[Federal Register Volume 88, Number 98 (Monday, May 22, 2023)]
[Notices]
[Pages 32735-32756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10850]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC970]


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 Invenergy Wind Offshore, LLC 
(IWO) for authorization to take marine mammals incidental to marine 
site characterization surveys in waters off of New Jersey and New York 
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 (OCS) Lease Area OCS-
A 0542 (Lease Area) and associated Export Cable Route (ECR) survey area 
(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, 1-year renewal that could be issued under certain 
circumstances and if all requirements are met, as described in Request 
for Public Comments at the end of this notice. NMFS will consider 
public comments prior to making any final decision on the issuance of 
the requested MMPA authorization and agency responses will be 
summarized in the final notice of our decision.

DATES: Comments and information must be received no later than June 21, 
2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
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), confidential business information, 
or otherwise sensitive information 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: Alyssa Clevenstine, Office of 
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the 
application and supporting documents, as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems

[[Page 32736]]

accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

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

National Environmental Policy Act

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

Summary of Request

    On February 3, 2023, NMFS received a request from IWO for an IHA to 
take marine mammals incidental to conducting marine site 
characterization surveys in waters off of New Jersey and New York in 
the New York Bight, specifically within the BOEM Lease Area OCS-A 0542 
and associated ECR Area. Following NMFS' review of the application, IWO 
submitted a revised request on March 29, 2023. NMFS deemed the 
application adequate and complete on April 25, 2023. IWO's request is 
for take of small numbers of 15 species (16 stocks) of marine mammals 
by Level B harassment only. Neither IWO nor NMFS expect serious injury 
or mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of Proposed Activity

Overview

    IWO proposes to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) surveys, in waters off of 
New Jersey and New York in the New York Bight, specifically within BOEM 
Lease Area OCS-A 0542 and associated ECR Area, collectively considered 
the Survey 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 Survey Area. Up to three 
vessels may conduct survey efforts concurrently. Underwater sound 
resulting from IWO'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 activity is planned to begin once an IHA is issued. 
The proposed surveys are estimated to require a maximum of 274 survey 
days within a single year across a maximum of three vessels operating 
concurrently, which would include up to two vessels operating offshore 
(greater than 20 meters (m); 65 feet (ft) depth) and one vessel 
operating nearshore (less than 20 m (65 ft) depth). 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. A ``survey day'' is 
defined as a 24-hour (hr) activity period in which active acoustic 
sound sources are used offshore and a 12-hr activity period when a 
vessel is operating nearshore. Surveyed at a speed of approximately 3.8 
knots (kn; 7.04 kilometer (km) per hr (km/hr)), it is expected that 
each offshore vessel would cover approximately 80 km of trackline per 
day, and the nearshore vessel would cover 25-30 km of trackline per day 
(inclusive of infills and line-turns), based on IWO's expectations 
regarding data acquisition efficiency. There is up to 12,818 km of 
trackline survey effort planned: a maximum trackline length of 7,460 km 
is planned for the Lease Area and 5,358 km for the ECR Area. The IHA 
would be effective for 1 year from the date of issuance.

Specific Geographic Region

    IWO's survey activities would occur in waters off of New Jersey and 
New York in the New York Bight, specifically within BOEM Lease Area 
OCS-A 0542 and associated ECR Area (Figures 1, 2). The Survey Area 
(9,470 square km (km\2\)) includes both the Lease Area (569 km\2\; 40-
50 m depth) and ECR Area (8,901 km\2\; 1-55 m depth).
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN22MY23.000


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[GRAPHIC] [TIFF OMITTED] TN22MY23.001

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

    IWO's marine site characterization surveys within the Survey Area 
include HRG and geotechnical surveys, including: depth sounding to 
determine water depth, site bathymetry, and general seafloor topography 
using a multibeam echosounder (MBES); seafloor imaging using a side-
scan sonar; magnetic intensity measurements using a gradiometer; 
shallow penetration sub-bottom profilers (SBPs; compressed high-
intensity radiated

[[Page 32739]]

pulse (CHIRP) and parametric); and medium penetration SBPs (sparkers).
     MBES and side-scan sonars are used to determine water 
depths and general seafloor topography. The proposed MBES and side-scan 
sonar both have operating frequencies greater than 180 kilohertz (kHz) 
and are, therefore, outside the general hearing range of marine 
mammals.
     Gradiometers are used to detect local variations in 
regional magnetic field from geological strata and potential ferrous 
objects on and below the seafloor. The proposed gradiometer has an 
operating frequency greater than 180 kHz and is, therefore, outside the 
general hearing range of marine mammals.
     CHIRP SBPs are shallow penetration non-impulsive, non-
parametric sources used to map the near-surface stratigraphy (soil down 
to 10 m) of sediment below seabed. A CHIRP system emits signals 
covering a frequency sweep from approximately 0.01-1.9 kHz over time. 
The frequency range can be adjusted to meet project variables.
     Parametric SBPs are shallow penetration non-impulsive 
sources used for providing high data density in subsurface 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.
    NMFS does not expect geotechnical survey activities or HRG survey 
activities using MBES, side-scan sonar, gradiometer, or shallow SBP to 
present a reasonably anticipated risk of causing incidental take of 
marine mammals, so these activities are not discussed further in this 
notice.
    IWO proposes to use sparkers during HRG survey activities that have 
the potential to cause incidental take of marine mammals. Sparkers are 
medium penetration impulsive sources used to map deep subsurface 
stratigraphy (soils down to at least 100 m (328 ft) below the seabed in 
sand and at least 125 m (410 ft) below the seabed in mixed sediments). 
Sparkers create omnidirectional acoustic pulses from 50 hertz (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. There are three sparker systems 
planned for use: Applied Acoustics Dura-Spark 240/400 (400 tip/500 
joules (J)), Applied Acoustics Dura-Spark UHD 400+400 Seismic Sound 
Source (400 tip/500-800 J), and the Geo-Source 200-400 Marine Multi-Tip 
Sparker System (400 tip/400-500 J).
    Crocker and Fratantonio (2016) measured the Applied Acoustics Dura-
Spark but did not provide data for an energy setting near 800 J for a 
400-tip configuration (Crocker and Fratantonio (2016) provide 
measurements at 500, 2,000, and 2,400 J). No data are provided by 
Crocker and Fratantonio (2016) for the Applied Acoustics Dura-Spark UHD 
or Geo-Source sparker system. Therefore, IWO proposes to use the data 
provided for the Applied Acoustics Dura-Spark at the 400 tip/500 J 
setting as a proxy for all three sparker systems as it is the closest 
match due to the similarities in composition and operation, with both 
employing up to 400 electrode tips. NMFS concurs with these selections, 
which are described in Table 1.
    IWO proposes to use the same equipment over the entire Survey Area 
and has requested authorization of take based on the assumption that 
the sparkers, using any of the impulsive sparker systems listed as they 
all produce the same distance to the 160 dB sound pressure level (SPL) 
threshold for acoustic impacts, would occur during all survey effort 
(see Table 1-3 and Section 6.1 in application).

                                                      Table 1--Representative Survey Equipment Expected to Result in Take of Marine Mammals
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                                                                                 Source level    Source level
                                                                    Operating    (SPL dB re 1    (Peak dB re 1   Sound exposure                               Pulse      Repetition   Beam width
            Equipment type                 Equipment make/model     frequency    [micro]Pa @1    [micro]Pa @1    level (dB re 1          Reference           duration    rate (Hz)    (degrees)
                                                                      (kHz)           m)              m)        [micro]Pa\2\*s)                                (ms)
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Medium SBP (sparker)..................  Applied Acoustics Dura-        0.3-1.2             203             211            174    Crocker and Fratantonio,          1.1          4.6          180
                                         Spark 240/400 (500 J).                                                                   2016 [Dagger].
Medium SBP (sparker)..................  Applied Acoustics Dura-        0.3-1.2             203             211            174    Crocker and Fratantonio,          1.1            4          180
                                         Spark UHD 400+400 (500                                                                   2016 [Dagger].
                                         J) *.
Medium SBP (sparker)..................  GeoMarine Geo-Source 200-      0.3-1.2             203             211            174    Crocker and Fratantonio,          1.1            4          180
                                         400 (400-500 J).                                                                         2016 Sec.  .
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Note: Proposed equipment or equivalents will be used.
* This sparker may be used at a power setting of up to 800 J.
[Dagger] Applied Acoustics Dura-spark 240/400 400 tip/500 J Proxy.
Sec.   This system was tested and measured by Crocker and Fratantonio (2016) and we use the specifications for 400 tips and 500 J.
kHz--kilohertz.
ms--milliseconds.
Hz--hertz.
[mu]Pa--microPascal.
SPL--sound pressure level.
dB--decibel.
re--referenced at.
m--meters.
s--seconds.
SBP--sub-bottom profiler.
NR--not reported.
J--joules.


[[Page 32740]]

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' Stock Assessment Reports 
(SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these 
species (e.g., physical and behavioral descriptions) may be found on 
NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity, and summarizes information 
related to the 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 
(including from the draft 2022 SARs) and are available online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                       Table 2--Species and Stocks Likely Impacted by the Specified Activities \1\
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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
                                                                                            \2\          abundance survey) \3\                   \4\
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                                            Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
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Family Balaenidae:
    North Atlantic right whale.....  Eubalaena glacialis...  Western North Atlantic  E/D; Y             338 (0; 332; 2020)....          0.7          8.1
Family Balaenopteridae (rorquals):
    Fin whale......................  Balaenoptera physalus.  Western North Atlantic  E/D; Y             6,802 (0.24; 5,573,              11          1.8
                                                                                                         2016).
    Humpback whale.................  Megaptera novaeangliae  Gulf of Maine.........  -/-; Y             1,396 (0; 1,380; 2016)           22        12.15
    Minke whale....................  Balaenoptera            Canadian East Coastal.  -/-; N             21,968 (0.31; 17,002;           170         10.6
                                      acutrostrata.                                                      2016).
    Sei whale......................  Balaenoptera borealis.  Nova Scotia...........  E/D; Y             6,292 (1.02; 3,098;             6.2          0.8
                                                                                                         2016).
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                                                  Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae:
    Sperm whale....................  Physeter macrocephalus  North Atlantic........  E/D; Y             4,349 (0.28; 3,451;             3.9            0
                                                                                                         2016).
Family Delphinidae:
    Atlantic spotted dolphin.......  Stenella frontalis....  Western North Atlantic  -/-; N             39,921 (0.27; 32,032;           320            0
                                                                                                         2016).
    Atlantic white-sided dolphin...  Lagenorhynchus acutus.  Western North Atlantic  -/-; N             93,233 (0.71;54,443;            544           27
                                                                                                         2016).
    Bottlenose dolphin.............  Tursiops truncatus....  Western North           -/-; N             62,851 (0.23; 51,914;           519           28
                                                              Atlantic, Offshore.                        2016).
    Bottlenose dolphin.............  Tursiops truncatus....  Western North           -/D; Y             6,639 (0.41; 4,759;              48    12.2-21.5
                                                              Atlantic, Northern                         2016).
                                                              Migratory Coastal.
    Long-finned pilot whale........  Globicephala melas....  Western North Atlantic  -/-; N             39,215 (0.3; 30,627;            306            9
                                                                                                         2016).
    Risso's dolphin................  Grampus griseus.......  Western North Atlantic  -/-; N             35,215 (0.19; 30,051;           301           34
                                                                                                         2016).
    Common dolphin.................  Delphinus delphis.....  Western North Atlantic  -/-; N             172,974 (0.21;                1,452          390
                                                                                                         145,216; 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise................  Phocoena phocoena.....  Gulf of Maine/Bay of    -/-; N             95,543 (0.31; 74,034;           851          164
                                                              Fundy.                                     2016).
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                                                               Order Carnivora--Pinnipedia
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Family Phocidae (earless seals):
    Gray seal \5\..................  Halichoerus grypus....  Western North Atlantic  -/-; N             27,300 (0.22; 22,785;         1,389        4,453
                                                                                                         2016).
    Harbor seal....................  Phoca vitulina........  Western North Atlantic  -/-; N             61,336 (0.08; 57,637;         1,729          329
                                                                                                         2018).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ 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.
\3\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is coefficient of variation; Nmin is the minimum estimate of stock abundance.

[[Page 32741]]

 
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g.,
  commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A
  CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ NMFS's 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 M/SI 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 Table 3-1 of the IHA 
application), 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 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 IWO'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 33-1,041 m) 
but were observed throughout the survey area (Zoidis et al., 2021, 
Robinson 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 III 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 May 9, 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 (LaBrecque 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 kn) or 5.14 meters per 
second (m/sec) for all vessels longer 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 UME (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 
IWO 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.

Fin Whale

    Fin whales are present north of 35 degrees N 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.

[[Page 32742]]

    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 (Robinson et al., 2021). Passive acoustic data from 2018 to 
2020 also detected fin whales throughout the year (Estabrook et al., 
2021).

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 
confidence interval (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).
---------------------------------------------------------------------------

    \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 U.S. 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 to which 
feeding population whales in these waters belong.
    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 May 9, 2023). Of the whales examined, about 
40 percent had evidence of human interaction, either vessel strike or 
entanglement. While a portion of the whales have shown evidence of pre-
mortem vessel strike, this finding is not consistent across all whales 
examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.

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 longitude) 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 (Robinson et al., 2021).
    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 May 9, 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.

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 (Robinson et al., 2021). 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).

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 
(Robinson et al., 2021). Passive acoustic recordings of sperm whale 
recorded them throughout the year, and the highest number of whales 
occurred during spring and summer (Estabrook et al., 2021).

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 occurs 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).

[[Page 32743]]

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 100-m 
depth contour from central west Greenland to North Carolina (Waring et 
al., 2016). The Gulf of Maine stock is most common in continental shelf 
waters from Hudson Canyon to Georges Bank and in the Gulf of Maine and 
lower Bay of Fundy. Sighting data indicate seasonal shifts in 
distribution (Northridge et al., 1997). During January to May, low 
numbers of white-sided dolphins are found from Georges Bank to Jeffreys 
Ledge (off New Hampshire) with even lower numbers south of Georges Bank 
as documented by a few strandings collected on beaches of Virginia to 
South Carolina. From June through September, large numbers of white-
sided dolphins are found from Georges Bank to the lower Bay of Fundy. 
From October to December, white-sided dolphins occur at intermediate 
densities from southern Georges Bank to southern Gulf of Maine (Payne 
and Heinemann, 1990). Sightings south of Georges Bank, particularly 
around Hudson Canyon, occur year round but at low densities. 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 (Robinson et al., 2021).

Bottlenose Dolphin

    There are two distinct bottlenose dolphin morphotypes in the 
Western North Atlantic: the 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 (Hayes et 
al., 2017, Hayes et al., 2018). 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. 
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 in depth.

Long-Finned Pilot Whale

    Only long-finned pilot whales are reasonably expected to occur in 
this project area due to their more northerly distribution and 
association with colder water compared to short-finned pilot whales 
(Garrison and Rosel, 2017). 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).

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 (Robinson et al., 2021).

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 (Hayes et al., 2021, CETAP, 1982, Hamazaki, 
2002, Selzer and Payne, 1988). 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] N to 42[deg] N latitude) 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]F (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. Summer surveys included observations of the most 
individuals followed by fall, winter, and then spring.

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-December) and spring (April-June), they are more widely 
dispersed from New Jersey to Maine with lower densities farther north 
and south. In winter (January-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 
(greater than 1,800 m) (Westgate and Read, 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 (Gray Seal and Harbor 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. 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 seals and 
gray seals have been documented along the southern and central coast of 
Maine. This event has also been declared a UME. Preliminary testing of 
samples

[[Page 32744]]

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 UMEs 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., 2005, Wartzok and 
Ketten, 1999, Au and Hastings, 2008)). To reflect this, Southall et al. 
(2007) and Southall et al. (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-dB threshold from the normalized composite audiograms, 
with the exception for lower limits for low-frequency cetaceans where 
the lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

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

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006, Kastelein et al., 2009, Reichmuth et al., 
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 38094, June 27, 2022; 87 FR 
51359, August 22, 2022). No significant new information is available, 
and we refer to 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, 
e.g., (American National Standards Institute, 1986, American National 
Standards Institute, 1995, Au and Hastings, 2008, Hastings and Popper, 
2005, Mitson, 1995, NIOSH, 1998, Richardson et al., 2005, Southall et 
al., 2007, 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 IWO'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

[[Page 32745]]

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.
    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) 
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, 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 vessel 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. 
Vessel 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 et al. (2003) summarized vessel 
strikes of large whales worldwide from 1975-2003 and found that most 
collisions occurred in the open ocean and involved large vessels (e.g., 
commercial shipping). For vessels used in geophysical survey 
activities, vessel speed while towing gear is typically only 4-5 kn 
(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 IWO'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 sparkers. 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;

[[Page 32746]]

and, (4) the number of days of activities. We note that while these 
factors can contribute to a basic calculation to provide an initial 
prediction of potential takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Below, we describe 
the factors considered here in more detail and present the proposed 
take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., (Ellison et al., 2012, Southall et al., 2007, Southall 
et al., 2021)). 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 (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.
    IWO's marine site characterization surveys include the use of 
impulsive (i.e., sparker) sources, and therefore the SPL threshold 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) 
(NMFS, 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.
    IWO's marine site characterization surveys include the use of 
impulsive (i.e., 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 IWO's application for 
details of a quantitative exposure analysis exercise (i.e., calculated 
Level A harassment isopleths and estimated Level A harassment 
exposures). IWO 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). IWO used 180[deg] beamwidth in the calculation for the 
proposed sparker systems 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.
    IWO proposes to use the Applied Acoustics Dura-Spark 240/400 (400 
tip/500 J), Applied Acoustics Dura-Spark UHD 400+400 (400 tip/500-800 
J) and the Geo-Source 200-400 Marine Multi-tip Sparker System (400 tip/
400-500 J). For the two Applied Acoustics source configurations (Table 
1), the maximum power expected to be discharged is 800 J. However, 
Crocker and Fratantonio (2016) did not measure the Dura-Spark with an 
energy of 800 J, only 500 J, 2,000 J, and 2,400 J, so the source level 
values for 500 J (provided in Table 10 of Crocker and Fratantonio 
(2016)) were used as a proxy, as this setting was anticipated to be 
more representative of the application of the equipment than the next 
level reported for 2,000 J. The Applied Acoustics Dura-Spark was also 
used as a proxy for the Geo-Source 200-400 Marine Multi-tip Sparker 
System (400 tip/400-500 J). Using the measured source level of 203 dB 
RMS SPL of the proxy, results of modeling indicated that all three 
sparkers would produce an estimated distance of 141 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 
(Table 1) that has the potential to result in Level B harassment of 
marine mammals, all three systems would produce the same distance to 
the Level B harassment isopleth (141 m).

[[Page 32747]]

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information that 
will inform the take calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, Roberts and 
Halpin, 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 in 2016 and models for all taxa were updated in 2022 
(Roberts et al., 2016, Roberts and Halpin, 2022). More information is 
available online at https://seamap.env.duke.edu/models/Duke/EC/. Marine 
mammal density estimates in the survey area (animals/km\2\) were 
obtained using the most recent model results for all taxa.
    For the exposure analysis, density data from Roberts and Halpin 
(2022) were mapped using a geographic information system (GIS). For the 
survey area, the monthly densities of each species as reported by 
Roberts and Halpin (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 IWO's IHA application. Below, we 
discuss how densities were assumed to apply to specific species for 
which the Roberts and Halpin (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 Western North Atlantic Offshore Stock (Offshore 
Stock)), however, Roberts and Halpin (2022) do not differentiate by 
stock. The Coastal Stock is assumed to generally occur in waters less 
than 20 m (65 ft) and the Offshore Stock in waters greater than 20 m 
(65 ft) isobath. The Lease Area is in waters greater than 20 m (65 ft) 
depth and only the Offshore Stock would occur and potentially be taken 
by survey effort in that area. Both stocks could occur in the ECR Area, 
so IWO calculated separate mean seasonal densities for the portion that 
is less than 20 m depth and for the portion that is greater than 20 m 
depth to use for estimating take of the Coastal and Offshore Stocks of 
bottlenose dolphins, respectively.
    Furthermore, the Roberts and Halpin (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 from Roberts and Halpin (2022) include 
all seal species that may occur in the Western North Atlantic combined 
(i.e., gray, harbor, harp, hooded). For this IHA, only gray seals and 
harbor seals are reasonably expected to occur in the survey area; 
densities of seals were split evenly between these two species.
    Finally, the Roberts and Halpin (2022) density model does not 
differentiate between 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). Short-finned pilot whales are not anticipated to occur as 
far north as the survey area so we assume that all pilot whales near 
the project area would be long-finned pilot whales (Garrison and Rosel, 
2017). For this IHA, densities of pilot whales are assumed to be only 
long-finned pilot whale.

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 were calculated, as described above. The distance (i.e., 141 
m distance associated with the sparker systems) to the Level B 
harassment criterion and the total length of the survey trackline were 
then used to calculate the total ensonified area, or harassment zone, 
around the survey vessel.
    IWO proposes to conduct HRG surveys for a maximum total of 12,818 
km trackline length, of which 7,460 km are in the Lease Area and 5,358 
km are in the ECR Area. Of the ECR Area trackline, 1,600 km are in 
waters less than 20 m depth. Based on the maximum estimated distance to 
the Level B harassment threshold (141 m) for all three sparker systems 
and maximum total survey length, the total ensonified area is 3,615 
km\2\ (2,104 km\2\ Lease Area and 1,511 km\2\ ECR Area (452 km\2\ in 
waters less than 20 m depth; 1,059 km\2\ in waters greater than 20 m 
depth)), based on the following formula, where the total estimated 
trackline length (L) in each area was used and buffered with the 
horizontal distance to the Level B harassment threshold (R) to 
determine the total area ensonified to 160 dB SPL.

Harassment Zone = (L x 2R) + [pi]R\2\

    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 (up to 274 days). A 
summary of this method is illustrated in the following formula, where 
the Harassment Zone is multiplied by the highest seasonal mean density 
(D) of each species or stock (animals/km\2\; except for pilot whales 
where annual density was used based on data availability).

Estimated Take = Harassment Zone x D

    The resulting take of marine mammals (Level B harassment) is shown 
in Table 4.

[[Page 32748]]



                    Table 4--Estimated Take Numbers and Total Take Proposed for Authorization
----------------------------------------------------------------------------------------------------------------
                                                    Density                        Total take
            Species               Ensonified       (animals/    Estimated take   proposed to be     Percent of
                                 area (km\2\)       km\2\)                         authorized      abundance \1\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale....           3,615        0.001748               6                 6            1.87
Humpback whale................           3,615        0.003657              13                13            0.95
Fin whale.....................           3,615        0.004856              18                18            0.26
Sei whale.....................           3,615        0.001813               7                 7            0.10
Minke whale...................           3,615        0.025476              92                92            0.42
Sperm whale...................           3,615        0.000371               1        [dagger] 2            0.03
Risso's dolphin...............           3,615        0.002841              10                10            0.03
Long-finned pilot whale.......           3,615        0.003363              12       [dagger] 15            0.03
Atlantic white-sided dolphin..           3,615        0.027836             101               101            0.11
Common dolphin................           3,615        0.245719             888               888            0.51
Atlantic spotted dolphin......           3,615        0.011683              42                42            0.11
Harbor porpoise...............           3,615        0.262904             950               950            0.99
Common bottlenose dolphin                3,164        0.193127             611               611            0.97
 (Offshore Stock) \2\.........
Common bottlenose dolphin                  452        1.758553             795               795           11.97
 (Northern Migratory Coastal
 Stock) \3\...................
Gray seal.....................           3,615    \4\ 0.262904             950               950            0.21
Harbor seal...................           3,615    \4\ 0.262904             950               950        \5\ 1.55
----------------------------------------------------------------------------------------------------------------
[dagger] Take request based on average group size using sightings data from (CETAP, 1982, Palka et al., 2017,
  Palka et al., 2021) (see Attachment 3 of application).
\1\ Based on the 2022 draft marine mammal stock assessment reports (SAR).
\2\ The ensonified area for the offshore stock is for greater than 20 m water depth includes all the lease area
  and portions of the ECR.
\3\ The ensonified area for the migratory coastal stock is only the areas of less than 20 m water depth (found
  only in portions of the ECR).
\4\ These each represent 50% of a generic seal density value.
\5\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock
  abundance estimate for U.S. 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 IWO's planned marine site characterization surveys. Pursuant to 
section 7 of the ESA, IWO 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

    IWO must employ independent, dedicated, trained protected species 
observers (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 in which use of the sparker 
system is planned to occur, and whenever the sparker system 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 (min) prior to sunrise through 30 min 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 min prior 
to ramp-up (described below) and must continue until 30 min after use 
of the sparker system 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

[[Page 32749]]

zones shall be based upon the radial distance from the sparker system 
(rather than being based around the vessel itself).
    Two shutdown zones are defined, depending on the species and 
context. Here, an extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 m from the sparker system 
(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. 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 hr between watches and may conduct a 
maximum of 12 hr of observation per 24-hr 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 system when technically feasible. Operators should ramp up 
sparker to half power for 5 min and then proceed to full power. A 30 
min 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 min) 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 min prior to the planned ramp-up in 
order to allow the PSOs time to monitor the shutdown zones for 30 min 
prior to the initiation of ramp-up (pre-start clearance). During this 
30 min 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 min 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 min for all 
baleen whale species and sperm whales, 15 min for all other species).
     PSOs must monitor the shutdown zones 30 min 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 min prior to beginning ramp-up. 
Sparker activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If the acoustic source is shut down for brief periods (i.e., less 
than 30 min) 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 system 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 system 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 system 
must be immediately deactivated and any dispute resolved only following 
deactivation.
     Two 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 system 
(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.
    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 min for all baleen 
whale species and sperm whales, 15 min for all other species) with no 
further detection of the marine mammal.

[[Page 32750]]

    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), shutdown must occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel must 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-kn (18.52 
km/hr) 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 kn (18.52 km/hr) 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), sperm whale, and any unidentified large 
whale is sighted within the relevant separation distance, the vessel 
must steer a course away at 10 kn (18.52 km/hr) 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 minke 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 the 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 IWO'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 (less than 10 kn (18.52 km/hr)) when operating 
within the SMA during times when the SMA is active (Table 5).

      Table 5--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                       Restrictions Within the Survey Area
----------------------------------------------------------------------------------------------------------------
           Survey area                  Species        DMA restrictions       Slow zones       SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area......................  North Atlantic      If established by   If established by   N/A.
                                   right whale.        NMFS, all of        NMFS, all of
                                                       IWO's vessel will   IWO's vessel will
                                                       abide by the        abide by the
                                                       described           described
                                                       restrictions.       restrictions.
ECR Area (within SMA)...........  North Atlantic      If established by   If established by   November 1 through
                                   right whale.        NMFS, all of        NMFS, all of        April 31 (Ports
                                                       IWO's vessel will   IWO's vessel will   of New York/New
                                                       abide by the        abide by the        Jersey).
                                                       described           described
                                                       restrictions.       restrictions.
ECR Area (outside SMA)..........  North Atlantic      If established by   If established by   N/A.
                                   right whale.        NMFS, all of        NMFS, all of
                                                       IWO's vessel will   IWO's vessel will
                                                       abide by the        abide by the
                                                       described           described
                                                       restrictions.       restrictions.
----------------------------------------------------------------------------------------------------------------
More information on Vessel 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.

[[Page 32751]]

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
     Mitigation and monitoring effectiveness.

Proposed Monitoring Measures

    Visual monitoring must be performed by qualified, NMFS-approved 
PSOs. IWO 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.
    A ``trained lookout'' may be used on a space-limited nearshore 
vessel (generally operating in water less than 20 m depth for no more 
than 12 hr/day) during required breaks for the approved PSO on duty. 
Project-specific training must be conducted for all vessel crew with 
``lookout'' responsibilities prior to the start of a survey and during 
any changes in crew such that all relevant survey personnel are fully 
aware and understand the mitigation, monitoring, and reporting 
requirements. All vessel crew members operating as a trained lookout 
must be briefed in the identification of protected species that may 
occur in the survey area and in relevant mitigation requirements. 
Reference materials must be available aboard all project vessels for 
identification of protected species.
    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 more) 
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).
    IWO 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);

[[Page 32752]]

     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 IWO is responsible 
for ensuring PSOs have the proper equipment required to perform the 
duties specified in the IHA.
    The PSOs will be responsible for monitoring the waters surrounding 
the survey vessel to the farthest extent permitted by sighting 
conditions, including Shutdown Zones, during all HRG survey operations. 
PSOs will visually monitor and identify marine mammals, including those 
approaching or entering the established Shutdown Zones during survey 
activities. It will be the responsibility of the PSO(s) on duty to 
communicate the presence of marine mammals as well as to communicate 
the action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Shutdown Zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, 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

    IWO 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:

[[Page 32753]]

    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    c. PSO who sighted the animal;
    d. Time of sighting;
    e. Initial detection method;
    f. Sightings cue;
    g. Vessel location at time of sighting (decimal degrees);
    h. Direction of vessel's travel (compass direction);
    i. Speed of the vessel(s) from which the observation was made;
    j. Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level or unidentified); also note the composition of 
the group if there is a mix of species;
    k. Species reliability (an indicator of confidence in 
identification);
    l. Estimated distance to the animal and method of estimating 
distance;
    m. Estimated number of animals (high/low/best);
    n. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    o. Description (as many distinguishing features as possible of each 
individual seen, including length, shape, color, pattern, scars, or 
markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    p. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    q. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    r. Equipment operating during sighting;
    s. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and,
    t. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a NARW is observed at any time by PSOs or personnel on the 
project vessel, during surveys or during vessel transit, IWO must 
report the sighting information to the NMFS NARW Sighting Advisory 
System (866-755-6622) within 2 hr of occurrence, when practicable, or 
no later than 24 hr 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 vessel strike of a marine mammal by any vessel 
involved in the activities, IWO 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 sub-sections 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

[[Page 32754]]

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 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 approximately 3,615 km\2\ of 
total estimated Level B harassment ensonified area associated with the 
Survey Area) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts.
    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 vessel strike during migration; no vessel strike is 
expected to occur during IWO'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 zone 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 NARW takes that would 
result from IWO'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 IWO'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 (i.e., vessel strike, 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 from 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., 2022). 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., 2022).
    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

[[Page 32755]]

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 activities would not affect migration. In 
addition, mitigation measures require shutdown at 500 m (over three 
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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted previously, only 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 relative to the best 
available population abundance is less than 2 percent for 15 of the 16 
managed stocks (less than 12 percent for the Western North Atlantic 
Northern 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 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS' Office of Protected Resources is proposing to authorize take 
of four species of marine mammals which are listed under the ESA, 
including NARW, fin whale, sei whale, and sperm whale, and has 
determined these activities fall within the scope of activities 
analyzed in the NMFS 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 IWO for conducting marine site characterization surveys 
in waters off of New Jersey and New York 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 for marine site 
characterization surveys. We also request comment on the potential 
renewal of this proposed IHA as described in the paragraph below. 
Please include with your comments any supporting data or literature 
citations to help inform decisions on the request for this IHA or a 
subsequent renewal IHA.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical activities as described in the Description of Proposed 
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 one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    [cir] An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the

[[Page 32756]]

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).
    [cir] 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: May 17, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-10850 Filed 5-19-23; 8:45 am]
BILLING CODE 3510-22-P