[Federal Register Volume 88, Number 61 (Thursday, March 30, 2023)]
[Notices]
[Pages 19075-19088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06594]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC667]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Offshore of New Jersey and New York

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

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

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SUMMARY: NMFS has received a request from Atlantic Shores Offshore 
Wind, LLC (Atlantic Shores) for authorization to take marine mammals 
incidental to marine site characterization offshore of New Jersey and 
New York in the Bureau of Ocean Energy Management (BOEM) Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS) Lease Area OCS-A 0499 and OCS-A 0549 and 
associated export cable route (ECR) area. The activities described in 
Atlantic Shores' request, the overall survey duration, the project 
location, and the acoustic sources proposed for use are identical to 
what was previously analyzed in support of the IHA issued by NMFS to 
Atlantic Shores for the 2022 site characterization surveys (2022 IHA). 
All proposed mitigation, monitoring, and reporting requirements remain 
the same. While Atlantic Shores' planned activity would qualify for 
renewal of the 2022 IHA, due to the availability of updated marine 
mammal density data (https://seamap.env.duke.edu/models/Duke/EC/), 
which NMFS has determined represents the best available scientific 
data. NMFS has determined it appropriate to provide a 30-day period for 
the public to comment on this proposed action. Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an IHA to incidentally take marine mammals during the 
specified activities. NMFS is also requesting comments on a possible 
one-year renewal IHA 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

[[Page 19076]]

agency responses will be summarized in the final notice of our 
decision.

DATES: Comments and information must be received no later than May 1, 
2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments 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. Attachments to comments will be 
accepted in Microsoft Word, Excel, or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://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: Kelsey Potlock, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. 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 issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be 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 such 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 such takings are set forth.

National Environmental Policy Act

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

History of Request

    On August 16, 2021, NMFS received a request from Atlantic Shores 
for an IHA to take marine mammals incidental to high-resolution 
geophysical (HRG) marine site characterization surveys offshore of New 
Jersey and New York in the area of BOEM Commercial Lease of Submerged 
Lands for Renewable Energy Development on the OCS-A 0499 and associated 
ECR area. Atlantic Shores requested authorization to take small numbers 
of up to 15 species of marine mammals, comprising 13 cetacean species 
and two pinniped species, by Level B harassment only. NMFS published a 
notice of the proposed IHA in the Federal Register on January 27, 2022 
(87 FR 4200). After a 30-day public comment period and consideration of 
all public comments received, we subsequently issued the IHA on April 
22, 2022 (87 FR 24103), which is effective from April 20, 2022 through 
April 19, 2023. A minor correction notice was published on May 5, 2022 
(87 FR 26726).
    Atlantic Shores conducted the required marine mammal mitigation and 
monitoring and did not exceed the authorized levels of take under 
previous IHAs issued for surveys offshore of New York and New Jersey 
(see 85 FR 21198, April 16, 2020 and 86 FR 21289, April 22, 2021). 
These previous monitoring results are available to the public on our 
website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization.
    On December 27, 2022, NMFS received a request from Atlantic Shores 
for an IHA to take marine mammals incidental to HRG marine site 
characterization surveys offshore of New Jersey and New York in the 
areas of BOEM Commercial Lease of Submerged Lands for Renewable Energy 
Development on the OCS Lease Area OCS-A 0499 and OCS-A 0549 and 
associated ECR area (Note BOEM segmented Lease Area OCS-A 0499 into 
Lease Areas OCS-A 0499 and 0549; thus, the physical lease area is the 
same as described in the 2022 IHA. More information can be found on 
BOEM's website (https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549). Following NMFS' review of 
the application, Atlantic Shores submitted a revised request. The 
application was deemed adequate and complete on January 10, 2023 (the 
2023 Request). Atlantic Shores' request is for take of 15 species of 
marine mammals, comprising 13 cetacean and 2 pinniped stocks, by Level 
B harassment only. Neither Atlantic Shores nor NMFS, expect serious 
injury or mortality to result from this activity, and therefore, an IHA 
is appropriate. Take by Level A harassment (injury) is considered 
unlikely, even absent mitigation, based on the characteristics of the 
signals produced by the acoustic sources planned for use.
    This request is identical to the 2022 IHA. However, NMFS has 
determined a renewal of the 2022 IHA is not appropriate due to Duke 
University's Marine Geospatial Ecology Laboratory's

[[Page 19077]]

updated marine mammal density information (June 20, 2022) for all 
species in the project area (https://seamap.env.duke.edu/models/Duke/EC/). NMFS relies substantially herein, as appropriate, on the 
information previously presented in notices associated with issuance of 
the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103, April 22, 
2022).

Description of the Proposed Activity and Anticipated Impacts

Overview

    Atlantic Shores proposes to conduct geotechnical and HRG marine 
site characterization surveys in BOEM Lease Areas OCS-A 0499 and OCS-A-
0549 and along potential submarine ECRs (ECRs North and South) to 
landfall locations in either New York or New Jersey. The purpose of the 
proposed surveys are to support the site characterization, siting, and 
engineering design of offshore wind project facilities, including wind 
turbine generators, offshore substations, and submarine cables within 
the Lease Areas and along the ECRs. As many as three survey vessels may 
operate concurrently as part of the proposed surveys. During survey 
effort, the vessels would operate at a maximum speed of 3.5 knots (4 
miles per hour). Underwater sound resulting from Atlantic Shores' 
proposed activities has the potential to result in incidental take of 
marine mammals in the form of Level B harassment.

Dates and Duration

    The proposed activity is planned to begin once an IHA is issued and 
estimated to require up to 360 survey days across a maximum of three 
vessels operating concurrently over the course of the one year period 
of effectiveness of the proposed IHA (Table 1). A ``survey day'' is 
defined as a 24-hour activity period in which active acoustic sound 
sources are used. This schedule is inclusive of any inclement weather 
downtime and crew transfers. It is expected that each vessel would 
cover approximately 55 kilometers (km) of track line per day based on 
Atlantic Shores' data acquisition efficiency expectations.

    Table 1--Number of Survey Days That Atlantic Shores Plans To Perform the Described HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                         Survey area   Number of active survey days expected
                                                         \1\
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Lease Areas.........................  OCS-A-0499.............              50  120 days total.
                                      OCS-A-0549.............              70
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Export Cable Route North (ECR North)....................180..
Export Cable Route South (ECR South).....................60..
----------------------------------------------------------------------------------------------------------------
\1\ Surveys in each area may temporally overlap; therefore, actual number of days of activity in a given year
  may be less than 360.

Specific Geographic Region

    Atlantic Shores' proposed activities would occur in the Northwest 
Atlantic Ocean within Federal and state waters offshore of New York and 
New Jersey in BOEM Lease Area OCS-A 0499 and OCS-A 0549 and associated 
ECR area to landfall locations in New York or New Jersey (see Figure 
1). Overall, the survey area is approximately 1,450,006 acres (5,868 
square kilometers (km\2\)) and extends approximately 24 nautical miles 
(44 km) offshore. Water depths in the Lease Areas and surrounding ECRs 
are estimated to be approximately 5 to 40 meters (m; 16 to 131 feet 
(ft)).
    NMFS notes that while this proposed IHA would occur on two Lease 
Areas (0499 and 0549) and the 2022 IHA occurred on only one Lease Area 
(0499), this is the result of the BOEM's segregation of 0499 into two 
lease areas (i.e., 0499 and 0549). However, the planned survey activity 
would occur in the same location as the 2022 IHA (see Figure 1). 
Furthermore, the survey area is the same size as the survey area under 
the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103, April 22, 
2022). More information can be found on BOEM's website (https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549).
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Figure 1--Map of the Proposed Survey Area

Detailed Description of the Action

    A detailed description of the proposed specified activities can be 
found in the previous Federal Register notices (87 FR 4200, January 27, 
2022; 87 FR 24103, April 22, 2022) and supplementary documents. The 
specific geographic region; duration (360 total

[[Page 19079]]

survey days); and nature of the specified activities, including the 
types of HRG equipment planned for use (sparkers and CHIRPs), daily 
trackline distances (55 km per day), and number of survey vessels (up 
to three operating concurrently), are identical to those described in 
the previous notices.
    Atlantic Shores plans to conduct geotechnical surveys, which 
consists of identical activities (i.e., drilling of sample boreholes, 
deep cone penetration tests (CPTs), and shallow CPTs) previously 
described in its application for the 2022 IHA (87 FR 4200, January 27, 
2022 and 87 FR 24103, April 22, 2022);. Consistent with NMFS' previous 
analysis of these activities, no take of marine mammals is expected to 
occur as a result of geotechnical survey activities. As a result, these 
activities will not be discussed further herein.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
can be found in the previous documents and notices for the 2022 IHA (87 
FR 4200, January 27, 2022; 87 FR 24103, April 22, 2022), which remains 
applicable to this proposed IHA. NMFS reviewed the most recent draft 
Stock Assessment Reports (SARs, found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), up-to-date information on relevant Unusual 
Mortality Events (UMEs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events), and recent 
scientific literature and determined that no new information affects 
our original analysis of impacts under the 2022 IHA.
    NMFS notes that, since issuance of the 2022 IHA, a new SAR is 
available for the North Atlantic right whale (NARW). Estimated 
abundance for the species declined from 368 to 338. However, this 
change does not affect our analysis of impacts, as described under the 
2022 IHA. Additionally, on August 1, 2022, NMFS announced proposed 
changes to the existing NARW vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered NARWs 
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. The responsibility to 
comply with the applicable requirements of any vessel speed rule would 
become effective immediately upon the effective date of any final 
vessel speed rule and, when notice is published of the effective date, 
NMFS would also notify Atlantic Shores if the measures in the speed 
rule were to supersede any of the measures in the MMPA authorization 
such that they were no longer applicable

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103, 
April 22, 2022). At present, there is no new information on potential 
effects that would impact our analysis.

Estimated Take

    A detailed description of the methods used to estimate take 
anticipated to occur incidental to the project is found in the previous 
Federal Register notices (87 FR 4200, January 27, 2022; 87 FR 24103, 
April 22, 2022). The methods of estimating take are identical to those 
used in the 2022 IHA. We updated the marine mammal densities based on 
new information (Roberts et al., 2016; Roberts and Halpin, 2022), 
available online at: https://seamap.env.duke.edu/models/Duke/EC/. We 
refer the reader to Table 4 in the ITA Request from Atlantic Shores for 
specific density values used in the analysis. The ITA request is 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The take that NMFS proposes for authorization can be found in Table 
2 below. Table 2 presents the results of Atlantic Shores' density-based 
calculations for the combined Lease Area (0499 and 0549) and the two 
ECRs (North and South). For comparative purposes, we have provided the 
2022 IHA authorized take (87 FR 24103, April 22, 2022; 87 FR 26726, May 
5, 2022). NMFS notes that take by Level A harassment was not requested 
nor does NMFS anticipate that it could occur. Therefore, NMFS has not 
proposed to authorize any take by Level A harassment. Mortality or 
serious injury is neither anticipated to occur nor proposed for 
authorization.
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Proposed Mitigation

    The proposed mitigation measures are identical to those included in 
the Federal Register notice announcing the final 2022 IHA (87 FR 24103, 
April 22, 2022; 87 FR 26726, May 5, 2022) and the discussion of the 
least practicable adverse impact included in that document remains 
accurate. The measures proposed for inclusion in this IHA are found 
below.
    Atlantic Shores must also abide by all the marine mammal relevant 
conditions in the NOAA Fisheries Greater Atlantic Regional Office 
(GARFO) programmatic consultation (specifically Project Design Criteria 
(PDC) 4, 5, and 7) regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions (NOAA 
GARFO, 2021; https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation), pursuant to Section 7 of the 
Endangered Species Act.
Marine Mammal Exclusion Zones and Level B Harassment Zones
    Marine mammal Exclusion Zones will be established around the HRG 
survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive: 
sparkers; non-impulsive: non-parametric sub-bottom profilers), a 
minimum of one PSO must be on duty, per source vessel, during daylight 
hours and two PSOs must be on duty, per source vessel, during nighttime 
hours. These PSO will monitor Exclusion Zones based upon the radial 
distance from the acoustic source rather than being based around the 
vessel itself. The Exclusion Zone distances are as follows:
     A 500 m Exclusion Zone for NARWs during use of specified 
acoustic sources (impulsive: sparkers; non-impulsive: non-parametric 
sub-bottom profilers).
     A 100 m Exclusion Zone for all other marine mammals 
(excluding NARWs) during use of specified acoustic sources (except as 
specified below).
    All visual monitoring must begin no less than 30 minutes prior to 
the initiation of the specified acoustic source and must continue until 
30 minutes after use of specified acoustic sources ceases.
    If a marine mammal were detected approaching or entering the 
Exclusion Zones during the HRG survey, the vessel operator will adhere 
to the shutdown procedures described below to minimize noise impacts on 
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.
Ramp-Up of Survey Equipment and Pre-Clearance of the Exclusion Zones
    When technically feasible, a ramp-up procedure will be used for HRG 
survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. A ramp-up of sources will begin with the 
powering up of the smallest acoustic HRG equipment at half power for 
five minutes and then proceed to full power. The ramp-up procedure will 
be used in order to provide additional protection to marine mammals 
near the survey area by allowing them to vacate the area prior to the 
commencement of survey equipment operation at full power. When 
technically feasible, the power will then be gradually turned up and 
other acoustic sources would be added. All ramp-ups shall be scheduled 
so as to minimize the time spent with the source being activated.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective Exclusion Zone. Ramp-up will continue if the animal has been 
observed exiting its respective Exclusion Zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals; 30 minutes for all other species).
    Atlantic Shores will implement a 30-minute pre-clearance period of 
the Exclusion Zones prior to the initiation of ramp-up of HRG 
equipment. The operator must notify a designated PSO of the planned 
start of ramp-up where the notification time should not be less than 60 
minutes prior to the planned ramp-up. This will allow the PSOs to 
monitor the Exclusion Zones for 30 minutes prior to the initiation of 
ramp-up. Prior to ramp-up beginning, Atlantic Shores must receive 
confirmation from the PSO that the Exclusion Zone is clear prior to 
proceeding. During this 30-minute pre-start clearance period, the 
entire applicable Exclusion Zones must be visible. The exception to 
this would be in situations where ramp-up may occur during periods of 
poor visibility (inclusive of nighttime) as long as appropriate visual 
monitoring has occurred with no detections of marine mammals in 30 
minutes prior to the beginning of ramp-up. Acoustic source activation 
may only occur at night where operational planning cannot reasonably 
avoid such circumstances.
    During this period, the Exclusion Zone will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective Exclusion 
Zone. If a marine mammal is observed within an Exclusion Zone during 
the pre-clearance period, ramp-up may not begin until the animal(s) has 
been observed exiting its respective Exclusion Zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and pinnipeds; 30 minutes for all other 
species). If a marine mammal enters the Exclusion Zone during ramp-up, 
ramp-up activities must cease and the source must be shut down. Any PSO 
on duty has the authority to delay the start of survey operations if a 
marine mammal is detected within the applicable pre-start clearance 
zones.
    The pre-clearance zones will be:
     500 m for all ESA-listed species (North Atlantic right, 
sei, fin, sperm whales); and
     100 m for all other marine mammals.
    If any marine mammal species that are listed under the ESA are 
observed within the clearance zones, the 30-minute clock must be 
paused. If the PSO confirms the animal has exited the zone and headed 
away from the survey vessel, the 30-minute clock that was paused may 
resume. The pre-clearance clock will reset to 30 minutes if the animal 
dives or visual contact is otherwise lost.
    If the acoustic source is shut down for brief periods (i.e., less 
than 30 minutes) for reasons other than implementation of prescribed 
mitigation (e.g., mechanical difficulty), it may be activated again 
without ramp-up if PSOs have maintained constant visual observation and 
no detections of marine mammals have occurred within the applicable 
Exclusion Zone. For any longer shutdown, pre-start clearance 
observation and ramp-up are required.
    Activation of survey equipment through ramp-up procedures may not 
occur when visual detection of marine mammals within the pre-clearance 
zone is not expected to be effective (e.g., during inclement conditions 
such as heavy rain or fog).
    The acoustic source(s) must be deactivated when not acquiring data 
or preparing to acquire data, except as necessary for testing. 
Unnecessary use of the acoustic source shall be avoided.
Shutdown Procedures
    An immediate shutdown of the impulsive HRG survey equipment will be 
required if a marine mammal is

[[Page 19083]]

sighted entering or within its respective Exclusion Zone(s). Any PSO on 
duty has the authority to call for a shutdown of the acoustic source if 
a marine mammal is detected within the applicable Exclusion Zones. Any 
disagreement between the PSO and vessel operator should be discussed 
only after shutdown has occurred. The vessel operator would establish 
and maintain clear lines of communication directly between PSOs on duty 
and crew controlling the HRG source(s) to ensure that shutdown commands 
are conveyed swiftly while allowing PSOs to maintain watch.
    The shutdown requirement is waived for small delphinids (belonging 
to the genera of the Family Delpinidae: Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) and pinnipeds if they are visually detected 
within the applicable Exclusion Zones. If a species for which 
authorization has not been granted, or, a species for which 
authorization has been granted but the authorized number of takes have 
been met, approaches or is observed within the applicable Level B 
harassment zone, shutdown will occur. In the event of uncertainty 
regarding the identification of a marine mammal species (i.e., such as 
whether the observed marine mammal belongs to Delphinus, 
Lagenorhynchus, Stenella, or Tursiops for which shutdown is waived, 
PSOs must use their best professional judgement in making the decision 
to call for a shutdown.
    Specifically, if a delphinid from the specified genera or a 
pinniped is visually detected approaching the vessel (i.e., to bow 
ride) or towed equipment, shutdown is not required.
    Upon implementation of a shutdown, the source may be reactivated 
after the marine mammal has been observed exiting the applicable 
Exclusion Zone or following a clearance period of 15 minutes for harbor 
porpoises and 30 minutes for all other species where there are no 
further detections of the marine mammal.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., parametric sub-bottom profilers) other than non-parametric sub-
bottom profilers (e.g., CHIRPs). Pre-clearance and ramp-up, but not 
shutdown, are required when using non-impulsive, non-parametric sub-
bottom profilers.
Seasonal Operating Requirements
    As described in the in the Federal Register notice announcing the 
final 2022 IHA (87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022), 
a section of the survey area partially overlaps with a portion of a 
North Atlantic right whale seasonal management area (SMA) off the port 
of New York/New Jersey. This SMA is active from November 1 through 
April 30 of each year. All survey vessels, regardless of length, would 
be required to adhere to vessel speed restrictions (<10 knots) when 
operating within the SMA during times when the SMA is active. In 
addition, between watch shifts, members of the monitoring team would 
consult NMFS' NARW reporting systems for the presence of NARWs 
throughout survey operations. Members of the monitoring team would also 
monitor the NMFS NARW reporting systems for the establishment of 
Dynamic Management Areas (DMA). NMFS may also establish voluntary right 
whale Slow Zones any time a right whale (or whales) is acoustically 
detected. Atlantic Shores should be aware of this possibility and 
remain attentive in the event a Slow Zone is established nearby or 
overlapping the survey area (Table 3).

      Table 3--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                      Restrictions Within the Survey Areas
----------------------------------------------------------------------------------------------------------------
           Survey area                  Species        DMA restrictions       Slow zones       SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area......................  North Atlantic      If established by NMFS, all of          N/A.
ECR North.......................   right whale         Atlantic Shores' vessels will abide    November 1 through
ECR South.......................   (Eubalaena          by the described restrictions.          July 31 (Raritan
                                   glacialis).                                                 Bay).
                                                                                              N/A.
----------------------------------------------------------------------------------------------------------------
Note: More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS'
  website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales.

    There are no known marine mammal rookeries or mating or calving 
grounds in the survey area that would otherwise potentially warrant 
increased mitigation measures for marine mammals or their habitat (or 
both). The survey activities would occur in an area that has been 
identified as a biologically important area for migration for NARWs. 
However, given the small spatial extent of the survey area relative to 
the substantially larger spatial extent of the right whale migratory 
area and the relatively low amount of noise generated by the survey, 
the survey is not expected to appreciably reduce the quality of 
migratory habitat nor to negatively impact the migration of NARWs, thus 
mitigation to address the survey's occurrence in NARW migratory habitat 
is not warranted.
Vessel Strike Avoidance
    Vessel operators must comply with the below measures except under 
extraordinary circumstances when the safety of the vessel or crew is in 
doubt or the safety of life at sea is in question. These requirements 
do not apply in any case where compliance would create an imminent and 
serious threat to a person or vessel or to the extent that a vessel is 
restricted in its ability to maneuver and, because of the restriction, 
cannot comply.
    Survey vessel crewmembers responsible for navigation duties will 
receive site-specific training on marine mammals sighting/reporting and 
vessel strike avoidance measures. Vessel strike avoidance measures 
would include the following, except under circumstances when complying 
with these requirements would put the safety of the vessel or crew at 
risk:
     Atlantic Shores will ensure that vessel operators and crew 
maintain a vigilant watch for cetaceans and pinnipeds and slow down, 
stop their vessels, or alter course, as appropriate and regardless of 
vessel size, to avoid striking any marine mammal. A single marine 
mammal at the surface may indicate the presence of additional submerged 
animals in the vicinity of the vessel; therefore, precautionary 
measures should always be exercised. A visual observer aboard the 
vessel must monitor a vessel strike avoidance zone around the vessel 
(species-specific distances detailed below). Visual observers 
monitoring the vessel strike avoidance zone may be third-party 
observers (i.e., PSOs) or crew members, but crew members responsible 
for these duties must be provided sufficient training to (1) 
distinguish marine mammal from other phenomena, and (2)

[[Page 19084]]

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 NARWs from vessel strikes, 
including seasonal management areas (SMAs) and dynamic management areas 
(DMAs) when in effect. See www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales 
for specific detail regarding these areas.
     All vessels must reduce their speed to 10-knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel;
     All vessels must maintain a minimum separation distance of 
500 m (1,640 ft) from right whales and other ESA-listed species. If an 
ESA-listed species is sighted within the relevant separation distance, 
the vessel must steer a course away at 10-knots or less until the 500 m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species that is not ESA-listed, the vessel 
operator must assume that it is an ESA-listed species and take 
appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m (328 ft) from non-ESA-listed baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m (164 ft) from 
all other marine mammals, with an understanding that, at times, this 
may not be possible (e.g., for animals that approach the vessel, bow-
riding species).
     When marine mammal are sighted while a vessel is underway, 
the vessel shall take action as necessary to avoid violating the 
relevant separation distance (e.g., attempt to remain parallel to the 
animal's course, avoid excessive speed or abrupt changes in direction 
until the animal has left the area, reduce speed and shift the engine 
to neutral). This does not apply to any vessel towing gear or any 
vessel that is navigationally constrained.
    Members of the monitoring team will consult NMFS NARW reporting 
system and Whale Alert, daily and as able, for the presence of NARWs 
throughout survey operations, and for the establishment of a DMA. If 
NMFS should establish a DMA in the survey area during the survey, the 
vessels will abide by speed restrictions in the DMA.
Training
    All PSOs must have completed a PSO training program and received 
NMFS approval to act as a PSO for geophysical surveys. Documentation of 
NMFS approval and most recent training certificates of individual PSOs' 
successful completion of a commercial PSO training course must be 
provided upon request. Further information can be found at 
www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers.
    Atlantic Shores shall instruct relevant vessel personnel with 
regard to the authority of the marine mammal monitoring team, and shall 
ensure that relevant vessel personnel and the marine mammal monitoring 
team participate in a joint onboard briefing (hereafter PSO briefing), 
led by the vessel operator and lead PSO, prior to beginning survey 
activities to ensure that responsibilities, communication procedures, 
marine mammal monitoring protocols, safety and operational procedures, 
and IHA requirements are clearly understood. This PSO briefing must be 
repeated when relevant new personnel (e.g., PSOs, acoustic source 
operator) join the survey operations before their responsibilities and 
work commences.
    Survey-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. All vessel crew members must be 
briefed in the identification of protected species that may occur in 
the survey area and in regulations and best practices for avoiding 
vessel collisions. Reference materials must be available aboard all 
survey vessels for identification of listed species. The expectation 
and process for reporting of protected species sighted during surveys 
must be clearly communicated and posted in highly visible locations 
aboard all survey vessels, so that there is an expectation for 
reporting to the designated vessel contact (such as the lookout or the 
vessel captain), as well as a communication channel and process for 
crew members to do so. Prior to implementation with vessel crews, the 
training program will be provided to NMFS for review and approval. 
Confirmation of the training and understanding of the requirements will 
be documented on a training course log sheet. Signing the log sheet 
will certify that the crew member understands and will comply with the 
necessary requirements throughout the survey activities.

Proposed Monitoring and Reporting

    The proposed monitoring and reporting requirements are identical to 
those included in the Federal Register notice announcing the final 2022 
IHA (87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022). The 
measures proposed for inclusion in this IHA are found below.

Monitoring Measures

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

[[Page 19085]]

PSO with the most experience, would coordinate duty schedules and roles 
for the PSO team, and serve as primary point of contact for the vessel 
operator. To the maximum extent practicable, the duty schedule shall be 
planned such that unconditionally-approved PSOs are on duty with 
conditionally-approved PSOs.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or 
greater) a written and/or oral examination developed for the training 
program.
    PSOs must coordinate to ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and shall conduct 
visual observations using binoculars or night-vision equipment and the 
naked eye while free from distractions and in a consistent, systematic, 
and diligent manner.
    PSOs may be on watch for a maximum of four consecutive hours 
followed by a break of at least two hours between watches and may 
conduct a maximum of 12 hours of observation per 24-hour period.
    Any observations of marine mammal by crew members aboard any vessel 
associated with the survey shall be relayed to the PSO team.
    Atlantic Shores 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 
millimeter (mm) or equivalent on a full-frame single lens reflex (SLR) 
(at least one plus backups). The camera or lens should also have an 
image stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-part PSO provider, or the operator, but Atlantic Shores is 
responsible for ensuring PSOs have the proper equipment required to 
perform the duties specified in the IHA.
    During good conditions (e.g., daylight hours; Beaufort sea state 3 
or less), PSOs shall conduct observations when the specified acoustic 
sources are not operating for comparison of sighting rates and behavior 
with and without use of the specified acoustic sources and between 
acquisition periods, to the maximum extent practicable.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including Exclusion Zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established Exclusion Zones 
during survey activities. It will be the responsibility of the PSO(s) 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    Atlantic Shores plans to utilize six PSOs across each vessel to 
account for shift changes, with a total of 18 during these surveys (six 
PSOs per vessel x three vessels). At a minimum, during all HRG survey 
operations (e.g., any day on which use of an HRG source is planned to 
occur), one PSO must be on duty during daylight operations on each 
survey vessel, conducting visual observations at all times on all 
active survey vessels during daylight hours (i.e., from 30 minutes 
prior to sunrise through 30 minutes following sunset) and two PSOs will 
be on watch during nighttime operations. The PSO(s) would ensure 
360[deg] visual coverage around the vessel from the most appropriate 
observation posts and would conduct visual observations using 
binoculars and/or night vision goggles and the naked eye while free 
from distractions and in a consistent, systematic, and diligent manner. 
PSOs may be on watch for a maximum of four consecutive hours followed 
by a break of at least two hours between watches and may conduct a 
maximum of 12 hours of observation per 24-hr period. In cases where 
multiple vessels are surveying concurrently, any observations of marine 
mammals would be communicated to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Exclusion Zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team.
    Data on all PSO observations would be recorded based on standard 
PSO collection requirements (see Reporting Measures). This would 
include dates, times, and locations of survey operations; dates and 
times of observations, location and weather; details of marine mammal 
sightings (e.g., species, numbers, behavior); and details of any 
observed marine mammal behavior that occurs (e.g., noted behavioral 
disturbances).

Reporting Measures

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

[[Page 19086]]

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 submitted in 
interim monthly reports (if required) as well as additional data 
collected. A final report must be submitted within 30 days following 
resolution of any comments on the draft report. All draft and final 
marine mammal and acoustic 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 names (source vessel and other vessels associated with 
survey), vessel size and type, maximum speed capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. The lease number;
    4. PSO names and affiliations;
    5. Date and participants of PSO briefings;
    6. Visual monitoring equipment used;
    7. PSO location on vessel and height of observation location above 
water surface;
    8. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    9. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    10. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval
    11. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    12. Water depth (if obtainable from data collection software);
    13. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    14. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions); and
    15. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.).
    Upon visual observation of any marine mammal, the following 
information must be recorded:
    1. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    2. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    3. PSO who sighted the animal;
    4. Time of sighting;
    5. Initial detection method;
    6. Sightings cue;
    7. Vessel location at time of sighting (decimal degrees);
    8. Direction of vessel's travel (compass direction);
    9. Speed of the vessel(s) from which the observation was made;
    10. Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level or unidentified); also note the composition of 
the group if there is a mix of species;
    11. Species reliability (an indicator of confidence in 
identification);
    12. Estimated distance to the animal and method of estimating 
distance;
    13. Estimated number of animals (high/low/best);
    14. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    15. Description (as many distinguishing features as possible of 
each individual seen, including length, shape, color, pattern, scars, 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    16. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    17. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    18. Equipment operating during sighting;
    19. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and
    20. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a NARW is observed at any time by PSOs or personnel on any 
survey vessels, during surveys or during vessel transit, Atlantic 
Shores must report the sighting information to the NMFS North Atlantic 
Right Whale Sighting Advisory System (866-755-6622) within two hours of 
occurrence, when practicable, or no later than 24 hours after 
occurrence. NARW sightings in any location may also be reported to the 
U.S. Coast Guard via channel 16 and through the WhaleAlert app (http://www.whalealert.org).
    In the event that personnel involved in the survey activities 
discover an injured or dead marine mammal, Atlantic Shores must report 
the incident to NMFS as soon as feasible by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]) as soon as feasible. The report must 
include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;

[[Page 19087]]

    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Atlantic 
Shores must report the incident to NMFS by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]) as soon as feasible. The report 
would include the following information:
    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).

Preliminary Determinations

    When issuing the 2022 IHA (87 FR 24103, April 22, 2022), NMFS found 
Atlantic Shores' proposed HRG survey would have a negligible impact to 
species or stocks annual rates of recruitment and survival and the 
amount of taking would be small relative to the population size of such 
species or stocks (less than 6 percent). Atlantic Shores' proposed HRG 
survey activities are identical to those analyzed in support of the 
2022 IHA. Additionally, the potential effects of the activity, taking 
into consideration the proposed mitigation and related monitoring 
measures, are identical to those evaluated in support of the 2022 IHA. 
There is a minor increase in estimated take numbers for six marine 
mammal species and/or stocks (see Table 2). However, the total amount 
of takes proposed for authorization are small relative to the best 
available population size of each species or stock (less than 1 percent 
for 13 stocks; less than 2 percent for 2 stocks; and less than 19 
percent for the remaining stock (Western North Atlantic Migratory 
Coastal Stock of Bottlenose dolphins)). Additionally, only Level B 
harassment is proposed for authorization, which NMFS expects would be 
of a lower severity, predominately in the form of avoidance of the 
sound sources that may cause a temporary abandonment of the location 
during active source use that may result in a temporary interruption of 
foraging activities for some species. NMFS does not expect that the 
proposed activity will have long-term or permanent impacts as the 
acoustic source would be mobile and would leave the area within a 
specific amount of time for which the animals could return to the area. 
Even considering the increased estimated take for some species, the 
impacts of these lower severity exposures are not expected to accrue to 
a degree that the fitness of any individuals would be impacted, and 
therefore, no impacts on the annual rates of recruitment or survival 
are expected to result.
    As previously discussed in the 2022 IHA (87 FR 24103, April 22, 
2022), impacts from the survey are expected to be localized to the 
specific area of activity and only during periods of time where 
Atlantic Shores' acoustic sources are active. While areas of biological 
importance to fin whales, humpback whales, and harbor seals can be 
found off the coast of New Jersey and New York, NMFS does not expect 
these activities to affect these areas. This is due to the combination 
of the mitigation and monitoring measures being required of Atlantic 
Shores as well as the location of these biologically important areas. 
All of these important areas are found outside of the range of this 
survey area, as is the case with fin whales and humpback whales (BIAs 
found further north), and, therefore, not expected to be impacted by 
Atlantic Shores' survey activities. Three major haul-out sites exist 
for harbor seals within ECR North along New Jersey, including at Great 
Bay, Sand Hook, and Barnegat Inlet (CWFNJ, 2015). As hauled out seals 
would be out of the water, no in-water effects are expected.
    Atlantic Shores' project would occur in a small fraction of the 
migratory corridor for the North Atlantic right whale and impacts are 
expected to be limited to low levels of behavioral harassment, 
resulting in temporary and minor behavioral changes during any brief 
period of exposure. As noted for the 2022 IHA (87 FR 24103, April 22, 
2022), the size of the survey area (5,868 km\2\) in comparison with the 
entire migratory habitat for the North Atlantic right whale (BIA of 
269,448 km\2\) is small, representing 2.11 percent of the entire 
migratory corridor. Given the transitory nature of North Atlantic right 
whales in this area and due to the lack of year-round ``core'' North 
Atlantic right whale foraging habitat (Oleson et al., 2020) (such 
habitat is located much further north in the southern area of Martha's 
Vineyard and Nantucket Islands where both visual and acoustic 
detections of North Atlantic right whales indicate a nearly year-round 
presence (Oleson et al., 2020)), it is unlikely for any exposure to 
cause chronic effects as any exposure would be short and intermittent. 
Furthermore, given the small size of the Level B harassment zones (141 
m) and the robust suite of mitigation and monitoring measures proposed 
by NMFS, with specific note on the mitigation zones for North Atlantic 
right whales (exclusion zone; 500 m), NMFS does not expect adverse 
impacts on this species. Lastly, NMFS notes the reduction in requested 
take from the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103, 
April 22, 2022) due to the revised Duke University density data 
(Roberts and Halpin, 2022). Under the 2022 IHA, NMFS authorized 17 
instances of take for North Atlantic right whales. Here, NMFS is 
proposing only three takes by Level B harassment representing less than 
1 percent of the overall species abundance. Given the updates to the 
density for this species in particular during the periods where project 
activities are expected to be ongoing, NMFS expects low-level impacts 
(e.g., temporary avoidance of the area) from this proposed project on 
North Atlantic right whales.
    We also note that our findings for other species with active UMEs 
or species where biologically important areas or haul-outs have been 
previously described in the 2022 IHA remain applicable to this project. 
In conclusion, there is no new information suggesting that our analysis 
or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) the 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a

[[Page 19088]]

negligible impact on the affected marine mammal species or stocks; (3) 
the proposed authorized takes represent small numbers of marine mammals 
relative to the affected stock abundances; (4) Atlantic Shores' 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action, and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act (ESA)

    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 is proposing to authorize the incidental take of four species 
of marine mammals which are listed under the ESA, the North Atlantic 
right, fin, sei, and sperm whale, and has determined that this activity 
falls within the scope of activities analyzed in NMFS Greater Atlantic 
Regional Fisheries Office's 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 Atlantic Shores for conducting HRG marine site 
characterization surveys off New Jersey and New York for a period of 
one year, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated. A draft of the proposed IHA 
can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses (included in both this document 
and the referenced documents supporting the 2022 IHA (ITA application; 
issued IHA; and Federal Register notices including 87 FR 4200, January 
27, 2022; 87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022)), the 
proposed authorization, and any other aspect of this notice of proposed 
IHA for the proposed HRG marine site characterization surveys. We also 
request comment on the potential for 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 our final 
decision on the request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical activities as described in the Description of the 
Proposed Activity and Anticipated Impacts section of this notice is 
planned or (2) the activities as described in the Description of the 
Proposed Activity and Anticipated Impacts 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); 
and
    (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; and
     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: March 24, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-06594 Filed 3-29-23; 8:45 am]
BILLING CODE 3510-22-P