[Federal Register Volume 87, Number 213 (Friday, November 4, 2022)]
[Notices]
[Pages 66658-66677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23983]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC355]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys in the New York Bight and Central Atlantic

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

ACTION: Notice; proposed incidental harassment authorization; request 
for

[[Page 66659]]

comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from TerraSond Limited (TerraSond) 
for authorization to take marine mammals incidental to marine site 
characterization surveys in the New York Bight (off of New York and New 
Jersey) and in the Central Atlantic (from Delaware to North Carolina). 
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, 1 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 December 
5, 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: Ben Laws, 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/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Shutdown B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical Shutdown. 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 May 19, 2022, NMFS received a request from TerraSond for an IHA 
to take marine mammals incidental to site characterization surveys in 
the New York Bight. Following NMFS' review of the application, 
TerraSond submitted a revised version on July 11, 2022, adding 
additional planned survey activity in the Central Atlantic. This 
revised application was deemed adequate and complete. TerraSond's 
request is for take of 21 species of marine mammals, by Level B 
harassment only. Neither TerraSond nor NMFS expect serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of Proposed Activity

Overview

    TerraSond proposes to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) surveys, off the coasts of 
New Jersey and New York (New York Bight)

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and from Delaware to North Carolina (Central Atlantic). The former 
portion of survey effort would be conducted on Bureau of Ocean Energy 
Management (BOEM) Lease Areas OCS-A 0539, 0541, and 0542, while the 
latter portion of survey effort would be conducted in continental shelf 
waters of BOEM's Central Atlantic Call Area. The planned survey effort 
would be conducted in support of wind energy development.
    The planned marine site characterization survey effort is designed 
to obtain data sufficient to meet BOEM guidelines for providing 
geophysical, geotechnical, and geohazard information for site 
assessment plan surveys and/or construction and operations plan 
development. The objective of the surveys is to acquire data on 
bathymetry, seafloor morphology, subsurface geology, environmental/
biological sites, seafloor obstructions, soil conditions, and locations 
of any man-made, historical or archaeological resources within the 
respective survey areas. Underwater sound resulting from TerraSond's 
proposed site characterization survey activities, specifically HRG 
surveys, has the potential to result in incidental take of marine 
mammals in the form of Level B behavioral harassment.

Dates and Duration

    The estimated duration of Central Atlantic HRG survey activity is 
expected to include a maximum of 1,052 survey days (minimum 661 survey 
days, depending on final survey plan) over the course of the 1 year 
period of effectiveness for the proposed IHA, with a ``survey day'' 
defined as a 24-hour (hr) activity period in which active acoustic 
sound sources are used. The estimated duration of New York Bight survey 
activity is expected to include 385 survey days. Therefore, the total 
survey days would range from 1,046 to a maximum of 1,437. For both 
components of the activity, survey activities are anticipated to occur 
over a minimum of 6-8 months using multiple vessels concurrently, and 
likely throughout most of a year. TerraSond proposes to start survey 
activity as soon as possible upon issuance of an IHA, if appropriate. 
The IHA would be effective for one year from the date of issuance.

Specific Geographic Region

    The proposed survey activities will occur within the aforementioned 
BOEM Central Atlantic Call Area and within BOEM's Lease Areas OCS-A 
0539, 0541, and 0542 in the New York Bight. Please see Figures 1 and 2 
below or, for color versions, see the same figures in TerraSond's 
application. The Central Atlantic survey area comprises approximately 
11,500 square kilometers (km\2\), covering water depths from 20-60 
meters (m), and the New York Bight survey area comprises approximately 
1,171 km\2\, covering water depths from 30-65 m.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN04NO22.059


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[GRAPHIC] [TIFF OMITTED] TN04NO22.060

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    TerraSond proposes to conduct HRG survey operations, including 
multibeam depth sounding, seafloor imaging, and shallow and medium 
penetration sub-bottom profiling. The HRG surveys may be conducted 
using any or all of the following equipment types: side scan sonar, 
multibeam echosounder, gradiometers, parametric sub-bottom profiler, or 
sparkers. TerraSond assumes that HRG survey operations would be 
conducted 24 hours per day, with an assumed daily survey distance of 
100 km. This average distance per day was calculated by TerraSond from 
the maximum achievable survey distance assuming 24-hour survey 
operations and an average vessel speed of 3.5 knots (6.5 km/hour) and 
then reducing from there based on prior experience to account for 
expected downtime related to weather,

[[Page 66663]]

equipment malfunction, and other factors.
    Both activity components (Central Atlantic and New York Bight) 
would also include geotechnical sampling activities, in addition to HRG 
survey activities. Geotechnical sampling activities, including use of 
vibracores and seabed core penetration tests, would occur during the 
same period as the HRG survey activities, and may entail use of 
additional survey vessels and/or take place from the same vessels used 
for HRG survey activities. NMFS does not expect geotechnical sampling 
activities to present reasonably anticipated risk of causing incidental 
take of marine mammals, and these activities are not discussed further 
in this notice.
    The only acoustic source planned for use during HRG survey 
activities proposed by TerraSond with expected potential to cause 
incidental take of marine mammals is the sparker. Sparkers are medium 
penetration, impulsive sources used to map deeper subsurface 
stratigraphy, and which may be operated with different numbers of 
electrode tips to allow tuning of the acoustic waveform for specific 
applications. Sparkers create omnidirectional acoustic pulses from 50 
Hz to 4 kHz, and are typically towed behind the vessel. The sparker 
system planned for use is the Applied Acoustics Dura-Spark UHRS 400 + 
400 (electrode tips), which is essentially two of the same Applied 
Acoustics Dura-Spark sources stacked on top of each other creating two 
``decks'' to the sparker. However, the decks will not be discharged 
simultaneously, but will be used in an alternating ``flip-flop'' 
pattern (as discussed below). Thus, for all source configurations 
below, the maximum power expected when discharging the sparker source 
(single deck) will be 800 Joules (J). Crocker and Fratantonio (2016) 
measured the Applied Acoustics Dura-Spark, but did not provide data for 
an energy setting near 800 J (for a 400-tip configuration, Crocker and 
Fratantonio (2016) provide measurements at 500 and 2,000 J). Therefore, 
TerraSond proposes to use a similar alternative system, which was 
measured with an input voltage of 750 J, as a surrogate. NMFS concurs 
with this selection, which is described in Table 1.

                                                    Table 1--Summary of Representative HRG Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Operating                                        Pulse duration
               Equipment                   frequency     SLrms (dB re 1    SL0-pk (dB re 1      (width)       Repetition         Beamwidth (degrees)
                                             (kHz)          [mu]Pa m)         [mu]Pa m)      (millisecond)   rate (second)
--------------------------------------------------------------------------------------------------------------------------------------------------------
SIG ELC 820 sparker (750 J) \1\.......         0.3-1.2               203               213             1.1            0.25  Omni.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[mu]Pa = micropascal; dB = decibel; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; SL = source level; SPL =
  root-mean-square sound pressure level.
\1\ Proxy for Applied Acoustics Dura-Spark UHRS (800 J).

    Operation of the following additional survey equipment types is not 
expected to present reasonable risk of marine mammal take, and will not 
be discussed further beyond the brief summaries provided below.
     Non-impulsive, parametric SBPs are used for providing high 
data density in sub-bottom profiles that are typically required for 
cable routes, very shallow water, and archaeological surveys. These 
sources generate short, very narrow-beam (1[deg] to 3.5[deg]) signals 
at high frequencies (generally around 85-115 kHz). The narrow beamwidth 
significantly reduces the potential that a marine mammal could be 
exposed to the signal, while the high frequency of operation means that 
the signal is rapidly attenuated in seawater (and cannot be heard by 
mysticetes). These sources are typically deployed on a pole rather than 
towed behind the vessel.
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by the vessel transceiver and a transponder 
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several 
transponders mounted on other survey equipment. USBLs are expected to 
produce extremely small acoustic propagation distances in their typical 
operating configuration.
     Multibeam echosounders (MBESs) are used to determine water 
depths and general bottom topography. The proposed MBESs all have 
operating frequencies greater than 180 kHz and are therefore outside 
the general hearing range of marine mammals.
     Side scan sonars (SSS) are used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The proposed SSSs all have operating 
frequencies greater than 180 kHz and are therefore outside the general 
hearing range of marine mammals.
    Central Atlantic--The Central Atlantic activity component includes 
two different survey phases that may occur involving different survey 
line spacing and potential survey equipment tow configurations. There 
are two possible survey methods that may be used during Phase 1, which 
the applicant refers to as Alternative 1 and Alternative 2. Alternative 
1 would involve the use of a single source vessel towing one sparker 
source composed of two ``decks'' of 400 electrode tips each stacked on 
top of each other. The two decks would be discharged in alternating 
fashion such that only one deck is discharged at a time. Alternative 2 
would involve the use of a single source vessel towing 3 of the same 
sparker sources with a horizontal separation between the sources of 150 
m. Alternative 1 would require acquisition along 58,607 km of 
trackline, while Alternative 2 would require acquisition along 19,536 
km of trackline. Only one of these two methods would be used for survey 
acquisition. Phase 2 would involve a single vessel towing two of the 
same sparker sources with a horizontal separation between the sources 
of 30 m, and would require acquisition along 46,573 km of trackline. At 
an assumed 100 km per day, Phase 1 would require approximately 586 or 
195 days, depending on which Alternative is ultimately used, and Phase 
2 would require approximately 466 days. Therefore, the Central Atlantic 
portion of survey effort is expected to require either 661 or 1,052 
survey days. Up to a total of four source vessels may be active 
concurrently to accomplish this.
    New York Bight--The New York Bight activity component includes 
three different survey phases that may occur involving different survey 
line spacing and potential survey equipment tow configurations. Phase 1 
involves the use of a single source vessel towing one sparker source 
composed of two ``decks'' of 400 electrode tips each stacked on top of 
each other. As discussed above, the two decks will

[[Page 66664]]

typically be discharged in alternating fashion such that only one deck 
is discharged at a time. Phases 2 and 3 would involve a single vessel 
towing two of the same sparker sources with a horizontal separation 
between the sources of 30 m. These Phases involve acquisition along 
14,833, 200, and 23,311 km of trackline, respectively, requiring a 
total of approximately 385 days. Up to a total of three source vessels 
may be active concurrently to accomplish this.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' Stock Assessment Reports 
(SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these 
species (e.g., physical and behavioral descriptions) may be found on 
NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs). While no serious injury or mortality is expected to occur, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species or 
stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All stocks managed under the MMPA in this region 
are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values 
presented in Table 2 are the most recent available at the time of 
publication (2021 SARs) and are available online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                              Table 2--Species Likely Impacted by the Specified Activities
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                                                                                                              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 Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale.....  Eubalaena glacialis...  Western North Atlantic  E/D; Y                  368 (0; 364; 2019)           0.7        7.7
                                                              (WNA).                                          \5\.
Family Balaenopteridae (rorquals):
    Humpback whale.................  Megaptera novaeangliae  Gulf of Maine.........  -/-; Y                  1,393 (0; 1,380;              22      12.15
                                                                                                              2016).
    Minke whale....................  Balaenoptera            Canadian East Coast...  -/-; N                  21,968 (0.31; 17,002;        170       10.6
                                      acutorostrata.                                                          2016).
    Sei whale......................  Balaenoptera borealis.  Nova Scotia...........  E/D; Y                  6,292 (1.02; 3,098;          6.2        0.8
                                                                                                              2016).
    Fin whale......................  Balaenoptera physalus.  WNA...................  E/D; Y                  6,802 (0.24; 5,573;           11        1.8
                                                                                                              2016).
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                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Ziphiidae (beaked whales):
    Cuvier's beaked whale..........  Ziphius cavirostris...  WNA...................  -; N                    5,744 (0.36; 4,282;           43        0.2
                                                                                                              2016).
    Mesoplodont beaked whales\6\...  Mesoplodon spp........  WNA...................  -; N                    10,107 (0.27; 8,085;          81        0.4
                                                                                                              2016).
Family Physeteridae:
    Sperm whale....................  Physeter macrocephalus  North Atlantic........  E/D; Y                  4,349 (0.28; 3,451;          3.9          0
                                                                                                              2016).
Family Delphinidae:
Rough-toothed dolphin..............  Steno bredanensis.....  WNA...................  -; N                    136 (1.0; 67; 2016)..        0.7          0
    Bottlenose dolphin.............  Tursiops truncatus....  WNA Offshore..........  -/-; N                  62,851 (0.23; 51,914;        519         28
                                                                                                              2016).
 
WNA Northern Migratory Coastal.....  -/D;Y.................  6,639 (0.41, 4,759,     48                      12.2-21.5............
                                                              2016).
    Atlantic spotted dolphin.......  Stenella frontalis....  WNA...................  -/-; N                  39,921 (0.27; 32,032;        320          0
                                                                                                              2016).
    Common dolphin.................  Delphinus delphis.....  WNA...................  -/-; N                  172,974 (0.21;             1,452        390
                                                                                                              145,216; 2016).
    Atlantic white-sided dolphin...  Lagenorhynchus acutus.  WNA...................  -/-; N                  93,233 (0.71; 54,443;        544         27
                                                                                                              2016).
    Risso's dolphin................  Grampus griseus.......  WNA...................  -/-; N                  35,215 (0.19; 30,051;        301         34
                                                                                                              2016).
    Short finned pilot whale.......  Globicephala            WNA...................  -/-; N                  28,924 (0.24; 23,637;        236        136
                                      macrorhynchus.                                                          2016).
    Long-finned pilot whale........  G. melas..............  WNA...................  -/-; N                  39,215 (0.30; 30,627;        306          9
                                                                                                              2016).
Family Phocoenidae (porpoises):
    Harbor porpoise................  Phocoena phocoena.....  Gulf of Maine/Bay of    -/-; N                  95,543 (0.31; 74,034;        851        164
                                                              Fundy.                                          2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 66665]]

 
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \4\..................  Halichoerus grypus....  WNA...................  -/-; N                  27,300 (0.22; 22,785,      1,458      4,452
                                                                                                              2016).
    Harbor seal....................  Phoca vitulina........  WNA...................  -/-; N                  61,336 (0.08; 57,637,      1,729        339
                                                                                                              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 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 451,600. 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 (www.fisheries.noaa.gov/species/north-atlantic-right-whale).
\6\ Mesoplodont beaked whales in the U.S. Atlantic include the Gervais beaked whale (M. europaeus), Blainville's beaked whale (M. densirostris),
  Sowerby's beaked whale (M. bidens), and True's beaked whale (M. mirus). These species are difficult to identify to the species level at sea;
  therefore, much of the available characterization for beaked whales is to genus level only and the species are managed together as a stock.

    As indicated above, all 22 species (with 20 managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. Although other species 
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 to what is included in 
Sections 3 and 4 of the application, the SARs, and NMFS' website, 
further detail informing the baseline for select species (i.e., 
information regarding current Unusual Mortality Events (UME) and 
important habitat areas) is provided below.

North Atlantic Right Whale

    Since 2010, the 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. Calf numbers have increased since 2018, 
with twenty right whale calves documented in 2021 and fifteen in 2022. 
As described in Table 2, the current SAR population estimate for North 
Atlantic right whales is 368; however, NMFS has updated its species web 
page to recognize the population estimate for NARWs is below 350 
animals (www.fisheries.noaa.gov/species/north-atlantic-right-whale).
    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017, along the U.S. and Canadian coast. This event has been 
declared an Unusual Mortality Event (UME), with human interactions, 
including entanglement in fixed fishing gear and vessel strikes, 
implicated in at least 31 of the mortalities or serious injuries thus 
far. As of October 20, 2022, a total of 91 confirmed cases of 
mortality, serious injury, or morbidity (sublethal injury or illness) 
have been documented. The preliminary cause of most of these cases is 
from rope entanglements or vessel strikes. More information is 
available online at: www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-north-atlantic-right-whale-unusual-mortality-event.
    The proposed survey area is part of a migratory corridor 
Biologically Important Area (BIA) for North Atlantic right whales 
(effective March-April and November-December) that extends from 
Massachusetts to Florida (LeBrecque et al., 2015). The migratory 
corridor covers the survey area, extending from the coast to beyond the 
shelf break. This important migratory area is approximately 269,488 
km\2\ in size (compared with the approximately 12,671 km\2\ of total 
planned survey area) and is comprised of the waters of the continental 
shelf offshore the East Coast of the United States, extending from 
Florida through Massachusetts. NMFS does not expect that the potential 
acoustic effects of the planned survey activity are likely to 
meaningfully impact North Atlantic right whale migratory behavior 
through this corridor.

Humpback Whale

    NMFS recently evaluated the status of the species, and on September 
8, 2016, NMFS divided the species into 14 distinct population segments 
(DPS), removed the species-level listing, and in its place listed four 
DPSs as endangered and one DPS as threatened (81 FR 62260, September 8, 
2016). The remaining nine DPSs were not listed. The West Indies DPS, 
which is not listed under the ESA, is the only DPS of humpback whale 
that is expected to occur in the survey area. Bettridge et al. (2015) 
estimated the size of this population at 12,312 (95 percent CI 8,688-
15,954) whales in 2004-05, which is consistent with previous population 
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; 
Smith et al., 1999) and the increasing trend for the West Indies DPS 
(Bettridge et al., 2015). Whales occurring in the survey area are 
considered to be from the West Indies DPS, but are not necessarily from 
the Gulf of Maine feeding population managed as a stock by NMFS.
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. Partial or 
full necropsy examinations have been conducted on approximately half of 
the 161 known cases to date. Of the whales examined, about 50 percent 
had evidence of human interaction, either ship strike or entanglement. 
While a portion of the whales have shown evidence of pre-mortem vessel 
strike, this finding is not consistent across all whales examined and 
more research is needed. NOAA is consulting with researchers that are 
conducting studies on the humpback whale populations, and these efforts 
may provide information on changes in whale distribution and habitat 
use that could

[[Page 66666]]

provide additional insight into how these vessel interactions occurred. 
More information is available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2022-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Minke Whale

    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 123 strandings to date. 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/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast.

Seals

    Since June 2022, elevated numbers of harbor seal and gray seal 
mortalities have occurred across the southern and central coast of 
Maine. This event has been declared a UME. Preliminary testing of 
samples has found some harbor and gray seals positive for highly 
pathogenic avian influenza.
    The above event was preceded by a different UME occurring between 
2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July 
2018, elevated numbers of harbor seal and gray seal mortalities 
occurred across Maine, New Hampshire and Massachusetts. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers, therefore the UME investigation 
encompassed all seal strandings from Maine to Virginia. A total of 
3,152 reported strandings (of all species) had occurred from July 1, 
2018, through March 13, 2020. Full or partial necropsy examinations 
have been conducted on some of the seals and samples have been 
collected for testing. Based on tests conducted thus far, the main 
pathogen found in the seals is phocine distemper virus. NMFS is 
performing additional testing to identify any other factors that may be 
involved in this UME, which is pending closure. Information on this UME 
is available online at: www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

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

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
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 mid-Atlantic region, 
including the New York Bight and Central Atlantic areas (e.g., 85 FR 
36537, June 17, 2020; 85 FR 37848, June 24, 2020; 85 FR 48179, August 
10, 2020; 87 FR 38067, June 27, 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 this 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

[[Page 66667]]

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.

Summary on Specific Potential Effects of Acoustic Sound Sources

    Underwater sound from active acoustic sources can include one or 
more of the following: temporary or permanent hearing impairment, 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 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).
    Animals in the vicinity of TerraSond's proposed HRG survey activity 
are unlikely to incur even TTS due to the characteristics of the sound 
sources, which include relatively low source levels and generally very 
short pulses and potential duration of exposure. These characteristics 
mean that instantaneous exposure is unlikely to cause TTS, as it is 
unlikely that exposure would occur close enough to the vessel for 
received levels to exceed peak pressure TTS criteria, and that the 
cumulative duration of exposure would be insufficient to exceed 
cumulative sound exposure level (SEL) criteria. Even for high-frequency 
cetacean species (e.g., harbor porpoises), which have the greatest 
sensitivity to potential TTS, individuals would have to make a very 
close approach and also remain very close to vessels operating these 
sources in order to receive multiple exposures at relatively high 
levels, as would be necessary to cause TTS. Intermittent exposures--as 
would occur due to the brief, transient signals produced by these 
sources--require a higher cumulative SEL to induce TTS than would 
continuous exposures of the same duration (i.e., intermittent exposure 
results in lower levels of TTS). Moreover, most marine mammals would 
more likely avoid a loud sound source rather than swim in such close 
proximity as to result in TTS. Kremser et al. (2005) noted that the 
probability of a cetacean swimming through the area of exposure when a 
sub-bottom profiler emits a pulse is small--because if the animal was 
in the area, it would have to pass the transducer at close range in 
order to be subjected to sound levels that could cause TTS and would 
likely exhibit avoidance behavior to the area near the transducer 
rather than swim through at such a close range.
    Behavioral disturbance may include a variety of effects, including 
subtle changes in behavior (e.g., minor or brief avoidance of an area 
or changes in vocalizations), more conspicuous changes in similar 
behavioral activities, and more sustained and/or potentially severe 
reactions, such as displacement from or abandonment of high-quality 
habitat. Behavioral responses to sound are highly variable and context-
specific and any reactions depend on numerous intrinsic and extrinsic 
factors (e.g., species, state of maturity, experience, current 
activity, reproductive state, auditory sensitivity, time of day), as 
well as the interplay between factors. Available studies show wide 
variation in response to underwater sound; therefore, it is difficult 
to predict specifically how any given sound in a particular instance 
might affect marine mammals perceiving the signal.
    In addition, sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, navigation). Masking occurs when the receipt of a 
sound is interfered with by another coincident sound at similar 
frequencies and at similar or higher intensity, and may occur whether 
the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., shipping, sonar, seismic 
exploration) in origin.
    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. Finally, the HRG survey equipment will not have 
significant impacts to the seafloor and does not represent a source of 
pollution.

Vessel Strike

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

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers,'' and the negligible impact 
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);

[[Page 66668]]

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 sound produced by the sparker. Based 
primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor proposed to be authorized. 
Consideration of the anticipated effectiveness of the mitigation 
measures (i.e., Shutdown zones and shutdown measures), discussed in 
detail below in the Proposed Mitigation section, further strengthens 
the conclusion that Level A harassment is not a reasonably anticipated 
outcome of the survey activity. As described previously, no serious 
injury or mortality is anticipated or 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 160 dB (referenced 
to 1 micropascal (re 1 [mu]Pa)) for impulsive (e.g., seismic airguns) 
or intermittent (e.g., scientific sonar) sources. Generally speaking, 
Level B harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by TTS as, in most 
cases, the likelihood of TTS occurs at distances from the source less 
than those at which behavioral harassment is likely. TTS of a 
sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavior patterns that would not otherwise occur.
    TerraSond's proposed activity includes the use of impulsive 
(sparker) sources, and therefore the RMS SPL thresholds of 160 dB re 1 
[mu]Pa is applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). 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.
    TerraSond's proposed activity includes the use of impulsive (i.e., 
sparkers) sources. However, as discussed above, NMFS has concluded that 
Level A harassment is not a reasonably likely outcome for marine 
mammals exposed to noise through use of the sources proposed for use 
here, and the potential for Level A harassment is not evaluated further 
in this document. Please see TerraSond's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated Level A harassment exposures. 
TerraSond did not request authorization of take by Level A harassment, 
and no take by Level A harassment is proposed for authorization by 
NMFS.

Ensonified Area

    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 estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality (when relevant) to refine estimated ensonified 
zones. For acoustic sources that operate with different beamwidths, the 
maximum beamwidth is used, and the lowest frequency of the source is 
used when calculating the frequency-dependent absorption coefficient 
(Table 1). The sparkers proposed for use by TerraSond are 
omnidirectional and, therefore, beamwidth does not factor into the 
calculations.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 provides relevant source 
parameters used in the calculations. Results of modeling using the 
methodology described above

[[Page 66669]]

produced an estimated Level B harassment isopleth 141 m.
    Central Atlantic--Phase 1, Alternative 1 would involve a single 
towed source, and daily ensonified area was calculated as follows: (100 
km x 2 x 0.141 km) + ([pi] x (0.141\2\ km). Distributing the 58,607 km 
of Phase 1, Alternative 1 survey activity across the 12-month period of 
anticipated activity results in approximately 48.8 survey days per 
month, which was multiplied by the daily ensonified area to give a 
monthly ensonified area of 1,380 km. Phase 1, Alternative 2 would 
involve three towed sources with 150 m horizontal separation between 
them. Daily ensonified area was calculated as follows: (100 km x 2 x 
(0.141 km + 0.15 km) + ([pi] x (0.291\2\ km). Distributing the 19,536 
km of Phase 1, Alternative 2 survey activity across the 12-month period 
of anticipated activity results in approximately 16.3 survey days per 
month, which was multiplied by the daily ensonified area to give a 
monthly ensonified area of 952 km\2\. Because only one of the 
alternatives would ultimately be selected, the monthly ensonified area 
associated with Alternative 1 was used to estimate potential marine 
mammal take for Phase 1.
    Phase 2 would involve two towed sources with 30 m horizontal 
separation between them. Daily ensonified area was calculated as 
follows: (100 km x 2 x (0.141 km + 0.015 km) + ([pi] x (0.156\2\ km). 
Distributing the 46,573 km of Phase 2 survey activity across the 12-
month period of anticipated activity results in approximately 38.8 
survey days per month, which was multiplied by the daily ensonified 
area to give a monthly ensonified area of 1,214 km\2\.
    New York Bight--Phase 1 would involve a single towed source, and 
ensonified area was calculated in the same manner as described above 
for Central Atlantic Phase 1, Alternative 1. Distributing the 14,833 km 
of Phase 1 survey activity across the 12-month period of anticipated 
activity results in approximately 12.4 survey days per month, which was 
multiplied by the daily ensonified area to give a monthly ensonified 
area of 349 km\2\. Phases 2 and 3 would each use a dual source 
configuration with a horizontal separation distance of 30 m between the 
sources, and ensonified area was calculated in the same manner as 
described above for Central Atlantic Phase 2. For Phase 2, TerraSond 
assumes that there would be two days of survey activity, giving a total 
ensonified area of 62.6 km\2\. Distributing the combined 23,311 km of 
Phase 3 survey activity across the 12-month period of anticipated 
activity results in approximately 19.4 survey days per month, which was 
multiplied by the daily ensonified area to give a monthly ensonified 
area of 608 km\2\.

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 and Halpin, 2022) represent the 
best available information regarding marine mammal densities in the 
survey area. These density data incorporate aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporate 
data from numerous physiographic and 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, the models have been updated based on additional data 
as well as certain methodological improvements. More information is 
available online at https://seamap.env.duke.edu/models/Duke/EC/. Marine 
mammal density estimates in the survey area (animals/km\2\) were 
obtained using the most recent model results for all taxa.
    In order to select a representative sample of grid cells in and 
near each survey area, TerraSond created a 10-km wide perimeter around 
each area (Figures 1 and 2) in GIS. The perimeter was then used to 
select grid cells in and around each area containing the monthly or 
annual estimates for each species. The average monthly abundance for 
each species in the each area was calculated as the mean value of the 
selected grid cells in each month. See Tables 10 and 11 in TerraSond's 
application for density values used in the analysis.
    Density information is presented for seals generically. In order to 
generate species-specific density values, TerraSond multiplied seal 
density values by the proportion of total SAR-estimated seal abundance 
attributed to each species. Roberts and Halpin (2022) similarly provide 
generic density information for pilot whales and bottlenose dolphin. In 
the Central Atlantic survey area, where both species of pilot whales 
could be encountered, TerraSond requested that the density-based take 
estimate be divided equally across the two species. In the New York 
Bight survey area, only the long-finned pilot whale is expected to be 
present, and all estimated takes are attributed to that species. For 
bottlenose dolphin, although the northern coastal migratory stock could 
be present in the region, all survey effort is in sufficiently deep 
water (20-65 m) that we assume all potential bottlenose dolphin takes 
are appropriately assigned to the offshore stock.
    Densities from each of the selected density blocks were averaged 
for each month available to provide monthly density estimates for each 
species (when available based on the temporal resolution of the model 
products), along with the average annual density. Please see Tables 7 
and 8 of TerraSond's application for density values used in the 
exposure estimation process for the Lease Area and the potential ECRs, 
respectively. Note that no density estimates are available for the 
portion of the ECR area in Delaware Bay, so the marine mammal densities 
from the density models of Roberts et al. were assumed to apply to this 
area. Additional data regarding average group sizes from survey effort 
in the region was considered to ensure adequate take estimates are 
evaluated.

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.
    Estimates of the potential number of takes by Level B harassment 
were calculated by multiplying the monthly density for each species in 
the respective survey areas (Central Atlantic and New York Bight) by 
the respective monthly ensonified area for each Phase and then summing 
across the 12 months. TerraSond evaluated monitoring reports from the 
vicinity of the survey areas, finding that the common dolphin estimated 
take number for the New York Bight survey area may be underestimated. 
Based on these observational data, TerraSond assumes that 16 common 
dolphins may be encountered within the harassment zone on each survey 
data. Based on the planned 385 survey days in the New York Bight survey 
area, this produces an estimate of 6,160 takes. This larger value is 
substituted for the density-based take estimate for common dolphins. 
Table 4 provides information about the take estimates and take proposed 
for authorization.

[[Page 66670]]



                                        Table 4--Estimated Take Numbers and Total Take Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Estimated       Estimated                                 Percent abundance
                           Species                             take--Central  take--New York   Proposed take -------------------------------------------
                                                                 Atlantic          Bight       authorization   Phase 1    Phase 2    Phase 1    Phase 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..................................             5.1             4.5             1.9        0.0        3.3         15        4.1
Humpback whale..............................................            21.6            19.0             4.0        0.1        7.0         52        3.7
Minke whale.................................................            30.7            27.0            14.7        0.2       25.5         98        0.4
Sei whale...................................................             4.9             4.3             1.2        0.0        2.2         13        0.2
Fin whale...................................................            44.1            38.8             8.0        0.1       14.0        105        1.5
Cuvier's beaked whale.......................................            29.1            25.6               0          0          0         55        1.0
Mesoplodont beaked whales...................................             5.7             5.0               0          0          0         11        0.1
Sperm whale.................................................            16.0            14.1             0.6          0        1.1         32        0.7
Rough-toothed dolphin\1\....................................             2.0             1.6               0          0          0         10        7.4
Bottlenose dolphin..........................................         1,427.7         1,255.6           116.6        1.8      202.8      3,005        4.8
Atlantic spotted dolphin....................................           605.6           532.6            20.9        0.3       36.3      1,196        3.0
Common dolphin \2\..........................................         5,097.1         4,482.4           597.5        8.9    1,039.1     11,225        6.5
Atlantic white-sided dolphin................................           117.6           103.4            45.1        0.7       78.4        345        0.4
Risso's dolphin.............................................           171.9           151.2             5.7        0.1        9.9        339        1.0
Short-finned pilot whale....................................           238.8           210.1               0          0          0        449        1.6
Long-finned pilot whale.....................................           238.9           210.0            11.1        0.2       19.3        480        1.2
Harbor porpoise.............................................           124.0           109.1           102.1        1.5      177.6        514        0.5
Gray seal...................................................           439.7           386.7            60.6        0.9      105.4        993        0.2
Harbor seal.................................................           237.5           208.9           136.2        2.0      236.9        822        1.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ For rough-toothed dolphin, we propose to authorize take in the form of one encounter with a group of average size, as assumed average group size
  (10) is larger than the total estimated take number (4). Mean group sizes were calculated from regional sightings data (Whitt et al., 2015; Kraus et
  al., 2016; Palka et al., 2017).
\2\ For common dolphin, estimated take numbers for the New York Bight survey area were calculated based on an assumption (based on monitoring data from
  the area) that 16 dolphins per day could be encountered within the harassment zone. These values were larger than and used instead of the results of
  density-based calculations.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, 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, as 
well as subsistence uses. This considers the nature of the potential 
adverse impact being mitigated (likelihood, scope, range). It further 
considers the likelihood that the measure will be effective if 
implemented (probability of accomplishing the mitigating result if 
implemented as planned), the likelihood of effective implementation 
(probability implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, and impact on 
operations.
    NMFS proposes that the following mitigation measures be implemented 
during TerraSond's planned marine site characterization surveys. 
Pursuant to section 7 of the ESA, TerraSond 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 (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).

Visual Monitoring and Shutdown Zones

    During survey operations (e.g., any day on which use of the sparker 
source is planned to occur, and whenever the sparker source is in the 
water, whether activated or not), a minimum of one visual marine mammal 
observer (PSO) must be on duty on each source vessel and conducting 
visual observations at all times during daylight hours (i.e., from 30 
minutes prior to sunrise through 30 minutes following sunset). A 
minimum of two PSOs must be on duty on each source vessel during 
nighttime hours. Visual monitoring must begin no less than 30 minutes 
prior to ramp-up (described below) and must continue until one hour 
after use of the sparker source ceases.
    Visual PSOs shall coordinate to ensure 360[deg] visual coverage 
around the vessel from the most appropriate observation posts and shall 
conduct visual observations using binoculars and the naked eye while 
free from distractions and in a consistent, systematic, and diligent 
manner. PSOs shall establish and monitor applicable shutdown zones (see 
below). These zones shall be based upon the radial distance from the 
sparker source (rather than being based around the vessel itself).
    Two shutdown zones are defined, depending on the species and 
context. Here, an extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 meters from the sparker 
source (0-500 meters) is defined for North Atlantic right whales. For 
all other marine mammals, the shutdown zone encompasses a standard 
distance of 100 meters (0-100 meters). Any observations of marine 
mammals by crew members aboard any vessel associated with the survey 
shall be relayed to the PSO team.
    Visual PSOs may be on watch for a maximum of four consecutive hours 
followed by a break of at least one hour between watches and may 
conduct a maximum of 12 hours of observation per 24-hour period.

[[Page 66671]]

Pre-Start Clearance and Ramp-Up

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
sparker source when technically feasible. Operators should ramp up 
sparkers to half power for 5 minutes and then proceed to full power. A 
30-minute pre-start clearance observation period must occur prior to 
the start of ramp-up. The intent of pre-start clearance observation (30 
minutes) is to ensure no marine mammals are within the shutdown zones 
prior to the beginning of ramp-up. The intent of ramp-up is to warn 
marine mammals of pending operations and to allow sufficient time for 
those animals to leave the immediate vicinity. All operators must 
adhere to the following pre-start clearance and ramp-up requirements:
     The operator must notify a designated PSO of the planned 
start of ramp-up as agreed upon with the lead PSO; the notification 
time should not be less than 60 minutes prior to the planned ramp-up in 
order to allow the PSOs time to monitor the shutdown zones for 30 
minutes prior to the initiation of ramp-up (pre-start clearance). 
During this 30 minute pre-start clearance period the entire shutdown 
zone must be visible, except as indicated below.
     Ramp-ups shall be scheduled so as to minimize the time 
spent with the source activated.
     A visual PSO conducting pre-start clearance observations 
must be notified again immediately prior to initiating ramp-up 
procedures and the operator must receive confirmation from the PSO to 
proceed.
     Any PSO on duty has the authority to delay the start of 
survey operations if a marine mammal is detected within the applicable 
pre-start clearance zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that mitigation commands are conveyed swiftly 
while allowing PSOs to maintain watch.
     The pre-start clearance requirement is waived for small 
delphinids and pinnipeds. Detection of a small delphinid (individual 
belonging to the following genera of the Family Delphinidae: Steno, 
Delphinus, Lagenorhynchus, Stenella, and Tursiops) or pinniped within 
the shutdown zone does not preclude beginning of ramp-up, unless the 
PSO confirms the individual to be of a genus other than those listed, 
in which case normal pre-clearance requirements apply.
     If there is uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which the pre-clearance 
requirement is waived), PSOs may use best professional judgment in 
making the decision to call for a shutdown.
     Ramp-up may not be initiated if any marine mammal to which 
the pre-start clearance requirement applies is within the shutdown 
zone. If a marine mammal is observed within the shutdown zone during 
the 30 minute pre-start clearance period, ramp-up may not begin until 
the animal(s) has been observed exiting the zones or until an 
additional time period has elapsed with no further sightings (30 
minutes for all baleen whale species and sperm whales and 15 minutes 
for all other species).
     PSOs must monitor the shutdown zones 30 minutes before and 
during ramp-up, and ramp-up must cease and the source must be shut down 
upon observation of a marine mammal within the applicable shutdown 
zone.
     Ramp-up may occur at times of poor visibility, including 
nighttime, if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 minutes prior to beginning ramp-
up. Sparker activation may only occur at night where operational 
planning cannot reasonably avoid such circumstances.
     If the acoustic source is shut down for brief periods 
(i.e., less than 30 minutes) for reasons other than implementation of 
prescribed mitigation (e.g., mechanical difficulty), it may be 
activated again without ramp-up if PSOs have maintained constant visual 
observation and no detections of marine mammals have occurred within 
the applicable shutdown zone. For any longer shutdown, pre-start 
clearance observation and ramp-up are required.

Shutdown

    All operators must adhere to the following shutdown requirements:
     Any PSO on duty has the authority to call for shutdown of 
the sparker source if a marine mammal is detected within the applicable 
shutdown zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
source to ensure that shutdown commands are conveyed swiftly while 
allowing PSOs to maintain watch.
     When the sparker source is active and a marine mammal 
appears within or enters the applicable shutdown zone, the source must 
be shut down. When shutdown is instructed by a PSO, the source must be 
immediately deactivated and any dispute resolved only following 
deactivation.
     The shutdown requirement is waived for small delphinids 
and pinnipeds. If a small delphinid (individual belonging to the 
following genera of the Family Delphinidae: Steno, Delphinus, 
Lagenorhynchus, Stenella, and Tursiops) or pinniped is visually 
detected within the shutdown zone, no shutdown is required unless the 
PSO confirms the individual to be of a genus other than those listed, 
in which case a shutdown is required.
     If there is uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which shutdown is waived or 
one of the species with a larger shutdown zone), PSOs may use best 
professional judgment in making the decision to call for a shutdown.
     Upon implementation of shutdown, the source may be 
reactivated after the marine mammal has been observed exiting the 
applicable shutdown zone or following a clearance period (30 minutes 
for all baleen whale species and sperm whales and 15 minutes for all 
other species) with no further detection of the marine mammal.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone, shutdown would occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel should use an appropriate 
reference guide that includes identifying information on all marine 
mammals that may be encountered. Vessel operators must comply with the 
below measures except under extraordinary circumstances when the safety 
of the vessel or crew is in doubt or the safety of life at sea is in 
question. These requirements do not apply in any case where compliance 
would create an imminent and serious threat to a person or vessel or to 
the extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.
     Vessel operators and crews must maintain a vigilant watch 
for all marine mammals and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any marine mammal. A single marine mammal at the surface may indicate 
the presence of submerged animals in the vicinity of the vessel; 
therefore, precautionary measures

[[Page 66672]]

should always be exercised. A visual observer aboard the vessel must 
monitor a vessel strike avoidance zone around the vessel (species-
specific distances detailed below). Visual observers monitoring the 
vessel strike avoidance zone may be third-party observers (i.e., PSOs) 
or crew members, but crew members responsible for these duties must be 
provided sufficient training to (1) distinguish marine mammal from 
other phenomena and (2) broadly to identify a marine mammal as a right 
whale, other whale (defined in this context as sperm whales or baleen 
whales other than right whales), or other marine mammals.
     All vessels, regardless of size, must observe a 10-knot 
speed restriction in specific areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes. These 
include all Seasonal Management Areas (SMA) (when in effect), any 
dynamic management areas (DMA) (when in effect), and Slow Zones. See 
www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail 
regarding these areas.
     Vessel speeds must also be reduced to 10 knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from right whales. If a right whale is sighted within the 
relevant separation distance, the vessel must steer a course away at 10 
knots or less until the 500-m separation distance has been established. 
If a whale is observed but cannot be confirmed as a species other than 
a right whale, the vessel operator must assume that it is a right whale 
and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from sperm whales and all other baleen 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, reduce speed and shift 
the engine to neutral). This does not apply to any vessel towing gear 
or any vessel that is navigationally constrained.
    Members of the PSO team will consult NMFS' North Atlantic right 
whale reporting system and Whale Alert, daily and as able, for the 
presence of North Atlantic right whales throughout survey operations, 
and for the establishment of DMAs and/or Slow Zones. It is TerraSond's 
responsibility to maintain awareness of the establishment and location 
of any such areas and to abide by these requirements accordingly.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on 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 activity; 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.
    TerraSond must use independent, dedicated, trained PSOs, meaning 
that the PSOs must be employed by a third-party observer provider, must 
have no tasks other than to conduct observational effort, collect data, 
and communicate with and instruct relevant vessel crew with regard to 
the presence of marine mammal and mitigation requirements (including 
brief alerts regarding maritime hazards), and must have successfully 
completed an approved PSO training course for geophysical surveys. 
Visual monitoring must be performed by qualified, NMFS-approved PSOs. 
PSO resumes must be provided to NMFS for review and approval prior to 
the start of survey activities.
    PSO names must be provided to NMFS by the operator for review and 
confirmation of their approval for specific roles prior to commencement 
of the survey. For prospective PSOs not previously approved, or for 
PSOs whose approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be

[[Page 66673]]

designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, who would coordinate 
duty schedules and roles for the PSO team and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or 
greater) a written and/or oral examination developed for the training 
program.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    TerraSond must work with the selected third-party PSO provider to 
ensure PSOs have all equipment (including backup equipment) needed to 
adequately perform necessary tasks, including accurate determination of 
distance and bearing to observed marine mammals, and to ensure that 
PSOs are capable of calibrating equipment as necessary for accurate 
distance estimates and species identification. Such equipment, at a 
minimum, shall include:
     At least one thermal (infrared) imagine device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global Positioning Units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least 
one plus backups). The camera or lens should also have an image 
stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-party PSO provider, or the operator, but TerraSond is 
responsible for ensuring PSOs have the proper equipment required to 
perform the duties specified in the IHA.
    The PSOs will be responsible for monitoring the waters surrounding 
the survey vessel to the farthest extent permitted by sighting 
conditions, including shutdown zones, during all HRG survey operations. 
PSOs will visually monitor and identify marine mammals, including those 
approaching or entering the established shutdown zones during survey 
activities. It will be the responsibility of the PSO(s) on duty to 
communicate the presence of marine mammals as well as to communicate 
the action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to shutdown zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology must be available for use. 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 should also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard the vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements (see Proposed Reporting 
Measures). This would include dates, times, and locations of survey 
operations; dates and times of observations, location and weather; 
details of marine mammal sightings (e.g., species, numbers, behavior); 
and details of any observed marine mammal behavior that occurs (e.g., 
noted behavioral disturbances).

Proposed Reporting Measures

    TerraSond shall submit a draft summary report on all activities and 
monitoring results within 90 days of the completion of the survey or 
expiration of the IHA, whichever comes sooner. The report must describe 
all activities conducted and sightings of marine mammals, must provide 
full documentation of methods, results, and interpretation pertaining 
to all monitoring, and must summarize the dates and locations of survey 
operations and all marine mammals sightings (dates, times, locations, 
activities, associated survey activities). The draft report shall also 
include geo-referenced, time-stamped vessel tracklines for all time 
periods during which acoustic sources were operating. Tracklines should 
include points recording any change in acoustic source status (e.g., 
when the sources began operating, when they were turned off, or when 
they changed operational status such as from full array to single gun 
or vice versa). GIS files shall be provided in ESRI shapefile format 
and include the UTC date and time, latitude in decimal degrees, and 
longitude in decimal degrees. All coordinates shall be referenced to 
the WGS84 geographic coordinate system. In addition to the report, all 
raw observational data shall be made available. The report must 
summarize the information. A final report must be submitted within 30 
days following resolution of any comments on the draft report. All 
draft and final marine mammal monitoring reports must be submitted to 
[email protected] and [email protected].
    PSOs must use standardized electronic data forms to record data. 
PSOs shall record detailed information about any implementation of 
mitigation requirements, including the distance of marine mammal to the 
acoustic source and description of specific actions that ensued, the 
behavior of the animal(s), any observed changes in behavior before and 
after implementation of mitigation, and if shutdown was implemented, 
the length of time before any subsequent ramp-up of the acoustic 
source. If required mitigation was not implemented, PSOs should record 
a description of the circumstances. At a minimum, the following 
information must be recorded:
    1. Vessel name (source vessel), vessel size and type, maximum speed 
capability of vessel;

[[Page 66674]]

    2. Dates of departures and returns to port with port name;
    3. PSO names and affiliations;
    4. Date and participants of PSO briefings;
    5. Visual monitoring equipment used;
    6. PSO location on vessel and height of observation location above 
water surface;
    7. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    8. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    9. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval;
    10. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    11. Water depth (if obtainable from data collection software);
    12. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    13. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions); and
    14. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.).
    15. Upon visual observation of any marine mammal, the following 
information must be recorded:
    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    c. PSO who sighted the animal;
    d. Time of sighting;
    e. Initial detection method;
    f. Sightings cue;
    g. Vessel location at time of sighting (decimal degrees);
    h. Direction of vessel's travel (compass direction);
    i. Speed of the vessel(s) from which the observation was made;
    j. 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;
    k. Species reliability (an indicator of confidence in 
identification);
    l. Estimated distance to the animal and method of estimating 
distance;
    m. Estimated number of animals (high/low/best);
    n. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    o. 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);
    p. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    q. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    r. Equipment operating during sighting;
    s. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and
    t. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on the project vessel, during surveys or during vessel 
transit, TerraSond must report the sighting information to the NMFS 
North Atlantic Right Whale Sighting Advisory System (866-755-6622) 
within 2 hours of occurrence, when practicable, or no later than 24 
hours after occurrence. North Atlantic right whale sightings in any 
location may also be reported to the U.S. Coast Guard via channel 16 
and through the WhaleAlert app (www.whalealert.org).
    In the event that personnel involved in the survey activities 
discover an injured or dead marine mammal, the incident must be 
reported to NMFS as soon as feasible by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]). The report must include the 
following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the event of a ship strike of a marine mammal by any vessel 
involved in the activities, TerraSond must report the incident to NMFS 
by phone (866-755-6622) and by email ([email protected] and 
[email protected]) as soon as feasible. The report must 
include the following information:
    1. Time, date, and location (latitude/longitude) of the incident;
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Vessel's speed during and leading up to the incident;
    4. Vessel's course/heading and what operations were being conducted 
(if applicable);
    5. Status of all sound sources in use;
    6. Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    7. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    8. Estimated size and length of animal that was struck;
    9. Description of the behavior of the marine mammal immediately 
preceding and/or following the strike;
    10. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    11. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    12. To the extent practicable, photographs or video footage of the 
animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact

[[Page 66675]]

finding is based on the lack of likely adverse effects on annual rates 
of recruitment or survival (i.e., population-level effects). An 
estimate of the number of takes alone is not enough information on 
which to base an impact determination. In addition to considering 
estimates of the number of marine mammals that might be ``taken'' 
through harassment, NMFS considers other factors, such as the likely 
nature of any impacts or responses (e.g., intensity, duration), the 
context of any impacts or responses (e.g., critical reproductive time 
or location, foraging impacts affecting energetics), as well as effects 
on habitat, and the likely effectiveness of the mitigation. We also 
assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Table 2, given that the anticipated effects of 
this project on different marine mammal stocks are expected to be 
relatively similar in nature. Where there are meaningful differences 
between species or stocks, or groups of species, in anticipated 
individual responses to activities, impact of expected take on the 
population due to differences in population status, or impacts on 
habitat, they are included as a separate sub-sections. Specifically, we 
provide additional discussion related to North Atlantic right whale and 
to other species currently experiencing UMEs.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result of 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 short-term Level B behavioral 
harassment, e.g., 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, Ellison et al., 2012). As described above, Level 
A harassment is not expected to occur given the nature of the 
operations, the estimated size of the Level A harassment zones, and the 
required shutdown zones for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a 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 survey 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the proposed survey 
area and there are no feeding areas known to be biologically important 
to marine mammals within the proposed survey area. There is no 
designated critical habitat for any ESA-listed marine mammals in the 
proposed survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As noted 
previously, elevated North Atlantic right whale mortalities began in 
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 
survey area overlaps a migratory corridor BIA for North Atlantic right 
whales that extends from Massachusetts to Florida and from the coast to 
beyond the shelf break. Due to the fact that the proposed survey 
activities are temporary and the spatial extent of sound produced by 
the survey would be small relative to the spatial extent of the 
available migratory habitat in the BIA, right whale migration is not 
expected to be impacted by the proposed survey. Given the relatively 
small size of the ensonified area, it is unlikely that prey 
availability would be adversely affected by HRG survey operations. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration; no ship strike is expected to occur 
during TerraSond's proposed activities. Additionally, only very limited 
take by Level B harassment of North Atlantic right whales has been 
requested and is being proposed for authorization by NMFS as HRG survey 
operations are required to maintain and implement a 500 m shutdown 
zone. The 500 m shutdown zone for right whales is conservative, 
considering the Level B harassment isopleth for the acoustic source 
(i.e., sparker) is estimated to be 141 m, and thereby minimizes the 
potential for behavioral harassment of this species. As noted 
previously, Level A harassment is not expected due to the small 
estimated zones in conjunction with the aforementioned shutdown 
requirements. NMFS does not anticipate North Atlantic right whales 
takes that would result from TerraSond's proposed activities would 
impact annual rates of recruitment or survival. Thus, any takes that 
occur would not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of TerraSond's proposed survey areas. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since 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 2017, elevated minke whale strandings have occurred 
along the Atlantic coast from Maine through South Carolina, with 
highest numbers in Massachusetts, Maine, and New York. This event does 
not provide cause for concern regarding population level impacts, as 
the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed between 2018-2020 and, as part of a separate UME, again 
in 2022. These have occurred across Maine, New Hampshire, and 
Massachusetts. Based on tests conducted so far, the main

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pathogen found in the seals is phocine distemper virus (2018-2020) and 
avian influenza (2022), although additional testing to identify other 
factors that may be involved in the UMEs is underway. The UMEs do not 
provide cause for concern regarding population-level impacts to any of 
these stocks. For harbor seals, the population abundance is over 60,000 
and annual M/SI (339) is well below PBR (1,729) (Hayes et al., 2021). 
The population abundance for gray seals in the United States is over 
27,000, with an estimated abundance, including seals in Canada, of 
approximately 450,000. In addition, the abundance of gray seals is 
likely increasing in the U.S. Atlantic as well as in Canada (Hayes et 
al., 2021).
    The required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in Table 2, 
including those with active UMEs, to the level of least practicable 
adverse impact. In particular, they would provide animals the 
opportunity to move away from the sound source 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 (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 the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or proposed 
for authorization;
     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 areas 
during the planned survey to avoid exposure to sounds from the 
activity;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the ensonified area;
     While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, avoidance of the survey area due 
to the activities is not anticipated and would not likely affect 
migration. In addition, mitigation measures require shutdown at 500 m 
(almost four times the size of the Level B harassment isopleth of 141 
m) to minimize the effects of any Level B harassment take of the 
species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
other 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 previously, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    The amount of take NMFS proposes to authorize is below one-third of 
the estimated stock abundance for all species (total take is less than 
7.5 percent of the abundance of the affected stocks for all species, 
see Table 4). The figures presented in Table 4 are considered 
conservative estimates for purposes of the small numbers determination 
as they assume all takes represent different individual animals, which 
is unlikely to be the case.
    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 consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS Office of Protected Resources 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 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 TerraSond for conducting site characterization survey 
activity in the described Central Atlantic and New York Bight survey 
areas, provided the previously mentioned mitigation, monitoring, and 
reporting requirements

[[Page 66677]]

are incorporated. A draft of the proposed IHA can be found at: 
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. 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, 1 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: October 31, 2022.
Catherine G. Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-23983 Filed 11-3-22; 8:45 am]
BILLING CODE 3510-22-P