[Federal Register Volume 88, Number 77 (Friday, April 21, 2023)]
[Notices]
[Pages 24553-24573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08504]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC805]


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

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 Attentive Energy, LLC (AE) 
for authorization to take marine mammals incidental to marine site 
characterization surveys in coastal waters off of New York and New 
Jersey in the New York Bight, specifically within the Bureau of Ocean 
Energy Management (BOEM) Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (Lease) 
Area OCS-A 0538 and associated export cable route (ECR) area. Pursuant 
to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments 
on its proposal to issue an incidental harassment authorization (IHA) 
to incidentally take marine mammals during the specified activities. 
NMFS is also requesting comments on a possible one-time, one-year 
renewal that could be issued under certain circumstances and if all 
requirements are met, as described in Request for Public Comments at 
the end of this notice. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorization and agency responses will be summarized in the final 
notice of our decision.

DATES: Comments and information must be received no later than May 22, 
2023.

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: Karolyn Lock, Office of Protected 
Resources, NMFS, (301) 427-8833. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
above.

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 24554]]

National Environmental Policy Act

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

Summary of Request

    On December 28, 2022, NMFS received a request from AE for an IHA to 
take marine mammals incidental to conducting marine site 
characterization surveys in coastal waters off of New York and New 
Jersey in the New York Bight, specifically within the BOEM Lease Area 
OCS-A 0538 and associated ECR area. Following NMFS' review of the 
application, the application was deemed adequate and complete on 
February 22, 2023. AE's request is for take of small numbers of 15 
species (16 stocks) of marine mammals by Level B harassment only. 
Neither AE nor NMFS expect serious injury or mortality to result from 
this activity and, therefore, an IHA is appropriate.

Description of Proposed Activity

Overview

    AE proposes to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) surveys, in coastal waters 
off of New Jersey and New York in the New York Bight, specifically 
within the BOEM Lease Area OCS-A 0538 and associated ECR area.
    The planned marine site characterization surveys are 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 support the site 
characterization, siting, and engineering design of offshore wind 
project facilities including wind turbine generators, offshore 
substations, and submarine cables within the Lease Area. Up to two 
vessels may conduct survey efforts concurrently. Underwater sound 
resulting from AE's marine site characterization survey activities, 
specifically HRG surveys, have the potential to result in incidental 
take of marine mammals in the form of Level B harassment.

Dates and Duration

    The proposed survey is planned to begin no earlier than May 1, 2023 
and estimated to require 201 survey days across a maximum of two 
vessels operating concurrently within a single year. A ``survey day'' 
is defined as a 24-hour (hr) activity period in which active acoustic 
sound sources are used. It is expected that each vessel would cover 
approximately 170 kilometers (km) per day based on the applicant's 
expectations regarding data acquisition efficiency, and there is up to 
21,745 km (13,512 miles) of track line of survey effort planned; 14,025 
km in the Lease Area and 7,720 km in the ECR Area. The IHA would be 
effective for 1 year from the date of issuance.

Specific Geographic Region

    AE's survey activities would occur in coastal waters off of New 
York and New Jersey in the New York Bight, specifically within Lease 
Area OCS-A 0538 and the associated ECR area (Figure 1). The Survey Area 
(i.e., the Lease Area and ECR) is between 1 and 65 meters (m) in water 
depth. The Lease Area does not include water depths below 30 m, only 
portions of the ECR Area does (Figure 2).

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[GRAPHIC] [TIFF OMITTED] TN21AP23.003


[[Page 24556]]


[GRAPHIC] [TIFF OMITTED] TN21AP23.004

Detailed Description of Specified Activity

    AE's marine site characterization surveys include HRG surveys and 
geotechnical sampling activities within the Lease Area and the ECR 
area. The total HRG survey tracklines for the Survey Area is 21,745 km, 
with 14,025 km in the Lease Area and 7,720 km in the ECR Area. The 
geotechnical sampling activities, including use of vibracores and 
seabed core penetration tests, would occur during the same period as 
the HRG survey activities and would use an additional survey vessel. 
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.
    AE proposes HRG survey operations to be conducted continuously 24 
hours

[[Page 24557]]

a day. Based on 24-hour operations, the estimated total duration of the 
activities would be approximately 201 survey days across a maximum of 
two concurrently-operating vessels. The survey days are proposed to 
occur any month throughout the year as the exact timing of the surveys 
during the year is not yet certain.
    The only acoustic sources planned for use during HRG survey 
activities proposed by AE with expected potential to cause incidental 
take of marine mammals are the sparker and boomer. Sparkers and boomers 
are medium penetration, impulsive sources used to map deeper subsurface 
stratigraphy. Sparkers create omnidirectional acoustic pulses from 50 
Hz to 4 kHz, are typically towed behind the vessel, and may be operated 
with different numbers of electrode tips to allow tuning of the 
acoustic waveform for specific applications. The sparker system planned 
for use is the Dual Geo-Spark 2000X (400 tip/800 J). A boomer is a 
broadband source operating in the 3.5 Hz to 10 kHz frequency range. The 
boomer system planned for use is the Geo-Boomer 300-500.
    Crocker and Fratantonio (2016) did not provide data for the Dual 
Geo-Spark 2000X but did measure a similar system (Applied Acoustics 
Dura-Spark). However, measurements for the Applied Acoustics Dura-Spark 
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, AE proposes to use this sparker as proxy, 
at 500 J setting, as it is the closest match to the Dual Geo-Spark 
2000X because of the similarities in composition and operation, with 
both employing up to 400-electrode tips. Similarly, no data are 
provided by Crocker and Fratantonio (2016) for the Geo-Boomer 300-500. 
However, a similar system (the Applied Acoustics S-Boom) is included in 
Crocker and Fratantonio (2016) and values were included for a dual 
plate, 500 J setting. Therefore, AE proposes to use this boomer as 
proxy as it is the closest match to the Geo-Boomer 300-500 because of 
the similarities in composition and operation, with input signal at a 
similar or higher energy range (100-700). NMFS concurs with these 
selections, which are described in Table 1.
    The only acoustic sources planned for use during HRG survey 
activities proposed by the applicant with expected potential to cause 
incidental take of marine mammals are the boomer and sparker. 
Therefore, we will only be discussing further equipment that has the 
potential to harass marine mammals and is listed below in Table 1. For 
equipment source level specifications noted in Table 1, proxies 
representing the closest match in composition and operation of the Dual 
Geo-Spark 2000X (sparker) and Geo-Boomer 300-500 (boomer) were used 
from Crocker and Fratantonio (2016).
    AE's surveys will likely use a combination of the boomer and 
sparker. However, AE has requested authorization of take based on an 
assumption that the sparker would be used during all survey effort as 
it produces a greater distance to the 160 dB root mean square (rms) 
threshold for acoustic impacts (see application's Table 1-3 and Section 
6.1).

                                  Table 1--Representative Survey Equipment Expected To Result in Take of Marine Mammals
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                                                          Source     Source
                                             Operating    level      level      Sound exposure                            Pulse                   Beam
   Equipment type     Proxy equipment make/  frequency   (RMS dB    (peak dB    level (dB re 1         Reference         duration  Repetition    width
                              model            (kHz)     re 1 uPa   re 1 uPa  uPa[supcaret]2*s)                            (ms)     rate (Hz)  (degrees)
                                                           @1m)       @1m)
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Medium SBP-Boomer...  Applied Acoustics S-         5.5        202        213            170      Crocker and                 0.70         1.4         76
                       Boom 500J (boomer).                                                        Fratantonio 2016.
Medium SBP-Sparker..  Applied Acoustics        0.3-1.2        203        211            174      Crocker and                  1.1           4        180
                       Dura-spark (400 tip/                                                       Fratantonio 2016.
                       500 to 2,000 J)
                       (sparker).
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    Operation of the following additional survey equipment types is not 
reasonably expected to result in take of marine mammals and will not be 
discussed further beyond the brief summaries provided below.
     Non-impulsive, parametric sub-bottom profilers (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.
     Magnetic intensity measurements (gradiometer) are used for 
detecting local variations in regional magnetic field from geological 
strata and potential ferrous objects on and below the bottom. The 
proposed gradiometer has operating frequencies greater than 180 kHz and 
is therefore outside the general hearing range of marine mammals.
     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 manmade 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.
    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

[[Page 24558]]

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 species or stock, including regulatory status under the 
MMPA and Endangered Species Act (ESA) and potential biological removal 
(PBR), where known. PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS' SARs). While no 
serious injury or mortality is anticipated or proposed to be authorized 
here, 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 MMPA managed stocks 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 (draft 
2022 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).

                                         Table 2--Species and Stocks Likely Impacted by the Specified Activities
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                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic (Y/N)      Nmin, most recent        PBR      Annual M/SI
                                                                                            \1\          abundance survey) \2\                   \3\
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                                            Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
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North Atlantic right whale.........  Eubalaena glacialis...  Western Atlantic Stock  E/D, Y             338 (0; 332; 2020)....          0.7          8.1
Humpback whale.....................  Megaptera novaeangliae  Gulf of Maine.........  -/-; Y             1,396 (0; 1,380; 2016)           22        12.15
Fin whale..........................  Balaenoptera physalus.  Western North Atlantic  E/D, Y             6,802 (0.24; 5,573;              11          1.8
                                                              Stock.                                     2016).
Sei whale..........................  Balaenoptera borealis.  Nova Scotia Stock.....  E/D, Y             6,292 (1.02; 3,098;             6.2          0.8
                                                                                                         2016).
Minke whale........................  Balaenoptera            Canadian East Coastal   -/-, N             21,968 (0.31; 17,002;           170         10.6
                                      acutorostrata.          Stock.                                     2016).
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                                                  Odontoceti (toothed whales, dolphins, and porpoises)
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Sperm whale........................  Physeter macrocephalus  North Atlantic Stock..  E/D, Y             4,349 (0.28; 3,451;             3.9            0
                                                                                                         2016).
Long-finned pilot whale............  Globicephala melas....  Western North Atlantic  -/-, N             39,215 (0.3; 30,627;            306            9
                                                              Stock.                                     2016).
Atlantic white-sided dolphin.......  Lagenorhynchus acutus.  Western North Atlantic  -/-, N             93,233 (0.71; 54,443;           544           27
                                                              Stock.                                     2016).
Bottlenose dolphin.................  Tursiops truncatus....  Western North Atlantic  -/-, N             62,851 (0.23; 51,914;           519           28
                                                              Offshore Stock.                            2016).
Bottlenose dolphin.................  Tursiops truncatus....  Northern Migratory      -/D, Y             6,639 (0.41; 4,759;              48    12.2-21.5
                                                              Coastal.                                   2016).
Common dolphin.....................  Delphinus delphis.....  Western North Atlantic  -/-, N             172,974 (0.21,                1,452          390
                                                              Stock.                                     145,216, 2016).
Atlantic spotted dolphin...........  Stenella frontalis....  Western North Atlantic  -/-, N             39,921 (0.27; 32,032;           320            0
                                                              Stock.                                     2016).
Risso's dolphin....................  Grampus griseus.......  Western North Atlantic  -/-, N             35,215 (0.19; 30,051;           301           34
                                                              Stock.                                     2016).
Harbor porpoise....................  Phocoena phocoena.....  Gulf of Maine/Bay of    -/-, N             95,543 (0.31; 74,034;           851          164
                                                              Fundy Stock.                               2016).
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                                                               Order Carnivora--Pinnipedia
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Harbor seal........................  Phoca vitulina........  Western North Atlantic  -/-, N             61,336 (0.08; 57,637;         1,729          339
                                                              Stock.                                     2018).
Gray seal \4\......................  Halichoerus grypus....  Western North Atlantic  -/-, N             27,300 (0.22; 22,785;         1,458        4,453
                                                              Stock.                                     2016).
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,600. The annual mortality and serious injury (M/SI) value given is for the total stock.

    As indicated above, all 15 species (16 stocks) in Table 2 
temporally and spatially co-occur with the proposed activity to the 
degree that take is reasonably likely to occur. While other species 
have been documented in the area (see application Section 3--Table 1), 
the temporal and/or spatial occurrence of these species is such that 
take is not expected to occur and they are not discussed further beyond 
the explanation provided here.

North Atlantic Right Whale

    North Atlantic right whales (NARW) range from calving grounds in 
the southeastern United States to feeding grounds in New England waters 
and into Canadian waters (Hayes et al., 2018). They are observed year 
round in the Mid-Atlantic Bight, and surveys have demonstrated the 
existence of seven areas where NARWs congregate seasonally in Georges 
Bank, off Cape Cod, and in Massachusetts Bay (Hayes et al., 2018). In 
the late fall months (e.g., October), NARWs are generally thought to 
depart from the feeding grounds in the North Atlantic and move south to 
their calving grounds off Georgia and Florida. However, recent research 
indicates our understanding of their movement patterns remains 
incomplete (Davis et al., 2017). A review of passive acoustic 
monitoring data from 2004 to 2014 throughout the western North Atlantic 
demonstrated nearly continuous year-round NARW presence across their 
entire habitat range (for at

[[Page 24559]]

least some individuals), including in locations previously thought of 
as migratory corridors, suggesting that not all of the population 
undergoes a consistent annual migration (Davis et al., 2017). Given 
that AE's surveys would be concentrated offshore in the New York Bight, 
some NARWs may be present year round. However, the majority of NARWs in 
the vicinity of the survey areas are likely to be transient, migrating 
through the area.
    Recent aerial surveys in the New York Bight showed NARW in the 
proposed survey area in the winter and spring, preferring deeper waters 
near the shelf break (NARW observed in depths ranging from 33-1,041m) 
but were observed throughout the survey area (Normandeau Associates and 
Association of Professional Energy Managers (APEM), 2020; Zoidis et 
al., 2021). Similarly, passive acoustic data collected from 2018 to 
2020 in the New York Bight showed detections of NARW throughout the 
year (Estabrook et al., 2021). Seasonally, NARW acoustic presence was 
highest in the fall. NARW can be anticipated to occur in the proposed 
survey area year-round but with lower levels in the summer from July-
September.
    Since 2010, the NARW 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 NARW calves were documented in their calving grounds; 
this represented the first time since annual NOAA aerial surveys began 
in 1989 that no new NARW calves were observed. Calf numbers have 
increased since 2018 with 20 NARW calves documented in 2021 and 15 in 
2022.
    Elevated NARW mortalities have occurred since June 7, 2017, along 
the U.S. and Canadian coast. This event has been declared an Unusual 
Mortality Event (UME), with human interactions, including entanglement 
in fixed fishing gear and vessel strikes, implicated in at least 60 of 
the mortalities or serious injuries thus far. As of April 4, 2023, a 
total of 98 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: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.
    The proposed survey area is within a migratory corridor 
Biologically Important Area (BIA) for NARWs that extends from 
Massachusetts to Florida (LeBrecque et al., 2015). There is possible 
migratory behavior that could occur in this area between November and 
April. Off the coast of New Jersey, the migratory BIA extends from the 
coast to beyond the shelf break.
    NMFS' regulations at 50 CFR part 224.105 designated nearshore 
waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal 
Management Areas (SMA) for NARWs in 2008. SMAs were developed to reduce 
the threat of collisions between ships and NARWs around their migratory 
route and calving grounds. The New York/New Jersey SMA, which occurs in 
the New York Bight, is in the proposed survey area and is active from 
November 1 through April 30 of each year. Within SMAs, the regulations 
require a mandatory vessel speed (less than 10 knots (kn) or 5.14 
meters-per-second (m/s)) for all vessels greater than 65 ft (19.8 m).
    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 AE 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.

Humpback Whale

    On September 8, 2016, NMFS divided the once single species of 
humpback whales into 14 distinct population segments (DPS),\1\ removed 
the current species-level listing, and, instead, listed four DPSs as 
endangered and one DPS as threatened (81 FR 62259, September 8, 2016). 
The remaining nine DPSs were not listed. The West Indies DPS, which is 
not listed under the ESA, is the only DPS of humpback whale that is 
expected to occur in the survey area. Members of the West Indies DPS 
disperse to multiple western North Atlantic feeding populations, 
including the Gulf of Maine stock designated under the MMPA. Whales 
occurring in the project area are considered to be from the West Indies 
DPS but are not necessarily from the Gulf of Maine stock. Barco et al. 
(2002) estimated that, based on photo-identification, only 39 percent 
of individual humpback whales observed along the mid- and south 
Atlantic U.S. coast are from the Gulf of Maine stock. Bettridge et al. 
(2015) estimated the size of this population at 12,312 (95 percent CI 
8,688-15,954) whales in 2004-05, which is consistent with previous 
population estimates of approximately 10,000-11,000 whales (Stevick et 
al., 2003; Smith et al., 1999) and the increasing trend for the West 
Indies DPS (Bettridge et al., 2015).
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    \1\ Under the Endangered Species Act, in 16 U.S.C. 1532(16), a 
distinct population segment (or DPS) is a vertebrate population or 
group of populations that is discrete from other populations of the 
species and significant in relation to the entire species. NOAA 
Fisheries and the US Fish and Wildlife Service released a joint 
statement on February 7, 1996 (61 FR 4722) that defines the criteria 
for identifying a population as a DPS.
---------------------------------------------------------------------------

    Humpback whales utilize the mid-Atlantic as a migration pathway 
between calving/mating grounds to the south and feeding grounds in the 
north (Waring et al., 2007a; Waring et al., 2007b). A key question with 
regard to humpback whales off the Mid-Atlantic states is what feeding 
population whales in these waters belong to.
    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 191 known cases (as of April 4, 2023). Of the whales examined, 
about 40 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

[[Page 24560]]

could provide additional insight into how these vessel interactions 
occurred. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Fin Whale

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

Sei Whale

    The Nova Scotia stock of sei whales can be found in deeper waters 
of the continental shelf edge waters of the northeastern U.S. and 
northeastward to south of Newfoundland. Sei whales occur in shallower 
waters to feed. Currently there is no critical habitat for sei whales, 
though they can be observed along the shelf edge of the continental 
shelf. The main threats to this stock are interactions with fisheries 
and vessel collisions.
    Aerial surveys conducted in the New York Bight observed sei whales 
in both winter and spring, though they preferred deeper waters near the 
shelf break (Normandeau Associates and APEM, 2020). Passive acoustic 
data in the survey area detected sei whales throughout the year except 
January and July with highest detections in March and April (Estabrook 
et al., 2021).

Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude 
waters. The Canadian East Coast stock can be found in the area from the 
western half of the Davis Strait (45[deg] W) to the Gulf of Mexico 
(Waring et al., 2016). This species generally occupies waters less than 
100-m deep on the continental shelf. There appears to be a strong 
seasonal component to minke whale distribution in the survey areas, in 
which spring to fall are times of relatively widespread and common 
occurrence while during winter the species appears to be largely absent 
(Waring et al., 2016). Aerial surveys in the New York Bight area found 
that minke whales were observed throughout the survey area with highest 
numbers sighting in the spring months (Normandeau Associates and APEM, 
2020).
    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 142 strandings (as of March 23, 2023). This event has been 
declared a UME; as of 2023, it is pending closure. Full or partial 
necropsy examinations were conducted on more than 60 percent of the 
stranded whales. Preliminary findings in several of the whales have 
shown evidence of human interactions or infectious disease, but these 
findings are not consistent across all of the whales examined, so more 
research is needed. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-minke-whale-unusual-mortality-event-along-atlantic-coast.

Sperm Whale

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

Risso's Dolphin

    The Western North Atlantic stock of Risso's dolphin occurs from 
Florida to eastern Newfoundland. They are common on the northwest 
Atlantic continental shelf in summer and fall with lower abundances in 
winter and spring. Aerial surveys in the New York Bight area sighted 
Risso's dolphins throughout the year at the shelf break with highest 
abundances in spring and summer (Normandeau Associates and APEM, 2020).

Long-Finned Pilot Whale

    For pilot whales, only long-finned pilot whales are expected to 
occur in this project area due to their more northerly distribution and 
tolerance of shallower, colder shelf waters (Hayes et al., 2022). Long-
finned pilot whales are found from North Carolina to Iceland, 
Greenland, and the Barents Sea (Waring et al., 2016). In U.S. Atlantic 
waters, the Western North Atlantic stock is distributed principally 
along the continental shelf edge off the northeastern U.S. coast in 
winter and early spring. In late spring, pilot whales move onto Georges 
Bank and into the Gulf of Maine and more northern waters and remain in 
these areas through late autumn (Waring et al., 2016). Additionally, 
aerial surveys conducted in the New York Bight noted a preference for 
deeper water at the shelf break throughout the year (Normandeau 
Associates and APEM, 2020).

Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of 
the North Atlantic, primarily in continental shelf waters to the 100m 
depth contour from central West Greenland to North Carolina (Waring et 
al., 2016). The Gulf of Maine stock is most common in continental shelf 
waters from Hudson Canyon to Georges Bank and in the Gulf of Maine and 
lower Bay of Fundy. Sighting data indicate seasonal shifts in 
distribution (Northridge et al., 1997). During January to May, low 
numbers of white-sided dolphins are found from Georges Bank to Jeffreys 
Ledge (off New Hampshire) with even lower numbers south of Georges Bank 
as documented by a few strandings collected on beaches of Virginia to 
South Carolina. From June through September, large numbers of white-
sided dolphins are found from Georges Bank to the lower Bay of Fundy. 
From October to December, white-sided dolphins occur at intermediate 
densities from southern

[[Page 24561]]

Georges Bank to southern Gulf of Maine (Payne and Heinemann, 1990). 
Sightings south of Georges Bank, particularly around Hudson Canyon, 
occur year round but at low densities. Aerial studies confirmed 
observations in fall and winter in the New York Bight area with 
preference for deep water at the shelf break throughout the year 
(Normandeau Associates and APEM, 2020).

Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate 
waters ranging from southern New England, south to the Gulf of Mexico 
and the Caribbean to Venezuela (Waring et al., 2014). The Western North 
Atlantic stock regularly occur in continental shelf waters south of 
Cape Hatteras, North Carolina and in continental shelf edge and 
continental slope waters north of this region (Waring et al., 2014).

Common Dolphin

    Common dolphins within the U.S. Atlantic EEZ belong to the Western 
North Atlantic stock, generally occurring from Cape Hatteras to the 
Scotian Shelf (Hayes et al., 2021). Common dolphins are a highly 
seasonal, migratory species. Within the U.S. Atlantic EEZ, this species 
is distributed along the continental shelf and typically associated 
with Gulf Stream features (CETAP, 1982; Selzer and Payne, 1988; 
Hamazaki, 2002; Hayes et al., 2021). They are commonly found over the 
continental shelf between the 100 m and 2,000 m isobaths and over 
prominent underwater topography and east to the mid-Atlantic Ridge 
(Waring et al., 2016). Common dolphins occur from Cape Hatteras 
northeast to Georges Bank (35[deg] to 42[deg] N) during mid-January to 
May and move as far north as the Scotian Shelf from mid-summer to fall 
(Selzer and Payne, 1988). Migration onto the Scotian Shelf and 
continental shelf off Newfoundland occurs when water temperatures 
exceed 51.8[deg] Fahrenheit (11[deg] Celsius) (Sergeant et al., 1970; 
Gowans and Whitehead, 1995). Breeding usually takes place between June 
and September (Hayes et al., 2019). Kraus et al. (2016) observed 3,896 
individual common dolphins within the Rhode Island/Massachusetts Wind 
Energy Area (RI-MA WEA). Summer surveys included observations of the 
most individuals followed by fall, winter, then spring.

Bottlenose Dolphin

    There are two distinct bottlenose dolphin morphotypes in the 
Western North Atlantic: Western North Atlantic Northern Migratory 
Coastal Stock (coastal stock) and the Western North Atlantic Offshore 
Stock (offshore stock) (Waring et al., 2016). The coastal stock resides 
in waters typically less than 20 m deep, along the inner continental 
shelf (within 7.5 km (4.6 miles) of shore), around islands, and is 
continuously distributed south of Long Island, New York into the Gulf 
of Mexico. Torres et al. (2003) found a statistically significant break 
in the distribution of the ecotypes at 34 km from shore based upon the 
genetic analysis of tissue samples collected in nearshore and offshore 
waters from New York to central Florida. The offshore stock was found 
exclusively seaward of 34 km and in waters deeper than 34 m.
    The offshore stock is distributed primarily along the outer 
continental shelf and continental slope in the Northwest Atlantic Ocean 
from Georges Bank to the Florida Keys (Waring et al., 2017; Hayes et 
al., 2018). Both stocks of bottlenose dolphins are likely to occur in 
the proposed survey area. These two stocks are considered 
geographically separated by the 20 m depth contour with the Coastal 
Stock found in waters less than 20 m and the Offshore Stock in waters 
greater than 20 m.

Harbor Porpoise

    In the project area, only the Gulf of Maine/Bay of Fundy stock of 
harbor porpoises may be present in the fall and winter. This stock is 
found in U.S. and Canadian Atlantic waters and is concentrated in the 
northern Gulf of Maine and southern Bay of Fundy region, generally in 
waters less than 150-m deep (Waring et al., 2016). During fall (October 
to December) and spring (April to June), they are more widely dispersed 
from New Jersey to Maine with lower densities farther north and south. 
In winter (January to March), intermediate densities of harbor 
porpoises can be found in waters off New Jersey to North Carolina with 
lower densities found in waters off New York to New Brunswick, Canada 
(Hayes et al., 2020). They are seen from the coastline to deep waters 
(>1,800-m; Westgate et al., 1998), although the majority of the 
population is found over the continental shelf (Waring et al., 2016). 
The main threat to the species is interactions with fisheries, with 
documented take in the U.S. northeast sink gillnet, mid-Atlantic 
gillnet, and northeast bottom trawl fisheries and in the Canadian 
herring weir fisheries (Waring et al., 2016).

Pinnipeds (Harbor Seal and Gray Seal)

    Gray seals are regularly observed in the survey area and these 
seals belong to the western North Atlantic stock. The range for this 
stock is thought to be from New Jersey to Labrador Sea. This species 
inhabits temperate and sub-arctic waters and lives on remote, exposed 
islands, shoals, and sandbars (Jefferson et al., 2008). Current 
population trends show that gray seal abundance is likely increasing in 
the U.S. Atlantic EEZ (Waring et al., 2016). Although the rate of 
increase is unknown, surveys conducted since their arrival in the 1980s 
indicate a steady increase in abundance in both Maine and Massachusetts 
(Waring et al., 2016). It is believed that recolonization by Canadian 
gray seals is the source of the U.S. population increase (Waring et 
al., 2016). Documented haulouts for gray seals exist in the Long Island 
area, with a possible rookery on Little Gull Island.
    Since June 2022, elevated numbers of sick and dead harbor seal and 
gray seal have been documented along the southern and central coast of 
Maine. This event has also been declared an UME. Preliminary testing of 
samples found that some harbor and gray seals were positive for the 
highly pathogenic avian influenza. NMFS and other partners are working 
on an ongoing investigation of this UME. From June 1, 2022-February 19, 
2023 there have been 337 seal strandings. Information on these UME's 
are available online at: https://www.fisheries.noaa.gov/2022-2023-pinniped-unusual-mortality-event-along-maine-coast.

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-

[[Page 24562]]

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 (e.g., 87 FR 24103, April 22, 2022; 87 FR 
50293, August 16, 2022; 87 FR 51359, August 22, 2022). No significant 
new information is available, and we reference the detailed discussions 
in those 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 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

    For general information on sound, its interaction with the marine 
environment, and a description of acoustic terminology, please see ANSI 
(1986, 1995), Au and Hastings (2008), Hastings and Popper (2005), 
Mitson (1995), NIOSH (1998), Richardson et al. (1995), Southall et al. 
(2007), and Urick (1983). Underwater sound from active acoustic sources 
can cause one or more of the following: temporary or permanent hearing 
impairment, behavioral disturbance, masking, stress, and non-auditory 
physical effects. The degree of effect is intrinsically related to the 
signal characteristics, received level, distance from the source, and 
duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for prolonged periods, can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Finneran, 2015). TS can be 
permanent (PTS; permanent threshold shift), in which case the loss of 
hearing sensitivity is not fully recoverable, or temporary (TTS; 
temporary threshold shift), in which case the animal's hearing 
threshold would recover over time (Southall et al., 2007).
    When PTS occurs, there is physical damage to the sound receptors in 
the ear (i.e., tissue damage), whereas TTS represents primarily tissue 
fatigue and is reversible (Southall et al., 2007). In addition, other 
investigators have suggested that TTS is within the normal bounds of 
physiological variability and tolerance and does not represent physical 
injury (e.g., Ward, 1997). Therefore, NMFS does not consider TTS to 
constitute auditory injury.
    Animals in the vicinity of AE's proposed HRG survey activities are 
unlikely to incur even TTS due to the characteristics of the sound 
sources, which include generally very short pulses and potential 
duration of exposure. These characteristics mean that instantaneous 
exposure is unlikely to cause TTS because it is unlikely that exposure 
would occur close enough to the vessel for received levels to exceed 
peak pressure TTS criteria, and the cumulative duration of exposure 
would be insufficient to exceed cumulative sound exposure level (SEL) 
criteria. 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 remain very 
close to the vessel operating these sources in order to receive 
multiple exposures at relatively high levels as would be necessary to 
cause TTS. Intermittent exposures--as would occur due to the brief, 
transient signals produced by these sources--require a higher 
cumulative SEL to induce TTS than would continuous exposures of the 
same duration (i.e., intermittent exposure results in lower levels of 
TTS). Moreover, most marine mammals would more likely avoid a loud 
sound source rather than swim in such close proximity as to result in 
TTS. Kremser et al. (2005) noted that the probability of a cetacean 
swimming through the area of exposure when a sub-bottom profiler emits 
a pulse is small--because if the animal was in the area, it would have 
to pass the transducer at close range in order to be subjected to sound 
levels that could cause TTS and would likely exhibit avoidance behavior 
to the area near the transducer rather than swim through at such a 
close range.

[[Page 24563]]

    Behavioral disturbance to marine mammals from sound may include a 
variety of effects, including subtle changes in behavior (e.g., minor 
or brief avoidance of an area or changes in vocalizations), more 
conspicuous changes in similar behavioral activities, and more 
sustained and/or potentially severe reactions, such as displacement 
from or abandonment of high-quality habitat. Behavioral responses to 
sound are highly variable and context-specific and any reactions depend 
on numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors. 
Available studies show wide variation in response to underwater sound; 
therefore, it is difficult to predict specifically how any given sound 
in a particular instance might affect marine mammals perceiving the 
signal.
    In addition, sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, navigation). Masking occurs when the receipt of a 
sound is interfered with by another coincident sound at similar 
frequencies and at similar or higher intensity, and may occur whether 
the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., shipping, sonar, seismic 
exploration) in origin. Marine mammal communications would not likely 
be masked appreciably by the acoustic signals given the directionality 
of the signals for the HRG survey equipment planned for use (Table 1-2 
of AE's IHA application) and the brief period for when an individual 
mammal would likely be exposed.
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, and zooplankton) (i.e., effects to marine mammal 
habitat). Prey species exposed to sound might move away from the sound 
source, experience TTS, experience masking of biologically relevant 
sounds, or show no obvious direct effects. The most likely impacts (if 
any) for most prey species in a given area would be temporary avoidance 
of the area. Surveys using active acoustic sound sources move through 
an area, limiting exposure to multiple pulses. In all cases, sound 
levels would return to ambient once a survey ends and the noise source 
is shut down and, when exposure to sound ends, behavioral and/or 
physiological responses are expected to end relatively quickly. 
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 
normally 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 
(2.1-2.6 m/s). 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 AE'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); 
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 or boomer. 
Based 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. 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

[[Page 24564]]

(e.g., Southall et al., 2007, 2021; Ellison et al., 2012). Based on 
what the available science indicates and the practical need to use a 
threshold based on a metric that is both predictable and measurable for 
most activities, NMFS typically uses a generalized acoustic threshold 
based on received level to estimate the onset of behavioral harassment. 
NMFS generally predicts that marine mammals are likely to be 
behaviorally harassed in a manner considered to be Level B harassment 
when exposed to underwater anthropogenic noise above root-mean-squared 
pressure received levels (RMS SPL) of 120 dB (referenced to 1 
micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile-
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources.
    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. AE's proposed activities 
include the use of impulsive (i.e., boomer and 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.
    AE's proposed activity includes the use of impulsive (i.e., boomer 
and sparker) 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 AE's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated potential Level A harassment 
exposures. AE 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 was used, and the lowest frequency of the source was 
used when calculating the frequency-dependent absorption coefficient 
(Table 1). AE used 180-degree beamwidth in the calculation for the 
proposed sparker as is appropriate for an omnidirectional source.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases where the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends either the source levels provided by the manufacturer be 
used, or, in instances where source levels provided by the manufacturer 
are unavailable or unreliable, a proxy from Crocker and Fratantonio 
(2016) be used instead. Table 1 shows the HRG equipment type used 
during the planned surveys and the source levels associated with those 
HRG equipment types.
    AE proposed to use the Dual Geo-Spark 2000X (400 tip/800 J). For 
all source configurations (Table 1), the maximum power expected to be 
discharged from the sparker source is 800 J. However, Crocker and 
Fratantonio (2016) did not measure the Dual Geo-Spark or a source with 
an energy of 800 J. A similar alternative system, the Applied Acoustics 
Dura-spark with a 400 tip, was measured by Crocker and Fratantonio 
(2016) with an input voltage of 500-2,000 J, and these measurements 
were used as a proxy for the Dual Geo-Spark. Table 1 shows the source 
parameters associated with this proxy. Using the measured source level 
of 203 dB RMS of the proxy, results of modeling indicated that the 
sparker would produce an estimated distance of 141 m to the Level B 
harassment isopleth.
    AE additionally proposed to use the Geo-Boomer 300-500. Crocker and 
Fratantonio (2016) did not measure the Geo-Boomer 300-500. A similar 
alternative system, Applied Acoustics S-Boom, was measured by Crocker 
and Fratantonio (2016) and the 500 J values were used as a proxy for 
the Geo-Boomer 300-500. Using the measured source level of 202 dB RMS 
of the proxy, results of modeling indicated that the boomer would 
produce an estimated distance of 51 m to the Level B harassment 
isopleth.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment proposed for use by the applicant 
that has the potential to result in Level B harassment of marine 
mammals, the Dual Geo-Spark 2000X would produce the largest distance to 
the Level B harassment isopleth (141 m).

Marine Mammal Occurrence

    In this section, we provide information about the occurrence of 
marine mammals, including density or other relevant information, which 
will inform the take calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016; Roberts et al., 
2022) represent the best available information regarding marine mammal 
densities in the proposed 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 controls for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. These density models were 
originally developed for all cetacean taxa in the U.S. Atlantic 
(Roberts et al., 2016). Most recently, in 2022, models for all taxa 
were updated. More information is available online at

[[Page 24565]]

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.
    For the exposure analysis, density data from Roberts et al. (2022) 
were mapped using a geographic information system (GIS). For the survey 
area, the monthly densities of each species as reported by Roberts et 
al. (2022) were averaged by season; thus, a density was calculated for 
each species for spring, summer, fall, and winter. Density seasonal 
averages were calculated for both the Lease Area and the ECR Area for 
each species to assess the greatest average seasonal densities for each 
species. To be conservative since the exact timing for the survey 
during the year is uncertain, the greatest average seasonal density 
calculated for each species was carried forward in the exposure 
analysis, with exceptions noted later in this discussion. Estimated 
greatest average seasonal densities (animals/km\2\) of marine mammal 
species that may be taken incidental to the planned survey can be found 
in Tables 6-1 and 6-2 of AE's IHA application. Below, we discuss how 
densities were assumed to apply to specific species for which the 
Roberts et al. (2022) models provide results at the genus or guild 
level.
    There are two stocks of bottlenose dolphins that may be impacted by 
the surveys (Western North Atlantic Northern Migratory Coastal Stock 
(coastal stock) and the Western North Atlantic Offshore Stock (offshore 
stock)). However, Roberts et al. (2022) do not differentiate by stock. 
The Coastal Stock is assumed to generally occur in waters less than 20 
m and the Offshore Stock in waters deeper than 20 m (65-ft) isobath.
    The lease area is in waters deeper than 20 m and only the Offshore 
Stock would occur and could be potentially taken by survey effort in 
that area. For the ECR survey area, both stocks could occur in the 
area, so AE calculated separate mean seasonal densities for the portion 
to be surveyed that is less than 20 m in depth and for the portion that 
is greater than 20 m in depth to use for estimating take of the Coastal 
and Offshore Stocks of bottlenose dolphins, respectively. The total 
tracklines in waters deeper than 20 m, between the ECR and the lease 
area, are 20,305 km. The total tracklines in waters less than 20 m 
depth, only found in portions of the ECR, are 1,440 km. Therefore, 
different trackline totals were used to calculate take of the Coastal 
and Offshore Stocks of bottlenose dolphins (20,305 km trackline of 
Offshore Stock and 1,440 km trackline of the Coastal Stock). All other 
species analyzed used the total 21,745 km of trackline for 
calculations.
    Furthermore, the Roberts et al. (2022) density model does not 
differentiate between the different pinniped species. For seals, given 
their size and behavior when in the water, seasonality, and feeding 
preferences, there is limited information available on species-specific 
distribution. Density estimates of Roberts et al. (2022) include all 
seal species that may occur in the Western North Atlantic combined 
(i.e., harbor, gray, hooded, and harp). For this IHA, only the harbor 
seals and gray seals are reasonably expected to occur in the survey 
area; densities of seals were split evenly between these two species.
    Lastly, the Roberts et al. (2022) density model does not 
differentiate between the pilot whale species. While the exact 
latitudinal ranges of the two species are uncertain, only long-finned 
pilot whales are expected to occur in this project area due to their 
more northerly distribution and tolerance of shallower, colder shelf 
waters (Hayes et al., 2022).

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.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to Level B harassment 
thresholds are calculated, as described above. The maximum distance 
(i.e., 141-m distance associated with the Dual Geo-Spark 2000X) to the 
Level B harassment criterion and the total length of the survey 
trackline are then used to calculate the total ensonified area, or zone 
of influence (ZOI) around the survey vessel.
    AE proposes to conduct the survey, using either the boomer or 
sparker, for a total of 21,745 km of trackline, of which 14,025 km are 
in the Lease area and 7,720 km in the ECR area. Of the ECR survey 
trackline, 1,440 km are in waters less than 20 m depth. AE is 
requesting take based on the worst-case-scenario between the equipment 
proposed, which is the use of only the Dual Geo-Spark 2000X--based on 
the largest estimated distance to the harassment criterion. Based on 
the maximum estimated distance to the Level B harassment threshold of 
141-m (sparker) and the total survey length, the total ensonified area 
is 6,133 km\2\. That is approximately 3,955 km\2\ for the lease area 
and 2,177 km\2\ in the ECR area with 407 km\2\ in waters less than 20 m 
depth based on the following formula:

Mobile Source ZOI = (Total survey length x 2r) + pr2

    Where total survey length is equal to the total distance of the 
survey track lines within the lease area; and r is equal to the maximum 
radial distance from a given sound source to the Level B harassment 
threshold.
    This is a conservative estimate as it assumes the HRG source that 
results in the greatest isopleth distance to the Level B harassment 
threshold would be operated at all times during the entire survey, 
which may not ultimately occur and assumes the worst case scenario is 
the scenario chosen for the surveys. The number of marine mammals 
expected to be incidentally taken during the total survey is then 
calculated by estimating the number of each species predicted to occur 
within the ensonified area (animals/km\2\), incorporating the greatest 
seasonal estimated marine mammal densities as described above. The 
product is then rounded, to generate an estimate of the total number of 
instances of harassment expected for each species over the duration of 
the survey. A summary of this method is illustrated in the following 
formula with the resulting take of marine mammals shown below in Table 
4:

Estimated Take = D x ZOI

Where:

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


                    Table 4--Estimated Take Numbers and Total Take Proposed for Authorization
----------------------------------------------------------------------------------------------------------------
                                                      Density                     Proposed total
             Species                Ensonified       (animals/    Estimated take       take         Percent of
                                   area (km\2\)       km\2\)                       authorization   abundance \c\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......           6,133        0.001932              12              12            3.51
Humpback whale..................           6,133        0.003853              24              24            1.69

[[Page 24566]]

 
Fin whale.......................           6,133        0.006256              38              38            0.56
Sei whale.......................           6,133        0.001972              12              12            0.19
Minke whale.....................           6,133        0.029226             179             179            0.82
Sperm whale.....................           6,133        0.000447               3               3            0.06
Risso's dolphin.................           6,133        0.003695              23              23            0.06
Long-finned pilot whale.........           6,133        0.003363              21              21            0.05
Atlantic white-sided dolphin....           6,133        0.033740             207             207            0.22
Common dolphin..................           6,133        0.335271           2,056           2,056            1.19
Atlantic spotted dolphin........           6,133        0.014496              89              89            0.22
Bottlenose dolphin (W.N.                   5,727        0.304831           1,746           1,746            2.78
 Atlantic Offshore) \a\.........
Bottlenose dolphin (Northern                 407        0.956430             389             389            5.86
 Migratory Coastal) \b\.........
Harbor porpoise.................           6,133        0.178544           1,095           1,095            1.15
Harbor seal.....................           6,133    \d\ 0.260186           1,596           1,596            2.60
Gray seal.......................           6,133    \d\ 0.260186           1,596           1,596        \e\ 0.35
----------------------------------------------------------------------------------------------------------------
\a\ The ensonified area for the offshore stock is for >=20 m water depth includes all the lease area and
  portions of the ECR.
\b\ The ensonified area for the migratory coastal stock is only the areas of <20 m water depth (found only in
  portions of the ECR).
\c\ Based on the 2022 draft marine mammal stock assessment reports (SAR).
\d\ These each represent 50% of a generic seal density value.
\e\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock
  abundance estimate for US population is only 27,300.

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, NMFS considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, and impact on 
operations.
    NMFS proposes that the following mitigation measures be implemented 
during AE's planned marine site characterization surveys. Pursuant to 
section 7 of the ESA, AE would also be required to adhere to relevant 
Project Design Criteria (PDC) of the NMFS' Greater Atlantic Regional 
Fisheries Office (GARFO) programmatic consultation (specifically PDCs 
4, 5, and 7) regarding geophysical surveys along the U.S. Atlantic 
coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Visual Monitoring and Shutdown Zones

    AE must employ independent, dedicated, trained PSOs, meaning that 
the PSOs must (1) be employed by a third-party observer provider, (2) 
have no tasks other than to conduct observational effort, collect data, 
and communicate with and instruct relevant vessel crew with regard to 
the presence of marine mammals and mitigation requirements (including 
brief alerts regarding maritime hazards), and (3) have successfully 
completed an approved PSO training course appropriate for 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.
    During survey operations (e.g., any day on which use of the sparker 
or boomer sources is planned to occur, and whenever the sparker or 
boomer 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 or boomer 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 or boomer source (rather than being based around the vessel 
itself).
    Four shutdown zones are defined, depending on the species and 
context. An extended shutdown zone encompassing the area at and below 
the sea surface out to a radius of 500 m from the sparker or boomer 
source (0-500 m) is defined for NARW. For all other marine mammals, the 
shutdown zone

[[Page 24567]]

encompasses a standard distance of 100 m (0-100 m) during the use of 
the sparker. For ESA-listed marine mammals during the use of the 
boomer, the shutdown zone is 100 m (0-100 m). For all non-ESA-listed 
marine mammals, the shutdown zone during the use of the boomer is 50 m 
(0-50 m). 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 4 consecutive hours 
followed by a break of at least 1 hour between watches and may conduct 
a maximum of 12 hours of observation per 24-hour period.

Pre-Start Clearance and Ramp-Up Procedures

    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 and boomer sources when technically feasible. Operators should 
ramp up sparker and boomer to half power for 5 minutes and then proceed 
to full power. A 30-minute pre-start clearance observation period of 
the shutdown zones must occur prior to the start of ramp-up. The intent 
of the pre-start clearance observation period (30 minutes) is to ensure 
no marine mammals are within the shutdown zones prior to the beginning 
of ramp-up. The intent of the 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 or boomer 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 Procedures

    All operators must adhere to the following shutdown requirements:
     Any PSO on duty has the authority to call for shutdown of 
the sparker or boomer 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 or boomer 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 
sparker or boomer source must be immediately deactivated and any 
dispute resolved only following deactivation.
     Four shutdown zones are defined, depending on the species 
and context. An extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 m from the sparker or 
boomer source (0-500 m) is defined for NARW. For all other marine 
mammals, the shutdown zone encompasses a standard distance of 100 m (0-
100 m) during the use of the sparker. For ESA-listed marine mammals 
during the use of the boomer, the shutdown zone is 100 m (0-100 m). For 
all non-ESA-listed marine mammals, the shutdown zone during use of the 
boomer is 50 m (0-50 m).
    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

[[Page 24568]]

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 (141 m sparkers, 51 m boomers), shutdown must occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel must have access to and 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(s), or alter course, as 
appropriate and regardless of vessel size, to avoid striking any marine 
mammals. A single marine mammal at the surface may indicate the 
presence of 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 are 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 NARW, other whale (defined in this 
context as sperm whales or baleen whales other than NARWs), or other 
marine mammals.
    All survey vessels, regardless of size, must observe a 10-knot 
(18.52 km/h) speed restriction in specific areas designated by NMFS for 
the protection of NARWs from vessel strikes. These include all Seasonal 
Management Areas (SMA) established under 50 CFR 224.105 (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.
     All vessels must reduce speed to 10 knots (18.52 km/h) 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 NARWs, baleen whales (except humpback and minke), sperm 
whales, and any unidentified large whales. If a NARW, baleen whale 
(except humpback and minke), or an unidentified large whale is sighted 
within the relevant separation distance, the vessel must steer a course 
away at 10 kn (18.52 km/h) 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 NARW, the vessel operator must assume that it is 
a NARW and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from all humpback and mike 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 must 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 NARW reporting system and 
Whale Alert, daily and as able, for the presence of NARWs throughout 
survey operations, and for the establishment of DMAs and/or Slow Zones. 
It is AE's responsibility to maintain awareness of the establishment 
and location of any such areas and to abide by these requirements 
accordingly.

Seasonal Operating Requirements

    As described above, a section of the survey area partially overlaps 
with a portion of a NARW SMA off the port of New York/New Jersey. This 
SMA is active from November 1 through April 30 of each year. The survey 
vessel, regardless of length, would be required to adhere to vessel 
speed restrictions (<10 knots (18.52 km/h)) when operating within the 
SMA during times when the SMA is active.

      Table 5--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 AE's     N/A.
ECR (within SMA)................   right whale         vessel will abide by the described     November 1 through
ECR (outside SMA)...............   (Eubalaena          restrictions.                           April 31 (Ports
                                   glacialis).                                                 of New York/New
                                                                                               Jersey).
                                                                                              N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the NARW can be found at NMFS' website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales whales.

    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

[[Page 24569]]

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.

Proposed Monitoring Measures

    Visual monitoring must be performed by qualified, NMFS-approved 
PSOs. AE must submit PSO resumes for NMFS review and approval prior to 
commencement of the survey. Resumes should include dates of training 
and any prior NMFS approval, as well as dates and description of last 
experience, and must be accompanied by information documenting 
successful completion of an acceptable training course.
    For prospective PSOs not previously approved, or for PSOs whose 
approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, who would coordinate 
duty schedules and roles for the PSO team and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.
    At least one PSO aboard each acoustic source vessel must have a 
minimum of 90 days at-sea experience working in the role, with no more 
than 18 months elapsed since the conclusion of the at-sea experience. 
One PSO with such experience must be designated as the lead for the 
entire PSO team and serve as the primary point of contact for the 
vessel operator. (Note that the responsibility of coordinating duty 
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the 
lead PSO must devise the duty schedule such that experienced PSOs are 
on duty with those PSOs with appropriate training but who have not yet 
gained relevant experience.
    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).
    AE 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 AE 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

[[Page 24570]]

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, appropriate night-vision devices (e.g., 
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 must 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 and between acquisition periods, to the maximum 
extent practicable. 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). Members of the PSO team shall consult the 
NMFS NARW reporting system and Whale Alert, daily and as able, for the 
presence of NARWs throughout survey operations.

Proposed Reporting Measures

    AE shall submit a draft comprehensive report to NMFS 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 Environmental Systems Research Institute, Inc (ESRI) 
shapefile format and include the Coordinated Universal Time (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], [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), vessel size and type, maximum 
speed capability of vessel;
    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,

[[Page 24571]]

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 NARW is observed at any time by PSOs or personnel on the 
project vessel, during surveys or during vessel transit, AE must report 
the sighting information to the NMFS NARW Sighting Advisory System 
(866-755-6622) within 2 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, 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, AE 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).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Table 2, given that some of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are included as separate subsections below. 
Specifically, we provide additional discussion related to NARW and to 
other species currently experiencing UMEs.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result from HRG surveys, even in the absence of mitigation, 
and no serious injury or mortality is proposed to be authorized. As 
discussed in the Potential Effects of Specified Activities on Marine 
Mammals and their Habitat section, non-auditory physical effects, 
auditory physical effects, and vessel strike are not expected to occur. 
NMFS expects that all potential takes would be in the form of Level B 
harassment in the form of temporary avoidance of the area or decreased 
foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007; Ellison et al., 2012).
    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

[[Page 24572]]

disturbance and the availability of similar habitat and resources in 
the surrounding area, the impacts to marine mammals and the food 
sources that they utilize are not expected to cause significant or 
long-term consequences for individual marine mammals or their 
populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the planned survey area 
and there are no feeding areas known to be biologically important to 
marine mammals within the survey area. There is no designated critical 
habitat for any ESA-listed marine mammals in the survey area.

North Atlantic Right Whales

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW mortalities began in June 2017 and there is an active UME. 
Overall, preliminary findings attribute human interactions, 
specifically vessel strikes and entanglements, as the cause of death 
for the majority of NARWs. As noted previously, the survey area 
overlaps a migratory corridor BIA for NARWs that extends from 
Massachusetts to Florida and from the coast to beyond the shelf break. 
Due to the fact that the planned survey activities are temporary (will 
occur for up to 1 year) 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, NARW migration is not expected to be 
impacted by the survey. This important migratory area is approximately 
269,488 km\2\ in size (compared with the worst case scenario of 
approximately 6,133 km\2\ of total estimated Level B harassment 
ensonified area associated with both the Lease Area and the ECR area 
surveys) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts.
    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 AE's planned activities. Additionally, only 
very limited take by Level B harassment of NARWs 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 NARWs is conservative, considering the Level B 
harassment isopleth for the most impactful acoustic source (i.e., 
sparker) is estimated to be 141-m, and thereby minimizes the intensity 
and duration of any potential incidents of behavioral harassment for 
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 NARWs takes that would 
result from AE'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 AE's survey area. Elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida since 
January 2016. Of the cases examined, approximately half had evidence of 
human interaction (ship strike or entanglement). The UME does not yet 
provide cause for concern regarding population-level impacts. Despite 
the UME, the relevant population of humpback whales (the West Indies 
breeding population, or DPS) remains stable at approximately 12,000 
individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    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 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., 2023). 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; Hayes et 
al., 2023).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 2, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular, they would provide animals the opportunity to 
move away from the sound source before HRG survey equipment reaches 
full energy, thus preventing them from being exposed to sound levels 
that have the potential to cause injury. 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 
harassment by way of brief startling reactions and/or temporary 
vacating of the area, or decreased foraging (if such activity was 
occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect any of the species 
or stocks through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or proposed 
to be authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed to be authorized;
     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 by Level B harassment only 
consisting of brief startling reactions and/or temporary avoidance of 
the ensonified area;
     Survey activities would occur in such a comparatively 
small portion of the BIA for the NARW migration that any avoidance of 
the area due to survey

[[Page 24573]]

activities would not affect migration. In addition, mitigation measures 
require shutdown at 500 m (almost four times the size of the Level B 
harassment zone 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 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS 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 take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take by Level B harassment 
only of 15 marine mammal species with 16 managed stocks. The total 
amount of takes proposed for authorization is less than 6 percent 
relative to the best available population abundance for any of the 16 
managed stocks (highest being for the Western North Atlantic Migratory 
Coastal Stock of Bottlenose dolphins) (Table 4). The take numbers 
proposed for authorization 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 (OPR) is proposing to authorize 
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 NMFS Greater Atlantic Regional Fisheries Office's (GARFO) 
programmatic consultation regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021).

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to AE for conducting marine site characterization surveys 
in coastal waters off of New York and New Jersey in the New York Bight 
for a period of 1 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/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 
Activity section of this notice is planned or (2) the activities as 
described in the Description of Proposed Activity 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 1 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: April 18, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-08504 Filed 4-20-23; 8:45 am]
BILLING CODE 3510-22-P