[Federal Register Volume 87, Number 165 (Friday, August 26, 2022)]
[Notices]
[Pages 52515-52538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18454]



[[Page 52515]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC136]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys in the Area of Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease 
Areas OCS-A 0486, 0487, and 0500

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

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

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

SUMMARY: NMFS has received a request from Orsted Wind Power North 
America LLC (Orsted) for authorization to take marine mammals 
incidental to high resolution geophysical (HRG) site characterization 
surveys in coastal waters from New York to Massachusetts in the areas 
of Commercial Lease of Submerged Lands for Renewable Energy Development 
on the Outer Continental Shelf Lease Areas OCS-A 0486, 0487, 0500, and 
along potential export cable routes (ECR) to landfall locations between 
Raritan Bay (part of the New York Bight) and Falmouth, MA. Pursuant to 
the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on 
its proposal to issue an incidental harassment authorization (IHA) to 
incidentally take marine mammals during the specified activities. NMFS 
is also requesting comments on a possible one-time, one-year renewal 
that could be issued under certain circumstances and if all 
requirements are met, as described in Request for Public Comments at 
the end of this notice. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorization and agency responses will be summarized in the final 
notice of our decision.

DATES: Comments and information must be received no later than 
September 26, 2022.

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

FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act-other-energy-activities-renewable. In case of problems accessing 
these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical 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 
preliminarily determined that the issuance of the proposed IHA 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On April 19, 2022, NMFS received a request from Orsted for an IHA 
to take small numbers of marine mammals incidental to marine site 
characterization surveys in federal waters located OCS Commercial Lease 
Areas off the coasts from Rhode Island to Massachusetts, and along 
potential ECRs to landfall locations between Raritan Bay (part of the 
New York Bight) and Falmouth, Massachusetts. Following NMFS' review of 
the draft application, a revised version was submitted on July 8, 2022. 
The application was deemed adequate and complete on August 3, 2022. 
Orsted's request is for take of 16 species of marine mammals 
(consisting of 16 stocks) by Level B harassment only. Neither Orsted 
nor NMFS expect serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.
    NMFS previously issued IHAs and a renewal IHA to Orsted for marine 
site characterization HRG surveys in the OCS-A 0486, 0487, and 0500 
Lease Areas (84 FR 52464, October 2, 2019; 85

[[Page 52516]]

FR 63508, October 8, 2020; 87 FR 13975, March 11, 2022). Orsted 
complied with all the requirements (e.g., mitigation, monitoring, and 
reporting) of the previous IHA and information regarding their 
monitoring results may be found in the Effects of the Specified 
Activity on Marine Mammals and their Habitat section.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered right 
whales from vessel collisions, which are a leading cause of the 
species' decline and a primary factor in an ongoing Unusual Mortality 
Event (87 FR 46921). Should a final vessel speed rule be issued and 
become effective during the effective period of this IHA (or any other 
MMPA incidental take authorization), the authorization holder would be 
required to comply with any and all applicable requirements contained 
within the final rule. Specifically, where measures in any final vessel 
speed rule are more protective or restrictive than those in this or any 
other MMPA authorization, authorization holders would be required to 
comply with the requirements of the rule. Alternatively, where measures 
in this or any other MMPA authorization are more restrictive or 
protective than those in any final vessel speed rule, the measures in 
the MMPA authorization would remain in place. These changes would 
become effective immediately upon the effective date of any final 
vessel speed rule and would not require any further action on NMFS's 
part.

Description of Proposed Activity

Overview

    Orsted proposes to conduct HRG surveys in the Lease Areas OCS-A 
0486, 0487, 0500 and ECR Area in federal waters from New York to 
Massachusetts to support the characterization of the existing seabed 
and subsurface geological conditions, which is necessary for the 
development of an offshore electric transmission system. The proposed 
project will use active HRG sources operating at frequencies lower than 
180 kHz, which may result in the incidental take of marine mammals by 
Level B harassment. This take of marine mammals is anticipated to be in 
the form of behavioral harassment and no serious injury or mortality is 
anticipated, nor is any proposed. In-water work will include 
approximately 400 survey days using multiple vessels lasting from 
September 25, 2022 to September 24, 2023.

Dates and Duration

    As described above, HRG surveys are expected to commence on 
September 25, 2022 and last through September 24, 2023 for up to 
approximately 400 survey days (Table 1). Orsted is proposing to conduct 
continuous HRG survey operations 12-hours per day and 24-hours per day 
using multiple vessels. A survey day is defined as a 24-hour activity 
day in which an assumed number of line km are surveyed. The number of 
anticipated survey days was calculated as the number of days needed to 
reach the overall level of effort required to meet survey objectives 
assuming any single vessel covers, on average 70 line kilometer (km) 
per 24-hour operations. A survey day accounts for multiple vessels such 
that two vessels operating within one 24-hour period equates to two 
survey days. A maximum of three vessels would work concurrently in the 
project area in any combination of 24-hour and 12-hour vessels. To be 
conservative, our exposure analysis assumes daily 24-hour operations. 
Although vessels may complete 20-80 km/day of actual source operations, 
we anticipate that vessels will average 70 line km of active IHA-
regulated sources per day. As shown by Table 1, the estimated number of 
survey days varies by Lease Area and ECR.

   Table 1--Proposed Number of Survey Days for Each Lease Area and ECR
------------------------------------------------------------------------
                                                           Total number
                          Area                            of survey days
                                                                \1\
------------------------------------------------------------------------
OCS-A-0486..............................................              10
OCA-A-0487..............................................              10
OCS-A-0500..............................................             200
ECR.....................................................             180
                                                         ---------------
  Total.................................................             400
------------------------------------------------------------------------
\1\ Up to three total survey vessels may be operating within both of the
  survey areas concurrently.

Specific Geographic Region

    Orsted's survey activities would occur in the Lease Areas located 
approximately 14 miles (22.5 km) south of Martha's Vineyard, 
Massachusetts at its closest point to land, as well as along potential 
export cable route (ECR) corridors off the coast of New York, 
Connecticut, Rhode Island, and Massachusetts to landfall locations 
between Raritan Bay and Falmouth, MA, as shown in Figure 1. Water 
depths in the project area extend out from shoreline to approximately 
90 m in depth.

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[GRAPHIC] [TIFF OMITTED] TN26AU22.000

Detailed Description of Specific Activity

    Orsted proposes to conduct HRG survey operations, including 
multibeam depth sounding, seafloor imaging, and shallow and medium 
penetration sub-bottom profiling. The HRG surveys will include the use 
of seafloor mapping equipment with operating frequencies above 180 
kilohertz (kHz) (e.g., side-scan sonar (SSS), multibeam echosounders 
(MBES)); magnetometers and gradiometers that have no acoustic output; 
and shallow- to medium-penetration sub-bottom profiling (SBP) equipment 
(e.g., parametric sonars, compressed high-intensity radiated pulses 
(CHIRPs), boomers, sparkers) with operating frequencies below 180 
kilohertz (kHz). No deep-penetration SBP surveys (e.g., airgun or 
bubble gun surveys) will be conducted. HRG equipment will either be 
deployed from remotely operated vehicles (ROVs) or mounted to or towed 
behind the survey vessel at a typical survey speed of approximately 4.0 
knots (7.4 km) during the site characterization activities within the 
Lease areas and ECR area. Equipment deployed on the ROVs would be 
identical to that deployed on the vessel; however, the sparker systems 
are not normally deployed from an ROV due to the power supply required. 
The extent of ROV usage in this project is unknown at this time, 
however NMFS expects the use of ROVs to have de minimis impacts 
relative to the use of vessels given the smaller sources and inherent 
nature of utilizing an ROV (e.g., much smaller size of an ROV relative 
to a vessel and less acoustic exposure given location of their use in 
the water column). For these reasons, our analysis focuses on the 
acoustic sources themselves and the use of vessels to deploy such 
sources, rather than the specific use of ROVs to deploy the survey 
equipment. Therefore, ROVs are not further analyzed in this notice.
    Acoustic sources planned for use during HRG survey activities 
proposed by Orsted for which sounds levels have the potential to result 
in Level B harassment of marine mammals include the following:
     Shallow penetration, non-impulsive, intermittent, mobile, 
non-parametric SBPs (i.e., CHIRP SBPs) are used to map the near-surface 
stratigraphy (top 0 to 10 m) of sediment below seabed. A CHIRP system 
emits sonar pulses that increase in frequency from approximately 2 to 
20 kHz over time. The frequency range can be adjusted to meet project 
variables. These sources are typically mounted on a pole, either over 
the side of the vessel or through a moon pool in the bottom of the 
hull. The operational configuration and relatively narrow beamwidth of 
these sources reduce the likelihood that an animal would be exposed to 
the signal;
     Medium penetration SBPs (boomers) are used to map deeper 
subsurface stratigraphy as needed. A boomer is a broad-band sound 
source operating in the 3.5 Hz to 10 kHz frequency range. This system 
is commonly mounted on a sled and towed behind the vessel. Boomers are 
impulsive and mobile sources; and
     Medium penetration SBPs (sparkers) are used to map deeper 
subsurface stratigraphy as needed. Sparkers create acoustic pulses from 
50 Hz to 4 kHz omnidirectionally from the source, and are considered to 
be impulsive and mobile sources. Sparkers are typically towed behind 
the vessel with adjacent hydrophone arrays to receive the return 
signals.
    Operation of the following survey equipment types is not reasonably 
expected to result in take of marine mammals and will not be discussed 
further beyond the brief summaries provided below:
     Parametric SBPs, also commonly referred to as sediment 
echosounders, are used to provide high data density in sub-bottom 
profiles that are typically required for cable routes, very shallow 
water, and archaeological surveys. Parametric SPBs are typically 
mounted

[[Page 52518]]

on a pole, either over the side of the vessel or through a moon pool in 
the bottom of the hull. Crocker and Fratantonio (2016) does not provide 
relevant measurements or source data for parametric SBPs, however, some 
source information is provided by the manufacturer. For the proposed 
project, the SBP used would generate short, very narrow-beam (1[deg] to 
3.5[deg]) sound pulses at relatively high frequencies (generally around 
85 to 100 kHz). The narrow beam width significantly reduces the 
potential for exposure while the high frequencies of the source are 
rapidly attenuated in seawater. Given the narrow beam width and 
relatively high frequency. NMFS does not reasonably expect there to be 
potential for marine mammals to be exposed to the signal;
     Acoustic cores are seabed-mounted sources with three 
distinct sound sources: A high-frequency parametric source, a high-
frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beam width 
is narrow (3.5[deg] to 8[deg]) and the source is operated roughly 3.5 m 
above the seabed from a seabed mount, with the transducer pointed 
directly downward;
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by vessel transceiver and a transponder (or 
beacon) necessary to produce the acoustic profile. It is a two-
component system with a moon pool- or side pole mounted transceiver and 
one or several transponders mounted on other survey equipment. USBLs 
are expected to produce extremely small acoustic propagation distances 
in their typical operating configuration;
     Multibeam echosounders (MBES) are used to determine water 
depths and general bottom topography. MBES sonar systems project sonar 
pulses in several angled beams from a transducer mounted to a ship's 
hull. The beams radiate out from the transducer in a fan-shaped pattern 
orthogonally to the ship's direction. All of the proposed MBESs have 
operating frequencies >180 kHz and, therefore, are outside the general 
hearing range of marine mammals; and
     Side scan sonars (SSS) are used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The sonar device emits conical or fan-shaped 
pulses down toward the seafloor in multiple beams at a wide angle, 
perpendicular to the path of the sensor through the water column. All 
of the proposed SSS have operating frequencies >180 kHZ and, therefore, 
are outside the general hearing range of marine mammals.
    Table 2 identifies representative survey equipment with the 
expected potential to result in exposure of marine mammals and thus 
potentially result in take. 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.

                                               Table 2--Summary of Representative HRG Survey Equipment \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                Operating                                                                          Pulse         Pulse
                               Representative   frequency  SL (SPL dB re 1  SL (SEL dB re 1   SL (PK dB re 1     Beamwidth        duration    repetition
    HRG survey equipment         equipment       ranges      [micro]Pa m)    [micro]Pa2 m2     [micro]Pa m)        ranges         (width)         rate
                                                  (kHz)                            s)                            (degrees)     (millisecond)     (Hz)
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHIRPs (non-impulsive, non-   ET 216 (2000DS         2-16              195              178  ...............  24.............             20           6
 parametric).                  or 3200 top            2-8
                               unit).
                              ET 424 3200-XS.        4-24              176              152  ...............  71.............            3.4           2
                              ET 512i........      0.7-12              179              158  ...............  80.............              9           8
                              GeoPulse 5430A.        2-17              196              183  ...............  55.............             50          10
                              Teledyne                2-7              197              185  ...............  100............             60          15
                               Benthos Chirp
                               III--TTV 170.
                              Pangeo SBI.....    4.5-12.5            188.2              165  ...............  120............            4.5          45
Sparker (impulsive).........  AA, Dura-spark      0.3-1.2              203              174              211  Omni...........            1.1           4
                               UHD Sparker
                               (400 tips, 500
                               J) \2\.
Sparkers and Boomers          AA, Dura-spark      0.3-1.2              203              174              211  Omni...........            1.1           4
 (impulsive).                  UHD Sparker
                               Model 400 x
                               400 \2\.
                              GeoMarine, Dual       0.4-5              203              174              211  Omni...........            1.1           2
                               400 Sparker,
                               Model Geo-
                               Source 800 \2\
                               \3\.
                              GeoMarine           0.3-1.2              203              174              211  Omni...........            1.1           4
                               Sparker, Model
                               Geo-Source 200-
                               400 \2\ \3\.
                              GeoMarine           0.3-1.2              203              174              211  Omni...........            1.1           4
                               Sparker, Model
                               Geo-Source 200
                               Lightweight
                               \2\ \3\.
                              AA, triple            0.1-5              205              172              211  80.............            0.6           4
                               plate S-Boom
                               (700-1,000 J)
                               \4\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[micro]Pa = micropascal; AA = Applied Acoustics; CF = Crocker and Fratantonio (2016); CHIRP = compressed high-intensity radiated pulses; dB = decibel;
  EM = equipment mounted; ET = edgetech; J = joule; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; PM = pole
  mounted; SBI = sub-bottom imager; SL = source level; SPL = root-mean-square sound pressure level; T = towed; TB = Teledyne benthos; UHD = ultra-high
  definition; WFA = weighting factor adjustment.
\1\ Operational parameters listed here differ from those listed in the Bureau of Ocean Energy Management Biological Assessment published in February
  2021 (Baker and Howson, 2021).
\2\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods
  and settings when manufacturer or other reliable measurements are not available.
\3\ The AA Dura-spark (500 J, 400tips) was used as a proxy source.
\4\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
  used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
  in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

    The deployment of certain types of HRG survey equipment, including 
some of the equipment planned for use during Orsted's proposed 
activity, produces sound in the marine environment that has the 
potential to result in harassment of marine mammals. Proposed 
mitigation, monitoring, and reporting measures are described in detail 
later in

[[Page 52519]]

this document (please see Proposed Mitigation and Proposed Monitoring 
and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of 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 3 lists all species or stocks for which take is expected and 
proposed to be authorized for these activities, and summarizes 
information related to the population or stock, including regulatory 
status under the MMPA and Endangered Species Act (ESA) and potential 
biological removal (PBR), where known. PBR is defined by the MMPA as 
the maximum number of animals, not including natural mortalities, that 
may be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS' SARs). While no serious injury or mortality is anticipated or 
authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS U.S. draft 2021 U.S. Atlantic and Gulf of Mexico SARs. All values 
presented in Table 3 are the most recent available at the time of 
publication and are available in the 2020 SARs (Hayes et al., 2021) and 
draft 2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                              Table 3--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Stock abundance (CV,
             Common name                  Scientific name               Stock            ESA/MMPA status;      Nmin, most recent       PBR     Annual M/
                                                                                       strategic (Y/N) \1\   abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..........  Eubalaena glacialis....  Western Atlantic......  E/D, Y               368 (0; 364; \5\ 2019)        0.7        7.7
Humpback whale......................  Megaptera novaeangliae.  Gulf of Maine.........  -/-, Y               1,396 (0; 1,380; 2016)         22      12.15
Fin whale...........................  Balaenoptera physalus..  Western North Atlantic  E/D, Y               6,802 (0.24; 5,573;            11        1.8
                                                                                                             2016).
Sei whale...........................  Balaenoptera borealis..  Nova Scotia...........  E/D, Y               6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
Minke whale.........................  Balaenoptera             Canadian East Coastal.  -/-, N               21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.                                                        2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale.........................  Physeter macrocephalus.  North Atlantic........  E/D, Y               4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Long-finned pilot whale.............  Globicephala melas.....  Western North Atlantic  -/-, N               39,215 (0.3; 30,627;          306         29
                                                                                                             2016).
Striped dolphin.....................  Stenella coeruleoalba..  Western North Atlantic  -, -, N              67,036 (0.29, 52,939,         529          0
                                                                                                             2016).
Atlantic white-sided dolphin........  Lagenorhynchus acutus..  Western North Atlantic  -/-, N               93,233 (0.71; 54,443;         544         27
                                                                                                             2016).
Bottlenose dolphin..................  Tursiops truncatus.....  Western North Atlantic  -/-, N               62,851 (0.23; 51,914;         519         28
                                                                Offshore.                                    2016).
Short-beaked Common dolphin.........  Delphinus delphis......  Western North Atlantic  -/-, N               172,974(0.21, 145,216,      1,452        390
                                                                                                             2016).
Atlantic spotted dolphin............  Stenella frontalis.....  Western North Atlantic  -/-, N               39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
Risso's dolphin.....................  Grampus griseus........  Western North Atlantic  -/-, N               35,215 (0.19; 30,051;         301         34
                                                                Sock.                                        2016).
Harbor porpoise.....................  Phocoena phocoena......  Gulf of Maine/Bay of    -/-, N               95,543 (0.31; 74,034;         851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.........................  Phoca vitulina.........  Western North Atlantic  -/-, N               61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
Gray seal \4\.......................  Halichoerus grypus.....  Western North Atlantic  -/-, N               27,300 (0.22; 22,785;       1,389      4,453
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual M/SI value given is for the total stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
  below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).

    As indicated above, all 16 species (with 16 managed stocks) in 
Table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. All species that could 
potentially occur in the

[[Page 52520]]

proposed survey areas are included in Table 6 of the IHA application. 
While the blue whale (Balaenoptera musculus), Cuvier's beaked whale 
(Ziphius cavirostris), four species of Mesoplodont beaked whale 
(Mesoplodon spp.), dwarf and pygmy sperm whale (Kogia sima and Kogia 
breviceps), short-finned pilot whale (Globicephala macrorhynchus), 
northern bottlenose whale (Hyperoodon ampullatus), killer whale 
(Orcinus orca), pygmy killer whale (Feresa attenuata), false killer 
whale (Pseudorca crassidens), melon-headed whale (Peponocephala 
electra), white-beaked dolphin (Lagenorhynchus albirostris), 
pantropical spotted dolphin (Stenella attenuata), Fraser's dolphin 
(Lagenodelphis hosei), rough-toothed dolphin (Steno bredanensis), 
Clymene dolphin (Stenella clymene), spinner dolphin (Stenella 
longirostris), hooded seal (Cystophora cristata), and harp seal 
(Pagophilus groenlandicus) have been documented in the area, the 
temporal and/or spatial occurrence of these species is such that take 
is not expected to occur and they are not analyzed further.
    In addition, the Florida manatee (Trichechus manatus latirostris) 
may be found in the coastal waters of the project area. However, 
Florida manatees are managed by the U.S. Fish and Wildlife Service and 
are not considered further in this document.
    Below is a description of the species that have the highest 
likelihood of occurring in the project area and are, thus, expected to 
potentially be taken by the proposed activities as well as further 
detail informing the baseline for select species (i.e., information 
regarding current Unusual Mortality Events (UMEs) and important habitat 
areas).

North Atlantic Right Whale

    The North Atlantic right whale ranges from calving grounds in the 
southeastern United States to feeding grounds in New England waters and 
into Canadian waters (Hayes et al., 2021). Right whales have been 
observed in or near southern New England during all four seasons 
(Quintana-Rizzo et al., 2021), and passive acoustic monitoring 
indicates the year-round presence of NARWs in the Gulf of Maine (Morano 
et al., 2012; Bort et al., 2015). Surveys have demonstrated the 
existence of seven areas where NARWs congregate seasonally: The coastal 
waters of the southeastern U.S., the Great South Channel, Jordan Basin, 
Georges Basin along the northeastern edge of Georges Bank, Cape Cod and 
Massachusetts Bays, the Bay of Fundy, and the Roseway Basin on the 
Scotian Shelf (Hayes et al., 2018). NOAA Fisheries has designated two 
critical habitat areas for the NARW under the ESA: The Gulf of Maine/
Georges Bank region, and the southeast calving grounds from North 
Carolina to Florida (81 FR 4837, January 27, 2016).
    New England waters are a primary feeding habitat for NARWs during 
late winter through spring, with feeding moving into deeper and more 
northerly waters during summer and fall. Since 2010, NARWs have reduced 
their use of habitats in the Great South Channel and Bay of Fundy, 
while increasing their use of habitat within Cape Cod Bay as well as a 
region south of Martha's Vineyard and Nantucket Islands (Stone et al., 
2017; Mayo et al., 2018; Ganley et al., 2019; Record et al., 2019; 
Meyer-Gutbrod et al., 2021). This shift is likely due to changes in 
oceanographic conditions and food supply as dense patches of 
zooplankton are necessary for efficient foraging (Mayo and Marx, 1990; 
Record et al., 2019). NARW use of habitats such as in the Gulf of St. 
Lawrence, southern New England waters, and the mid-Atlantic waters of 
the United States have also increased over time (Davis et al., 2017; 
Davis and Brillant, 2019; Crowe et al., 2021; Quintana-Rizzo et al., 
2021). Simard et al. (2019) documented the presence of NARWs in the 
southern Gulf of St. Lawrence from late April through mid-January 
annually from 2010-2018 using passive acoustics, with occurrences 
peaking in the area from August through November each year (Simard et 
al., 2019). In addition, Pendleton et al. (2022) found that peak use of 
NARW habitat in Cape Cod Bay has shifted over the past 20 years to 
later in the spring, likely due to variations in seasonal conditions.
    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 and not all of the population undergoes a consistent 
annual migration (Davis et al., 2017). Females may remain in the 
feeding grounds during the winter in the years preceding and following 
the birth of a calf to increase their energy stores while juvenile and 
adult males may move to southern wintering grounds after years of 
abundant prey in northern feeding areas (Gowan et al., 2019). Within 
the proposed project area, NARWs have primarily been observed during 
the winter and spring seasons through visual surveys although are 
likely present year-round (Kraus et al., 2016; Quintana-Rizzo et al., 
2021).
    NARW movements within and between habitats are extensive and the 
area off the coasts of Rhode Island and Massachusetts is an important 
migratory corridor. The proposed project area overlaps a portion of a 
NARW Biologically Important Area (BIA) for migration. This migratory 
corridor is approximately 269,488 km\2\ in size, comprises the waters 
of the continental shelf offshore the east coast of the United States, 
and extends from Florida through Massachusetts (LaBrecque et al., 
2015). NARW movements may include seasonal migrations between northern 
feeding grounds and southern breeding grounds as well as movements 
between feeding habitats in Cape Cod Bay and southern New England 
waters (Quintana-Rizzo et al., 2021). Given that Orsted's proposed 
surveys would be concentrated offshore of Massachusetts and Rhode 
Island, many NARWs in the vicinity would likely be migrating through 
the area, however, foraging activity may also take place as Quintana-
Rizzo et al. (2021) observed NARWs foraging in southern New England 
waters year-round.
    Since 2010, the western North Atlantic right whale population has 
been in decline (Pace et al., 2017), with a 40 percent decrease in 
calving rate (Kraus et al., 2016). In 2018, no new North Atlantic right 
whale 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 July 14, 2022 and the writing of this 
proposed Notice, 15 North Atlantic right whale calves have been 
documented during this calving season. Presently, the best available 
peer-reviewed population estimate for North Atlantic right whales is 
368 per the draft 2021 SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments). 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 
below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).
    NMFS regulations at 50 CFR part 224.105 designated nearshore waters 
of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management 
Areas (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. The Block Island SMA,

[[Page 52521]]

which occurs off the mouth of Long Island Sound, overlaps spatially 
with the proposed project area (https://apps-nefsc.fisheries.noaa.gov/psb/surveys/MapperiframeWithText.html). The SMA is active from November 
1 through April 30 of each year and may be used by NARWs for feeding or 
migrating.
    Right Whale Slow Zones are established when NARWs are detected both 
visually (i.e., Dynamic Management Area) and acoustically (i.e., 
Acoustic Slow Zone). These are areas where mariners are encouraged to 
avoid and/or reduce speeds to 10 kn (5.1 m/s) to avoid vessel 
collisions with NARWs. Slow Zones typically persist for 15 days. More 
information on these right whale Slow Zones can be found on NMFS' 
website (https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales).
    Dynamic Management areas (DMAs) are a type of NARW Slow Zones that 
may be established when three or more NARWs are visually sighted within 
a discrete area. This criteria is based upon findings by Clapham and 
Pace (2001) that showed an aggregation of three or more whales is 
likely to remain in the area for several days, in contrast to an 
aggregation of fewer whales. Acoustic Slow Zones are another type of 
NARW Slow Zone based upon acoustic detections, and are established when 
three or more upcall detections from an acoustic system occur within an 
evaluation period (e.g., 15 min). More information, as well as the most 
up-to-date DMA establishments, can be found on NMFS' website (https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales).
    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017 along the U.S. and Canadian coasts. As of July 2022, a 
total of 34 confirmed dead stranded whales (21 in Canada; 13 in the 
United States) have been documented. 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 16 of the mortalities thus far. More information is available 
online at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2019-north-atlantic-right-whale-unusual-mortality-event.

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 whales that is 
expected to occur in the project area. Whales occurring in the project 
area are not necessarily from the Gulf of Maine feeding population 
managed as a stock by NMFS. Bettridge et al. (2015) estimated the size 
of the West Indies DPS 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).
    In New England waters, feeding is the principal activity of 
humpback whales, and their distribution in this region has been largely 
correlated to abundance of prey species (Payne et al., 1986, 1990). 
Humpback whales are frequently piscivorous when in New England waters, 
feeding on herring (Clupea harengus), sand lance (Ammodytes spp.), and 
other small fishes, as well as euphausiids in the northern Gulf of 
Maine (Paquet et al., 1997). During winter, the majority of humpback 
whales from the North Atlantic feeding area (including the Gulf of 
Maine) mate and calve in the West Indies, where spatial and genetic 
mixing among feeding groups occurs (Katona and Beard 1990; Clapham et 
al. 1993; Palsb[oslash]ll et al., 1997; Stevick et al., 1998; Kennedy 
et al., 2014), though significant numbers of animals are found in mid- 
and high-latitude regions at this time (Clapham et al., 1993; Swingle 
et al., 1993). Some individuals have been sighted repeatedly within the 
same winter season (Clapham et al., 1993; Robbins, 2007), indicating 
that not all humpback whales migrate south every winter (Waring et al., 
2017).
    Kraus et al. (2016) observed humpbacks in the Rhode Island/
Massachusetts (RI/MA) & MA Wind Energy Areas (WEAs) and surrounding 
areas during all seasons. Humpback whales were observed most often 
during spring and summer months, with a peak from April to June. Kraus 
et al. (2016) also observed calves and one instance of courtship 
behavior among adults. Acoustic data indicate that this species may be 
present within the MA WEA year-round, with the highest rates of 
acoustic detections in the winter and spring (Kraus et al., 2016). 
Stocks of sand lance appear to correlate with the years in which the 
most abundant whales are observed, suggesting that humpback whale 
distribution and occurrences could largely be influenced by prey 
availability (Kenney and Vigness-Raposa, 2010). Other sightings of note 
include 46 sightings of humpback whales in the New York-New Jersey 
Harbor Estuary documented from 2011-2016 (Brown et al., 2017) and 
multiple humpbacks observed feeding off Long Island during July 2016 
(Hayes et al., 2020). Pendleton et al. (2022) documented a recent shift 
in humpback whale peak habitat use of Cape Cod Bay, in which maximum 
occupancy occurred later in the spring during May rather than April.
    The most significant anthropogenic causes of mortality of humpback 
whales include incidental fishery entanglements, responsible for 
roughly eight whale mortalities, and vessel collisions, responsible for 
four mortalities both on average annually from 2013 to 2017 (Hayes et 
al., 2020).
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. This event has 
been declared a UME. Partial or full necropsy examinations have been 
conducted on approximately half of the 161 known cases (as of July 14, 
2022). Of the whales examined, approximately 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. Three previous UMEs involving humpback whales have occurred 
since 2000, in 2003, 2005, and 2006. 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 have a common occurrence in waters of the U.S. Atlantic 
Exclusive Economic Zone (EEZ), principally from Cape Hatteras northward 
with a distribution in both continental shelf and deep water habitats 
(Hayes et al., 2021). 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 although densities vary 
seasonally (Edwards et al., 2015; Hayes et al.,

[[Page 52522]]

2021). They are typically found in small groups of up to five 
individuals (Brueggeman et al., 1987).
    New England and Gulf of St. Lawrence waters represent major feeding 
grounds for fin whales (Hayes et al., 2021). Two well-known feeding 
grounds for fin whales are present near the proposed project area in 
the Great South Channel and Jeffrey's Ledge and in waters directly east 
of Montauk, New York (Hayes et al., 2019; Kenney and Vigness-Raposa, 
2010). The highest occurrences are identified south of Montauk Point to 
south of Nantucket (Kenney and Vigness-Raposa, 2010). Cape Cod Bay, 
just north of the proposed project area, also represents seasonal 
feeding habitat for fin whales (Clapham and Seipt, 1991). Surveys 
conducted in the RI/MA WEA indicate fin whales may be present year-
round, but sightings were the highest during the spring and summer 
(Kraus et al., 2016). The northwest corner of the ECR Area overlaps 
with a fin whale BIA for feeding (LaBrecque et al., 2015). The BIA is 
located east of Montauk Point between the 15-m and 50-m contours. 
Feeding is known to occur from March through October (LaBrecque et al., 
2015).
    The fin whale is federally listed under the ESA as an endangered 
marine mammal and are designated as a strategic stock under the MMPA 
due to their endangered status under the ESA, uncertain human-caused 
mortality, and incomplete survey coverage of the stock's defined range. 
The main threats to fin whales are fishery interactions and vessel 
collisions (Hayes 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 (Hayes et al., 2021). Sei whales 
have a regular occurrence in the proposed project area. 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 
(CETAP, 1982; Kraus et al., 2016, Roberts et al., 2016; Palka et al,. 
2017; Cholewiak et al., 2018).
    Sei whales are most common in deeper waters along the continental 
shelf edge (NMFS, 2021) but will forage occasionally in shallower, 
inshore waters. A sei whale BIA for feeding occurs adjacent to the east 
of the proposed project area. The occurrence and abundance of sei 
whales on feeding grounds may shift dramatically from one year to the 
next. CETAP surveys observed sei whales along the continental shelf 
edge only during the spring and summer (CETAP, 1982). In the RI/MA WEA, 
sei whales were also only observed during the spring (eight sightings) 
and summer (13 sightings). No sightings were reported in the WEA during 
the fall and winter (Kraus et al., 2016).
    Sei whales are listed as endangered under the ESA, and the Nova 
Scotia stock is considered strategic and depleted under the MMPA. The 
main threats to this stock are interactions with fisheries and vessel 
collisions. Impacts from environmental contaminants also present a 
concern as well as potential spatial shifts in distribution related to 
climate change (Hayes et al., 2020; Sousa et al., 2019).

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 
(Hayes et al., 2021). This species generally occupies waters less than 
100 m deep on the continental shelf and has a common occurrence in the 
proposed project area. 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 (Hayes et al., 
2021; Risch et al., 2013).
    Little is known about their specific migratory behavior compared to 
other large whale species; however, acoustic detections show that minke 
whales migrate south in mid-October to early November and return from 
wintering grounds starting in March through early April (Risch et al., 
2014). Northward migration appears to track the warmer waters of the 
Gulf Stream along the continental shelf, while southward migration is 
made farther offshore (Risch et al., 2014). Surveys conducted in the 
RI/MA WEA, reported 103 minke whale sightings within the area, 
predominantly in the spring followed by summer and fall (Kraus et al., 
2016).
    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 123 strandings (as of July 14, 2022). This event has been 
declared a UME. Full or partial necropsy examinations were conducted on 
more than 60 percent of the whales. Preliminary findings in several of 
the whales have shown evidence of human interactions or infectious 
disease, but these findings are not consistent across all of the whales 
examined, so more research is needed. More information is available at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.

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 (Hayes et al., 2020). 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). 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 (Hayes et al., 2020).
    CETAP and NMFS Northeast Fisheries Science Center sightings in 
shelf-edge and off-shelf waters included many social groups with 
calves/juveniles (CETAP, 1982). Sperm whales were usually seen at 
locations corresponding to the tops of the seamounts and rises and did 
not generally occur over the slopes. Sperm whales were recorded at the 
surface over depths varying from 800 to 3,500 m. Kraus et al. (2016) 
reported sightings of sperm whales in the RI-MA WEA during the summer 
and fall months, with five individuals in August, one in September, and 
three in June. There have also been occasional strandings in 
Massachusetts and Long Island (Kenney and Vigness-Raposa, 2010). 
Although the likelihood of occurrence within the proposed project area 
remains very low, the sperm whale was included as an affected species 
because of its high seasonal densities east of the project area.
    Sperm whales are listed as endangered under the ESA, and the North 
Atlantic stock is considered

[[Page 52523]]

strategic under the MMPA. The greatest threats to sperm whales include 
ship strikes (McGillivary et al., 2009; Carrillo and Ritter, 2010), 
anthropogenic sound (Nowacek et al., 2015), and the potential for 
climate change to influence variations in spatial distribution and 
abundance of prey (Hayes et al., 2020).

Long-Finned Pilot Whale

    Long-finned pilot whales are found from North Carolina north to 
Iceland, Greenland, and the Barents Sea (Sergeant, 1962; Leatherwood et 
al., 1976; Abend, 1993; Bloch et al., 1993; Abend and Smith, 1999). 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 (CETAP 1982; Payne and Heinemann, 1993; Abend and Smith, 
1999; Hamazaki, 2002). 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 (CETAP 1982; Payne and Heinemann, 
1993). Long-finned pilot whales are highly social and vocal and are 
typically observed in groups of 10 to 20 surface-active individuals 
(NOAA 2022). Within the RI-MA WEA, no sightings of pilot whales were 
observed during the summer, fall, or winter (Kraus et al., 2016).

Striped Dolphin

    Striped dolphins are widely distributed in tropical and warm 
temperate waters of the Western North Atlantic ranging from Nova Scotia 
to the Caribbean and Gulf of Mexico (Archer and Perrin, 1997; Archer, 
2002; Hayes et al., 2020). In waters off the northeastern U.S. coast, 
striped dolphins are distributed along the continental shelf edge from 
Cape Hatteras to the southern margin of Georges Bank, and also occur 
offshore over the continental slope and rise in the mid-Atlantic region 
(CETAP, 1982; Mullin and Fulling, 2003). During CETAP surveys, 
continental shelf edge sightings were generally centered along the 
1,000 m depth contour in all seasons (CETAP, 1982). Striped dolphins 
prefer offshore waters from the continental slope to the Gulf Stream 
(Hayes et al., 2020; Leatherwood et al., 1976; Perrin et al., 1994; 
Schmidly, 1981).
    There are few reported occurrences of striped dolphins in the 
project area. All CETAP records reported striped dolphins in waters 
greater than 900m; although it was noted that the most northern 
sightings aligned with warm core rings of the Gulf Stream (Hayes et 
al., 2020; Waring et al., 1992). Striped dolphins would not typically 
be associated with shelf waters off New York and Massachusetts; 
however, preliminary data from site investigation surveys for offshore 
wind have a very small number of probable striped dolphin sightings; 
therefore, they have been included in this assessment. Between 2013 and 
2017, strandings of striped dolphins were reported from New York 
(five); Massachusetts (two); and New Jersey (seven) (Hayes et al., 
2020). None showed definitive signs of human interaction (Hayes et al., 
2020).

Atlantic White-Sided Dolphin

    Atlantic white-sided dolphins observed off the U.S. Atlantic coast 
are part of the Western North Atlantic Stock (Hayes et al., 2020) which 
inhabits waters from central West Greenland to North Carolina (about 
35[deg] N) and primarily continental shelf waters to the 328 ft (100 m) 
depth contour (Doks[aelig]ter et al., 2008). Sighting data indicate 
seasonal shifts in distribution (Northridge et al., 1997). From January 
to May, low numbers of Atlantic white-sided dolphins are found from 
Georges Bank to Jeffrey's Ledge off New Hampshire. From June through 
September, large numbers of Atlantic white-sided dolphins are found 
from Georges Bank to the lower Bay of Fundy. From October to December, 
they occur at intermediate densities from southern Georges Bank to the 
southern Gulf of Maine (Payne and Heinemann, 1990). Sightings south of 
Georges Bank, particularly around Hudson Canyon, occur year-round, but 
at low densities (Hayes et al., 2020).
    Offshore Rhode Island, Atlantic white-sided dolphins are common in 
continental shelf waters, with a slight tendency to occur in shallower 
waters in the spring (Kenney and Vigness-Raposa, 2010). Aggregations of 
sightings have occurred southeast of Montauk Point during the spring 
and summer. In the RI-MA WEA, Atlantic white-sided dolphins were 
sighted primarily during summer followed by fall (Kraus et al., 2016).

Bottlenose Dolphin

    There are two distinct bottlenose dolphin ecotypes in the western 
North Atlantic: The coastal and offshore forms (Duffield et al., 1983; 
Mead and Potter, 1995; Rosel et al., 2009). The migratory coastal 
ecotype resides in waters typically less than 20 m deep, along the 
inner continental shelf (within 7.5 km (4.6 miles) of shore), around 
islands, and is continuously distributed south of Long Island, New York 
into the Gulf of Mexico. Torres et al. (2003) found a statistically 
significant break in the distribution of the ecotypes at 34 km from 
shore based upon the genetic analysis of tissue samples collected in 
nearshore and offshore waters from New York to central Florida. The 
offshore ecotype was found exclusively seaward of 34 km and in waters 
deeper than 34 m. This ecotype is primarily expected in waters north of 
Long Island, New York (Waring et al., 2017; Hayes et al., 2018). The 
offshore form is distributed primarily along the outer continental 
shelf and continental slope in the Northwest Atlantic Ocean from 
Georges Bank to the Florida Keys and is the only type that may be 
present in the project area.
    Common bottlenose dolphins were observed in the RI/MA WEA in all 
seasons with the highest seasonal abundance estimates during the fall, 
summer, and spring. The greatest concentrations of bottlenose dolphins 
were observed in the southernmost portion of the RI/MA WEA (Kraus et 
al., 2016). Further evidence for the presence of the offshore stock in 
the study area is supported by seasonal stranding records which match 
the temporal patterns of the offshore stock better than the coastal 
stock (Kenney and Vigness-Raposa, 2010). Therefore, the northern 
migratory coastal stock is not likely to occur in the project area and 
will not be discussed further.

Common Dolphin

    Common dolphins within the U.S. Atlantic EEZ belong to the Western 
North Atlantic stock, generally occurring from Cape Hatteras to the 
Scotian Shelf (Hayes et al., 2021). Common dolphins are a highly 
seasonal, migratory species. Within the U.S. Atlantic EEZ, this species 
is distributed along the continental shelf and typically associated 
with Gulf Stream features (CETAP, 1982; Selzer and Payne, 1988; 
Hamazaki, 2002; Hayes et al., 2021). Common dolphins occur from Cape 
Hatteras northeast to Georges Bank (35[deg] to 42[deg] N) during mid-
January to May and move as far north as the Scotian Shelf from mid-
summer to fall (Selzer and Payne, 1988). Migration onto the Scotian 
Shelf and continental shelf off Newfoundland occurs when water 
temperatures exceed 51.8 [deg] Fahrenheit (11[deg] Celsius) (Sergeant 
et al., 1970, Gowans and Whitehead 1995). Breeding usually takes place 
between June and September (Hayes et al., 2019). Kraus et al. (2016) 
observed 3,896 individual common dolphins within the RI-MA WEA. Summer 
surveys included observations of the most individuals followed by fall, 
winter, then spring.

[[Page 52524]]

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 (Hayes et al., 2020). The Western North 
Atlantic stock regularly occurs in continental shelf waters south of 
Cape Hatteras and in continental shelf edge and continental slope 
waters north of this region (Hayes et al., 2020). Atlantic spotted 
dolphins occur in two forms, with the larger ecotype inhabiting the 
continental shelf and usually occurring inside or near the 200-m 
isobaths (Hayes et al., 2020).
    There are few reported occurrences of spotted dolphins (Stenella 
spp.) in the proposed project area. CETAP reported 126 spotted dolphin 
sightings over the course of the 3-year study, and 40 individuals south 
of Block Island in 1982 (CETAP, 1982). NMFS shipboard surveys conducted 
during June-August between central Virginia and the Lower Bay of Fundy 
reported 542 to 860 individual sightings from two separate visual teams 
(Palka et al., 2017).

Risso's Dolphin

    Risso's dolphins occur worldwide in both tropical and temperate 
waters (Jefferson et al., 2008, Jefferson et al., 2014). Risso's 
dolphins within the U.S. Atlantic EEZ are part of the Western North 
Atlantic stock which inhabits waters from Florida to eastern 
Newfoundland (Leatherwood et al., 1976; Baird and Stacey, 1991). During 
spring, summer, and fall, Risso's dolphins are distributed along the 
continental shelf edge from Cape Hatteras north to Georges Bank (CETAP, 
1982; Payne et al., 1984). During the winter, the distribution extends 
outward into oceanic waters (Payne et al., 1984) within the Mid-
Atlantic Bight. However, little is known about their movement and 
migration patterns, and they are infrequently observed in shelf waters.
    Offshore Rhode Island, Risso's dolphins have been observed year-
round, with a peak abundance during the summer. Primarily observed 
along the continental shelf break, few individuals are typically seen 
in waters shallower than 100 m (Kenney and Vigness-Raposa, 2010).

Harbor Porpoise

    The harbor porpoise occupies U.S. and Canadian waters. During 
summer (July to September), harbor porpoises are generally concentrated 
along the continental shelf within the northern Gulf of Maine, southern 
Bay of Fundy region, and around the southern tip of Nova Scotia, 
generally in waters less than 150 m deep (Gaskin, 1977; Kraus et al., 
1983; Palka, 1995). During fall (October to December) and spring (April 
to June), they are more widely dispersed from New Jersey to Maine with 
lower densities farther north and south. In winter (January to March), 
intermediate densities of harbor porpoises can be found in waters off 
New Jersey to North Carolina with lower densities found in waters off 
New York to New Brunswick, Canada (Hayes et al., 2020).
    There are four distinct populations of harbor porpoise in the 
western Atlantic: Gulf of Maine/Bay of Fundy, Gulf of St. Lawrence, 
Newfoundland, and Greenland (Gaskin, 1984, 1992; Hayes et al., 2020). 
Harbor porpoises observed within the U.S. Atlantic EEZ are considered 
part of the Gulf of Maine/Bay of Fundy stock.
    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., 2020).

Harbor Seal

    Harbor seals are found throughout coastal waters of the Atlantic 
Ocean and adjoining seas above 30[deg] N (Burns, 2009; Desportes et 
al., 2010; Hayes et al., 2021). In the western North Atlantic, harbor 
seals occur year-round in coastal waters of eastern Canada and Maine 
(Katona et al., 1993), yet they are distributed seasonally along the 
coast from southern New England to Virginia from September through late 
May (Schneider and Payne, 1983; Schroeder, 2000; Rees et al., 2016, 
Toth et al., 2018) Harbor seals are year-round inhabitants of the 
coastal waters of eastern Canada and Maine (Richardson and Rough, 
1993), and occur seasonally from southern New England to New Jersey 
between September and late May (Schneider and Payne, 1983; Barlas, 
1999; Schroeder, 2000). A general southward movement from the Bay of 
Fundy to southern New England occurs in fall and early winter 
(Rosenfeld et al., 1988, Whitman and Payne, 1990, Barlas 1999). A 
northward movement from southern New England to Maine and eastern 
Canada takes place prior to the pupping season, which occurs from mid-
May through June along the Maine coast (Richardson, 1976; Wilson, 1978; 
Whitman and Payne, 1990; Kenney, 1994).
    In addition to coastal waters, harbor seals use terrestrial habitat 
as haul-out sites throughout the year, but primarily during the pupping 
and molting periods, which occur from late spring to late summer in the 
northern portion of their range. No pupping areas have been identified 
in southern New England, but there are several haul-out sites on Block 
Island and six haul-out sites have been identified in Narragansett Bay 
(Barlas, 1999; Kenney and Vigness-Raposa, 2010).
    From July 2018 through March 2020, elevated numbers of harbor seal 
and gray seal mortalities occurred across Maine, New Hampshire and 
Massachusetts. Additionally, stranded seals showed clinical signs as 
far south as Virginia, although not in elevated numbers. This even was 
declared a UME, and the UME investigation encompassed all seal 
strandings from Maine to Virginia. A total of 3,152 reported strandings 
(both harbor and gray seals) occurred during the UME. Full or partial 
necropsy examinations have been conducted on some of the seals and 
samples have been collected for testing. Based on tests conducted as of 
April 30, 2021, 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. This UME was declared 
from 2018 through 2020, and is currently pending closure to become non-
active. Therefore, this UME will not be addressed further in this 
document. Further information is available at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Gray Seal

    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 in the project area belong to the western 
North Atlantic stock. The range for this stock is thought to be from 
New Jersey to Labrador (Davies, 1957; Mansfield, 1966; Katona et al., 
1993); however, stranding records as far south as Cape Hatteras 
(Gilbert et al., 2005) have been recorded. This species inhabits 
temperate and sub-arctic waters and lives on remote, exposed islands, 
shoals, and sandbars (Jefferson et al., 2008).
    In U.S. waters, pupping sites are located from Maine to 
Massachusetts (Wood et al., 2019). Historically, gray seals were 
relatively absent from Rhode Island and nearby waters. However, with 
the recent recovery of the Massachusetts and Canadian populations, 
their occurrence has increased in southern New England waters (Kenney 
and Vigness-Raposa, 2010). In New York, gray seals are typically seen 
alongside harbor seal

[[Page 52525]]

haul-outs. Two frequent sighting locations include Great Gull Island 
and Fisher's Island (Kenney and Vigness-Raposa, 2010). Two breeding and 
pupping grounds have also been identified in Nantucket Sound at Monomoy 
and Muskeget Island (NMFS, 2021). Gray seals have been observed using 
the historic pupping site on Muskeget Island in Massachusetts since 
1990.
    Current population trends show that gray seal abundance is likely 
increasing in the U.S. Atlantic EEZ (Hayes et al., 2021). Although the 
rate of increase is unknown, surveys conducted since the 1980s indicate 
a steady increase in abundance in both Maine and Massachusetts (Hayes 
et al., 2021). It is believed that recolonization by Canadian gray 
seals is the source of the U.S. population (Hayes et al., 2021). As 
described above, elevated seal mortalities, including gray seals, have 
occurred from Maine to Virginia from 2018 through 2020. Phocine 
distemper virus has been the main pathogen found in stranded seals. 
More information is available at: https://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 4.

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

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid) 
species) have the reasonable potential to co-occur with the proposed 
survey activities. Please refer to Table 3. Of the cetacean species 
that may be present, five are classified as low-frequency cetaceans 
(i.e., all mysticete species), eight are classified as mid-frequency 
cetaceans (i.e., all delphinid species and the sperm whale), and one is 
classified as high-frequency cetaceans (i.e., harbor porpoise and Kogia 
spp.).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a discussion of the ways that Orsted's 
specified activity may impact marine mammals and their habitat. 
Detailed descriptions of the potential effects of similar specified 
activities have been provided in other recent Federal Register notices, 
including for survey activities using the same methodology, over a 
similar amount of time, and occurring in the northwest Atlantic region, 
including waters offshore of Massachusetts and Rhode Island (e.g., 85 
FR 63508, October 8, 2020; 86 FR 40469, July 28, 2021; 87 FR 806, 
January 6, 2022; 87 FR 13975, March 11, 2022). No significant new 
information is available, and we refer the reader to these documents 
rather than repeating the details here. The Estimated Take section 
later in this document includes a quantitative analysis of the number 
of individuals that are expected to be taken by Orsted's activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take section, and the Proposed 
Mitigation section, to draw conclusions regarding the likely impacts of 
these activities on the reproductive success or survivorship of 
individuals and 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.
    Underwater sound from active acoustic sources can include one or 
more of the following: Temporary or permanent hearing impairment, non-
auditory physical or physiological effects, behavioral disturbance, 
stress, and masking. 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

[[Page 52526]]

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), 
in which case the loss of hearing sensitivity is not fully recoverable, 
or temporary (TTS), in which case the animal's hearing threshold would 
recover over time (Southall et al., 2007).
    Permanent Threshold Shift--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), in which case the loss of hearing sensitivity is not 
fully recoverable, or temporary (TTS), in which case the animal's 
hearing threshold would recover over time (Southall et al., 2007). 
Repeated sound exposure that leads to TTS could cause PTS. In severe 
cases of PTS, there can be total or partial deafness, while in most 
cases the animal has an impaired ability to hear sounds in specific 
frequency ranges (Kryter, 1985).
    Temporary Threshold Shift--TTS is the mildest form of hearing 
impairment that can occur during exposure to sound (Kryter, 1985). 
While experiencing TTS, the hearing threshold rises, and a sound must 
be at a higher level in order to be heard. In terrestrial and marine 
mammals, TTS can last from minutes or hours to days (in cases of strong 
TTS). In many cases, hearing sensitivity recovers rapidly after 
exposure to the sound ends.
    When PTS occurs, there is physical damage to the sound receptors in 
the ear (i.e., tissue damage), whereas TTS represents primarily tissue 
fatigue and is reversible (Southall et al., 2007). In addition, other 
investigators have suggested that TTS is within the normal bounds of 
physiological variability and tolerance and does not represent physical 
injury (e.g., Ward, 1997). Therefore, NMFS does not consider TTS to 
constitute auditory injury.
    Many studies have examined noise-induced hearing loss in marine 
mammals (see Finneran (2015) and Southall et al. (2019) for summaries). 
Animals in the vicinity of Orsted's proposed site characterization 
survey activities are unlikely to incur even TTS due to the 
characteristics of the sound sources, which include relatively low 
sound source levels (176 to 205 dB re 1 [mu]Pa-m) and generally very 
short pulses and potential duration of exposure. These characteristics 
mean that instantaneous exposure is unlikely to cause TTS, as it is 
unlikely that exposure would occur close enough to the vessel for 
received levels to exceed peak pressure TTS criteria, and the 
cumulative duration of exposure would be insufficient to exceed 
cumulative sound exposure level (SEL) criteria. Regarding instantaneous 
exposure, high-frequency cetacean species (e.g., harbor porpoises) have 
the greatest sensitivity to potential TTS, and individuals would have 
to make an approach within 5 m of the vessel (the estimated isopleth 
distance to the peak threshold). 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 though at such a close 
range. Further, the restricted beam shape of many of HRG survey devices 
planned for use (Table 2) makes it unlikely that an animal would be 
exposed more than briefly during the passage of the vessel.
    Behavioral Effects--Behavioral disturbances 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 (e.g., 
Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; 
Weilgart, 2007; Archer et al., 2010; Southall et al., 2021). 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.
    The following subsections provide examples of behavioral responses 
that provide an idea of the variability in behavioral responses that 
would be expected given the differential sensitivities of marine mammal 
species to sound and the wide range of potential acoustic sources to 
which a marine mammal may be exposed. Behavioral responses that could 
occur for a given sound exposure should be determined from the 
literature that is available for each species, or extrapolated from 
closely related species when no information exists, along with 
contextual 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. If a marine mammal does react briefly to 
an underwater sound by changing its behavior or moving a small 
distance, the impacts of the change are unlikely to be significant to 
the individual, the stock, or population. However, if a sound source 
displaces marine mammals from an important feeding or breeding area for 
a prolonged period, impacts on individuals and populations could be 
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC, 
2003). There are broad categories of potential response, which we 
describe in greater detail here, that include alteration of dive 
behavior, alteration of foraging behavior, effects to breathing, 
interference with or alteration of vocalization, avoidance, and flight.
    Changes in dive behavior can vary widely, and may consist of 
increased or decreased dive times and surface intervals as well as 
changes in the rates of ascent and descent during a dive (e.g., Frankel 
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et 
al., 2004; Goldbogen et al., 2013). Seals exposed to non-impulsive 
sources with a received sound pressure level within the range of 
calculated exposures (142-193 dB re 1 [mu]Pa (referenced to 1 
micropascal), have been shown to change their behavior by modifying 
diving activity and avoidance of the sound source (G[ouml]tz et al., 
2010; Kvadsheim et al., 2010). Variations in dive behavior may reflect 
interruptions in biologically significant activities (e.g., foraging) 
or they may be of little biological significance. The impact of an 
alteration to dive behavior resulting from an acoustic exposure depends 
on what the animal is doing at the time of the exposure and the type 
and magnitude of the response. Due to the mobile nature of the proposed 
activities and mobility of marine mammals, we expect minimal effects on 
diving

[[Page 52527]]

behavior as animals would be able to move away from the sound source.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al., 2007; 
Melc[oacute]n et al., 2012). In addition, the behavioral state of the 
animal plays a role in the type and severity of a behavioral response, 
such as disruption to foraging (e.g., Silve et al., 2016; Wensveen et 
al., 2017). As mentioned earlier, the proposed project area overlaps 
with a fin whale feeding BIA. However, due to the mobile nature of the 
proposed acoustic sources, as well as fin whales and their prey, fin 
whales would have alternate habitat available for foraging during the 
brief duration of acoustic activity. We, therefore, expect minimal 
impacts to foraging fin whales.
    A determination of whether foraging disruptions incur fitness 
consequences would require information on or estimates of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal. Goldbogen et al. (2013) indicate that disruption 
of feeding and displacement could impact individual fitness and health. 
However, for this to be true, we would have to assume that an 
individual could not compensate for this lost feeding opportunity by 
either immediately feeding at another location, by feeding shortly 
after cessation of acoustic exposure, or by feeding at a later time. 
There is no indication this is the case, particularly since unconsumed 
prey would likely still be available in the environment in most cases 
following the cessation of acoustic exposure. Information on or 
estimates of the energetic requirements of the individuals and the 
relationship between prey availability, foraging effort and success, 
and the life history stage of the animal will help better inform a 
determination of whether foraging disruptions incur fitness 
consequences.
    Marine mammals vocalize for different purposes and across multiple 
modes, such as whistling, echolocation click production, calling, and 
singing. Changes in vocalization behavior in response to anthropogenic 
noise can occur for any of these modes and may result from a need to 
compete with an increase in background noise or may reflect increased 
vigilance or a startle response. For example, in the presence of 
potentially masking signals, humpback whales and killer whales have 
been observed to increase the length of their songs (Miller et al., 
2000; Fristrup et al., 2003; Foote et al., 2004), while right whales 
have been observed to shift the frequency content of their calls upward 
while reducing the rate of calling in areas of increased anthropogenic 
noise (Parks et al., 2007; Rolland et al., 2012). Killer whales off the 
northwestern coast of the United States have been observed to increase 
the duration of primary calls once a threshold in observing vessel 
density (e.g., whale watching) was reached, which has been suggested as 
a response to increased masking noise produced by the vessels (Foote et 
al., 2004; NOAA, 2014). In some cases, however, animals may cease or 
alter sound production in response to underwater sound (e.g., Bowles et 
al., 1994; Castellote et al., 2012; Cerchio et al., 2014). Studies also 
demonstrate that even low levels of noise received far from the noise 
source can induce changes in vocalization and/or behavioral responses 
(Blackwell et al., 2013, 2015). Due to the short-term duration and 
mobile nature of the proposed activities, we expect minimal impacts to 
marine mammal vocalization.
    Avoidance is the displacement of an individual from an area or 
migration path as a result of the presence of a sound or other 
stressors, and is one of the most obvious manifestations of disturbance 
in marine mammals (Richardson et al., 1995). Avoidance is qualitatively 
different from the flight response, but also differs in the magnitude 
of the response (i.e., directed movement, rate of travel, etc.). 
Avoidance is often temporary, and animals return to the area once the 
noise has ceased. Acute avoidance responses have been observed in 
captive porpoises and pinnipeds exposed to a number of different sound 
sources (Kastelein et al., 2001; Finneran et al., 2003; Kastelein et 
al., 2006a, 2006b; 2015a, 2015b, 2018). Short-term avoidance of seismic 
surveys, low frequency emissions, and acoustic deterrents have also 
been noted in wild populations of odontocetes (Bowles et al., 1994; 
Goold, 1996; Goold and Fish, 1998; Stone et al., 2000; Morton and 
Symonds, 2002; Hiley et al., 2021) and to some extent in mysticetes 
(Malme et al., 1984; McCauley et al., 2000; Gailey et al., 2007). 
Longer-term displacement is possible, however, which may lead to 
changes in abundance or distribution patterns of the affected species 
in the affected region if habituation to the presence of the sound does 
not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann 
et al., 2006). Avoidance may occur for any marine mammals exposed to 
the proposed sound sources, however, alternate habitat is available for 
any animals that are temporarily displaced and mitigation measures, as 
described further in the Proposed Mitigation section, are expected to 
reduce avoidance.
    A flight response is a dramatic change in normal movement to a 
directed and rapid movement away from the perceived location of a sound 
source. The flight response differs from other avoidance responses in 
the intensity of the response (e.g., directed movement, rate of 
travel). Relatively little information on flight responses of marine 
mammals to anthropogenic signals exist, although observations of flight 
responses to the presence of predators have occurred (Connor and 
Heithaus, 1996). The result of a flight response could range from 
brief, temporary exertion and displacement from the area where the 
signal provokes flight to, in extreme cases, marine mammal strandings 
(Evans and England, 2001). There are limited data on flight response 
for marine mammals in water; however, there are examples of this 
response in species on land (e.g., Born et al., 1999; Ward et al., 
1999; Frid, 2003). However, it should be noted that response to a 
perceived predator does not necessarily invoke flight (Ford and Reeves, 
2008), and whether individuals are solitary or in groups may influence 
the response. Due to proposed mitigation measures, we do not expect any 
marine mammals to exhibit flight responses to the proposed activities.
    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

[[Page 52528]]

signals given the directionality of the signals for most HRG survey 
equipment types planned for use (Table 2) and the brief period when an 
individual mammal is likely to be exposed.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hour cycle). Disruption 
of such functions resulting from reactions to stressors such as sound 
exposure are more likely to be significant if they last more than one 
diel cycle or recur on subsequent days (Southall et al., 2007). 
Consequently, a behavioral response lasting less than one day and not 
recurring on subsequent days is not considered particularly severe 
unless it could directly affect reproduction or survival (Southall et 
al., 2007). Note that there is a difference between multi-day 
substantive behavioral reactions and multi-day anthropogenic 
activities. For example, just because an activity lasts for multiple 
days does not necessarily mean that individual animals are either 
exposed to activity-related stressors for multiple days or, further, 
exposed in a manner resulting in sustained multi-day substantive 
behavioral responses. Due to the short-term nature of the proposed HRG 
activities, we expect minimal disruption to any diel cycles of marine 
mammals.
    To assess the strength of behavioral changes and responses to 
external sounds and SPLs associated with changes in behavior, Southall 
et al., (2007) developed and utilized a severity scale, which is a 10 
point scale ranging from no effect (labeled 0), effects not likely to 
influence vital rates (low; labeled from 1 to 3), effects that could 
affect vital rates (moderate; labeled 4 to 6), to effects that were 
thought likely to influence vital rates (high; labeled 7 to 9). 
Southall et al., (2021) updated the severity scale by integrating 
behavioral context (i.e., survival, reproduction, and foraging) into 
severity assessment. For non-impulsive sounds (i.e., similar to the 
sources used during the proposed action), data suggest that exposures 
of pinnipeds to sources between 90 and 140 dB re 1 [mu]Pa do not elicit 
strong behavioral responses; no data were available for exposures at 
higher received levels for Southall et al., (2007) to include in the 
severity scale analysis. Reactions of harbor seals were the only 
available data for which the responses could be ranked on the severity 
scale. For reactions that were recorded, the majority (17 of 18 
individuals/groups) were ranked on the severity scale as a 4 (defined 
as moderate change in movement, brief shift in group distribution, or 
moderate change in vocal behavior) or lower; the remaining response was 
ranked as a 6 (defined as minor or moderate avoidance of the sound 
source).
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. It is important to note that 
habituation is appropriately considered as a ``progressive reduction in 
response to stimuli that are perceived as neither aversive nor 
beneficial,'' rather than as, more generally, moderation in response to 
human disturbance (Bejder et al., 2009). The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. As noted, behavioral state may affect the type of response. 
For example, animals that are resting may show greater behavioral 
change in response to disturbing sound levels than animals that are 
highly motivated to remain in an area for feeding (Richardson et al., 
1995; NRC, 2003; Wartzok et al., 2003). Controlled experiments with 
captive marine mammals have shown pronounced behavioral reactions, 
including avoidance of loud sound sources (Ridgway et al., 1997; 
Finneran et al., 2003). Observed responses of wild marine mammals to 
loud impulsive sound sources (typically seismic airguns or acoustic 
harassment devices) have been varied but often consist of avoidance 
behavior or other behavioral changes suggesting discomfort (Morton and 
Symonds, 2002; see also Richardson et al., 1995; Nowacek et al., 2007). 
Although habituation to the proposed sound sources could occur, it is 
not likely due to the short-term nature of the HRG activities.
    Stress responses--An animal's perception of a threat may be 
sufficient to trigger stress responses consisting of some combination 
of behavioral responses, autonomic nervous system responses, 
neuroendocrine responses, or immune responses (e.g., Seyle, 1950; 
Moberg, 2000). In many cases, an animal's first and sometimes most 
economical (in terms of energetic costs) response is behavioral 
avoidance of the potential stressor. Autonomic nervous system responses 
to stress typically involve changes in heart rate, blood pressure, and 
gastrointestinal activity. These responses have a relatively short 
duration and may or may not have a significant long-term effect on an 
animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine 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, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficient to restore normal function. We expect minimal stress 
responses to result from marine mammals due to the short-term duration 
of activities and proposed mitigation measures.
    Potential effects on prey--Sound may affect marine mammals through 
impacts on the abundance, behavior, or distribution of prey species 
(e.g., crustaceans, cephalopods, fish, zooplankton) (i.e., effects to 
marine mammal habitat). Prey species exposed to sound might move away 
from the sound source, experience TTS, experience masking of 
biologically relevant sounds, or show no obvious direct effects. The 
most likely impacts (if any) for most prey species in a given area 
would be temporary avoidance of the area. Surveys using active acoustic 
sound sources move through an area relatively quickly, 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.

Marine Mammal Habitat

    The HRG survey equipment will not contact the seafloor and does not 
represent a source of pollution. 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

[[Page 52529]]

expected to be short term and temporary.
    Due to 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 expected to be minimal and unlikely to 
cause significant or long-term consequences for individual marine 
mammals or their populations.

Ship Strikes

    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 (e.g., 40,000 ton container ship) 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 approximately 4-5 kn (2.1-2.6 m/s) (as is the 
speed of the vessel for Orsted's proposed HRG surveys). At these 
speeds, both the possibility of striking a marine mammal and the 
possibility of a strike resulting in serious injury or mortality are so 
low as to be discountable. At average transit speed for geophysical 
survey vessels, the probability of serious injury or mortality 
resulting from a strike is less than 50 percent. However, the 
likelihood of a strike actually happening is again low given the 
smaller size of these vessels and generally slower speeds. Notably in 
the Jensen and Silber study, no strike incidents were reported for 
geophysical survey vessels during that time period.
    The potential effects of Orsted's specified survey activity are 
expected to be limited to Level B behavioral harassment. Temporary and 
minimal impacts to marine mammal habitat, including prey, may occur.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
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 certain HRG sources. Based on the nature of 
the activity and the anticipated effectiveness of the mitigation 
measures (i.e., shutdown measures, vessel strike avoidance procedures) 
discussed in detail below in the Proposed Mitigation section, Level A 
harassment is neither anticipated nor proposed to be authorized.
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized for this activity. Below we 
describe how the proposed 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 proposed 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 (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.
    Level A Harassment--NMFS Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive).
    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.
    Orsted's proposed activity includes the use of impulsive (i.e., 
boomers and sparkers) and non-impulsive (i.e., CHIRP SBPs) sources. 
However, as discussed above, NMFS has concluded that Level A harassment 
is not a reasonably likely outcome for marine mammals exposed to noise 
from the sources proposed for use here, and the potential for Level A 
harassment is not evaluated further in this document. Please see 
Orsted's application (Section 1.4) for a quantitative Level A exposure 
analysis exercise. The results indicated that maximum estimated 
distances to

[[Page 52530]]

Level A harassment isopleths were less than 3 m for all sources and 
hearing groups, with the exception of an estimated 18.9 m and 11.4 m 
distance to the Level A harassment isopleth for high-frequency 
cetaceans (i.e., harbor porpoises) during use of the GeoPulse 5430 and 
TB CHIRP III, respectively (see Table 2 for source characteristics). 
Orsted did not request authorization of take by Level A harassment and 
no take by Level A harassment is proposed for authorization by NMFS.

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

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    NMFS has developed a user-friendly methodology for determining the 
rms sound pressure level (SPLrms) at the 160-dB isopleth for 
the purpose of estimating the extent of Level B harassment isopleths 
associated with HRG survey equipment (NMFS, 2020). This methodology 
incorporates frequency and some directionality to refine estimated 
ensonified zones. Orsted used NMFS's methodology, using the source 
level and operation mode of the equipment planned for use during the 
proposed survey, to estimate the maximum ensonified area over a 24-hr 
period also referred to as the harassment area (Table 6). Potential 
takes by Level B harassment are estimated within the ensonified area 
(i.e., harassment area) as an SPL exceeding 160 dB re 1 [micro]Pa for 
impulsive sources (e.g., sparkers, boomers) within an average day of 
activity.
    The harassment zone, also known as the Zone of Influence (ZOI), is 
a representation of the maximum extent of the ensonified area around a 
sound source over a 24-hr period. The ZOI was calculated for mobile 
sound sources per the following formula:

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

    Where r is the linear distance from the source to the isopleth for 
the Level B harassment threshold.
    The estimated potential daily active survey distance of 70 km was 
used as the estimated areal coverage over a 24-hr period. This distance 
accounts for the vessel traveling at roughly 4 kn (2.1 m/s) and only 
for periods during which equipment <180 kHz is in operation. A vessel 
traveling 4 kn (2.1 m/s) can cover approximately 110 km per day; 
however, based on data collected since 2017, survey coverage over a 24-
hour period is closer to 70 km per day as a result of delays due to, 
e.g., weather, equipment malfunction. For daylight only vessels, the 
distance is reduced to 20 km per day; however, to maintain the 
potential for 24-hr surveys, the corresponding Level B harassment zones 
provided in Table 6 were calculated for each source based on the Level 
B threshold distances within a 24-hour (30 km) operational period.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases, when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 2 shows the HRG equipment 
types that may be used during the proposed surveys and the source 
levels associated with those HRG equipment types.
    Based upon modeling results, of the HRG survey equipment planned 
for use by Orsted that has the potential to result in Level B 
harassment of marine mammals, the Applied Acoustics Dura-Spark UHD and 
GeoMarine Geo-Source sparkers would produce the largest Level B 
harassment isopleth (141 m) or ZOI. Estimated distances to Level B 
harassment isopleths for all sources evaluated here, including the 
sparkers, are provided in Table 6. Although Orsted does not expect to 
use sparker sources on all planned survey days, Orsted proposes to 
assume for purposes of analysis that the sparker would be used on all 
survey days. This is a conservative approach, as the actual sources 
used on individual survey days may produce smaller harassment 
distances.

[[Page 52531]]



     Table 6--Distance to Level B Harassment Thresholds (160 dB rms)
------------------------------------------------------------------------
                                                             Distance to
                                                                level B
                           Source                             harassment
                                                              threshold
                                                                 (m)
------------------------------------------------------------------------
           Non-impulsive, non-parametric, shallow SBP (CHIRPs)
------------------------------------------------------------------------
ET 216 CHIRP...............................................           12
ET 424 CHIRP...............................................            4
ET 512i CHIRP..............................................            6
GeoPulse 5430..............................................           29
TB CHIRP III...............................................           54
Pangeo SBI.................................................           22
------------------------------------------------------------------------
Impulsive, medium SBP (Boomers and Sparkers)............................
------------------------------------------------------------------------
AA Triple plate S-Boom (700/1,000 J).......................           76
AA, Dura-spark UHD Sparkers................................          141
GeoMarine Sparkers.........................................          141
------------------------------------------------------------------------
AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
  pulses; ET = edgetech; HF = high-frequency; J = joules; LF = low-
  frequency; MF = mid-frequency; PW = phocid pinnipeds in water; SBI =
  sub-bottom imager; SBP = sub-bottom profiler; TB = Teledyne benthos;
  UHD = ultra-high definition.

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information that 
will inform the take calculations.
    Habitat based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2022) represent 
the best available information regarding marine mammal densities in the 
project area. The density data presented by Roberts et al. (2016, 2022) 
incorporate aerial and shipboard line-transect data from NMFS and other 
organizations and incorporate data from 8 physiographic and 16 dynamic 
oceanographic and biological covariates, and control for the influence 
of sea state, group size, availability bias, and perception bias on the 
probability of making a sighting. These density models were originally 
developed for all cetacean taxa in the U.S. Atlantic (Roberts et al., 
2016). In subsequent years, certain models have been updated based on 
additional data as well as certain methodological improvements. More 
information is available online at https://seamap.env.duke.edu/models/Duke/EC/. Marine mammal density estimates in the project area (animals/
km\2\) were obtained using the most recent model results for all taxa 
(Roberts 2022). The updated models incorporate sighting data, including 
sightings from NOAA's Atlantic Marine Assessment Program for Protected 
Species (AMAPPS) surveys.
    For exposure analysis, density data from Roberts (2022) were mapped 
using a geographic information system (GIS). Density grid cells that 
included any portion of the proposed project area were selected for all 
survey months (see Figure 3 of Orsted's application). Given the 
variability in level of effort between the Lease Areas and the ECR 
area, densities were separated for the three Lease Areas (OCS-A 0486, 
0487, and 0500) and the ECR area. The densities for each species as 
reported by Roberts et al. (2022) for each of the Lease Areas and ECR 
were averaged by month; those values were then used to calculate the 
mean annual density for each species within the project area. Estimated 
mean monthly and annual densities (animals per km\2\) of all marine 
mammal species that may be taken by the proposed survey are shown in 
Tables 8-11 of Orsted's application. Please see Table 7 for density 
values used in the exposure estimation process.
    Given their size and behavior when in the water, seals are 
difficult to identify during shipboard visual surveys and limited 
information is currently available on their distribution. Therefore, 
data used to establish the density estimates from Roberts et al. (2022) 
are based on information for all seal species that may occur in the 
Western North Atlantic (i.e., harbor, gray, hooded, harp). However, 
only the harbor seal and gray seal are reasonably expected to occur in 
the project area, and the densities were split evenly between both 
species.
    Long- and short-finned pilot whales are also difficult to 
distinguish during shipboard surveys so individual habitat models were 
not able to be developed for these species. As only long-finned pilot 
whales are expected to occur within the study area, pilot whale 
densities within the study area were attributed to this species.
    For bottlenose dolphin densities, Roberts (2022) does not 
differentiate by stock. As previously discussed, only the Western North 
Atlantic offshore stock is expected to occur in the proposed project 
area. Thus, all bottlenose dolphin density estimates within the project 
area were attributed to the offshore stock.

                   Table 7--Average Annual Marine Mammal Density Estimates Across Survey Sites
----------------------------------------------------------------------------------------------------------------
                     Species                                      Average annual density (km \2\)
----------------------------------------------------------------------------------------------------------------
                                                    OCS-A 0486      OCS-A 0487      OCS-A 0500          ECR
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans:
    Fin whale...................................          0.0013          0.0021          0.0023          0.0015
    Sei whale...................................          0.0000          0.0001          0.0001          0.0000
    Minke whale.................................          0.0005          0.0008          0.0009          0.0005
    Humpback whale..............................          0.0012          0.0013          0.0015          0.0006
    North Atlantic right whale..................          0.0040          0.0020          0.0034          0.0008
Mid-frequency Cetaceans:
    Sperm whale.................................          0.0001          0.0001          0.0001          0.0001
    Atlantic white sided dolphin................          0.0092          0.0234          0.0367          0.0163
    Atlantic spotted dolphin....................          0.0001          0.0003          0.0004          0.0003
    Common bottlenose dolphin...................          0.0151          0.0078          0.0097          0.0266
    Long-finned pilot whale.....................          0.0020          0.0074          0.0090          0.0043
    Risso's dolphin.............................               0          0.0001          0.0001          0.0001
    Common dolphin..............................          0.0457          0.0924          0.0945          0.0562
    Striped dolphin.............................          0.0000          0.0000          0.0000          0.0000
High-frequency Cetaceans:
    Harbor porpoise.............................          0.0335          0.0399          0.0384          0.0337
Pinnipeds in-water: \1\
    Gray seal...................................          0.0104          0.0110          0.0124          0.0182
    Harbor seal.................................          0.0104          0.0110          0.0124          0.0182
----------------------------------------------------------------------------------------------------------------
\1\ Seal species are not separated in the Roberts (2022) data therefore densities were evenly split between the
  two species expected to occur in the project area.


[[Page 52532]]

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 proposed for authorization.
    Level B exposures were estimated by multiplying the average annual 
density of each species within the project area (Table 7) by the 
largest ZOI that was estimated to be ensonified to an SPL exceeding 160 
dB re 1 [micro]Pa (141m; Table 6). That result was then multiplied by 
the number of survey days in that Lease Area or ECR (Table 1), and 
rounded to the nearest whole number to arrive at estimated take. This 
final number equals the instances of take for the entire operational 
period. It was assumed the sparker systems were operating all 400 
survey days as it is the sound source expected to produce the largest 
harassment zone. A summary of this method is illustrated in the 
following formula with the resulting proposed take of marine mammals is 
shown below in Table 8:
    Estimated take = species density x ZOI x # of survey days

                               Table 8--Total Estimated and Requested Take Numbers
                                          [By level B harassment only]
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated       Requested      Max percent
                     Species                         Abundance     level B takes   level B takes    population
----------------------------------------------------------------------------------------------------------------
                                             Low-frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Fin whale.......................................           6,802              14              14            0.21
Sei whale.......................................           6,292               0               3            0.05
Minke whale.....................................          21,968               6              13            0.06
Humpback whale..................................           1,396               8              34            2.44
North Atlantic right whale......................             368              17              17            4.62
----------------------------------------------------------------------------------------------------------------
                                             Mid-frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Sperm whale.....................................           4,349               0               2            0.05
Atlantic white-sided dolphin....................          93,233             210             210            0.23
Atlantic spotted dolphin........................          39,921               3              29            0.07
Common bottlenose dolphin.......................          62,851             139             139            0.22
Pilot whale.....................................          39,215              17              17            0.13
Risso's dolphin.................................          35,215               1              30            0.09
Common dolphin..................................         172,974             601           6,000            3.47
Striped dolphin.................................          67,036               0              20            0.03
----------------------------------------------------------------------------------------------------------------
                                            High-frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................................          95,543             287             287            0.30
----------------------------------------------------------------------------------------------------------------
                                                    Pinnipeds
----------------------------------------------------------------------------------------------------------------
Seals:..........................................
    Gray seal...................................          27,300             118             118            0.43
    Harbor seal.................................          61,336             118             118            0.19
----------------------------------------------------------------------------------------------------------------

    Additional data regarding average group sizes from survey effort in 
the region was considered to ensure adequate take estimates are 
evaluated. Take estimates for several species were adjusted based upon 
observed group sizes in the area. The adjusted take estimates for these 
species are indicated in bold in Table 8. These calculated take 
estimates were adjusted for these species as follows:
     Sei whale: Although no takes were estimated, prior 
Protected Species Observer (PSO) monitoring documented the presence of 
sei whales in the area. One take was requested based on the most common 
group size reported in Kenney and Vigness-Raposa (2010);
     Minke and humpback whales: Requested takes were increased 
to the number recorded within 500 m of an active source based on draft 
PSO data (see Table 13 in the application);
     Sperm whale: No takes were estimated but based on their 
occurrence in PSO data, 1 group of 2 (Barkaszi and Kelly, 2019) was 
added to the requested takes;
     Atlantic spotted dolphin: Requested takes were increased 
to the average number of dolphins in a group reported in Palka et al. 
(2017, 2021);
     Risso's dolphin: Only one take was estimated but based on 
their occurrence in PSO data, 1 group of 30 (Kenney and Vigness-Raposa, 
2010) was added to the requested takes.
     Common dolphin: Requested takes were increased to 6,000. 
This is based on the average group size of 15 from the PSO data 
(calculated by dividing the total number of individuals [14,250] by the 
total number of detections [927] in Table 13 of the application) 
multiplied by the planned number of survey days (400) in Table 1.
     Striped dolphin: No takes were estimated but based on 
their occurrence in PSO data, one group of 20 dolphins (Kenney and 
Vigness-Raposa, 2010) was added to the requested takes.
    PSO data for adjusting take estimates of minke whales, humpback 
whales, common bottlenose dolphins, and common dolphins was derived 
from draft PSO observer reports from surveys conducted in the project 
lease areas and ECR from 2020-2021, as shown in Table 13 of Orsted's 
application.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for

[[Page 52533]]

incidental take authorizations to include information about the 
availability and feasibility (economic and technological) of equipment, 
methods, and manner of conducting the activity or other means of 
effecting the least practicable adverse impact upon the affected 
species or stocks, and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

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

Marine Mammal Shutdown Zones

    Marine mammal shutdown zones would be established around impulsive 
HRG survey equipment (<180 kHz; e.g., sparkers and boomers) for all 
marine mammals, and around impulsive HRG survey equipment and non-
impulsive, non-parametric sub-bottom profilers (e.g., CHIRPs) for North 
Atlantic right whales. Shutdown zones would be monitored by protected 
species observers (PSOs) based upon the radial distance from the 
acoustic source rather than being based around the vessel itself. An 
immediate shutdown of impulsive HRG survey equipment will be required 
if a whale is sighted at or within the corresponding marine mammal 
shutdown zones to minimize noise impacts on the animals. If a shutdown 
is required, a PSO will notify the survey crew immediately. Vessel 
operators and crews will comply immediately with any call for shutdown. 
The shutdown zone may or may not encompass the Level B harassment zone. 
Shutdown zone distances are as follows:
     A 500-meter (m) Shutdown Zone for North Atlantic right 
whales for use of impulsive acoustic sources (e.g., boomers and/or 
sparkers) and non-impulsive, non-parametric sub-bottom profilers; and
     A 100-m shutdown zone for use of impulsive acoustic 
sources for all other marine mammals, with the exception of delphinids 
belonging to the Family Delphinidae and one of the following genera: 
Delphinus, Lagenorhynchus, Stenella, or Tursiops, and pinnipeds.
    Shutdown will remain in effect until the minimum separation 
distances (detailed above) between the animal and noise source are re-
established. If a marine mammal enters the respective shutdown zone 
during a shutdown period, the equipment may not restart until that 
animal is confirmed outside the clearance zone as stated previously in 
the pre-start clearance procedures. These stated requirements will be 
included in the site-specific training to be provided to the survey 
team.

Pre-Start Clearance

    Marine mammal clearance zones would be established at the following 
distances around the HRG survey equipment and monitored by PSOs:
     500 m for all ESA-listed marine mammals;
     100 m for all other whales; and
     50 m for dolphins and porpoises.
    Orsted would 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 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 a clearance zone during the pre-start 
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals, and 30 minutes for all other species). 
Monitoring would be conducted throughout all pre-clearance and shutdown 
zones as well as all visible waters surrounding the sound sources and 
the vessel. All marine mammals detected will be recorded as described 
in the Proposed Monitoring and Reporting section.

Ramp-Up of Survey Equipment

    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. The ramp-up procedure would 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the project area by 
allowing them to vacate the area prior to the commencement of survey 
equipment operation at full power. Operators should ramp-up sources to 
half power for 5 minutes and then proceed to full power.
    The ramp-up procedure will not be initiated (i.e., equipment will 
not be started) during periods of inclement conditions when the marine 
mammal pre-start clearance zone cannot be adequately monitored by the 
PSOs for a 30 minute period using the appropriate visual technology. If 
any marine mammal enters the clearance zone, ramp-up will not be 
initiated until the animal is confirmed outside the marine mammal 
clearance zone, or until the appropriate time (30 minutes for whales, 
15 minutes for dolphins, porpoises, and seals) has elapsed since the 
last sighting of the animal in the clearance zone.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., echosounders) other than non-parametric sub-bottom profilers 
(e.g., CHIRPs).

Vessel Strike Avoidance

    Orsted must adhere to the following measures except in the 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.
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the

[[Page 52534]]

appropriate separation distance around the vessel (distances stated 
below). Visual observers monitoring the vessel strike avoidance zone 
may be third-party observers (i.e., PSOs) or crew members, but crew 
members responsible for these duties must be provided sufficient 
training to (1) distinguish protected species from other phenomena, and 
(2) broadly identify a marine mammal as a right whale, other whale 
(defined in this context as sperm whales or baleen whales other than 
right whales), or other marine mammal;
    a. All survey vessels, regardless of size, must observe a 10-knot 
speed restriction in specified areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes including 
seasonal management areas (SMAs) and dynamic management areas (DMAs) 
when in effect;
    b. Members of the monitoring team will consult NMFS North Atlantic 
right whale reporting system and Whale Alert, as able, for the presence 
of North Atlantic right whales throughout survey operations, and for 
the establishment of a DMA. If NMFS should establish a DMA in the 
project area during the survey, the vessels will abide by speed 
restrictions in the DMA;
    c. All vessels greater than or equal to 19.8 m in overall length 
operating from November 1 through April 30 will operate at speeds of 10 
kn (5.1 m/s) or less at all times;
    d. All vessels must reduce their speed to 10 kn (5.1 m/s) or less 
when mother/calf pairs, pods, or large assemblages of any species of 
cetaceans is observed near a vessel;
    e. All vessels must maintain a minimum separation distance of 500 m 
from right whales and other ESA-listed large whales;
    f. If a whale is observed but cannot be confirmed as a species 
other than a right whale or other ESA-listed large whale, the vessel 
operator must assume that it is a right whale and take appropriate 
action;
    g. All vessels must maintain a minimum separation distance of 100 m 
from non-ESA listed whales;
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel);
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. Prior to implementation with 
vessel crews, the training program will be provided to NMFS for review 
and approval. Confirmation of the training and understanding of the 
requirements will be documented on a training course log sheet. Signing 
the log sheet will certify that the crew member understands and will 
comply with the necessary requirements throughout the survey 
activities.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed 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.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present 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.

Proposed Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Orsted would employ 
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be 
employed by a third-party observer provider, (2) have no tasks other 
than to conduct observational effort, collect data, and communicate 
with and instruct relevant vessel crew with regard to the presence of 
marine mammals and mitigation requirements (including brief alerts 
regarding maritime hazards), and (3) have successfully completed an 
approved PSO training course appropriate for their designated task. On 
a case-by-case basis, non-independent observers may be approved by NMFS 
for limited, specified duties in support of approved, independent PSOs 
on smaller vessels with limited crew operating in nearshore waters.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including shutdown and pre-clearance zones, during all HRG 
survey operations. PSOs will visually monitor and identify marine 
mammals, including those approaching or entering the established 
shutdown and pre-clearance zones during survey activities. It will be 
the responsibility of the Lead PSO on duty to communicate the

[[Page 52535]]

presence of marine mammals as well as to communicate the action(s) that 
are necessary to ensure mitigation and monitoring requirements are 
implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) would ensure 360 degree visual coverage around 
the vessel from the most appropriate observation posts and would 
conduct visual observations using binoculars and/or night vision 
goggles and the naked eye while free from distractions and in a 
consistent, systematic, and diligent manner. PSOs may be on watch for a 
maximum of 4 consecutive hours followed by a break of at least 2 hours 
between watches and may conduct a maximum of 12 hours of observations 
per 24-hr period. In cases where multiple vessels are surveying 
concurrently, any observations of marine mammals would be communicated 
to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements. This would include dates, 
times, and locations of survey operations; dates and times of 
observations, location and weather, details of marine mammal sightings 
(e.g., species, numbers, behaviors); and details of any observed marine 
mammal behavior that occurs (e.g., notes behavioral disturbances). For 
more detail on the proposed monitoring requirements, see Condition 5 of 
the draft IHA.

Proposed Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a draft comprehensive report will 
be provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys including what type of mitigation and the species and number of 
animals that prompted the mitigation action, when known), and provides 
an interpretation of the results and effectiveness of all mitigation 
and monitoring. Any recommendations made by NMFS must be addressed in 
the final report prior to acceptance by NMFS. A final report must be 
submitted within 30 days following any comments on the draft report. 
All draft and final marine mammal and acoustic monitoring reports must 
be submitted to [email protected] and 
[email protected]. The report must contain at minimum, the following:
    a. PSO names and affiliations;
    a. Dates of departures and returns to port with port names;
    b. Dates and times (Greenwich Mean Time) of survey effort and times 
corresponding with PSO effort;
    c. Vessel location (latitude/longitude) when survey effort begins 
and ends; vessel location at beginning and end of visual PSO duty 
shifts;
    d. Vessel heading and speed at beginning and end of visual PSO duty 
shifts and upon any line change;
    e. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including wind speed and direction, Beaufort sea state, Beaufort wind 
force, swell height, weather conditions, cloud cover, sun glare, and 
overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. PSO who sighted the animal;
    c. Time of sighting;
    d. Vessel location at time of sighting;
    e. Water depth;
    f. Direction of vessel's travel (compass direction);
    g. Direction of animal's travel relative to the vessel;
    h. Pace of the animal;
    i. Estimated distance to the animal and its heading relative to 
vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
    a. Estimated number of animals (high/low/best);
    b. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    c. Description (as many distinguishing features as possible of each 
individual seen, including length, shape, color, pattern, scars or 
markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
    a. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during surveys or during vessel 
transit, Orsted must immediately report sighting information to the 
NMFS North Atlantic Right Whale Sighting Advisory System: (866) 755-
6622. North Atlantic right whale sightings in any location may also be 
reported to the U.S. Coast Guard via channel 16.
    In the event that Orsted personnel discover an injured or dead 
marine

[[Page 52536]]

mammal, Orsted will report the incident to the NMFS Office of Protected 
Resources (OPR) and the NMFS New England/Mid-Atlantic Stranding 
Coordinator as soon as feasible. The report would include the following 
information:
    Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    a. Species identification (if known) or description of the 
animal(s) involved;
    b. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    c. Observed behaviors of the animal(s), if alive;
    d. If available, photographs or video footage of the animal(s); and
    e. 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 this activities covered by the IHA, Orsted would 
report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic 
Stranding Coordinator as soon as feasible. The report would include the 
following information:
    a. Time, date, and location (latitude/longitude) of the incident;
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Vessel's speed during and leading up to the incident;
    d. Vessel's course/heading and what operations were being conducted 
(if applicable);
    e. Status of all sound sources in use;
    f. 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;
    g. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    h. Estimated size and length of animal that was struck;
    i. Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    j. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    k. 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
    l. To the extent practicable, photographs or video footage of the 
animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338; 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the discussion of our analysis applies to all 
the species listed in Table 3, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. Where there are meaningful differences between species or 
stocks--as is the case of the North Atlantic right whale--they are 
included as separate subsections below. NMFS does not anticipate that 
serious injury or mortality would occur as a result from HRG surveys, 
even in the absence of mitigation, and no serious injury or mortality 
is proposed to be authorized. As discussed in the Potential Effects of 
Specified Activities on Marine Mammals and their Habitat section, non-
auditory physical effects and vessel strike are not expected to occur. 
NMFS expects that all potential takes would be in the form of 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, 2021). Even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole. As described above, Level A harassment is not 
expected to occur given the nature of the operations and the estimated 
small size of the Level A harassment zones.
    In addition to being temporary, the maximum expected harassment 
zone around the survey vessel is 141 m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the project 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the proposed project 
area. Several harbor and gray seal haul out sites have been identified 
on Block Island, Great Gull Island, and Fishers Island as wells as 
along Narragansett and Nantucket Sounds. As the acoustic footprint of 
the proposed HRG activities is relatively small, hauled seals are not 
expected to be impacted by these activities. In addition, cable 
landfall sites have yet to be determined and may not be in the vicinity 
of haul out sites. The proposed ECR area encompasses a feeding BIA for 
fin whales east of Montauk Point, NY that is active from March through 
October (LaBrecque et al., 2015). The fin whale feeding BIA is 
extensive and sufficiently large (2,933 km\2\), and the acoustic 
footprint of the proposed survey is sufficiently small (project area) 
that feeding opportunities for fin whales would not be reduced 
appreciably. Given the relatively small size of the ensonified area, it 
is unlikely that prey availability would be adversely affected by HRG 
survey

[[Page 52537]]

operations. In addition, feeding success is not likely to be 
significantly affected as minimal impacts to prey species are expected, 
for reasons as described above in the Potential Effects of Specified 
Activities on Marine Mammals and their Habitat section.

North Atlantic Right Whale

    The status of the North Atlantic right whale (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. The proposed project 
area overlaps with a migratory corridor BIA for North Atlantic right 
whales (effective March-April; November-December) that extends from 
Massachusetts to Florida and, off the coast of NY and RI, from the 
coast to beyond the shelf break (LaBrecque et al., 2015). Right whale 
migration is not expected to be impacted by the proposed survey due to 
the very small size of the project area relative to the spatial extent 
of the available migratory habitat in the BIA. The proposed project 
area also overlaps with the Block Island seasonal management area 
(SMA), active from November 1 to April 30. NARWs may be feeding or 
migrating within the SMA. Required vessel strike avoidance measures and 
following the speed restrictions of the SMA will decrease the risk of 
ship strike during NARW migration; no ship strike is expected to occur 
during Orsted's proposed activities. For reasons as described above, 
minimal impacts are expected to prey availability and feeding success. 
Additionally, HRG survey operations are required to maintain a 500 
distance and shutdown if a NARW is sighted at or within 500 m. The 500 
m shutdown zone for right whales is conservative, considering the Level 
B harassment isopleth for the most impactful sources (i.e., GeoMarine 
Sparkers, AA Dura-spark UHD Sparkers, AA Triple plate S-Boom) is 
estimated to be 141 m, and thereby minimizes the potential for 
behavioral harassment of this species. Therefore only very limited take 
by Level B harassment of NARW has been requested and is being proposed 
for authorization by NMFS. As noted previously, Level A harassment is 
not expected, nor authorized, due to the small PTS zones associated 
with HRG equipment types proposed for use. NMFS does not anticipate 
NARW takes that result from the proposed survey activities would impact 
annual rates of recruitment or survival. Thus, any takes that occur 
would not result in population level impacts.

Other Marine Mammals With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Orsted's proposed project area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    The required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in Table 3, 
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 before HRG survey 
equipment reaches full energy, thus preventing them from being exposed 
to more severe Level B harassment. No Level A harassment is 
anticipated, even in the absence of mitigation measures, or proposed 
for authorization.
    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 in the area (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. Required mitigation 
measures, such as shutdown zones and ramp up, would further reduce 
exposure to sound that could result in more severe behavioral 
harassment.
    In summary and as described above, the following factors primarily 
support our preliminary 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 proposed for authorization;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the ensonified area 
during the planned surveys to avoid exposure to sounds from the 
activity;
     Take is anticipated to be of Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the ensonified area;
     While the project area is within areas noted as a 
migratory BIA and SMA for North Atlantic right whales, the activities 
would occur in such a comparatively small area such that any avoidance 
of the ensonified area due to activities would not affect migration. In 
addition, mitigation measures require shutdown at 500 m (almost four 
times the size of the Level B harassment isopleth (141 m), which 
minimizes the effects of the take on the species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or

[[Page 52538]]

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.
    The amount of take NMFS proposes to authorize is below one third of 
the estimated stock abundance for all species (in fact, take of 
individuals is less than 6 percent of the abundance of the affected 
stocks for these species, see Table 8). The figures presented in Table 
8 are likely conservative estimates as they assume all takes are of 
different individual animals which is likely not to be the case. Some 
individuals may return multiple times in a day, but PSOs would count 
them as separate takes if they cannot be individually identified.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS Office of Protected Resources (OPR) consults internally whenever 
we propose to authorize take for endangered or threatened species.
    NMFS OPR is proposing to authorize the incidental take of four 
species of marine mammals which are listed under the ESA, including the 
North Atlantic right, fin, sei, and sperm whale, and has determined 
that these activities fall within the scope of activities analyzed 107 
in GARFO's programmatic consultation regarding geophysical surveys 
along the U.S. Atlantic coast in the three Atlantic Renewable Energy 
Regions (completed June 29, 2021; revised September 2021).

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Orsted for conducting site characterization surveys off 
the coast of New York and Rhode Island from September 25, 2022 through 
September 24, 2023, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. A draft of the 
proposed IHA can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Request for Public Comments

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

    Dated: August 23, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-18454 Filed 8-25-22; 8:45 am]
BILLING CODE 3510-22-P