[Federal Register Volume 87, Number 161 (Monday, August 22, 2022)]
[Notices]
[Pages 51359-51387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17978]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC138]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys

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

ACTION: Notice; issuance of an incidental harassment authorization.

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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 
Attentive Energy, LLC (Attentive Energy) to incidentally harass marine 
mammals during marine site characterization surveys associated with 
high resolution geophysical (HRG) equipment off the coast of 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 0538. There are no changes from the proposed authorization in 
this final authorization.

DATES: This authorization is effective from September 15, 2022 through 
September 14, 2023.

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

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

    On April 11, 2022, NMFS received a request from Attentive Energy 
for an IHA to take marine mammals incidental to conducting marine site 
characterization surveys off the coast of New Jersey and New York in 
the area of the Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf Lease Area (OCS)-A 
0538. The application was deemed adequate and complete on May 23, 2022. 
On June 17 2022, NMFS published a proposed IHA for public comment (87 
FR 38094). Attentive Energy's request is for take of 15 species of 
marine mammals by Level B harassment only. Neither Attentive Energy nor 
NMFS expect serious injury or mortality to result from this activity 
and, therefore, an IHA is appropriate. There are no changes from the 
proposed IHA to the final IHA.
    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

[[Page 51360]]

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

    Attentive Energy plans to conduct marine site characterization 
surveys using high-resolution geophysical (HRG) acoustic sources in the 
Lease Area OCS-A 0538.
    The purpose of the survey 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. One survey vessel will operate as part of 
the planned surveys. Underwater sound resulting from Attentive Energy's 
site characterization survey activities, specifically HRG survey 
effort, has the potential to result in incidental take of marine 
mammals in the form of behavioral harassment.

Dates and Duration

    The estimated duration of the surveys is expected to be up to 42 to 
56 total survey days (6 to 8 weeks) within a single year in the Lease 
Area. A survey day is defined as a 24-hour survey period where 200 
kilometer of track line is surveyed. This schedule is based on 24-hours 
of operations for up to 8-weeks. In total there are 3,028 km of track 
line that would be surveyed within the Lease Area. The schedule 
presented here for this project has accounted for potential down time 
due to inclement weather or other project-related delays, therefor 
actual survey time will be less than 8 weeks. Planned activities would 
occur between September 15, 2022 and September 14, 2023.

Specific Geographic Region

    Attentive Energy's planned activities would occur in the Northwest 
Atlantic Ocean within Federal and state waters (Figure 1). Surveys 
would occur in the Lease Area off the coast of New York and New Jersey 
in the New York bight. Planned activities would occur within the 
Commercial Lease of Submerged Lands for Renewable Energy Development in 
OCS-A 0538. The OCS Lease area is approximately 577.6 km\2\ and is 
located between 30 and 60 meters water depth.
BILLING CODE 3510-22-P

[[Page 51361]]

[GRAPHIC] [TIFF OMITTED] TN22AU22.012

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Attentive Energy's marine site characterization surveys include HRG 
and geotechnical survey activities. These survey activities would occur 
within the Lease Area off the coasts of New York and New Jersey in the 
New York Bight. The planed HRG and geotechnical survey activities are 
described below.
Geotechnical Survey Activities
    Attentive Energy's geotechnical survey activities would include the 
drilling of sample boreholes, deep cone penetration tests, and shallow 
cone penetration tests. The geotechnical survey activity is not 
expected to result in take of marine mammals. Similar activities were 
performed before in a nearby lease area by Atlantic Shores, and 
considerations of the impacts produced from geotechnical activities 
have been previously analyzed and included in the proposed 2020 Federal 
Register notice for Atlantic Shores' HRG activities (85 FR 7926; 
February 12, 2020). In that notification, NMFS determined that the 
likelihood of the geotechnical surveys resulting in harassment of 
marine mammals was to be so low as to be discountable. As this 
information remains applicable and NMFS' determination has not changed, 
these activities will not be discussed further in this notification.
Geophysical Survey Activities
    Attentive Energy has planned that HRG survey operations would be 
conducted continuously 24 hours a day. Based on 24-hour operations, the 
estimated total duration of the activities would be approximately 8 
weeks. As previously discussed above, this schedule does include 
potential down time due to inclement weather or other project-related 
delays. The HRG survey will be conducted with primary track lines 
spaced at 150-meter (m) intervals and tie-lines spaced at 500 -m 
intervals.
    The HRG survey activities will be supported by the use of a 
purpose-built survey vessel. These are designed with built-in A-frames 
and davits, permanently mounted winches, and other items on the deck 
specifically for survey operations. The geophysical survey activities 
planned by Attentive Energy would include the following:
     Depth sounding to determine water depth, site bathymetry, 
and general bottom topography (multibeam echosounder);
     Magnetic intensity measurements (gradiometer) for 
detecting local

[[Page 51362]]

variations in regional magnetic field from geological strata and 
potential ferrous objects on and below the bottom;
     Seafloor imaging (sidescan sonar survey) for seabed 
sediment classification purposes, to identify natural and human-made 
acoustic targets resting on the bottom as well as any anomalous 
features;
     Shallow-bottom penetration sub-bottom profiler (SBP) to 
map the near surface stratigraphy (top 0 to 10 m [33 feet] below seabed 
in sand and 0 to 15 m [49 feet] in mixed sediments); and
     Medium penetration SBP (sparker) to map deeper subsurface 
stratigraphy as needed (soils down to at least 100 m [328 ft] below 
seabed in sand and at least 125 m [410 feet] below seabed in mixed 
sediments).
    The representative survey equipment that may be used in support of 
planned geophysical survey activities can be found in Table 0-3 of 
Attentive Energy's Application. 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 HRG survey equipment is listed in the 
application, including equipment that NMFS doesn't expect to result in 
take due to their higher frequencies and extremely narrow beam widths. 
Because of this, these sources were not considered when calculating the 
Level B harassment isopleths and are not discussed further in this 
notice. Acoustic parameters on this equipment can be found in Attentive 
Energy's IHA application on NMFS' website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable). We will only be 
discussing further the equipment listed below in Table 1. For equipment 
source level specifications noted in Table 1, a proxy representing the 
closest match in composition and operation of the Dual Geo-Spark was 
used from Crocker and Fratantonio (2016).

                                                       Table 1--Acoustic Equipment for HRG Surveys
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Operating     Source level
       HRG equipment type           Equipment make/      frequency     (RMS dB re 1      Reference for    Pulse duration    Repetition      Beam width
                                         model             (kHz)        [mu]Pa @1m)      source level     (milliseconds)     rate (Hz)       (degrees)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Mobile, Impulsive
--------------------------------------------------------------------------------------------------------------------------------------------------------
Deep SBP........................  Dual Geo-Spark                 0.3             203  Crocker and                    1.1               4             180
                                   2000X (400 tip/                                     Fratantonio 2016
                                   500J).                                              *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Applied Acoustics Dura-spark 500J to 2,000J as Proxy.
Key: RMS--Root mean square; dB--Decibel; re--referenced at; m--meters; SBP--Sub-bottom profiler; Hz--hertz; kHz--kilohertz; [mu]Pa--microPascal.

    The deployment of HRG survey equipment, including the equipment 
planned for use during Attentive Energy'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).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Attentive Energy was 
published in the Federal Register on June 27, 2022 (87 FR 38094). That 
notice described, in detail, Attentive Energy's activities, the marine 
mammal species that may be affected by the activities, and the 
anticipated effects on marine mammals. In that notice, we requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization, and any other aspect of the 
notice of proposed IHA, and requested that interested persons submit 
relevant information, suggestions, and comments. This proposed notice 
was available for a 30-day public comment period.
    NMFS received letters from two environmental non-governmental 
organizations (eNGOs) (Oceana, Inc. (Oceana) 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-attentive-energy-llc-marine-site-characterization-surveys-new). Please review the letters for full 
details regarding the comments and underlying justification.
    Comment 1: COA does not agree with NMFS' negligible impact 
determination for North Atlantic right whale (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 38094) provides a 
detailed qualitative discussion supporting NMFS' determination that any 
anticipated impacts from this action would be negligible. The section 
contains a number of factors that were considered by NMFS based on the 
best available scientific data and why we concluded that impacts 
resulting from the specified activity are not reasonably expected to, 
or reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival.
    With specific regard to NARW, we note that take is authorized for 
only a very small percentage of the right whale population (see Table 
6). 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

[[Page 51363]]

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 2: COA and Oceana asserted that NMFS is overestimating the 
population abundance for NARW.
    Response: NMFS agrees that the most up to date population estimate 
should be used for assessing NARW abundance estimates. The revised 
abundance estimate (368; 95 percent with a confidence interval of 356-
378) published by Pace (2021) (and subsequently included in the 2021 
draft Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), which was used in the proposed IHA, provides the most recent 
and best available estimate, and introduced improvements to NMFS' right 
whale abundance model. Specifically, Pace (2021) looked at a different 
way of characterizing annual estimates of age-specific survival. NMFS 
considered all relevant information regarding NARW, including the 
information cited by the commenters. However, NMFS relies on the SAR. 
Recently, NMFS updated its species web page to recognize the population 
estimate for NARWs is now below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale), as COA 
mentioned. We anticipate that this information will be presented in the 
draft 2022 SAR. We note that this change in abundance estimate would 
not change the estimated take of NARW or authorized take numbers, nor 
affect our ability to make the required findings under the MMPA for 
Attentive Energy's survey activities.
    NMFS further notes that the MMPA specifies that the ``best 
available data'' must be used, which does not always mean the most 
recent. As is NMFS' prerogative, we referenced the best available NARW 
abundance estimate of 368 from the draft 2021 SARs as NMFS' 
determination of the best available data that we relied on in our 
analysis. The Pace (2021) results strengthened the case for a change in 
mean survival rates after 2010-2011, but did not significantly change 
other current estimates (population size, number of new animals, adult 
female survival) derived from the model.
    Lastly, as we stated previously and in the notice of proposed IHA 
(87 FR 38094; 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 854 km\2\ total area) compared to the size 
of the NARW migratory Biologically Important Areas (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 and COA asserted that NMFS must fully consider 
the discrete effects of each activity and the cumulative effects of the 
suite of approved, proposed and potential activities on marine mammals 
and NARWs in particular and ensure that the cumulative effects are not 
excessive before issuing or renewing an IHA. Additionally, Oceana and 
COA state that they are similarly concerned with cumulative impacts of 
offshore wind development on marine mammal species in the region.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for a separate ``cumulative effects'' analysis of 
other unrelated activities and their impacts on populations. The 
preamble for NMFS' implementing regulations (54 FR 40338; September 29, 
1989) states in response to comments that the impacts from other past 
and ongoing anthropogenic activities are to be incorporated into the 
negligible impact analysis via their impacts on the baseline. 
Consistent with that direction, NMFS has factored into its negligible 
impact analysis the impacts of other past and ongoing anthropogenic 
activities via their impacts on the baseline, e.g., as reflected in the 
density/distribution and status of the species, population size and 
growth rate, and other relevant stressors. The 1989 final rule for the 
MMPA implementing regulations also addressed public comments regarding 
cumulative effects from future, unrelated activities. There NMFS stated 
that such effects are not considered in making findings under section 
101(a)(5) concerning negligible impact. In this case, this IHA, as well 
as other IHAs currently in effect or proposed within the specified 
geographic region, are appropriately considered an unrelated activity 
relative to the others. The IHAs are unrelated in the sense that they 
are discrete actions under section 101(a)(5)(D), issued to discrete 
applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Attentive Energy is the applicant for the IHA, and we 
are responding to the specified activity as described in that 
application (and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated that (1) we would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) reasonably foreseeable cumulative effects would also be 
considered under section 7 of the Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written 
Environmental Assessments (EA) that addressed cumulative impacts 
related to substantially similar activities, in similar locations, 
e.g., the 2017 Ocean Wind, LLC EA for site characterization surveys off 
New Jersey and the 2018 Deepwater Wind EA for survey activities 
offshore Delaware, Massachusetts, and Rhode Island. Cumulative impacts 
regarding issuance of IHAs for site characterization survey

[[Page 51364]]

activities such as those planned by Attentive Energy 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 
Attentive Energy'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 Attentive Energy under this current IHA 
request. This Biological Opinion (BiOp) determined that NMFS' issuance 
of IHAs for site characterization survey activities associated with 
leasing, individually and cumulatively, are not likely to adversely 
affect listed marine mammals. NMFS notes that, while issuance of this 
IHA is covered under a different consultation, this BiOp remains valid.
    Comment 4: COA is concerned regarding the wide range of marine 
mammal species that could be impacted by the activities, as well as a 
lack of baseline data being available for species in the area, 
specifically harbor seals. In addition, COA has stated that NMFS did 
not adequately address the potential for cumulative impacts to 
bottlenose dolphins from Level B harassment over several years of 
project activities.
    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 Attentive 
Energys' survey areas. Furthermore, the MMPA requires us to evaluate 
the effects of the specified activities in consideration of the best 
scientific evidence available and, if the necessary findings are made, 
to issue the requested take authorization. The MMPA does not allow us 
to delay decision making in hopes that additional information may 
become available in the future. Furthermore, NMFS notes that it has 
previously addressed discussions on cumulative impact analyses in 
previous comments and references COA back to these specific responses 
in this Notice.
    Regarding the lack of baseline information cited by COA, with 
specific concern pointed out for harbor seals, NMFS points towards two 
sources of information for marine mammal baseline information: the 
Ocean/Wind Power Ecological Baseline Studies, January 2008--December 
2009 completed by the New Jersey Department of Environmental Protection 
in July 2010 (https://dspace.njstatelib.org/xmlui/handle/10929/68435) 
and the Atlantic Marine Assessment Program for Protected Species 
(AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that cover the areas across the 
Atlantic Ocean. NMFS has duly considered this and all available 
information.
    Based on the information presented, NMFS has determined that no new 
information has become available, nor do the commenters present 
additional information, that would change our determinations since the 
publication of the proposed notice.
    Comment 5: Oceana stated that NMFS must utilize the best available 
science, and suggested that NMFS has not done so, specifically 
referencing information regarding the 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. 
Similarly, COA ensures that activities covered by this IHA should not 
occur during peak migratory season or biologically sensitive periods 
for the affected species.
    Response: While NMFS agrees that the best available science should 
be used for assessing NARW abundance estimates, we disagree that 
Oceana's cited study represents the most recent and best available 
estimate for NARW abundance. Rather the revised abundance estimate 
(368; 95 percent with a confidence interval of 356-378) published by 
Pace (2021) (and subsequently included in the 2021 draft Stock 
Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), 
which was used in the proposed IHA, provides the most recent and best 
available estimate, and introduced improvements to NMFS' right whale 
abundance model. Specifically, Pace (2021) looked at a different way of 
characterizing annual estimates of age-specific survival. NMFS 
considered all relevant information regarding NARW, including the 
information cited by the commenters. However, NMFS relies on the SAR. 
Recently (after publication of the notice of proposed IHA), NMFS 
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 Attentive Energy's survey activities.
    NMFS further notes that the commenters seem to be conflating the 
phrase ``best available data'' with ``the most recent data.'' The MMPA 
specifies that the ``best available data'' must be used, which does not 
always mean the most recent. As is NMFS' prerogative, we referenced the 
best available NARW abundance estimate of 368 from the draft 2021 SARs 
as NMFS' 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.
    NMFS considered the best available science regarding both recent 
habitat usage patterns for the study area and up-to-date seasonality 
information in the notice of the proposed IHA, including consideration 
of existing BIAs and densities provided by Roberts et al. (2021). While 
the commenter has suggested that NMFS consider best available 
information for recent habitat usage patterns and seasonality, it has 
not offered any additional information which it suggests should be 
considered best available information in place of what NMFS considered 
in its notice of

[[Page 51365]]

proposed IHA (87 FR 38094; June 27, 2022).
    Lastly, as we stated in the notice of proposed IHA (87 FR 38094; 
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 (854 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. Also, refer to comment two for 
similar discussion on right whale abundance.
    Comment 6: Oceana made comments objecting to NMFS' renewal process 
regarding the extension of any 1-year IHA with a truncated 15-day 
public comment period as it violates the MMPA, 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 38094) 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 7: Oceana stated that NMFS must require that all IHA 
applicants minimize the impacts of underwater noise to have the least 
practicable impact on marine mammal species or stocks and their 
habitats in and around the project site, 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.. Oceana additionally 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.
    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 8: Oceana noted that chronic stressors are an emerging 
concern for NARW conservation and

[[Page 51366]]

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's 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 Attentive Energy 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 854 km\2\ of the 269,448 km\2\ BIA). Thus, the transitory 
nature of NARW's at this location means it is unlikely for any exposure 
to cause chronic effects, as Attentive Energy'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 Attentive Energy's described survey 
activities.
    Comment 9: Oceana states that Attentive Energy's activities will 
increase service 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 10: Oceana suggests that Protected Species Observers (PSOs) 
complement their survey efforts at all times when underway, 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 11: Oceana recommended that NMFS restrict all vessels of 
all sizes associated with the proposed survey activities to speeds less 
than 10 knots (kn) (5.14 meters/second (m/s)) at all times with no 
exceptions due to the risk of vessel strikes to NARWs and other large 
whales.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for vessel strike 
resulting from Attentive Energy's activity and have determined that 
based on the nature of the activity and the required mitigation 
measures specific to vessel strike avoidance included in the IHA, 
potential for vessel strike is so low as to be discountable. The 
required mitigation measures, all of which were included in the 
proposed IHA and are now required in the final IHA, include: A 
requirement that all vessel operators comply with 10 kn (18.5 km/hour 
(kph)) or less speed restrictions in any Seasonal Management Area 
(SMA), Dynamic Management Area (DMA) or Slow Zone while underway, and 
check daily for information regarding the establishment of mandatory or 
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and 
information regarding NARW sighting locations; a requirement 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 kph) 
or less; a requirement that all vessel operators reduce vessel speed to 
10 kn (18.5 kph) 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 kph) or less 
until the 500 m minimum separation distance has been established; a 
requirement that, if an ESA-listed whale is sighted in a vessel's path, 
or within 500 m of an underway vessel, the underway vessel must reduce 
speed and shift the engine to neutral; a requirement that all vessels 
underway must maintain a minimum separation distance of 100 m from all 
non-ESA-listed baleen whales; and a requirement that all vessels 
underway must, to the maximum extent practicable, attempt to maintain a 
minimum separation distance of 50 m from all other marine mammals, with 
an understanding that at times this may not be possible (e.g., for 
animals that approach the vessel). We have determined that the vessel 
strike avoidance measures in the IHA are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. 
Furthermore, no documented vessel strikes have occurred for any marine 
site characterization surveys for which IHAs were issued from NMFS 
during the survey activities themselves or while transiting to and from 
survey sites.
    Comment 12: Oceana suggests that NMFS require vessels to maintain a 
separation distance of at least 500 m from NARW at all times.
    Response: NMFS agrees with Oceana regarding this suggestion and a 
requirement to maintain a separation distance of at least 500 m from 
NARWs at all times was included in the proposed Federal Register notice 
and was included as a requirement in the issued IHA.
    Comment 13: Oceana recommended that the IHA should require all 
vessels supporting site characterization be equipped with and use Class 
A Automatic Identification System (AIS) devices at all times while on 
the water. Oceana suggested this requirement should apply to all 
vessels, regardless of size, associated with the survey.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and use Class A

[[Page 51367]]

Automatic Identification System (devices) at all times while on the 
water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, those activities carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Attentive Energy, 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 14: Oceana stated that the IHA must include a requirement 
for all phases of the site characterization to subscribe to the highest 
level of transparency, including frequent reporting to federal 
agencies. Oceana recommended requirements to report all visual and 
acoustic detections of NARWs and any dead, injured, or entangled marine 
mammals to NMFS or the Coast Guard as soon as possible and no later 
than the end of the PSO shift. Oceana states that to foster stakeholder 
relationships and allow public engagement and oversight of the 
permitting, the IHA should require all reports and data to be 
accessible on a publicly available website.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA calls for IHAs to incorporate reporting requirements. As included 
in the proposed IHA, the final IHA includes requirements for reporting 
that address Oceana's recommendations. Attentive Energy is required to 
submit a monitoring report to NMFS within 90 days after completion of 
survey activities that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring. PSO 
datasheets or raw sightings data must also be provided with the draft 
and final monitoring report. This final monitoring report is then made 
available to the public on NMFS website.
    Further, the draft IHA and final IHA stipulate that if a NARW is 
observed at any time by any survey vessels, during surveys or during 
vessel transit, Attentive Energy 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. Attentive Energy may also report the sighting to the U.S. 
Coast Guard. Additionally, Attentive Energy must report any discoveries 
of injured or dead marine mammals to the Office of Protected Resources, 
NMFS, and to the New England/Mid-Atlantic Regional Stranding 
Coordinator as soon as feasible. This includes entangled animals. All 
reports and associated data submitted to NMFS are included on the 
website for public inspection.
    Comment 15: Oceana asserts that the IHA must include requirements 
to hold all vessels associated with site characterization surveys 
accountable to the IHA requirements, including vessels owned by the 
developer, contractors, employees, and others regardless of ownership, 
operator, and contract. They state that exceptions and exemptions will 
create enforcement uncertainty and incentives to evade regulations 
through reclassification and redesignation. They recommend that NMFS 
simplify this by requiring all vessels to abide by the same 
requirements, regardless of size, ownership, function, contract or 
other specifics.
    Response: NMFS agrees with Oceana and required these measures in 
the proposed IHA and final IHA. The IHA requires that a copy of the IHA 
must be in the possession of Attentive Energy, the vessel operators, 
the lead PSO, and any other relevant designees of Attentive Energy 
operating under the authority of this IHA. The IHA also states that 
Attentive Energy 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 16: Oceana recommends a shutdown requirement if a NARW or 
other ESA-listed species is detected in the clearance zone as well as a 
publicly available explanation of any exemptions as to why the 
applicant would not be able to shut down in these situations.
    Response: There are several shutdown requirements described in the 
Federal Register notice of the proposed IHA (87 FR 38094; June 27, 
2022), and which are included in the final IHA, including the 
stipulation that geophysical survey equipment must be immediately shut 
down if any marine mammal is observed within or entering the relevant 
Exclusion Zone while geophysical survey equipment is operational. 
Oceana mentions an exemption to the shutdown for human safety, however, 
there is no exemption for the shutdown requirement for NARW, ESA-listed 
species, or any other species.
    Attentive Energy 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 harbor porpoise, and 30 minutes for all other 
species). If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective exclusion zones.
    In regards to reporting, Attentive Energy must notify NMFS if a 
NARW is observed at any time by any survey vessels during surveys or 
during vessel transit. Additionally, Attentive Energy is required to 
report the relevant survey activity information, such as such as the 
type of survey equipment in operation, acoustic source power output 
while in operation, and any other notes of significance (i.e., pre-
clearance survey, ramp-up, shutdown, end of operations, etc.) as well 
as the estimated distance to an animal and its heading relative to the 
survey vessel at the initial sighting and survey activity information. 
We note that if a NARW is detected within the Exclusion Zone before a 
shutdown is implemented, the NARW and its distance from the sound 
source, including if it is within the Level B harassment zone, would be 
reported in Attentive Energy's final monitoring report and made 
publicly available on NMFS' website. Attentive Energy is required to 
immediately notify NMFS of any sightings of NARWs and report upon 
survey activity information. NMFS believes that these requirements 
address the commenter's concerns.
    Comment 17: 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 38094; June 27, 
2022) and this final IHA a stipulation that when technically feasible, 
survey equipment

[[Page 51368]]

must be ramped up at the start or restart of survey activities. A ramp-
up procedure, involving a gradual increase in source level output, is 
required at all times as part of the activation of the acoustic source 
when technically feasible. Operators should ramp up sources to half 
power for 5 minutes and then proceed to full power. A 30-minute pre-
start clearance observation period must occur prior to the start of 
ramp-up (or initiation of source use if ramp-up is not technically 
feasible). NMFS notes that ramp-up is not required for short periods 
where acoustic sources were shut down (i.e., less than 30 minutes) if 
PSOs have maintained constant visual observation and no detections of 
marine mammals occurred within the applicable Exclusion Zones.
    Comment 18: Oceana recommended increasing the Exclusion Zone to 
1,000m for NARWs with requirements for HRG survey vessels to use PSOs 
and Passive Acoustic Monitoring (PAM) to establish and monitor these 
zones.
    Response: NMFS notes that the 500 m Exclusion Zone for NARWs 
exceeds the modeled distance to the largest 160 dB Level B harassment 
isopleth (141 m during sparker use) by a conservative margin to be 
extra cautious. Commenters do not provide a compelling rationale for 
why the Exclusion Zone should be even larger. Given that these surveys 
are relatively low impact and that, regardless, NMFS has prescribed a 
precautionary NARW Exclusion Zone that is larger (500 m) than the 
conservatively estimated largest harassment zone (141 m), NMFS has 
determined that the Exclusion Zone is appropriate.
    Regarding the use of acoustic monitoring to implement the exclusion 
zones, NMFS does not anticipate that acoustic monitoring would be 
effective for a variety of reasons discussed below and therefore has 
not required it in this IHA. As described in the Mitigation section, 
NMFS has determined that the prescribed mitigation requirements are 
sufficient to effect the least practicable adverse impact on all 
affected species or stocks.
    The commenters do not explain why they expect that PAM would be 
effective in detecting vocalizing mysticetes, nor does NMFS agree that 
this measure is warranted, as it is not expected to be effective for 
use in detecting the species of concern. It is generally accepted that, 
even in the absence of additional acoustic sources, using a towed 
passive acoustic sensor to detect baleen whales (including NARWs) is 
not typically effective because the noise from the vessel, the flow 
noise, and the cable noise are in the same frequency band and will mask 
the vast majority of baleen whale calls. Vessels produce low-frequency 
noise, primarily through propeller cavitation, with main energy in the 
5-300 Hertz (Hz) frequency range. Source levels range from about 140 to 
195 decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; 
Hildebrand, 2009), depending on factors such as ship type, load, and 
speed, and ship hull and propeller design. Studies of vessel noise show 
that it appears to increase background noise levels in the 71-224 Hz 
range by 10-13 dB (Hatch et al. 2012; McKenna et al. 2012; Rolland et 
al. 2012). PAM systems employ hydrophones towed in streamer cables 
approximately 500 m behind a vessel. Noise from water flow around the 
cables and from strumming of the cables themselves is also low 
frequency and typically masks signals in the same range. Experienced 
PAM operators participating in a recent workshop (Thode et al. 2017) 
emphasized that a PAM operation could easily report no acoustic 
encounters, depending on species present, simply because background 
noise levels rendered any acoustic detection impossible. The same 
workshop report stated that a typical eight-element array towed 500 m 
behind a vessel could be expected to detect delphinids, sperm whales, 
and beaked whales at the required range, but not baleen whales, due to 
expected background noise levels (including seismic noise, vessel 
noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (a maximum of 141 m); this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low. Together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for NARWs and other low frequency cetaceans, species for 
which PAM has limited efficacy), and the cost and impracticability of 
implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat. NMFS has previously provided discussions on why PAM isn't a 
required monitoring measure during HRG survey IHAs in past Federal 
Register notices (see 86 FR 21289, April 22, 2021 and 87 FR 13975, 
March 11, 2022 for examples).

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 activity, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its

[[Page 51369]]

optimum sustainable population (as described in NMFS' SARs). While no 
serious injury or mortality is expected to occur, 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' 2021 draft U.S. Atlantic and Gulf of Mexico Stock Assessment 
Report SARs. All values presented in Table 2 are the most recent 
available at the time of publication and are available in the draft 
2021 SARS (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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..........  Eubalaena glacialis....  Western Atlantic Stock.  E/D, Y              368 \4\ (0; 364; 2019)        0.7        7.7
Humpback whale......................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,396 (0; 1,380; 2016)         22      12.15
Fin whale...........................  Balaenoptera physalus..  Western North Atlantic   E/D, Y              6,802 (0.24; 5,573;            11        1.8
                                                                Stock.                                       2016).
Sei whale...........................  Balaenoptera borealis..  Nova Scotia Stock......  E/D, Y              6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
Minke whale.........................  Balaenoptera             Canadian East Coastal    -/-, N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.           Stock.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale.........................  Physeter macrocephalus.  North Atlantic Stock...  E/D, Y              4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Long-finned pilot whale.............  Globicephala melas.....  Western North Atlantic   -/-, N              39,215 (0.3; 30,627;          306         29
                                                                Stock.                                       2016).
Atlantic white-sided dolphin........  Lagenorhynchus acutus..  Western North Atlantic   -/-, N              93,233 (0.71; 54,443;         544        227
                                                                Stock.                                       2016).
Bottlenose dolphin..................  Tursiops truncatus.....  Western North Atlantic   -/-, N              62,851 (0.23; 51,914;         519         28
                                                                Offshore Stock.                              2016).
Common dolphin......................  Delphinus delphis......  Western North Atlantic   -/-, N              172,974 (0.21,              1,452        390
                                                                Stock.                                       145,216, 2016).
Atlantic spotted dolphin............  Stenella frontalis.....  Western North Atlantic   -/-, N              39,921 (0.27; 32,032;         320          0
                                                                Stock.                                       2016).
Risso's dolphin.....................  Grampus griseus........  Western North Atlantic   -/-, N              35,215 (0.19; 30,051;         301         34
                                                                Stock.                                       2016).
Harbor porpoise.....................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-, N              95,543 (0.31; 74,034;         851        164
                                                                Fundy Stock.                                 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.........................  Phoca vitulina.........  Western North Atlantic   -/-, N              61,336 (0.08; 57,637;       1,729        339
                                                                Stock.                                       2018).
Gray seal \5\.......................  Halichoerus grypus.....  Western North Atlantic   -/-, N              27,300 (0.22; 22,785;       1,389      4,453
                                                                Stock.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is 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\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
  below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).
\5\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual mortality and serious injury (M/SI) value given is for the total stock.

    As indicated above, all 15 species in Table 2 temporally and 
spatially co-occur with the activity to the degree that take is 
reasonably likely to occur.
    The temporal and/or spatial occurrence of several cetacean and 
pinniped species is such that take of these species is not expected to 
occur either because they have very low densities in the survey area or 
are known to occur further inshore or offshore than the survey area. 
These include: blue whale (Balaenoptera musculus), Dwarf and pygmy 
sperm whale (Kogia sima and Kogia breviceps), killer whale (Orcinus 
orca), false killer whale (Pseudorca crassidens), Cuvier's beaked whale 
(Ziphius cavirostris), Mesoplodont beaked whales (Mesoplodon spp.), 
short finned pilot whale (Globicephala macrorhynchus), white-beaked 
dolphin (Lagenorhynchus albirostris), pantropical spotted dolphin 
(Stenella attenuata), striped dolphin (Stenella coeruleoalba), harp 
seal (Pagophilus groenlandicus), and hooded seal (Cystophora cristata). 
As harassment and subsequent take of these species is not anticipated 
as a result of the planned activities, these species are not analyzed 
or discussed further.
    Below is a description of the species that have the highest 
likelihood of occurring in the survey area and are thus expected to be 
taken by the planned activities as well as further detail informing the 
status for select species (i.e., information regarding

[[Page 51370]]

current Unusual Mortality Events (UMEs) and important habitat areas).

North Atlantic Right Whale

    The NARW range from calving grounds in the southeastern United 
States to feeding grounds in New England waters and into Canadian 
waters (Hayes et al., 2018). They are observed year round in the Mid-
Atlantic Bight, and surveys have demonstrated the existence of seven 
areas where NARW congregate seasonally, including north and east of the 
survey area in Georges Bank, off Cape Cod, and in Massachusetts Bay 
(Hayes et al., 2018). In the late fall months (e.g., October), right 
whales are generally thought to depart from the feeding grounds in the 
North Atlantic and move south to their calving grounds off Georgia and 
Florida. However, recent research indicates our understanding of their 
movement patterns remains incomplete (Davis et al., 2017). A review of 
passive acoustic monitoring data from 2004 to 2014 throughout the 
western North Atlantic demonstrated nearly continuous year-round right 
whale presence across their entire habitat range (for at least some 
individuals), including in locations previously thought of as migratory 
corridors, suggesting that not all of the population undergoes a 
consistent annual migration (Davis et al., 2017). Given that Attentive 
Energy's surveys would be concentrated offshore in the New York Bight, 
some right whales may be present year round however, the majority in 
the vicinity of the survey areas are likely to be transient, migrating 
through the area. Some may be present year round however, the majority 
migrating through.
    The western North Atlantic population demonstrated overall growth 
of 2.8 percent per year between 1990 to 2010, despite a decline in 1993 
and no growth between 1997 and 2000 (Pace et al., 2017). However, since 
2010 the population has been in decline, with a 99.99 percent 
probability of a decline of just under 1 percent per year (Pace et al., 
2017). Between 1990 and 2015, calving rates varied substantially, with 
low calving rates coinciding with all three periods of decline or no 
growth (Pace et al., 2017). On average, NARW calving rates are 
estimated to be roughly half that of southern right whales (Eubalaena 
australis) (Pace et al., 2017), which are increasing in abundance 
(NMFS, 2015). In 2018, no new NARW calves were documented in their 
calving grounds; this represented the first time since annual NOAA 
aerial surveys began in 1989 that no new right whale calves were 
observed. Eighteen right whale calves were documented in 2021. As of 
the end of 2021 two NARW calves have documented to have been born 
during this calving season.
    The survey area is part of a migratory corridor Biologically 
Important Area (BIA) for NARW (effective March-April and November-
December) that extends from Massachusetts to Florida (LeBrecque et al., 
2015). Off the coast of New Jersey, the migratory BIA extends from the 
coast to beyond the shelf break. This important migratory area is 
approximately 269,488 km\2\ in size (compared with the approximately 
854 km\2\ of total estimated Level B harassment ensonified area 
associated with the 8-week planned survey) and is comprised of the 
waters of the continental shelf offshore the East Coast of the United 
States, extending from Florida through Massachusetts. NMFS' regulations 
at 50 CFR part 224.105 designated nearshore waters of the Mid-Atlantic 
Bight as Mid-Atlantic U.S. SMA for right whales in 2008. SMAs were 
developed to reduce the threat of collisions between ships and right 
whales around their migratory route and calving grounds. A portion of 
one SMA, which occurs off the mouth of the New York Bight, is close to 
the planned survey area. The SMA, which occurs off the mouth of the New 
York Bight, is active from November 1 through April 30 of each year. 
Within SMAs, the regulations require a mandatory vessel speed (less 
than 10 kn (18.5 kph)) for all vessels greater than 65 ft (19.8 m). 
Attentive Energy survey vessel, regardless of length, would be required 
to adhere to a 10 kn (18.5 kph) vessel speed restriction when operating 
within this SMA. In addition, Attentive Energy survey vessel, 
regardless of length, would be required to adhere to a 10 kn (18.5 kph) 
vessel speed restriction when operating in any DMA declared by NMFS.
    Elevated NARW mortalities have occurred since June 7, 2017, along 
the U.S. and Canadian coast. This event has been declared an Unusual 
Mortality Event (UME), with human interactions, including entanglement 
in fixed fishing gear and vessel strikes, implicated in at least 15 of 
the mortalities thus far. As of June 2, 2022, a total of 34 confirmed 
dead stranded whales (21 in Canada; 13 in the United States) have been 
documented. The cumulative total number of animals that have stranded 
during the NARW UME has been updated to 50 individuals to include both 
the confirmed mortalities (dead stranded or floaters) (n=34) and 
seriously injured free-swimming whales (n=16) to better reflect the 
confirmed number of whales likely removed from the population during 
the UME and more accurately reflect the population impacts. More 
information is available online at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    Recent aerial surveys in the New York Bight showed NARW in the 
planned survey area in the winter and spring, preferring deeper waters 
near the shelf break (NARW observed in depths ranging from 33-1041m), 
but were observed throughout the survey area (Normandeau Associates and 
APEM, 2020; Zoidis et al., 2021). Similarly, passive acoustic data 
collected from 2018 to 2020 in the New York Bight showed detections of 
NARW throughout the year (Estabrook et al., 2021). Seasonally, NARW 
acoustic presence was highest in the fall. NARW can be anticipated to 
occur in the survey area year-round but with lower levels in the summer 
from July-September.

Humpback Whale

    Humpback whales are found worldwide in all oceans. Humpback whales 
were listed as endangered under the Endangered Species Conservation Act 
(ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks 
continued to be listed as endangered. On September 8, 2016, NMFS 
divided the species into 14 distinct population segments (DPS), removed 
the current species-level listing, and in its place listed four DPSs as 
endangered and one DPS as threatened (81 FR 62259; September 8, 2016). 
The remaining nine DPSs were not listed. The West Indies DPS, which is 
not listed under the ESA, is the only DPS of humpback whale that is 
expected to occur in the survey area. Gulf of Maine humpback whales are 
designated as a stock under the MMPA and are also part of the West 
Indies DPS. However, humpback whales occurring in the survey area are 
not necessarily from the Gulf of Maine stock. Barco et al. (2002) 
estimated that, based on photo-identification, only 39 percent of 
individual humpback whales observed along the mid- and south Atlantic 
U.S. coast are from the Gulf of Maine stock. Bettridge et al. (2015) 
estimated the size of this population at 12,312 (95 percent CI 8,688-
15,954) whales in 2004-05, which is consistent with previous population 
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; 
Smith et al., 1999) and the increasing trend for the West Indies DPS 
(Bettridge et al., 2015).
    Humpback whales utilize the mid-Atlantic as a migration pathway 
between calving/mating grounds to the south and feeding grounds in the 
north

[[Page 51371]]

(Waring et al., 2007a; Waring et al., 2007b). A key question with 
regard to humpback whales off the Mid-Atlantic states is their stock 
identity. Furthermore, King et al. (2021) highlights important concerns 
for humpback whales found specifically in the nearshore environment 
(<10 km from shore) from various anthropogenic impacts.
    Recent aerial surveys in the New York Bight observed humpback 
whales in the spring and winter, but sightings were reported year round 
in the area (Normandeau Associates and APEM, 2020). Humpback whales 
preferred deeper waters near the shelf break, but were observed 
throughout the area. Additionally, passive acoustic data recorded 
humpback whales in the New York Bight throughout the year, but the 
presence was highest in the fall and summer months (Estabrook et al., 
2021).
    Three previous UMEs involving humpback whales have occurred since 
2000, in 2003, 2005, and 2006. Since January 2016, elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine to 
Florida. Partial or full necropsy examinations have been conducted on 
approximately half of the 159 known cases (as of June 2, 2022). Of the 
whales examined, about 50 percent had evidence of human interaction, 
either ship strike or entanglement. While a portion of the whales have 
shown evidence of pre-mortem vessel strike, this finding is not 
consistent across all whales examined and more research is needed. NOAA 
is consulting with researchers that are conducting studies on the 
humpback whale populations, and these efforts may provide information 
on changes in whale distribution and habitat use that could provide 
additional insight into how these vessel interactions occurred. More 
information is available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Fin Whale

    Fin whales are common in waters of the U. S. Atlantic Exclusive 
Economic Zone (EEZ), principally from Cape Hatteras northward (Waring 
et al., 2016). Fin whales are present north of 35-degree latitude in 
every season and are broadly distributed throughout the western North 
Atlantic for most of the year (Waring et al., 2016). They are typically 
found in small groups of up to five individuals (Brueggeman et al., 
1987). The main threats to fin whales are fishery interactions and 
vessel collisions (Waring et al., 2016).
    The western north Atlantic stock of fin whales includes the area 
from Central Virginia to Newfoundland/Labrador Canada. This region is 
primarily a feeding ground for this migratory species that tends to 
calve and breed in lower latitudes or offshore. There is currently no 
critical habitat designated for this species.
    Recent aerial surveys in the New York Bight observed fin whales 
year-round throughout the survey area, but they preferred deeper waters 
near the shelf break (Normandeau Associates and APEM, 2020). Passive 
acoustic data from 2018 to 2020 also detected fin whales throughout the 
year (Estabrook et al., 2021).

Sei Whale

    The Nova Scotia stock of sei whales can be found in deeper waters 
of the continental shelf edge waters of the northeastern U.S. and 
northeastward to south of Newfoundland. The southern portion of the 
stock's range during spring and summer includes the Gulf of Maine and 
Georges Bank. Spring is the period of greatest abundance in U.S. 
waters, with sightings concentrated along the eastern margin of Georges 
Bank and into the Northeast Channel area, and along the southwestern 
edge of Georges Bank in the area of Hydrographer Canyon (Waring et al., 
2015). Sei whales occur in shallower waters to feed. Currently there is 
no critical habitat for sei whales, though they can be observed along 
the shelf edge of the continental shelf. The main threats to this stock 
are interactions with fisheries and vessel collisions.
    Recently conducted aerial surveys in the New York Bight observed 
sei whales in both winter and spring, though they preferred deeper 
waters near the shelf break (Normandeau Associates and APEM, 2020). 
Passive acoustic data in the survey area detected sei whales throughout 
the year except January and July, with highest detections in March and 
April (Estabrook et al., 2021).

Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude 
waters. The Canadian East Coast stock can be found in the area from the 
western half of the Davis Strait (45[deg]W) to the Gulf of Mexico 
(Waring et al., 2016). This species generally occupies waters less than 
100-m deep on the continental shelf. There appears to be a strong 
seasonal component to minke whale distribution in the survey areas, in 
which spring to fall are times of relatively widespread and common 
occurrence while during winter the species appears to be largely absent 
(Waring et al., 2016). Recent aerial surveys in the New York Bight area 
found that minke whales were observed throughout the survey area, with 
highest numbers sighting in the spring months (Normandeau Associates 
and APEM, 2020).
    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 122 strandings (as of June 2, 2022). This event has been 
declared a UME. Full or partial necropsy examinations were conducted on 
more than 60 percent of the stranded whales. Preliminary findings in 
several of the whales have shown evidence of human interactions or 
infectious disease, but these findings are not consistent across all of 
the whales examined, so more research is needed. More information is 
available at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.

Sperm Whale

    The distribution of the sperm whale in the U.S. EEZ occurs on the 
continental shelf edge, over the continental slope, and into mid-ocean 
regions (Waring et al., 2014). They are rarely found in waters less 
than 300 meters deep. The basic social unit of the sperm whale appears 
to be the mixed school of adult females plus their calves and some 
juveniles of both sexes, normally numbering 20-40 animals in all. There 
is evidence that some social bonds persist for many years (Christal et 
al., 1998). This species forms stable social groups, site fidelity, and 
latitudinal range limitations in groups of females and juveniles 
(Whitehead, 2002). In summer, the distribution of sperm whales includes 
the area east and north of Georges Bank and into the Northeast Channel 
region, as well as the continental shelf (inshore of the 100-m isobath) 
south of New England. In the fall, sperm whale occurrence south of New 
England on the continental shelf is at its highest level, and there 
remains a continental shelf edge occurrence in the mid-Atlantic bight. 
In winter, sperm whales are concentrated east and northeast of Cape 
Hatteras.
    Recent aerial studies observed sperm whales in the highest number 
in the summer, with a preference for the shelf break (Normandeau 
Associates and APEM, 2020). Passive acoustic recordings of sperm whale 
recorded them throughout the year, and again highest during spring and 
summer (Estabrook et al., 2021).

[[Page 51372]]

Risso's Dolphin

    The status of the Western North Atlantic stock is not well 
understood. They are broadly distributed in tropical and temperate 
latitudes throughout the world's oceans, and the Western North Atlantic 
stock occurs from Florida to eastern Newfoundland. They are common on 
the northwest Atlantic continental shelf in summer and fall with lower 
abundances in winter and spring. Newer aerial surveys in the New York 
Bight area sighted Risso's dolphins throughout the year at the shelf 
break with highest abundances in spring and summer (Normandeau 
Associates and APEM, 2020).

Long-Finned Pilot Whale

    Long-finned pilot whales are found from North Carolina and north to 
Iceland, Greenland and the Barents Sea (Waring et al., 2016). In U.S. 
Atlantic waters the species is distributed principally along the 
continental shelf edge off the northeastern U.S. coast in winter and 
early spring and in late spring, pilot whales move onto Georges Bank 
and into the Gulf of Maine and more northern waters and remain in these 
areas through late autumn (Waring et al., 2016). Recently conducted 
aerial surveys in the New York Bight area noted a preference for deeper 
water at the shelf break throughout the year (Normandeau Associates and 
APEM, 2020).

Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of 
the North Atlantic, primarily in continental shelf waters to the 100m 
depth contour from central West Greenland to North Carolina (Waring et 
al., 2016). The Gulf of Maine stock is most common in continental shelf 
waters from Hudson Canyon to Georges Bank, and in the Gulf of Maine and 
lower Bay of Fundy. Sighting data indicate seasonal shifts in 
distribution (Northridge et al., 1997). During January to May, low 
numbers of white-sided dolphins are found from Georges Bank to Jeffreys 
Ledge (off New Hampshire), with even lower numbers south of Georges 
Bank, as documented by a few strandings collected on beaches of 
Virginia to South Carolina. From June through September, large numbers 
of white-sided dolphins are found from Georges Bank to the lower Bay of 
Fundy. From October to December, white-sided dolphins occur at 
intermediate densities from southern Georges Bank to southern Gulf of 
Maine (Payne and Heinemann, 1990). Sightings south of Georges Bank, 
particularly around Hudson Canyon, occur year round but at low 
densities. Recent aerial studies confirmed previous studies with 
observations in fall and winter in the New York Bight area with 
preference for deep water at the shelf break throughout the year 
(Normandeau Associates and APEM, 2020).

Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate 
waters ranging from southern New England, south to Gulf of Mexico and 
the Caribbean to Venezuela (Waring et al., 2014). This stock regularly 
occurs in continental shelf waters south of Cape Hatteras and in 
continental shelf edge and continental slope waters north of this 
region (Waring et al., 2014). There are two forms of this species, with 
the larger ecotype inhabiting the continental shelf and is usually 
found inside or near the 200-m isobaths (Waring et al., 2014). They are 
relatively uncommon in the survey area.

Common Dolphin

    The common dolphin is found worldwide in temperate to subtropical 
seas. In the North Atlantic, common dolphins are commonly found over 
the continental shelf between the 100-m and 2,000-m isobaths and over 
prominent underwater topography and east to the mid-Atlantic Ridge 
(Waring et al., 2016). They have been observed in coastal and offshore 
waters, observed migrating to mid-Atlantic waters during winter months.

Bottlenose Dolphin

    There are two distinct bottlenose dolphin morphotypes in the 
western North Atlantic: The coastal and offshore stocks (Waring et al., 
2016). The offshore stock is distributed primarily along the outer 
continental shelf and continental slope in the Northwest Atlantic Ocean 
from Georges Bank to the Florida Keys. The offshore stock is the only 
stock likely to occur in the survey area due to it being limited to the 
Lease area. The Western North Atlantic Offshore stock is generally 
observed along the outer continental shelf and slope in waters deeper 
than 34 m and over 34 km offshore (Torres et al., 2003).

Harbor Porpoise

    In the Lease Area, only the Gulf of Maine/Bay of Fundy stock may be 
present in the fall and winter. This stock is found in U.S. and 
Canadian Atlantic waters and is concentrated in the northern Gulf of 
Maine and southern Bay of Fundy region, generally in waters less than 
150-m deep (Waring et al., 2016). They are seen from the coastline to 
deep waters (>1,800-m; Westgate et al., 1998), although the majority of 
the population is found over the continental shelf (Waring et al., 
2016). The main threat to the species is interactions with fisheries, 
with documented take in the U.S. northeast sink gillnet, mid-Atlantic 
gillnet, and northeast bottom trawl fisheries and in the Canadian 
herring weir fisheries (Waring et al., 2016).

Pinnipeds (Harbor Seal and Gray Seal)

    The harbor seal is found in all nearshore waters of the North 
Atlantic and North Pacific Oceans and adjoining seas above about 
30[deg]N (Burns, 2009). In the western North Atlantic, harbor seals are 
distributed from the eastern Canadian Arctic and Greenland south to 
southern New England and New York, and occasionally to the Carolinas 
(Waring et al., 2016). Haulout and pupping sites are located off 
Manomet, MA and the Isles of Shoals, ME, but generally do not occur in 
areas in southern New England (Waring et al., 2016). They seasonal 
migrate down to the mid-Atlantic from fall to spring months.
    There are three major populations of gray seals found in the world; 
eastern Canada (western North Atlantic stock), northwestern Europe and 
the Baltic Sea. Gray seals are regularly observed in the survey area in 
the survey area and these seals belong to the western North Atlantic 
stock. The range for this stock is thought to be from New Jersey to 
Labrador. Current population trends show that gray seal abundance is 
likely increasing in the U.S. Atlantic EEZ (Waring et al., 2016). 
Although the rate of increase is unknown, surveys conducted since their 
arrival in the 1980s indicate a steady increase in abundance in both 
Maine and Massachusetts (Waring et al., 2016). It is believed that 
recolonization by Canadian gray seals is the source of the U.S. 
population (Waring et al., 2016). Documented haul outs for gray seas in 
Long Island area, with a possible rookery on Little Gull Island.
    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire and 
Massachusetts. This event has been declared a UME. Additionally, 
stranded seals have shown clinical signs (e.g., symptoms of disease) as 
far south as Virginia, although not in elevated numbers, therefore the 
UME investigation now encompasses all seal strandings from Maine to 
Virginia. Ice seals (harp and hooded seals) have also started stranding 
with clinical signs, again not in elevated numbers, and those two seal 
species have also been added to the UME investigation. A total of 3,152

[[Page 51373]]

reported strandings (of all species) had occurred from July 1, 2018, 
through March 13, 2020. Full or partial necropsy examinations have been 
conducted on some of the seals and samples have been collected for 
testing. Based on tests conducted thus far, the main pathogen found in 
the seals is phocine distemper virus. NMFS is performing additional 
testing to identify any other factors that may be involved in this UME. 
Presently, this UME is non-active and is pending closure by NMFS. 
Information on this UME is available online at: www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. 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 (dolphins,      150 Hz to 160 kHz.
 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) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
The Estimated Take section later in this document includes a 
quantitative analysis of the number of individuals that are expected to 
be taken by this activity. The Negligible Impact Analysis and 
Determination section considers the content of this section, the 
Estimated Take section, and the Mitigation section, to draw conclusions 
regarding the likely impacts of these activities on the reproductive 
success or survivorship of individuals and whether those impacts are 
reasonably expected to, or reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.

Background on Active Acoustic Sound Sources and Acoustic Terminology

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

[[Page 51374]]

2005). This measurement is often used in the context of discussing 
behavioral effects, in part because behavioral effects, which often 
result from auditory cues, may be better expressed through averaged 
units than by peak pressures.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy in a stated frequency band over a stated 
time interval or event and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse, 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event. Peak sound pressure (also referred to 
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous 
sound pressure measurable in the water at a specified distance from the 
source and is represented in the same units as the rms sound pressure.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be directed 
either in a beam or in beams or may radiate in all directions 
(omnidirectional sources). The compressions and decompressions 
associated with sound waves are detected as changes in pressure by 
aquatic life and man-made sound receptors such as hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz 
and, if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but on the ability of sound to 
propagate through the environment. In turn, sound propagation is 
dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 dB from day to day (Richardson et al., 1995). The result 
is that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Details of source types are described in the following text.
    Sounds are often considered to fall into one of two general types: 
pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see 
Southall et al. (2007) for an in-depth discussion of these concepts. 
The distinction between these two sound types is not always obvious, as 
certain signals share properties of both pulsed and non-pulsed sounds. 
A signal near a source could be categorized as a pulse, but due to 
propagation effects as it moves farther from the source, the signal 
duration becomes longer (e.g., Greene and Richardson, 1988).
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998) and occur either as 
isolated events or repeated in some succession. Pulsed sounds are all 
characterized by a relatively rapid rise from ambient pressure to a 
maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems. The 
duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment.
    Sparkers produce pulsed signals with energy in the frequency 
ranges, 0.05-4.0 kiloHertz (kHz). The amplitude of the acoustic wave 
emitted from sparker sources is equal in all directions (i.e., 
omnidirectional), while other sources planned for use during the 
planned surveys have some degree of directionality to the beam.

Summary on Specific Potential Effects of Acoustic Sound Sources

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

[[Page 51375]]

would recover over time (Southall et al., 2007).
    Animals in the vicinity of Attentive Energy HRG survey activity are 
unlikely to incur even TTS due to the characteristics of the sound 
sources, which include generally very short pulses and potential 
duration of exposure. These characteristics mean that instantaneous 
exposure is unlikely to cause TTS, as it is unlikely that exposure 
would occur close enough to the vessel for received levels to exceed 
peak pressure TTS criteria, and that the cumulative duration of 
exposure would be insufficient to exceed cumulative sound exposure 
level (SEL) criteria. Even for high-frequency cetacean species (e.g., 
harbor porpoises), which have the greatest sensitivity to potential 
TTS, individuals would have to make a very close approach and also 
remain very close to the vessel operating these sources in order to 
receive multiple exposures at relatively high levels, as would be 
necessary to cause TTS. Intermittent exposures--as would occur due to 
the brief, transient signals produced by these sources--require a 
higher cumulative SEL to induce TTS than would continuous exposures of 
the same duration (i.e., intermittent exposure results in lower levels 
of TTS). Moreover, most marine mammals would more likely avoid a loud 
sound source rather than swim in such close proximity as to result in 
TTS. Kremser et al. (2005) noted that the probability of a cetacean 
swimming through the area of exposure when a sub-bottom profiler emits 
a pulse is small--because if the animal was in the area, it would have 
to pass the transducer at close range in order to be subjected to sound 
levels that could cause TTS and would likely exhibit avoidance behavior 
to the area near the transducer rather than swim through at such a 
close range. Further, the restricted beam shape of many of HRG survey 
devices planned for use makes it unlikely that an animal would be 
exposed more than briefly during the passage of the vessel. No 
mortality, injury or Permanent Threshold Shift (PTS) are expected to 
occur.
    Behavioral disturbance to marine mammals from sound may include a 
variety of effects, including subtle changes in behavior (e.g., minor 
or brief avoidance of an area or changes in vocalizations), more 
conspicuous changes in similar behavioral activities, and more 
sustained and/or potentially severe reactions, such as displacement 
from or abandonment of high-quality habitat. Behavioral responses to 
sound are highly variable and context-specific and any reactions depend 
on numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors. 
Available studies show wide variation in response to underwater sound; 
therefore, it is difficult to predict specifically how any given sound 
in a particular instance might affect marine mammals perceiving the 
signal.
    In addition, sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, navigation). Masking occurs when the receipt of a 
sound is interfered with by another coincident sound at similar 
frequencies and at similar or higher intensity, and may occur whether 
the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., shipping, sonar, seismic 
exploration) in origin. Marine mammal communications would not likely 
be masked appreciably by the acoustic signals expected from Attentive 
Energy's surveys given the directionality of the signals for most HRG 
survey equipment types planned for use and the brief period when an 
individual mammal is likely to be exposed.
    Classic stress responses begin when an animal's central nervous 
system perceives a potential threat to its homeostasis. That perception 
triggers stress responses regardless of whether a stimulus actually 
threatens the animal; the mere perception of a threat is sufficient to 
trigger a stress response (Moberg 2000; Seyle 1950). Once an animal's 
central nervous system perceives a threat, it mounts a biological 
response or defense that consists of a combination of the four general 
biological defense responses: behavioral responses, autonomic nervous 
system responses, neuroendocrine responses, or immune responses. In the 
case of many stressors, an animal's first and sometimes most economical 
(in terms of biotic costs) response is behavioral avoidance of the 
potential stressor or avoidance of continued exposure to a stressor. An 
animal's second line of defense to stressors involves the sympathetic 
part of the autonomic nervous system and the classical ``fight or 
flight'' response which includes the cardiovascular system, the 
gastrointestinal system, the exocrine glands, and the adrenal medulla 
to produce changes in heart rate, blood pressure, and gastrointestinal 
activity that humans commonly associate with ``stress.'' These 
responses have a relatively short duration and may or may not have 
significant long-term effect on an animal's welfare. An animal's third 
line of defense to stressors involves its neuroendocrine systems; the 
system that has received the most study has been the hypothalamus-
pituitary-adrenal system (also known as the HPA axis in mammals). 
Unlike stress responses associated with the autonomic nervous system, 
virtually all neuro-endocrine functions that are affected by stress--
including immune competence, reproduction, metabolism, and behavior--
are regulated by pituitary hormones. Stress-induced changes in the 
secretion of pituitary hormones have been implicated in failed 
reproduction (Moberg 1987; Rivier 1995), reduced immune competence 
(Blecha 2000), and behavioral disturbance. Increases in the circulation 
of glucocorticosteroids (cortisol, corticosterone, and aldosterone in 
marine mammals; see Romano et al., 2004) have been long been equated 
with stress. The primary distinction between stress (which is adaptive 
and does not normally place an animal at risk) and distress is the 
biotic cost of the response. In general, there are few data on the 
potential for strong, anthropogenic underwater sounds to cause non-
auditory physical effects in marine mammals. The available data do not 
allow identification of a specific exposure level above which non-
auditory effects can be expected (Southall et al., 2007). There is 
currently no definitive evidence that any of these effects occur even 
for marine mammals in close proximity to an anthropogenic sound source. 
In addition, marine mammals that show behavioral avoidance of survey 
vessels and related sound sources are unlikely to incur non-auditory 
impairment or other physical effects. NMFS does not expect that the 
generally short-term, intermittent, and transitory HRG and geotechnical 
survey activities would create conditions of long-term, continuous 
noise and chronic acoustic exposure leading to long-term physiological 
stress responses in marine mammals.
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, and zooplankton) (i.e., effects to marine mammal 
habitat). Prey species exposed to sound might move away from the sound 
source, experience TTS, experience masking of biologically relevant 
sounds, or show no obvious direct effects. The most likely impacts (if 
any) for most prey species in a given

[[Page 51376]]

area would be temporary avoidance of the area. Surveys using active 
acoustic sound sources move through an area, limiting exposure to 
multiple pulses. In all cases, sound levels would return to ambient 
once a survey ends and the noise source is shut down and, when exposure 
to sound ends, behavioral and/or physiological responses are expected 
to end relatively quickly.

Vessel Strike

    Vessel collisions with marine mammals, or ship strikes, can result 
in death or serious injury of the animal. These interactions are 
typically associated with large whales, which are less maneuverable 
than are smaller cetaceans or pinnipeds in relation to large vessels. 
Ship strikes generally involve commercial shipping vessels, which are 
generally larger and of which there is much more traffic in the ocean 
than geophysical survey vessels. Jensen and Silber (2004) summarized 
ship strikes of large whales worldwide from 1975-2003 and found that 
most collisions occurred in the open ocean and involved large vessels 
(e.g., commercial shipping). For vessels used in geophysical survey 
activities, vessel speed while towing gear is typically only 4-5 kn 
(7.4-9.3 kph). At these speeds, both the possibility of striking a 
marine mammal and the possibility of a strike resulting in serious 
injury or mortality are so low as to be discountable. At average 
transit speed for geophysical survey vessels, the probability of 
serious injury or mortality resulting from a strike is less than 50 
percent. However, the likelihood of a strike actually happening is 
again low given the smaller size of these vessels and generally slower 
speeds. Notably in the Jensen and Silber study, no strike incidents 
were reported for geophysical survey vessels during that time period.

Marine Mammal Habitat

    The HRG survey equipment will not contact the seafloor and does not 
represent a source of pollution. We are not aware of any available 
literature on impacts to marine mammal prey from sound produced by HRG 
survey equipment. However, as the HRG survey equipment introduces noise 
to the marine environment, there is the potential for it to result in 
avoidance of the area around the HRG survey activities on the part of 
marine mammal prey. Any avoidance of the area on the part of marine 
mammal prey would be expected to be short term and temporary.
    Because of the temporary nature of the disturbance, and the 
availability of similar habitat and resources (e.g., prey species) 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. Impacts on marine mammal habitat from the planned 
activities will be temporary, insignificant, and discountable.
    The effects of Attentive Energy's specified survey activity are 
expected to be limited to Level B behavioral harassment. No permanent 
or temporary auditory effects, or significant impacts to marine mammal 
habitat, including prey, are expected.

Estimated Take

    This section provides an estimate of the number of incidental takes 
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 would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based on the nature of the activity, Level A harassment is neither 
anticipated nor authorized. As described previously, no serious injury 
or mortality is anticipated or authorized for this activity. Below we 
describe how the planned 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 density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
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)) for continuous (e.g., vibratory pile-
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources.
    Attentive Energy's HRG sruveys include the use impulsive (sparker) 
sources, and therefore the RMS SPL thresholds 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

[[Page 51377]]

hearing sensitivity) as a result of exposure to noise from two 
different types of sources (impulsive or non-impulsive).
    These thresholds are provided in the table below. 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 acoustic thresholds\*\ (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW)(Underwater)......  Cell 7: Lpk,flat: 218 dB;
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW)(Underwater).....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
survey activity that are used in estimating the area ensonified above 
the acoustic thresholds, including source levels and transmission loss 
coefficient.
    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the frequency-dependent absorption coefficient (Table 1).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
type used during the planned surveys and the source levels associated 
with those HRG equipment types.
    The results of the Level B harassment ensonified area analysis 
using the methodology described indicated that, of the HRG survey 
equipment planned for use by Attentive Energy the only one that has the 
potential to result in Level B harassment of marine mammals, the Dual 
Geo-Spark, has a Level B harassment isopleth of 141-m.

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information, which 
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 1992-2021 
obtained in a collaboration between Duke University, the Northeast 
Regional Planning Body, the University of North Carolina Wilmington, 
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et 
al. 2016a; Curtice et al. 2018), represent the best available 
information regarding marine mammal densities in the survey area. More 
recently, these data have been updated with new modeling results and 
include density estimates for pinnipeds (Roberts et al. 2016b, 2017, 
2018).
    The density data presented by Roberts et al. (2016b, 2017, 2018, 
2021) 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, 2021). The updated models incorporate 
additional sighting data, including sightings from NOAA's Atlantic 
Marine Assessment Program for Protected Species (AMAPPS) surveys.
    For the exposure analysis, density data from Roberts et al. (2016b, 
2017, 2018, 2021) were mapped using a geographic information system 
(GIS). For the survey area, the monthly densities of each species as 
reported by Roberts et al. (2016b, 2017, 2018, 2021) were averaged by 
season; thus, a density was calculated for each species for spring, 
summer, fall and winter. To be conservative, the greatest seasonal 
density calculated for each species was

[[Page 51378]]

then carried forward in the exposure analysis, with a few exceptions 
noted later. Estimated seasonal densities (animals/km\2\) of marine 
mammal species that may be taken by the planned survey are in Table 5 
below. The maximum seasonal density values used to estimate take 
numbers are shown in Table 6 below. Below, we discuss how densities 
were assumed to apply to specific species for which the Roberts et al. 
(2016b, 2017, 2018, 2021) models provide results at the genus or guild 
level.
    For bottlenose dolphin densities, Roberts et al. (2016b, 2017, 
2018) do not differentiate by stock. The Western North Atlantic 
northern migratory coastal stock is generally expected to occur only in 
coastal waters from the shoreline to approximately the 20-m (65-ft) 
isobath (Hayes et al. 2018). As the Lease Area is located within depths 
exceeding 20-m, where the offshore stock would generally be expected to 
occur, all calculated bottlenose dolphin exposures within the survey 
area were assigned to the offshore stock. Bottlenose dolphins densities 
were also calculated using the single month with the highest density to 
account for recent observations from IHAs issued in the New York Bight 
area, which documented more dolphins than the output of the Roberts' 
model predicted (86 FR 26465, May 10, 2021 and 85 FR 21198, April 16, 
2020).
    For long-finned pilot whales, the Roberts et al. (2016, 2017) data 
only provide a single raster grid containing annual density estimate 
for Globicephala species (i.e., short-finned and long-finned pilot 
whales combined). The annual density raster grid was used to estimate 
density in the survey area and assumed it applies only to long-finned 
pilot whales, as short-finned pilot whales are not anticipated to occur 
as far north as the survey area.
    Furthermore, the Roberts et al. (2016b, 2017, 2018) density model 
does not differentiate between the different pinniped species. For 
seals, given their size and behavior when in the water, seasonality, 
and feeding preferences, there is limited information available on 
species-specific distribution. Density estimates of Roberts et al. 
(2016, 2018) include all seal species that may occur in the Western 
North Atlantic combined (i.e., harbor, gray, hooded, and harp). For 
this IHA, only the harbor seals and gray seals are reasonably expected 
to occur in the survey area; densities of seals were split evenly 
between these two species.

                                      Table 5--Estimated Marine Mammal Densities (Animals per km\2\) for Lease Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                              Spring          Summer           Fall           Winter        Monthly max     Annual mean
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Mysticetes
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale..............................         0.00352         0.00004         0.00011         0.00172         0.00515         0.00135
Humpback Whale..........................................         0.00062         0.00022         0.00036         0.00012         0.00076         0.00033
Fin Whale...............................................         0.00258         0.00314         0.00227         0.00162         0.00444         0.00240
Sei Whale...............................................         0.00016         0.00003         0.00003         0.00002         0.00025         0.00006
Common Minke Whale......................................         0.00190         0.00075         0.00054         0.00066         0.00286         0.00096
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Odontocetes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm Whale.............................................         0.00004         0.00054         0.00037         0.00002         0.00104         0.00024
Risso's Dolphin.........................................         0.00018         0.00108         0.00034         0.00046         0.00179         0.00052
Long-finned Pilot Whale.................................             N/A             N/A             N/A             N/A             N/A         0.00471
Atlantic White-sided Dolphin............................         0.03038         0.01714         0.01310         0.02069         0.05016         0.02033
Short-beaked Common Dolphin.............................         0.05495         0.04535         0.05959         0.13725         0.18987         0.07428
Atlantic Spotted Dolphin................................         0.00054         0.00599         0.00516         0.00024         0.00843         0.00298
Harbor Porpoise.........................................         0.07644         0.00042         0.00175         0.03952         0.12475         0.02953
Common Bottlenose Dolphin...............................         0.01265         0.01828         0.04450         0.02509         0.05284         0.02513
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray Seal...............................................         0.01540         0.00021         0.00015         0.00837         0.01961         0.00604
Harbor Seal.............................................         0.01540         0.00021         0.00015         0.00837         0.01961         0.00604
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 planned for authorization.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to Level B harassment 
thresholds are calculated, as described above. The maximum distance 
(i.e., 141-m distance associated with the Dual Geo-Spark 2000X) to the 
Level B harassment criterion and the total length of the survey 
trackline are then used to calculate the total ensonified area, or zone 
of influence (ZOI) around the survey vessel.
    Attentive Energy estimates that planned surveys will complete a 
total of 3,028 km survey trackline during HRG surveys. Based on the 
maximum estimated distance to the Level B harassment threshold of 141-m 
(Table 5) and the total survey length, the total ensonified area is 
therefore 854 km\2\ based on the following formula:

Mobile Source ZOI = (Total survey length x 2r) + [pi]r\2\

Where:

total survey length = the total distance of the survey track lines 
within the lease area; and
r = the maximum radial distance from a given sound source to the 
Level B harassment threshold.

    As described above, this is a conservative estimate as it assumes 
the HRG source that results in the greatest isopleth distance to the 
Level B harassment threshold would be operated at all times during the 
entire survey, which may not ultimately occur.
    The number of marine mammals expected to be incidentally taken 
during the total survey is then calculated by estimating the number of 
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the maximum seasonal estimated marine mammal 
densities as described above. The product is then rounded, to generate 
an estimate of the total number

[[Page 51379]]

of instances of harassment expected for each species over the duration 
of the survey. A summary of this method is illustrated in the following 
formula with the resulting take of marine mammals shown below in Table 
6:

Estimated Take = D x ZOI

Where:

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

 Table 6--Numbers of Potential Incidental Take of Marine Mammals Authorized and Planned Takes as a Percentage of
                                                   Population
----------------------------------------------------------------------------------------------------------------
                                                                                               Total
                                                                     Estimated   -------------------------------
                     Species                        Abundance*     Level B takes   Level B takes    Percent of
                                                                                    authorized       abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................             368               3               3            0.82
Humpback whale..................................           1,396               1       [dagger]2            0.14
Fin whale.......................................           6,802               3               3            <0.1
Sei whale.......................................           6,292               0       [dagger]2            <0.1
Minke whale.....................................          21,968               2               2            <0.1
Sperm whale.....................................           4,349               0       [dagger]2            <0.1
Long-finned pilot whale.........................          39,215               4      [dagger]15            <0.1
Bottlenose dolphin (W.N. Atlantic Offshore) \a\.          62,851              38              38            <0.1
Common dolphin..................................         172,974             162             162            <0.1
Atlantic white-sided dolphin....................          93,233              26              26            <0.1
Atlantic spotted dolphin........................          39,921               5      [dagger]31            <0.1
Risso's dolphin.................................          32,215               1       [dagger]9            <0.1
Harbor porpoise.................................          95,543              65              65            <0.1
Harbor seal.....................................          61,336              13              13            <0.1
Gray seal \a\...................................         451,431              13              13            <0.1
----------------------------------------------------------------------------------------------------------------
* The abundances in this column are based on the NMFS draft 2021 SAR.
[dagger] Take request based on average group size using sightings data from Palka et al. (2017, 2021) and CETAP
  (1982). See Appendix C for data.
\a\ This abundance estimate is the total stock abundance (including animals in Canada). The NMFS stock abundance
  estimate for U.S. population only is 27,300.

    The take numbers authorized in Table 6 are consistent with those 
requested by Attentive Energy. NMFS concurs with Attentive Energy's 
method of revising take estimates to reflect mean group size where the 
estimated takes were less than a typical group size (Palka et al., 
2017, 2021; CETAP 1982).

Mitigation

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

Mitigation Measures

    NMFS requires that the following mitigation measures be implemented 
during Attentive Energy's planned marine site characterization surveys. 
Pursuant to section 7 of the ESA, Attentive Energy 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 Exclusion Zones and Level B Harassment Zones
    Marine mammal Exclusion Zones would be established around the HRG 
survey equipment and monitored by protected species observers (PSOs). 
These PSOs will be NMFS-approved visual PSOs. Based upon the acoustic 
source in use (impulsive: sparkers), a minimum of one PSO must be on 
duty on the source vessel during daylight hours and two PSOs must be on 
duty on the source vessel during nighttime hours. These PSO will 
monitor Exclusion Zones based upon the radial distance from the 
acoustic source rather than being based around the vessel itself. The 
Exclusion Zone distances are as follows:
     A 500-m Exclusion Zone for NARW during use of specified 
acoustic sources (impulsive: sparkers).
     A 100-m Exclusion Zone for all other marine mammals 
(excluding NARWs) during use of specified acoustic sources (except as 
specified below).
    All visual monitoring must begin no less than 30 minutes prior to 
the initiation of the specified acoustic

[[Page 51380]]

source and must continue until 30 minutes after use of specified 
acoustic sources ceases.
    If a marine mammal were detected approaching or entering the 
Exclusion Zones during the HRG survey, the vessel operator would adhere 
to the shutdown procedures described below to minimize noise impacts on 
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.
Ramp-Up of Survey Equipment and Pre-Clearance of the Exclusion Zones
    When technically feasible, a ramp-up procedure would be used for 
HRG survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. A ramp-up would begin with the powering 
up of the smallest acoustic HRG equipment at its lowest practical power 
output appropriate for the survey. The ramp-up procedure would 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 would then be gradually turned up and 
other acoustic sources would be added. All ramp-ups shall be scheduled 
so as to minimize the time spent with the source being activated.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective Exclusion Zone. Ramp-up will continue if the animal has been 
observed exiting its respective Exclusion Zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
harbor porpoise and 30 minutes for all other species).
    Attentive Energy would implement a 30 minute pre-clearance period 
of the Exclusion Zones prior to the initiation of ramp-up of HRG 
equipment. The operator must notify a designated PSO of the planned 
start of ramp-up not less than 60 minutes prior to the planned ramp-up. 
This would allow the PSOs to monitor the Exclusion Zones for 30 minutes 
prior to the initiation of ramp-up. Prior to ramp-up beginning, 
Attentive Energy must receive confirmation from the PSO that the 
Exclusion Zone is clear prior to proceeding. During this 30 minute pre-
start clearance period, the entire applicable Exclusion Zones must be 
visible. The exception to this would be in situations where ramp-up may 
occur during periods of poor visibility (inclusive of nighttime) as 
long as appropriate visual monitoring has occurred with no detections 
of marine mammals in 30 minutes prior to the beginning of ramp-up. 
Acoustic source activation may occur at night only where operational 
planning cannot reasonably avoid such circumstances.
    During this period, the Exclusion Zone will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective Exclusion 
Zone. If a marine mammal is observed within an Exclusion Zone during 
the pre-clearance period, ramp-up may not begin until the animal(s) has 
been observed exiting its respective Exclusion Zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for harbor porpoise and 30 minutes for all other species). If a 
marine mammal enters the Exclusion Zone during ramp-up, ramp-up 
activities must cease and the source must be shut down. Any PSO on duty 
has the authority to delay the start of survey operations if a marine 
mammal is detected within the applicable pre-start clearance zones. The 
prestart clearance requirement does not include small delphinids 
(genera Stenella, Lagenorhynchus, Delphinus, or Tursiops) or seals.
    The pre-clearance zones would 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 clock must be paused. If the 
PSO confirms the animal has exited the zone and headed away from the 
survey vessel, the clock that was paused may resume. The pre-clearance 
clock will reset if the animal dives or visual contact is otherwise 
lost.
    If the acoustic source is shut down for brief periods (i.e., less 
than 30 minutes) for reasons other than implementation of prescribed 
mitigation (e.g., mechanical difficulty), it may be activated again 
without ramp-up if PSOs have maintained constant visual observation and 
no detections of marine mammals have occurred within the applicable 
Exclusion Zone. For any longer shutdown, pre-start clearance 
observation and ramp-up are required.
    Activation of survey equipment through ramp-up procedures may not 
occur when visual detection of marine mammals within the pre-clearance 
zone is not expected to be effective (e.g., during inclement conditions 
such as heavy rain or fog).
    The acoustic source(s) must be deactivated when not acquiring data 
or preparing to acquire data, except as necessary for testing. 
Unnecessary use of the acoustic source shall be avoided.
Shutdown Procedures
    An immediate shutdown of the impulsive HRG survey equipment (Table 
5) would be required if a marine mammal is sighted entering or within 
its respective Exclusion Zone(s). Any PSO on duty has the authority to 
call for a shutdown of the acoustic source if a marine mammal is 
detected within the applicable Exclusion Zones. Any disagreement 
between the PSO and vessel operator should be discussed only after 
shutdown has occurred. The vessel operator would establish and maintain 
clear lines of communication directly between PSOs on duty and crew 
controlling the HRG source(s) to ensure that shutdown commands are 
conveyed swiftly while allowing PSOs to maintain watch.
    The shutdown requirement is waived for small delphinids (belonging 
to the genera of the Family Delpinidae: Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) and pinnipeds if they are visually detected 
within the applicable Exclusion Zones. If a species for which 
authorization has not been granted or a species for which authorization 
has been granted but the authorized number of takes have been met 
approaches or is observed within the applicable Exclusion Zone, 
shutdown would occur. In the event of uncertainty regarding the 
identification of a marine mammal species (i.e., such as whether the 
observed marine mammal belongs to Delphinus, Lagenorhynchus, Stenella, 
or Tursiops for which shutdown is waived), PSOs must use their best 
professional judgement in making the decision to call for a shutdown.
    Upon implementation of a shutdown, the sound source may be 
reactivated after the marine mammal has been observed exiting the 
applicable Exclusion Zone or following a clearance period of 15 minutes 
for harbor porpoise and 30 minutes for all other species where there 
are no further detections of the marine mammal.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., parametric sub-bottom profilers, sonar, Echosounder, etc.).
Seasonal Operating Requirements
    As described above, a section of the survey area partially overlaps 
with a portion of a NARW SMA off the port of New York/New Jersey. This 
SMA is active from November 1 through April 30 of each year. The survey 
vessel, regardless of length, would be required

[[Page 51381]]

to adhere to vessel speed restrictions (<10 knots) when operating 
within the SMA during times when the SMA is active. In addition, 
between watch shifts, members of the monitoring team would consult 
NMFS' NARW reporting systems for the presence of NARW throughout survey 
operations. Members of the monitoring team would 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. Attentive Energy should be aware of 
this possibility and remain attentive in the event a Slow Zone is 
established nearby or overlapping the survey area (Table 7).

      Table 7--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                      Restrictions Within the Survey Areas
----------------------------------------------------------------------------------------------------------------
      Survey area               Species           DMA restrictions         Slow zones         SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area.............  North Atlantic right   If established by NMFS, all of Attentive    N/A.
ECR North..............   whale (Eubalaena       Energy's vessel will abide by the          November 1 through
                          glacialis).            described restrictions.                     July 31 (Raritan
                                                                                             Bay).
ECR South..............                                                                     N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the NARW can be found at NMFS' website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales whales.
----------------------------------------------------------------------------------------------------------------

    There are no known marine mammal rookeries or mating or calving 
grounds in the survey area that would otherwise potentially warrant 
increased mitigation measures for marine mammals or their habitat (or 
both). The planned survey would occur in an area that has been 
identified as a biologically important area 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, 
the survey is not expected to appreciably reduce the quality of 
migratory habitat or to negatively impact the migration of NARW, thus 
additional mitigation to address the survey's occurrence in NARW 
migratory habitat is not warranted.
Vessel Strike Avoidance
    Vessel operators must comply with the below measures except under 
extraordinary circumstances when the safety of the vessel or crew is in 
doubt or the safety of life at sea is in question. These requirements 
do not apply in any case where compliance would create an imminent and 
serious threat to a person or vessel or to the extent that a vessel is 
restricted in its ability to maneuver and, because of the restriction, 
cannot comply.
    Survey vessel crewmembers responsible for navigation duties will 
receive site-specific training on marine mammals sighting/reporting and 
vessel strike avoidance measures. Vessel strike avoidance measures 
would include the following, except under circumstances when complying 
with these requirements would put the safety of the vessel or crew at 
risk:
     Attentive Energy will ensure that vessel operators and 
crew maintain a vigilant watch for cetaceans and pinnipeds and slow 
down, stop their vessel, or alter course, as appropriate and regardless 
of vessel size, to avoid striking any marine mammal. A single marine 
mammal at the surface may indicate the presence of additional submerged 
animals in the vicinity of the vessel; therefore, precautionary 
measures should always be exercised. A visual observer aboard the 
vessel must monitor a vessel strike avoidance zone around the vessel 
(species-specific distances detailed below). Visual observers 
monitoring the vessel strike avoidance zone may be third-party 
observers (i.e., PSOs) or crew members, but crew members responsible 
for these duties must be provided sufficient training to (1) 
distinguish marine mammal from other phenomena, and (2) broadly to 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammals. The vessel, regardless of size, must observe a 
10-knot speed restriction in specific areas designated by NMFS for the 
protection of NARW from vessel strikes, including SMAs 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.
     The vessel must reduce speed to 10-knots or less when 
mother/calf pairs, pods, or large assemblages of cetaceans are observed 
near a vessel;
     The vessel must maintain a minimum separation distance of 
500-m (1,640-ft) from right whales and other ESA-listed species. If an 
ESA-listed species is sighted within the relevant separation distance, 
the vessel must steer a course away at 10-knots or less until the 500-m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species that is not ESA-listed, the vessel 
operator must assume that it is an ESA-listed species and take 
appropriate action.
     The vessel must maintain a minimum separation distance of 
100-m (328-ft) from non-ESA-listed baleen whales.
     The vessel must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50-m (164-ft) from 
all other marine mammals, with an understanding that, at times, this 
may not be possible (e.g., for animals that approach the vessel, bow-
riding species).
     When marine mammal are sighted while a vessel is underway, 
the vessel shall take action as necessary to avoid violating the 
relevant separation distance (e.g., attempt to remain parallel to the 
animal's course, avoid excessive speed or abrupt changes in direction 
until the animal has left the area, reduce speed and shift the engine 
to neutral). This does not apply to any vessel towing gear or any 
vessel that is navigationally constrained.
    Members of the monitoring team will consult NMFS NARW reporting 
system and Whale Alert, daily and as able, for the presence of 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 
vessel will abide by speed restrictions in the DMA.
Training
    All PSOs must have completed a PSO training program and received 
NMFS approval to act as a PSO for geophysical surveys. Documentation of 
NMFS approval and most recent training certificates of individual PSOs' 
successful completion of a commercial PSO training course must be 
provided

[[Page 51382]]

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.
    Attentive Energy 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 the 
project vessel 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 the project vessel, 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 measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on 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

    Attentive Energy 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, who would coordinate 
duty schedules and roles for the PSO team and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.

[[Page 51383]]

    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 mammals by crew members aboard any 
vessel associated with the survey shall be relayed to the PSO team.
    Attentive Energy 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-party PSO provider, or the operator, but Attentive Energy 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 
the survey vessel to the farthest extent permitted by sighting 
conditions, including Exclusion Zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established Exclusion Zones 
during survey activities. It will be the responsibility of the PSO(s) 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    At a minimum, Attentive Energy plans to use a PSO 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 the survey vessel, conducting visual observations at all times on 
the active survey vessel during daylight hours (i.e., from 30 minutes 
prior to sunrise through 30 minutes following sunset) and two PSOs will 
be on watch during nighttime operations. The PSO(s) would ensure 
360[deg] visual coverage around the vessel from the most appropriate 
observation posts and would conduct visual observations using 
binoculars and/or night vision goggles and the naked eye while free 
from distractions and in a consistent, systematic, and diligent manner. 
PSOs may be on watch for a maximum of four consecutive hours followed 
by a break of at least two hours between watches and may conduct a 
maximum of 12 hr of observation per 24 hr period.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Exclusion Zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard the vessel associated with the survey would be relayed 
to the PSO team.
    Data on all PSO observations would be recorded based on standard 
PSO collection requirements (see Reporting Measures). This would 
include dates, times, and locations of survey operations; dates and 
times of observations, location and weather; details of marine mammal 
sightings (e.g., species, numbers, behavior); and details of any 
observed marine mammal behavior that occurs (e.g., noted behavioral 
disturbances).

Reporting Measures

    Attentive Energy shall submit a draft comprehensive report on all 
activities and monitoring results within 90 days of the completion of 
the survey or expiration of the IHA, whichever comes sooner. The report 
must describe all activities conducted and sightings of marine mammals, 
must provide full documentation of methods, results, and interpretation 
pertaining to all monitoring, and must summarize the dates and 
locations of survey operations and all marine mammals sightings (dates, 
times, locations, activities, associated survey activities). The draft 
report shall also include geo-referenced, time-stamped vessel 
tracklines for all time periods during which acoustic sources were 
operating. Tracklines should include points recording any change in 
acoustic source status (e.g., when the sources began operating, when 
they were turned off, or when they

[[Page 51384]]

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 monitoring 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 name (source vessel), vessel size and type, maximum speed 
capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. The lease number;
    4. PSO names and affiliations;
    5. Date and participants of PSO briefings;
    6. Visual monitoring equipment used;
    7. PSO location on vessel and height of observation location above 
water surface;
    8. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    9. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    10. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval;
    11. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    12. Water depth (if obtainable from data collection software);
    13. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    14. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions); and
    15. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.).
    Upon visual observation of any marine mammal, the following 
information must be recorded:
    1. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    2. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    3. PSO who sighted the animal;
    4. Time of sighting;
    5. Initial detection method;
    6. Sightings cue;
    7. Vessel location at time of sighting (decimal degrees);
    8. Direction of vessel's travel (compass direction);
    9. Speed of the vessel(s) from which the observation was made;
    10. Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level or unidentified); also note the composition of 
the group if there is a mix of species;
    11. Species reliability (an indicator of confidence in 
identification);
    12. Estimated distance to the animal and method of estimating 
distance;
    13. Estimated number of animals (high/low/best);
    14. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    15. Description (as many distinguishing features as possible of 
each individual seen, including length, shape, color, pattern, scars, 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    16. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    17. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    18. Equipment operating during sighting;
    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 the 
project vessel, during surveys or during vessel transit, Attentive 
Energy 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 Attentive Energy personnel discover an injured or 
dead marine mammal, regardless of the cause of injury or death or in 
the event that personnel involved in the survey activities discover an 
injured or dead marine mammal, Attentive Energy must report the 
incident to NMFS as soon as feasible by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]) as soon as feasible. The report must 
include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Attentive 
Energy must report the incident to NMFS by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]) as soon as feasible. The report 
would include the following information:

[[Page 51385]]

    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 majority of our analysis applies to all 
the species listed in Table 3, given that some of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are included as separate subsections below.
    NMFS does not anticipate that serious injury or mortality would 
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 
would be in the form of short-term Level B behavioral harassment in the 
form of temporary avoidance of the area or decreased foraging (if such 
activity was occurring), reactions that are considered to be of low 
severity and with no lasting biological consequences (e.g., Southall et 
al., 2007). Even repeated Level B harassment of some small subset of an 
overall stock is unlikely to result in any significant realized 
decrease in viability for the affected individuals, and thus would not 
result in any adverse impact to the stock as a whole, refer to 
Potential Effects and Estimated Take section for further discussion.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141-m. Although this distance is assumed 
for all survey activity in estimating take numbers planned for 
authorization and evaluated here, in reality, the Dual Geo-Spark 2000X 
would likely not be used across the entire 24-hour period and across 
all 56 days. As noted in their application, the other acoustic sources 
Attentive Energy has included in their application have minimal Level B 
harassment zones. Therefore, when not using the sparker, the ensonified 
area surrounding the vessel is small compared to the overall 
distribution of the animals and ambient sound in the area and their use 
of the habitat. Feeding behavior is not likely to be significantly 
impacted as prey species are mobile and are broadly distributed 
throughout the survey area; therefore, marine mammals that may be 
temporarily displaced during survey activities are expected to be able 
to resume foraging once they have moved away from areas with disturbing 
levels of underwater noise. Because of the temporary nature of the 
disturbance and the availability of similar habitat and resources in 
the surrounding area, the impacts to marine mammals and the food 
sources that they utilize are not expected to cause significant or 
long-term consequences for individual marine mammals or their 
populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the planned survey area 
and there are no feeding areas known to be biologically important to 
marine mammals within the survey area. There is no designated critical 
habitat for any ESA-listed marine mammals in the survey area.

North Atlantic Right Whales

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW mortalities began in June 2017 and there is an active UME. 
Overall, preliminary findings support human interactions, specifically 
vessel strikes and entanglements, as the cause of death for the 
majority of right whales. As noted previously, the survey area overlaps 
a migratory corridor BIA for NARW. Due to the fact that the planned 
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. Given the 
relatively small size of the ensonified area, it is unlikely that prey 
availability would be adversely affected by HRG survey operations. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration; no ship strike is expected to occur 
during Attentive Energy's planned activities. The 500-m shutdown zone 
for right whales is conservative, considering the Level B harassment 
isopleth for the most impactful acoustic source (i.e., sparker) 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

[[Page 51386]]

equipment types planned 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 Attentive Energy's activities, it is unlikely that NARW 
prey availability would be adversely affected. Accordingly, NMFS does 
not anticipate NARW takes that would result from Attentive Energy's 
activities would impact annual rates of recruitment or survival. Thus, 
any takes that occur would not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Attentive Energy'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 stranding's 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 takes for all species listed in Table 2, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular, they would provide animals the opportunity to 
move away from the sound source throughout the survey area before HRG 
survey equipment reaches full energy, thus preventing them from being 
exposed to sound levels that have the potential to cause injury (Level 
A harassment) or more severe Level B harassment. As discussed 
previously, take by Level A harassment (injury) is considered unlikely, 
even absent mitigation, based on the characteristics of the signals 
produced by the acoustic sources planned for use, and is not 
authorized. Implementation of required mitigation would further reduce 
this potential. Therefore, NMFS is not authorizing any Level A 
harassment.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.

Biologically Important Areas for Other Species

    As previously discussed, impacts from the project are expected to 
be localized to the specific area of activity and only during periods 
of time where Attentive Energy's acoustic sources are active. While 
areas of biological importance to fin whales, humpback whales, and 
harbor seals can be found off the coast of New Jersey and New York, 
NMFS does not expect this action to affect these areas. This is due to 
the combination of the mitigation and monitoring measures being 
required of Attentive Energy's 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 Attentive Energy's survey activities.
    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, or authorized;
     Foraging success is not likely to be impacted as effects 
on species that serve as prey species for marine mammals from the 
survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be by Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the survey area;
     While the survey area is within areas noted as a migratory 
BIA for NARW, the activities would occur in such a comparatively small 
area such that any avoidance of the survey area due to activities would 
not affect migration; and
     The mitigation measures, including effective visual 
monitoring, and shutdowns are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
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 plans to authorize incidental take (by Level B harassment 
only) of 15 marine mammal species (with 15 managed stocks). The total 
amount of takes planned for authorization relative to the best 
available population abundance is less than 1 percent for all stocks 
(Table 7).
    Based on the analysis contained herein of the planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS preliminarily finds that small numbers of 
marine mammals would be taken relative to the

[[Page 51387]]

population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

National Environmental Policy Act

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

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Attentive Energy authorizing take, by Level B harassment, incidental to 
conducting marine site characterization surveys off of New York and New 
Jersey in the New York bight for a period of one year, which includes 
the previously explained mitigation, monitoring, and reporting 
requirements.

    Dated: August 16, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-17978 Filed 8-19-22; 8:45 am]
BILLING CODE 3510-22-P