shutdown zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and pinnipeds and 30 minutes for all 
other species). If a marine mammal enters the shutdown zone during 
ramp-up, ramp-up activities must cease and the source must be shut 
down. Any PSO on duty has the authority to delay the start of survey 
operations if a marine mammal is detected within the applicable pre-
start clearance zones.
    The required pre-clearance zones will be:
     500-m for all ESA-listed species (North Atlantic right, 
sei, fin, sperm whales); and
     100-m for all other marine mammals.
    If any marine mammal species that are listed under the ESA are 
observed within the clearance zones, the presence of the animal will be 
recorded and the 30 minute clock must be paused. If the PSO confirms 
the animal has exited the zone and headed away from the survey vessel, 
the 30 minute clock that was paused may resume. The pre-clearance clock 
will reset to 30 minutes if the animal dives or visual contact is 
otherwise lost.
    If the acoustic source is shut down for brief periods (i.e., less 
than 30 minutes) for reasons other than implementation of prescribed 
mitigation (e.g., mechanical difficulty), the acoustic source may be 
reactivated without ramp-up if PSOs have maintained constant visual 
observation and no detection of marine mammals occurs within the 
applicable shutdown zone. For any longer shutdown, pre-start clearance 
observation and ramp-up are required.
    Activation of survey equipment through ramp-up procedures may not 
occur when visual detection of marine mammals within the pre-clearance 
zone is not expected to be effective (e.g., during inclement conditions 
such as heavy rain or fog).
    The acoustic source(s) must be deactivated when not acquiring data 
or preparing to acquire data, except as necessary for testing. 
Unnecessary use of the acoustic source shall be avoided.

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment (Table 
1) is required if a marine mammal is sighted entering or within its 
respective shutdown zone(s). Any PSO on duty has the authority to call 
for a shutdown of the acoustic source if a marine mammal is detected 
within the applicable shutdown zones. Any disagreement between the PSO 
and vessel operator should be discussed only after shutdown has 
occurred. The vessel operator will establish and maintain clear lines 
of communication directly between PSOs on duty and crew controlling the 
HRG source(s) to ensure that shutdown commands are conveyed swiftly 
while allowing PSOs to maintain watch.
    The shutdown requirement is waived for small delphinids (belonging 
to the genera of the Family Delphinidae: Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) and pinnipeds if they are visually detected 
within the applicable shutdown zones. If a species for which 
authorization has not been granted, or, a species for which 
authorization has been granted but the authorized number of takes have 
been met, approaches or is observed within the applicable Level B 
harassment zone, shutdown is required to occur. In the event of 
uncertainty regarding the identification of a marine mammal species 
(i.e., such as whether the observed marine mammal belongs to Delphinus, 
Lagenorhynchus, Stenella, or Tursiops for which shutdown is waived, 
PSOs must use their best professional judgment in making the decision 
to call for a shutdown.
    Specifically, if a delphinid from the specified genera or a 
pinniped is visually detected approaching the vessel (i.e., to bow 
ride) or towed equipment, shutdown is not required.
    Upon implementation of a shutdown, the source may be reactivated 
after the marine mammal has been observed exiting the applicable 
shutdown zone or following a clearance period of 15 minutes for harbor 
porpoises and 30 minutes for all other species where there are no 
further detections of the marine mammal.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g.,

[[Page 50310]]

parametric sub-bottom profilers) other than non-parametric sub-bottom 
profilers (e.g., CHIRPs). Pre-clearance and ramp-up, but not shutdown, 
are required when using non-impulsive, non-parametric sub-bottom 
profilers.

Seasonal Operating Requirements

    A section of the survey area overlaps with approximately 2% of a 
NARW SMA. This SMA is active from November 1 through April 30 of each 
year. All survey vessels, regardless of length, are required to adhere 
to vessel speed restrictions (<10 kn; 18.5 km/hr) when operating within 
the SMA during times when the SMA is active. In addition, between watch 
shifts, members of the monitoring team will consult NMFS' NARW 
reporting systems for the presence of NARW throughout survey 
operations. Members of the monitoring team will also monitor the NMFS 
NARW reporting systems for the establishment of DMA. NMFS may also 
establish voluntary right whale Slow Zones any time a right whale (or 
whales) is acoustically detected. Atlantic Shores Bight should be aware 
of this possibility and remain attentive in the event a Slow Zone is 
established nearby or overlapping the survey area (Table 10).

      Table 10--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                         Restrictions Within Survey Area
----------------------------------------------------------------------------------------------------------------
           Survey area                  Species        DMA restrictions       Slow zones       SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area......................  North Atlantic          If established by NMFS, all of      N/A.
                                   Right Whale          Atlantic Shores Bight's vessels will
                                   (Eubalaena           abide by the described restrictions
                                   glacialis).
ECR Survey Area.................                                                              November 1-April
                                                                                               30 (ports of New
                                                                                               York/New Jersey).
----------------------------------------------------------------------------------------------------------------

    There are no known marine mammal rookeries or mating or calving 
grounds in the survey area that would otherwise potentially warrant 
increased mitigation measures for marine mammals or their habitat (or 
both). The authorized survey activities will occur in an area that has 
been identified as a BIA for migration for NARW. However, given the 
small spatial extent of the survey area relative to the substantially 
larger spatial extent of the right whale migratory area and the 
relatively low amount of noise generated by the survey activities, the 
survey activities are not expected to appreciably reduce the quality of 
migratory habitat nor to negatively impact the migration of NARW.

Vessel Strike Avoidance Procedures

    Vessel operators must comply with the below measures except under 
extraordinary circumstances when the safety of the vessel or crew is in 
doubt or the safety of life at sea is in question. These requirements 
do not apply in any case where compliance would create an imminent and 
serious threat to a person or vessel or to the extent that a vessel is 
restricted in its ability to maneuver and, because of the restriction, 
cannot comply.
     A Vessel Strike Avoidance Zone(s) will be maintained, as 
defined as 1,640 ft (500 m) or greater from any sighted ESA-listed 
whale species or other unidentified large marine mammal;
    (a) If a large whale is identified within 1,640 ft (500 m) of the 
forward path of any vessel, the vessel operator must steer a course 
away from the whale at 10 kn (18.5 km/hr) or less until the 1,640 ft 
(500 m) minimum separation distance has been established. Vessels may 
also shift to idle if feasible.
    (b) If a large whale is sighted within 656 ft (200 m) of the 
forward path of a vessel, the vessel operator must reduce speed and 
shift the engine to neutral. Engines must not be engaged until the 
whale has moved outside of the vessel's path and beyond 1,640 ft (500 
m). If stationary, the vessel must not engage engines until the large 
whale has moved beyond 1,640 ft (500 m).
     All vessel operators and crew will maintain vigilant watch 
for all marine mammals, and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any marine mammals. Unless a required PSO is aboard and on duty, then a 
designated and trained vessel crew member on all vessels associated 
with survey activities (transiting [i.e., traveling between a port and 
survey site] or actively surveying) will be assigned as a lookout for 
marine mammals;
     Members of the monitoring team will consult NMFS NARW 
reporting system and Whale Alert, daily and as able, for the presence 
of NARW throughout survey operations, and for the establishment of a 
DMA. If NMFS should establish a DMA in the survey area during the 
survey, the vessels will abide by speed restrictions in the DMA. All 
survey vessels, regardless of size, will observe a 10 kn (less than 
18.5 km per hour [km/h]) speed restriction in the specific areas 
designated by NOAA Fisheries for the protection of NARWs from vessel 
strikes including SMAs, Right Whale Slow Zones, and DMAs, when in 
effect. See www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for 
specific detail regarding these areas.
     All vessels greater than or equal to 65 ft (19.8 m) in 
overall length operating from November 1 through April 30 will operate 
at speeds of 10 knots or less while transiting to and from the survey 
area.
     All vessels, regardless of size, will reduce vessel speed 
to 10 knots or less when mother/calf pairs, pods, or large assemblages 
of cetaceans are observed near (within 330 ft [100 m]) of an underway 
vessel.
     All vessels will, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 164 ft (50 m) from 
all other marine mammals than ESA-listed and large whales, 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 will 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). Engines will not be 
engaged until the animals are clear of the area. This will not apply to 
any vessel towing gear or any vessel that is navigationally 
constrained.

Training

    All PSOs must have completed a PSO training program and received 
NMFS approval to act as a PSO for geophysical surveys. Documentation of 
NMFS approval and most recent training certificates of individual PSOs'

[[Page 50311]]

successful completion of a commercial PSO training course must be 
provided upon request. Further information can be found at 
www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers. In the event where third-party PSOs are 
not required, crew members serving as lookouts must receive training on 
protected species identification, vessel strike minimization 
procedures, how and when to communicate with the vessel captain, and 
reporting requirements.
    Atlantic Shores Bight shall instruct relevant vessel personnel with 
regard to the authority of the marine mammal monitoring team, and shall 
ensure that relevant vessel personnel and the marine mammal monitoring 
team participate in a joint onboard briefing (hereafter PSO briefing), 
led by the vessel operator and lead PSO, prior to beginning survey 
activities to ensure that responsibilities, communication procedures, 
marine mammal monitoring protocols, safety and operational procedures, 
and IHA requirements are clearly understood. This PSO briefing must be 
repeated when relevant new personnel (e.g., PSOs, acoustic source 
operator) join the survey operations before their responsibilities and 
work commences.
    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. All vessel crew members must be 
briefed in the identification of protected species that may occur in 
the survey area and in regulations and best practices for avoiding 
vessel collisions. Reference materials must be available aboard all 
project vessels for identification of listed species. The expectation 
and process for reporting of protected species sighted during surveys 
must be clearly communicated and posted in highly visible locations 
aboard all project vessels, so that there is an expectation for 
reporting to the designated vessel contact (such as the lookout or the 
vessel captain), as well as a communication channel and process for 
crew members to do so. Prior to implementation with vessel crews, the 
training program will be provided to NMFS for review and approval. 
Confirmation of the training and understanding of the requirements will 
be documented on a training course log sheet. Signing the log sheet 
will certify that the crew member understands and will comply with the 
necessary requirements throughout the survey activities.
    Based on our evaluation of the applicant's mitigation measures, 
NMFS has determined that these measures provide the means of effecting 
the least practicable impact on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

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

Monitoring Measures

    Atlantic Shores Bight must use independent, dedicated, trained 
PSOs, meaning that the PSOs must be employed by a third-party observer 
provider, must have no tasks other than to conduct observational 
effort, collect data, and communicate with and instruct relevant vessel 
crew with regard to the presence of marine mammal and mitigation 
requirements (including brief alerts regarding maritime hazards), and 
must have successfully completed an approved PSO training course for 
geophysical surveys. Visual monitoring must be performed by qualified, 
NMFS-approved PSOs. PSO resumes must be provided to NMFS for review and 
approval prior to the start of survey activities.
    PSO names must be provided to NMFS by the operator for review and 
confirmation of their approval for specific roles prior to commencement 
of the survey. For prospective PSOs not previously approved, or for 
PSOs whose approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, would coordinate duty 
schedules and roles for the PSO team, and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are

[[Page 50312]]

on duty with conditionally-approved PSOs.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or 
greater) a written and/or oral examination developed for the training 
program.
    PSOs must coordinate to ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and shall conduct 
visual observations using binoculars or night-vision equipment and the 
naked eye while free from distractions and in a consistent, systematic, 
and diligent manner.
    PSOs may be on watch for a maximum of four consecutive hours 
followed by a break of at least two hours between watches and may 
conduct a maximum of 12 hours of observation per 24-hour period.
    Any observations of marine mammal by crew members aboard any vessel 
associated with the survey shall be relayed to the PSO team.
    Atlantic Shores Bight must work with the selected third-party PSO 
provider to ensure PSOs have all equipment (including backup equipment) 
needed to adequately perform necessary tasks, including accurate 
determination of distance and bearing to observed marine mammals, and 
to ensure that PSOs are capable of calibrating equipment as necessary 
for accurate distance estimates and species identification. Such 
equipment, at a minimum, shall include:
     At least one thermal (infrared) imagine device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global Positioning Units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least 
one plus backups). The camera or lens should also have an image 
stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-part PSO provider, or the operator, but Atlantic Shores Bight 
is responsible for ensuring PSOs have the proper equipment required to 
perform the duties specified in the IHA.
    During good conditions (e.g., daylight hours; Beaufort sea state 3 
or less), PSOs shall conduct observations when the specified acoustic 
sources are not operating for comparison of sighting rates and behavior 
with and without use of the specified acoustic sources and between 
acquisition periods, to the maximum extent practicable.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including shutdown zones, during all HRG survey operations. 
PSOs will visually monitor and identify shutdown zones during survey 
activities. It will be the responsibility of the PSO(s) on duty to 
communicate the presence of marine mammals as well as to communicate 
the action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    In cases when pre-clearance has begun in conditions with good 
visibility, including via the use of night-vision equipment, and the 
lead PSO has determined that the pre-start clearance zones are clear of 
marine mammals, survey operations may commence (i.e., no delay is 
required) despite brief periods of inclement weather and/or loss of 
daylight.
    Atlantic Shores Bight plans to utilize six PSOs across each vessel 
to account for shift changes, with a total of 18 during this project 
(six PSOs per vessel x three vessels). At a minimum, during all HRG 
survey operations (e.g., any day on which use of an HRG source is 
planned to occur), one PSO must be on duty during daylight operations 
on each survey vessel, conducting visual observations at all times on 
all active survey vessels during daylight hours (i.e., from 30 minutes 
prior to sunrise through 30 minutes following sunset) and two PSOs will 
be on watch during nighttime operations. The PSO(s) 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 and the naked eye while free from 
distractions and in a consistent, systematic, and diligent manner. PSOs 
may be on watch for a maximum of four consecutive hours followed by a 
break of at least 2 hours between watches and may conduct a maximum of 
12 hours of observation per 24-hr period. In cases where multiple 
vessels are surveying concurrently, any observations of marine mammals 
would be communicated to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Exclusion Zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology 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 (see Reporting Measures). 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

    Atlantic Shores Bight shall submit a draft comprehensive report on 
all activities and monitoring results within 90 days of the completion 
of the survey or expiration of the IHA, whichever comes sooner. The 
report must describe

[[Page 50313]]

all activities conducted and sightings of marine mammals, must provide 
full documentation of methods, results, and interpretation pertaining 
to all monitoring, and must summarize the dates and locations of survey 
operations and all marine mammals sightings (dates, times, locations, 
activities, associated survey activities). The draft report shall also 
include geo-referenced, time-stamped vessel tracklines for all time 
periods during which acoustic sources were operating. Tracklines should 
include points recording any change in acoustic source status (e.g., 
when the sources began operating, when they were turned off, or when 
they changed operational status such as from full array to single gun 
or vice versa). GIS files shall be provided in ESRI shapefile format 
and include the UTC date and time, latitude in decimal degrees, and 
longitude in decimal degrees. All coordinates shall be referenced to 
the WGS84 geographic coordinate system. In addition to the report, all 
raw observational data shall be made available. The report must 
summarize the information submitted in interim monthly reports (if 
required) as well as additional data collected. A final report must be 
submitted within 30 days following resolution of any comments on the 
draft report. All draft and final marine mammal reports must be 
submitted to [email protected], [email protected], 
and [email protected].
    PSOs must use standardized electronic data forms to record data. 
PSOs shall record detailed information about any implementation of 
mitigation requirements, including the distance of marine mammal to the 
acoustic source and description of specific actions that ensued, the 
behavior of the animal(s), any observed changes in behavior before and 
after implementation of mitigation, and if shutdown was implemented, 
the length of time before any subsequent ramp-up of the acoustic 
source. If required mitigation was not implemented, PSOs should record 
a description of the circumstances.
    At a minimum, the following information must be recorded:
    1. Vessel names (source vessel and other vessels associated with 
survey), vessel size and type, maximum speed capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. The lease number;
    4. PSO names and affiliations;
    5. Date and participants of PSO briefings;
    6. Visual monitoring equipment used;
    7. PSO location on vessel and height of observation location above 
water surface;
    8. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    9. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    10. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval
    11. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    12. Water depth (if obtainable from data collection software);
    13. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    14. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions); and
    15. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.).
    Upon visual observation of any marine mammal, the following 
information must be recorded:
    1. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    2. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    3. PSO who sighted the animal;
    4. Time of sighting;
    5. Initial detection method;
    6. Sightings cue;
    7. Vessel location at time of sighting (decimal degrees);
    8. Direction of vessel's travel (compass direction);
    9. Speed of the vessel(s) from which the observation was made;
    10. Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level or unidentified); also note the composition of 
the group if there is a mix of species;
    11. Species reliability (an indicator of confidence in 
identification);
    12. Estimated distance to the animal and method of estimating 
distance;
    13. Estimated number of animals (high/low/best);
    14. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    15. Description (as many distinguishing features as possible of 
each individual seen, including length, shape, color, pattern, scars, 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    16. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; length of time observed in the 
harassment zone; note any observed changes in behavior before and after 
point of closest approach);
    17. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    18. Equipment operating during sighting;
    19. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and
    20. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a NARW is observed at any time by PSOs or personnel on any 
project vessels, during surveys or during vessel transit, Atlantic 
Shores Bight must report the sighting information to the NMFS NARW 
Sighting Advisory System (866-755-6622) within two hours of occurrence, 
when practicable, or no later than 24 hours after occurrence. NARW 
sightings in any location may also be reported to the U.S. Coast Guard 
via channel 16 and through the WhaleAlert app (http://www.whalealert.org).
    In the event that Atlantic Shores Bight personnel discover an 
injured or dead marine mammal, regardless of the cause of injury or 
death, Atlantic Shores Bight must report the incident to NMFS as soon 
as feasible by phone (866-755-6622) and by email 
([email protected] and [email protected]) as 
soon as feasible. The report must include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);

[[Page 50314]]

    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Atlantic 
Shores Bight must report the incident to NMFS by phone (866-755-6622) 
and by email ([email protected] and 
[email protected]) as soon as feasible. The report will 
include the following information:
    1. Time, date, and location (latitude/longitude) of the incident;
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Vessel's speed during and leading up to the incident;
    4. Vessel's course/heading and what operations were being conducted 
(if applicable);
    5. Status of all sound sources in use;
    6. Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    7. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    8. Estimated size and length of animal that was struck;
    9. Description of the behavior of the marine mammal immediately 
preceding and/or following the strike;
    10. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    11. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    12. To the extent practicable, photographs or video footage of the 
animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any 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, the discussion of our analysis applies to all 
the species listed in Table 2, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. 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 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 realized 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, the estimated 
size of the Level A harassment zones, and the required shutdown zones 
for certain activities.
    In addition to HRG activities being temporary, the maximum expected 
harassment zone around a survey vessel is 141 m. Although this distance 
is assumed for all survey activity in estimating authorized take 
numbers, in reality, the Applied Acoustics Dura-Spark 240 would likely 
not be used across the entire 24-hour period and across all 360 days. 
As noted in Table 5, the other acoustic sources Atlantic Shores Bight 
has included in their application produce Level B harassment zones 
below 60-m. Therefore, the ensonified area surrounding each vessel is 
relatively small compared to the overall distribution of the animals in 
the area and their 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. Due to 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 known mating or calving grounds nor feeding areas 
known to be biologically important to marine mammals within the survey 
area. There is no designated critical habitat for any ESA-listed marine 
mammals in the survey area.

North Atlantic Right Whales

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW mortalities began in June 2017 and there is an active Unusual 
Mortality Event (UME). Overall, preliminary findings support human 
interactions, specifically vessel strikes and entanglements, as the 
cause of death for the majority of right whales. As noted previously, 
the survey area overlaps a migratory corridor BIA for NARW. Due to the 
fact that the survey activities are temporary and the spatial extent of 
sound produced by the survey would be very small relative to the 
spatial extent of the available migratory habitat in the BIA, right 
whale migration is not expected to be impacted by the survey 
activities. Required vessel strike avoidance measures will also 
decrease risk of ship strike during migration; no ship strike is 
expected to occur during Atlantic Shores Bight's activities. The 500-m 
shutdown zone for right whales is conservative, considering the Level B 
harassment isopleth for the most

[[Page 50315]]

impactful acoustic source (i.e., sparker) is estimated to be 141-m, and 
thereby minimizes the potential for behavioral harassment of this 
species.
    As noted previously, Level A harassment is not expected due to the 
small PTS zones associated with HRG equipment types authorized for use. 
The authorizations for Level B harassment takes of NARW are not 
expected to exacerbate or compound upon the ongoing UME. The limited 
NARW Level B harassment takes authorized are expected to be of a short 
duration, and given the number of estimated takes, repeated exposures 
of the same individual are not expected. Further, given the relatively 
small size of the ensonified area during Atlantic Shores Bight's 
activities, it is unlikely that NARW prey availability will be 
adversely affected. Accordingly, NMFS does not anticipate that any NARW 
takes resulting from Atlantic Shores Bight'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 Atlantic Shores Bight's survey area. Elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine 
through Florida since January 2016. Of the cases examined, 
approximately half had evidence of human interaction (ship strike or 
entanglement). The UME does not yet provide cause for concern regarding 
population-level impacts. Despite the UME, the relevant population of 
humpback whales (the West Indies breeding population, or DPS) remains 
stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    The required mitigation measures are expected to reduce the number 
and/or severity of authorized takes for all species listed in Table 2, 
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. As 
discussed previously, take by Level A harassment (injury) is considered 
unlikely, even absent mitigation, based on the characteristics of the 
signals produced by the acoustic sources planned for use. 
Implementation of required mitigation will further reduce this 
potential. Therefore, NMFS has not authorized any Level A harassment.
    NMFS expects that takes will be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions, temporarily 
vacating the area, or decreased foraging (if such activity was 
occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures will 
further reduce exposure to sound that could result in more severe 
behavioral harassment.

Biologically Important Areas for Other Species

    As previously discussed, impacts from the authorized project are 
expected to be localized to the specific area of activity and only 
during periods of time where Atlantic Shores Bight's acoustic sources 
are active. While BIAs for feeding for fin and humpback whales as well 
as haul out sites for harbor seals can be found off the coast of New 
Jersey and New York, NMFS does not expect this action to affect these 
areas. This is due to the combination of the mitigation and monitoring 
measures being required of Atlantic Shores Bight as well as the 
location of these biologically important areas. All of these important 
areas are found outside of the range of this survey area, as is the 
case with fin whales and humpback whales (BIAs found further north), 
and, therefore, not expected to be impacted by Atlantic Shores Bight's 
survey activities.
    Three major haul-out sites exist for harbor seals, inshore of the 
ECR Survey Area along New Jersey, at Great Bay, Sand Hook, and Barnegat 
Inlet (CWFNJ, 2015). As hauled outs are inshore and seals would be out 
of the water, no in-water effects are expected.
    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 any of the species or stocks 
through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures;
     Foraging success is not likely to be impacted as effects 
on prey species for marine mammals from the activities are expected to 
be minimal;
     Alternate areas of similar habitat value are available for 
marine mammals to temporarily vacate the survey area during the planned 
activities to avoid exposure to sounds generated by surveys;
     Take is anticipated to be by Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the survey area;
     While the survey area is within a noted migratory BIA for 
NARW, the activities will occur in such a comparatively small area such 
that any avoidance of the survey area due to activities would not 
affect migration; and
     The mitigation measures, including effective visual 
monitoring, and shutdowns are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activities 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 the incidental take (by Level B harassment 
only) of 15 marine mammal species (with 15 managed stocks). The total 
amount of takes authorized relative to the best

[[Page 50316]]

available population abundance is less than 7 percent for all stocks 
(Table 9). Therefore, NMFS finds that small numbers of marine mammals 
may be taken relative to the estimated overall population abundances 
for those stocks.
    Based on the analysis contained herein of the 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.

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

Endangered Species Act

    Section 7(a)(2) of the 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 the Greater Atlantic Regional Fisheries Office.
    NMFS OPR is authorizing the incidental take of four species of 
marine mammals which are listed under the ESA, including the North 
Atlantic right, fin, sei, and sperm whale, and determined that this 
activity falls within the scope of activities analyzed in NMFS GARFO's 
programmatic consultation regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021). GARFO concluded site 
assessment surveys are not likely to adversely affect endangered 
species or adversely modify or destroy critical habitat. NMFS has 
determined issuance of the IHA is covered under the programmatic 
consultation; therefore, ESA consultation has been satisfied.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Atlantic Shores Bight authorized take, by Level B harassment, 
incidental to conducting site characterization surveys off New Jersey 
and New York from August 1, 2022 through July 31, 2023, that includes 
the previously explained mitigation, monitoring, and reporting 
requirements.

    Dated: August 10, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-17522 Filed 8-15-22; 8:45 am]
BILLING CODE 3510-22-P