[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Notices]
[Pages 41888-41908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13719]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD055]


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; issuance of an Incidental Harassment Authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an Incidental Harassment Authorization (IHA) to 
Attentive Energy LLC (AE) to incidentally harass marine mammals during 
marine site characterization surveys off of New York and New Jersey in 
the New York Bight.

DATES: This Authorization is effective from June 20, 2023 through June 
19, 2024.

FOR FURTHER INFORMATION CONTACT: Karolyn Lock, 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 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

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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.

Summary of Request

    On December 28, 2022, NMFS received a request from AE for an IHA to 
take marine mammals incidental to conducting marine site 
characterization surveys in coastal waters off of New York and New 
Jersey in the New York Bight, specifically within the Bureau of Ocean 
Energy Management (BOEM) Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (Lease) 
Area OCS-A 0538 and associated export cable route (ECR) area. Following 
NMFS' review of the application, the application was deemed adequate 
and complete on February 22, 2023. AE's request is for take of small 
numbers of 15 species (16 stocks) of marine mammals by Level B 
harassment only. Neither AE nor NMFS expect serious injury or mortality 
to result from this activity and, therefore, an IHA is appropriate. 
There are no changes from the proposed IHA to the final IHA.

Description of Activity

Overview

    AE plans to conduct marine site characterization surveys, including 
high-resolution geophysical (HRG) surveys, in coastal waters off of New 
Jersey and New York in the New York Bight, specifically within the BOEM 
Lease Area OCS-A 0538 and associated ECR area.
    The planned marine site characterization surveys are designed to 
obtain data sufficient to meet BOEM guidelines for providing 
geophysical, geotechnical, and geohazard information for site 
assessment plan surveys and/or construction and operations plan 
development. The objective of the surveys is to support the site 
characterization, siting, and engineering design of offshore wind 
project facilities including wind turbine generators, offshore 
substations, and submarine cables within the Lease Area. Up to two 
vessels may conduct survey efforts concurrently. Underwater sound 
resulting from AE's marine site characterization survey activities, 
specifically HRG surveys, have the potential to result in incidental 
take of marine mammals in the form of Level B harassment.

Dates and Duration

    The survey is planned to begin as soon as practicable and estimated 
to require 201 survey days across a maximum of two vessels operating 
concurrently within a single year. A ``survey day'' is defined as a 24-
hour (hr) activity period in which active acoustic sound sources are 
used. It is expected that each vessel would cover approximately 170 
kilometers (km) per day based on the applicant's expectations regarding 
data acquisition efficiency, and there is up to 21,745 km (13,512 
miles) of track line of survey effort planned; 14,025 km in the Lease 
Area and 7,720 km in the ECR area. The IHA would be effective for 1 
year from the date of issuance.

Specific Geographic Region

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

    AE's marine site characterization surveys include HRG surveys and 
geotechnical sampling activities within the Lease Area and the ECR 
area. The total HRG survey tracklines for the Survey Area is 21,745 km, 
with 14,025 km in the Lease Area and 7,720 km in the ECR Area. The 
geotechnical sampling activities, including use of vibracores and 
seabed core penetration tests, would occur during the same period as 
the HRG survey activities and would use an additional survey vessel. 
NMFS does not expect geotechnical sampling activities to present 
reasonably anticipated risk of causing incidental take of marine 
mammals, and these activities are not discussed further in this notice.
    AE plans to conduct HRG survey operations, including multibeam 
depth sounding, seafloor imaging, and medium penetration sub-bottom 
profiling (SBP). The HRG surveys will

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include the use of seafloor mapping equipment with operating 
frequencies above 180 kilohertz (kHz) (e.g., side-scan sonar (SSS), 
multibeam echosounders (MBES)); gradiometers that have no acoustic 
output; non-impulsive, parametric sub-bottom profilers (SBPs) with 
narrow beamwidth; and medium-penetration SBP equipment (e.g., boomers 
and sparkers) with operating frequencies below 180 kilohertz (kHz). 
NMFS does not expect operation of the aforementioned survey equipment 
to result in take of marine mammals, and these activities are not 
discussed further in this notice.
    The only acoustic sources planned for use during AE's HRG survey 
activities with expected potential to cause incidental take of marine 
mammals are the sparker and boomer. Sparkers and boomers are medium 
penetration, impulsive sources used to map deeper subsurface 
stratigraphy. Sparkers create omnidirectional acoustic pulses from 50 
Hz to 4 kHz, are typically towed behind the vessel, and may be operated 
with different numbers of electrode tips to allow tuning of the 
acoustic waveform for specific applications. The sparker system planned 
for use is the Dual Geo-Spark 2000X (400 tip/800 J). A boomer is a 
broadband source operating in the 3.5 Hz to 10 kHz frequency range. The 
boomer system planned for use is the Geo-Boomer 300-500.
    A detailed description of AE's planned HRG surveys is provided in 
the Federal Register notice for the proposed IHA (88 FR 24553, April 
21, 2023). Since that time, no changes have been made to the planned 
HRG survey activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
detailed description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to AE was published in 
the Federal Register on April 21, 2023 (88 FR 24553). That notice 
described, in detail, AE's proposed activities, the marine mammal 
species that may be affected by the activities, and the anticipated 
effects on marine mammals. In that notice, we requested public input on 
the request for authorization described therein, our analyses, the 
proposed authorization, and any other aspect of the notice of proposed 
IHA, and requested that interested persons submit relevant information, 
suggestions, and comments. This proposed notice was available for a 30-
day public comment period.
    NMFS received eleven comment letters. Two of these comment letters 
were from non-governmental organizations: the Responsible Offshore 
Development Alliance (RODA) and Clean Ocean Action (COA), and one was 
from an elected local governmental official (Mayor of Borough of 
Seaside Park, New Jersey; Seaside Park). The remaining eight comments 
were from private citizens.
    All comments from private citizens expressed general opposition to 
issuance of the IHA or to the underlying associated activities. We 
reiterate here that NMFS' proposed actions concerns only the 
authorization of marine mammal take incidental to the planned surveys--
NMFS' authority under the MMPA does not extend to the surveys 
themselves or to wind energy development more generally. Many comments 
received request that NMFS not issue any IHAs related to wind energy 
development and/or expressed opposition for wind energy development 
generally without providing information relevant to NMFS' decision. We 
do not specifically address comments expressing general opposition to 
activities related to wind energy development or respond to comments 
that are out of scope of the proposed IHA (88 FR 24553), such as 
comments on other Federal agency processes and activities not planned 
under this IHA.
    All substantive comments and NMFS' responses are provided below, 
and all comment letters are available online at https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0. Please review the 
comment letters for full details regarding the comments and associated 
rationale.
    Comment 1: Multiple commenters expressed concern that negative 
impacts to local fishermen and/or coastal communities as a result of a 
potentially adverse impact to marine mammals (e.g., vessel strike 
resulting in death or severe injury) were not mentioned nor evaluated 
in this IHA. RODA specifically noted concern regarding existing fishery 
restrictions as a result of other North Atlantic right whale 
protections.
    Response: Neither the MMPA nor our implementing regulations require 
NMFS to analyze impacts to other industries (e.g., fisheries) or 
coastal communities from issuance of an Incidental Take Authorization 
(ITA). Nevertheless, as detailed in the proposed IHA notice, NMFS has 
analyzed the potential for adverse impacts such as vessel strikes to 
marine mammals, including North Atlantic right whales, as a result of 
AE's planned site characterization survey activities and determined 
that no serious injury or mortality is anticipated. In fact, as 
discussed in the Negligible Impact Analysis and Determination section 
later in this document, no greater than low-level behavioral harassment 
is expected for any affected species. For North Atlantic right whales 
in particular, it is considered unlikely, as a result of the required 
precautionary shutdown zone (i.e., 500 m versus the estimated maximum 
Level B harassment zone of 141 m), that the authorized take would occur 
at all. Thus, NMFS would also not anticipate the impacts raised in this 
comment as a result of issuing this IHA for site characterization 
survey activities to AE.
    Comment 2: Multiple commenters expressed concern about an alleged 
lack of adequate analysis of cumulative impacts to marine mammals.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of other unrelated activities and 
their impacts on populations. The preamble for NMFS' implementing 
regulations (54 FR 40338, September 29, 1989) states in response to 
comments that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline, e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and other relevant 
stressors. The 1989 final rule for the MMPA implementing regulations 
also addressed public comments regarding cumulative effects from 
future, unrelated activities. There NMFS stated that such effects are 
not considered in making findings under section 101(a)(5) concerning 
negligible impact. In this case, this IHA, as well as other IHAs 
currently in effect or proposed within the specified geographic region, 
are appropriately considered an unrelated activity relative to the 
others. The IHAs are unrelated in the sense that they are discrete 
actions under section 101(a)(5)(D), issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of

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the specified activity or class of activities that can be expected to 
result in incidental taking of marine mammals (50 CFR 216.104(a)(1)). 
Thus, the ``specified activity'' for which incidental take coverage is 
being sought under section 101(a)(5)(D) is generally defined and 
described by the applicant. Here, AE was the applicant for the IHA, and 
we are responding to the specified activity as described in that 
application (and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated (1) that we would consider cumulative 
effects that are reasonably foreseeable when preparing a National 
Environmental Policy Act (NEPA) analysis, and (2) that reasonably 
foreseeable cumulative effects would also be considered under section 7 
of the Endangered Species Act (ESA) for ESA-listed species, as 
appropriate. Accordingly, NMFS has written Environmental Assessments 
(EA) that addressed cumulative impacts related to substantially similar 
activities, in similar locations, e.g., the 2019 Avangrid EA for survey 
activities offshore North Carolina and Virginia; the 2017 Ocean Wind, 
LLC EA for site characterization surveys off New Jersey; and the 2018 
Deepwater Wind EA for survey activities offshore Delaware, 
Massachusetts, and Rhode Island. Cumulative impacts regarding issuance 
of IHAs for site characterization survey activities such as those 
planned by AE have been adequately addressed under NEPA in prior 
environmental analyses that support NMFS' determination that this 
action is appropriately categorically excluded from further NEPA 
analysis. NMFS independently evaluated the use of a categorical 
exclusion (CE) for issuance of AE's IHA, which included consideration 
of extraordinary circumstances.
    Separately, the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New 
York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562, July 7, 
2017; 83 FR 28808, June 21, 2018; 83 FR 36539, July 30, 2018; and 86 FR 
26465, May 10, 2021), which are similar to those planned by AE under 
this current IHA request. This Biological Opinion determined that NMFS' 
issuance of IHAs for site characterization survey activities associated 
with leasing, individually and cumulatively, are not likely to 
adversely affect listed marine mammals. NMFS notes that, while issuance 
of this IHA is covered under a different consultation, this BiOp 
remains valid.
    Comment 3: Multiple commenters urged NMFS to deny the proposed 
project and/or postpone any offshore wind (OSW) activities until NMFS 
determines effects of all OSW activities on marine mammals in the 
region and determines that the recent whale deaths are not related to 
OSW activities. Similarly, some commenters provided general concerns 
regarding recent whale stranding events on the Atlantic Coast, 
including speculation that the strandings may be related to wind energy 
development-related activities. However, the commenters did not provide 
any specific information supporting these concerns.
    Response: NMFS authorizes take of marine mammals incidental to 
surveys but does not authorize the surveys themselves. Therefore, while 
NMFS has the authority to modify, suspend, or revoke an IHA if the IHA 
holder fails to abide by the conditions prescribed therein (including, 
but not limited to, failure to comply with monitoring or reporting 
requirements), or if NMFS determines that (1) the authorized taking is 
having or is likely to have more than a negligible impact on the 
species or stocks of affected marine mammals, or (2) the prescribed 
measures are likely not or are not effecting the least practicable 
adverse impact on the affected species or stocks and their habitat, it 
is not within NMFS' jurisdiction to impose a moratorium on offshore 
wind development or to require surveys to cease on the basis of 
unsupported speculation.
    NMFS reiterates that there is no evidence that noise resulting from 
offshore wind development-related site characterization surveys could 
potentially cause marine mammal stranding, and there is no evidence 
linking recent large whale mortalities and currently ongoing surveys. 
The commenters offer no such evidence. NMFS will continue to gather 
data to help us determine the cause of death for these stranded whales. 
We note the Marine Mammal Commission's recent statement: ``There 
continues to be no evidence to link these large whale strandings to 
offshore wind energy development, including no evidence to link them to 
sound emitted during wind development-related site characterization 
surveys, known as HRG surveys. Although HRG surveys have been occurring 
off New England and the mid-Atlantic coast, HRG devices have never been 
implicated or causatively-associated with baleen whale strandings.'' 
(Marine Mammal Commission Newsletter, Spring 2023).
    There is an ongoing Unusual Mortality Event (UME) for humpback 
whales along the Atlantic coast from Maine to Florida, which includes 
animals stranded since 2016. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Necropsies were not 
conducted on other carcasses because they were too decomposed, not 
brought to land, or stranded on protected lands (e.g., national and 
state parks) with limited or no access. Of the whales examined (roughly 
90), about 40 percent had evidence of human interaction, either ship 
strike or entanglement. Vessel strikes and entanglement in fishing gear 
are the greatest human threats to large whales. The remaining 50 
necropsied whales either had an undetermined cause of death (due to a 
limited examination or decomposition of the carcass), or had other 
causes of death including parasite-caused organ damage and starvation.
    As discussed herein, HRG sources may behaviorally disturb marine 
mammals (e.g., avoidance the immediate area). These HRG surveys are 
very different from seismic airguns used in oil and gas surveys or 
tactical military sonar. They produce much smaller impact zones 
because, in general, they have lower source levels and produce output 
at higher frequencies. The area within which HRG sources might 
behaviorally disturb a marine mammal is orders of magnitude smaller 
than the impact areas for seismic airguns or military sonar. Any marine 
mammal exposure would be at significantly lower levels and shorter 
duration, which is associated with less severe impacts to marine 
mammals.
    Comment 4: Multiple commenters expressed a concern that the 
proposed IHA would lead to mortality (death) of marine mammals as a 
result of AE's project.
    Response: NMFS emphasizes that there is no credible scientific 
evidence available suggesting that mortality and/or serious injury is a 
potential outcome of the planned survey activity. NMFS cannot authorize 
mortality or serious injury via an IHA. Additionally, such taking is 
prohibited under Condition 3(c) of the IHA and may result in 
modification, suspension, or revocation of the IHA. NMFS notes there 
has never

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been a report of any serious injuries or mortalities of a marine mammal 
associated with site characterization surveys.
    The best available science indicates that Level B harassment, or 
disruption of behavioral patterns, may occur as a result of AE's 
specified activities. We also refer to the Greater Atlantic Regional 
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds 
that these survey activities are in general not likely to adversely 
affect ESA-listed marine mammal species (i.e., GARFO's analysis 
conducted pursuant to the ESA finds that marine mammals are not likely 
to be taken at all (as that term is defined under the ESA), much less 
be taken by serious injury or mortality). That document is found at 
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.
    Comment 5: Commenters claimed that NMFS did not provide a 
meaningful opportunity for public engagement and/or asserted that the 
review process for this IHA was too rapid and NMFS' due diligence was 
lacking.
    Response: NMFS has satisfied the requirements of the MMPA, which 
requires that NMFS publish notice of a proposed authorization and 
request public comment for a period of 30 days. The notice of proposed 
IHA was published in the Federal Register on April 21, 2023 (88 FR 
24553) and was open for a 30-day comment period (i.e., through May 22, 
2023). Following conclusion of the comment period, NMFS has thoroughly 
reviewed and duly considered all relevant comments received.
    NMFS' ITA application and review process has numerous steps to 
ensure due diligence occurs for all ITA requests. On average, 
applications for IHAs take 5-8 months from application received to the 
final decisional date where an IHA is either issued or denied (50 CFR 
216.104(d)). Following an application being deemed adequate and 
complete, the ITA application progresses through the NMFS authorization 
review and decisional process, which includes a public notice period of 
30 days (50 CFR 216.104(b) and (c)). The public comment period allows 
for meaningful public engagement. The public comment period provides a 
mechanism for external input, including the opportunity for new 
scientific information relevant to the proposed activities, to be 
submitted for agency consideration. More information on the 
authorization steps and timelines can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    In this case, NMFS received AE's initial application on December 
28, 2023 and completed several rounds of agency review and analysis 
before considering the application adequate and complete on February 
22, 2023. NMFS drafted the Federal Register notice of the proposed IHA 
and proposed IHA, which went through additional rounds of internal 
review. The notice and proposed IHA were published in the Federal 
Register on April 21, 2023 (88 FR 24553) and was open for a 30-day 
comment period. NMFS reviewed all within-scope comments received for 
consideration in the final decisional process.
    Comment 6: Commenters stated that NMFS was not utilizing the best 
available science when assessing impacts to marine mammals. Commenters 
also asserted NMFS had not fully considered the effect of the project 
on North Atlantic right whales (NARW).
    Response: NMFS relied upon the best scientific evidence available, 
including, but not limited to, the draft 2022 Stock Assessment Reports 
(SAR), scientific literature, and Duke University's density model 
(Roberts et al., 2022)), in analyzing the impacts of AE's specified 
activities on marine mammals, including NARWs. While commenters suggest 
generally that NMFS consider the best scientific evidence available, 
none of the commenters provided additional scientific information for 
NMFS to consider.
    NMFS determined that AE's surveys have the potential to take marine 
mammals by Level B harassment and does not anticipate or authorize 
mortality (death), serious injury, or Level A harassment of any marine 
mammal species, including NARW. Further, NMFS does not expect that the 
generally short-term, intermittent, and transitory nature of AE's 
marine site characterization survey activities will create conditions 
of acute or chronic acoustic exposure leading to long-term 
physiological stress responses in marine mammals.
    Comment 7: RODA states that, to their knowledge, there are no 
resources easily accessible to the public to understand what 
authorizations are required for each of these activities (pre-
construction surveys, construction, operations, monitoring surveys, 
etc.). RODA recommends that NMFS improve the transparency of this 
process and move away from what it refers to as a ``segmented phase-by-
phase and project-by-project approach to IHAs''. RODA also requests a 
``comprehensive list/table of all Level A and Level B takes under 
currently approved Authorizations per project, as well as Level A and 
Level B takes per project being requested in all Authorization 
applications currently under review''.
    Response: The MMPA and its implementing regulations allow upon 
request, the incidental take of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographic region. NMFS authorizes the 
requested incidental take of marine mammals if it finds that the taking 
would be of small numbers, have no more than a ``negligible impact' on 
the marine mammal species or stock, and not have an ``unmitigable 
adverse impact'' on the availability of the species or stock for 
subsistence use. NMFS refers RODA to its website for more information 
on the marine mammal incidental take authorization process and 
timelines: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    NMFS emphasizes that an IHA does not authorize the activity itself 
but authorizes the take of marine mammals incidental to the ``specified 
activity'' for which incidental take coverage is being sought. In this 
case, NMFS is responding to AE's request to incidentally take marine 
mammals while engaged in marine site characterization surveys and 
determining whether the necessary findings can be made based on AE's 
application. The authorization of AE's survey activities is not within 
NMFS' jurisdiction. NMFS refers RODA to BOEM's website: https://www.boem.gov/renewable-energy.
    A list of all proposed and issued IHAs for renewable energy 
activities, such as AE's marine site characterization surveys, 
including the requested, proposed, and/or authorized take is available 
on the agency website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    Comment 8: A commenter expressed concern regarding the potential 
for increased uncertainty in estimates of marine mammal abundance 
resulting from wind turbine presence during aerial surveys and 
potential effects of NMFS' ability to continue using current aerial 
survey methods to fulfill its mission of precisely and accurately 
assessing protected species.

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    Response: NMFS has determined that OSW development projects may 
impact several Northeast Fisheries Science Center (NEFSC) surveys, 
including aerial surveys for protected species. NEFSC has developed a 
Federal survey mitigation program to mitigate the impacts to these 
surveys and is in the early stages of implementing this program. 
However, this impact is outside the scope of analysis related to the 
authorization of take incidental to AE's specified activity under the 
MMPA.
    Comment 9: Multiple commenters expressed concerns with what they 
characterize as the high amount of increased vessel traffic associated 
with the OSW projects throughout the region in areas transited or 
utilized by certain protected resources, as well as concern for vessel 
noise and increased risk for vessel strikes.
    Response: AE did not request authorization for take incidental to 
vessel strike during AE's marine site characterization survey. 
Nevertheless, NMFS analyzed the potential for vessel strikes to occur 
during the survey and determined that the potential for vessel strike 
is so low as to be discountable. For this IHA, NMFS did not authorize 
any take of marine mammals incidental to vessel strike resulting from 
the survey. If AE were to strike a marine mammal with a vessel, this 
would be an unauthorized take and a violation of the MMPA. This gives 
AE a strong incentive to operate its vessels with all due caution and 
to effectively implement the suite of vessel strike avoidance measures 
called for in the IHA. Section 4(m) in the issued IHA contains a suite 
of non-discretionary requirements pertaining to vessel strike 
avoidance, including vessel operation protocols and monitoring. NMFS 
takes seriously the risk of vessel strike and has prescribed measures 
sufficient to avoid the potential for vessel strike to the extent 
practicable.
    To date, NMFS is not aware of any site characterization vessels 
from HRG surveys reporting a vessel strike within the United States. 
When considered in the context of low overall probability of any vessel 
strike by AE vessels, given the limited additional survey-related 
vessel traffic relative to existing traffic in the survey area, the 
comprehensive visual monitoring, and other additional mitigation 
measures described herein, NMFS believes these measures are 
sufficiently protective to avoid vessel strikes. These measures are 
described fully in the Mitigation section below, and include, but are 
not limited to: training for all vessel observers and captains, a 
requirement that all vessel operators comply with 10 knots (18.5 km/
hour) or less speed restrictions in any SMA, DMA or Slow Zone while 
underway, daily monitoring of North Atlantic Right Whale Sighting 
Advisory System, WhaleAlert app, and United States Coast Guard (USCG) 
Channel 16 for situational awareness regarding NARW presence in the 
survey area, communication protocols if whales are observed by any AE 
personnel, vessel operational protocol should any marine mammal be 
observed, and visual monitoring. Vessel speed mitigations are also 
briefly discussed in NMFS' response to Comment 2.
    The potential for impacts related to an overall increase in the 
amount of vessel traffic due to OSW development is separate from the 
aforementioned analysis of potential for vessel strike during AE's 
specified survey activities and is not discussed further as it is 
outside the scope of this specific action.
    Comment 10: A commenter asserted that additional clarification 
should be added to the IHA that explicitly states if weather or other 
conditions limit the range of observation, shutdown zones will be 
initiated. Multiple commenters also questioned the feasibility of the 
shutdown mitigation requirements in real-world conditions and what 
would occur if the authorized take levels were exceeded. Concerns were 
also asserted on the required mitigation measures, assessing the 
effectiveness of the mitigation measures, and reporting the use of the 
mitigation measures in real-time.
    Response: In regards to a scenario where AE exceeds their 
authorized take levels, any further take would be unauthorized and, 
therefore, prohibited under the MMPA.
    All mitigation measures stated in this notice and in the issued IHA 
are considered feasible. NMFS works with each ITA applicant, including 
AE, to ensure that project-specific mitigation measures are possible in 
real-world conditions. This includes shutdown zones when there is 
reduced visibility. As stated in the IHA condition 5(d), AE must ensure 
certain equipment is provided to protected species observers (PSOs), 
such as thermal (infrared) cameras, to allow PSOs to adequately 
complete their duties, including in reduced-visibility conditions. NMFS 
does not agree that additional wording is necessary within the IHA to 
further describe the requirement and implementation of shutdown zones. 
If NMFS determines during the effective period of the IHA that the 
prescribed measures are likely not or are not effecting the least 
practicable adverse impact on the affected species or stocks and their 
habitat, NMFS may modify, suspend, or revoke the IHA. NMFS disagrees 
that the IHA's mitigation measures are insufficient.
    NMFS reviews required reporting (see Monitoring and Reporting) and 
uses the information to evaluate the mitigation measure effectiveness. 
Additionally, the mitigation measures included in AE's IHA are not 
unique, and data from prior IHAs support the effectiveness of these 
mitigation measures. NMFS finds the level of reporting currently 
required is sufficient for managing the issued IHA and monitoring the 
affected stocks of marine mammals.
    Comment 11: Commenters objected to NMFS' ``small numbers'' 
determination for the numbers of marine mammals taken by Level B 
harassment under AE's planned activities.
    Response: NMFS disagrees with the commenters' arguments on the 
topic of small numbers. Although there is limited legislative history 
available to guide NMFS and an apparent lack of biological underpinning 
to the concept, we have worked to develop a reasoned approach to small 
numbers. NMFS explains the concept of ``small numbers'' in recognition 
that there could also be quantities of individuals taken that would 
correspond with ``medium'' and ``large'' numbers. As such, NMFS 
considers that one-third of the most appropriate population abundance 
number--as compared with the assumed number of individuals taken--is an 
appropriate limit with regard to ``small numbers.'' This relative 
approach is consistent with the statement from the legislative history 
that ``[small numbers] is not capable of being expressed in absolute 
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)), 
and relevant case law (Center for Biological Diversity v. Salazar, 695 
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife 
Service reasonably interpreted ``small numbers'' by analyzing take in 
relative or proportional terms)). NMFS has made the necessary small 
numbers finding for all affected species and stocks in this case.
    Comment 12: Several commenters expressed interest in understanding 
the outcome if the number of actual takes exceed the number authorized 
during construction of an offshore wind project (i.e., would the 
project be stopped mid-construction or operation), and how offshore 
wind developers will be held accountable for impacts to protected 
species such that impacts are not inadvertently assigned to fishermen, 
should they occur. Lastly, RODA maintains that the OSW industry must be 
accountable for incidental takes from

[[Page 41896]]

construction and operations separately from the take authorizations for 
managed commercial fish stocks.
    Response: NMFS reiterates that this IHA authorizes incidental take 
of marine mammals during marine site characterization survey activities 
and not offshore wind project construction and operation activities. 
Therefore, these comments are outside the scope of the proposed IHA. 
Fishing impacts generally center on entanglement in fishing gear, which 
is a very acute, visible, and severe impact. In contrast, the impacts 
incidental to AE's site characterization survey activities are 
primarily acoustic in nature resulting in behavioral disturbance. 
Because of the difference in potential impacts (i.e., physical versus 
auditory), any impacts resulting from AE's survey activities would not 
be assigned to fishermen. The impacts of commercial fisheries on marine 
mammals and incidental take for said fishing activities are managed 
separately from those of non-commercial fishing activities such as 
offshore wind site characterization surveys, under MMPA section 118.
    Comment 13: A commenter expressed concern over potential 
``masking'' of NARW calls, which could reduce breeding and foraging 
opportunities or impair navigation and transiting.
    Response: Fundamentally, the masking effects to any one individual 
whale from one survey are expected to be minimal. Masking is referred 
to as a chronic effect because one of the key harmful components of 
masking is its duration--the fact that an animal would have reduced 
ability to hear or interpret critical cues becomes much more likely to 
cause a problem the longer it is occurring. Also, inherent in the 
concept of masking is the fact that the potential for the effect is 
only present during the times that the animal and the source are in 
close enough proximity for the effect to occur (and further this time 
period would need to coincide with a time that the animal was utilizing 
sounds at the masked frequency) and, as our analysis (both quantitative 
and qualitative components) indicates, because of the relative movement 
of whales and vessels, we do not expect these exposures with the 
potential for masking to be of a long duration within a given day. 
Further, because of the relatively low density of mysticetes, and 
relatively large area over which the vessels travel, we do not expect 
any individual whales to be exposed to potentially masking levels from 
these surveys for more than a few days in a year.
    As noted above, any masking effects of this survey are expected to 
be limited and brief, if present. Given the likelihood of significantly 
reduced received levels beyond even short distances from the survey 
vessel, combined with the short duration of potential masking and the 
lower likelihood of extensive additional contributors to background 
noise offshore and within these short exposure periods, we believe that 
the incremental addition of the survey vessel is unlikely to result in 
more than minor and short-term masking effects, likely occurring to 
some small number of the same individuals captured in the estimate of 
behavioral harassment.
    Comment 14: A commenter expressed concern about the use of multiple 
vessels concurrently performing the survey work and that vessel work 
should be limited to no more than one vessel performing acoustic 
surveying at a time within 200 miles (321.9 km) of other surveying 
vessels.
    Response: NMFS appreciates the commenters' concerns, but notes that 
no evidence is provided to substantiate this concern. NMFS believes 
that the authorized take numbers adequately account for the potential 
take that may result from the proposed survey work, inclusive of the 
concurrent use of surveying vessels.

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 instead of reprinting the information here. 
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 at https://www.fisheries.noaa.gov/find-species.
    Table 1 lists all species or stocks for which take is 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 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 1 are the most recent available at the time of publication (draft 
2022 SAR) and are available online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                         Table 1--Species and Stocks Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..........  Eubalaena glacialis....  Western Atlantic Stock.  E/D, Y              338 (0; 332; 2020)....        0.7        8.1
Humpback whale......................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,396 (0; 1,380; 2016)         22      12.15
Fin whale...........................  Balaenoptera physalus..  Western North Atlantic   E/D, Y              6,802 (0.24; 5,573;            11        1.8
                                                                Stock.                                       2016).
Sei whale...........................  Balaenoptera borealis..  Nova Scotia Stock......  E/D, Y              6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).

[[Page 41897]]

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

    A detailed description of the species likely to be affected by AE's 
activities, including information regarding population trends, threats, 
and local occurrence, was provided in the Federal Register notice for 
the proposed IHA (88 FR 24553, April 21, 2023). Since that time, we are 
not aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 2.

                  Table 2--Marine Mammal Hearing Groups
                              (NMFS, 2018)
------------------------------------------------------------------------
             Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen    7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans            150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true     275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)      50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)     60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).


[[Page 41898]]

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat can be found in the Federal 
Register notice for the proposed IHA (88 FR 24553, April 21, 2023). 
There is no new information on the potential effects of the specified 
activities on marine mammals. Therefore, that information is not 
repeated here; please refer to the Federal Register notice (88 FR 
24553, April 21, 2023).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which informs both NMFS' ``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 are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to sound produced by the sparker or boomer. 
Based on the characteristics of the signals produced by the acoustic 
sources planned for use, Level A harassment is neither anticipated 
(even absent mitigation), nor authorized. As described previously, no 
serious injury or mortality is anticipated or authorized for this 
activity. Below, we describe how the take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the 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 permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (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 temporary threshold shift (TTS) as, in most cases, the 
likelihood of TTS occurs at distances from the source less than those 
at which behavioral harassment is likely. TTS of a sufficient degree 
can manifest as behavioral harassment, as reduced hearing sensitivity 
and the potential reduced opportunities to detect important signals 
(conspecific communication, predators, prey) may result in changes in 
behavior patterns that would not otherwise occur. AE's planned 
activities include the use of impulsive (i.e., boomer and sparker) 
sources, and therefore, the RMS SPL thresholds of 160 dB re 1 [mu]Pa is 
applicable.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive).
    The references, analysis, and methodology used in the development 
of the thresholds are described in NMFS' 2018 Technical Guidance, which 
may be accessed at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    AE's planned activity includes the use of impulsive (i.e., boomer 
and sparker) sources. However, as discussed above, NMFS has concluded 
that Level A harassment is not a reasonably likely outcome for marine 
mammals exposed to noise through use of the sources planned for use 
here, and the potential for Level A harassment is not evaluated further 
in this document. Please see AE's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated potential Level A harassment 
exposures. AE did not request authorization of take by Level A 
harassment, and NMFS is not authorizing take by Level A harassment.

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.

[[Page 41899]]

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality (when relevant) to refine estimated ensonified 
zones. For acoustic sources that operate with different beamwidths, the 
maximum beamwidth was used, and the lowest frequency of the source was 
used when calculating the frequency-dependent absorption coefficient 
(Table 1). AE used 180-degree beamwidth in the calculation for the 
planned sparker as is appropriate for an omnidirectional source.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases where the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends either the source levels provided by the manufacturer be 
used, or, in instances where source levels provided by the manufacturer 
are unavailable or unreliable, a proxy from Crocker and Fratantonio 
(2016) be used instead. Table 1 in the Federal Register notice for the 
proposed IHA (88 FR 24553, April 21, 2023), shows the HRG equipment 
type used during the planned surveys and the source levels associated 
with those HRG equipment types.
    AE plans to use the Dual Geo-Spark 2000X (400 tip/800 J). For all 
source configurations, the maximum power expected to be discharged from 
the sparker source is 800 J. However, Crocker and Fratantonio (2016) 
did not measure the Dual Geo-Spark or a source with an energy of 800 J. 
A similar alternative system, the Applied Acoustics Dura-spark with a 
400 tip, was measured by Crocker and Fratantonio (2016) with an input 
voltage of 500-2,000 J, and these measurements were used as a proxy for 
the Dual Geo-Spark. Table 1 in the Federal Register notice for the 
proposed IHA (88 FR 24553, April 21, 2023) shows the source parameters 
associated with this proxy. Using the measured source level of 203 dB 
RMS of the proxy, results of modeling indicated that the sparker would 
produce an estimated distance of 141 m to the Level B harassment 
isopleth.
    AE additionally plans to use the Geo-Boomer 300-500. Crocker and 
Fratantonio (2016) did not measure the Geo-Boomer 300-500. A similar 
alternative system, Applied Acoustics S-Boom, was measured by Crocker 
and Fratantonio (2016) and the 500 J values were used as a proxy for 
the Geo-Boomer 300-500. Using the measured source level of 202 dB RMS 
of the proxy, results of modeling indicated that the boomer would 
produce an estimated distance of 51 m to the Level B harassment 
isopleth.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by the applicant that 
has the potential to result in Level B harassment of marine mammals, 
the Dual Geo-Spark 2000X would produce the largest distance to the 
Level B harassment isopleth (141 m). More detail is provided on the 
acoustic sources and methodology in the proposed IHA published in the 
Federal Register on April 21, 2023 (88 FR 24553).

Marine Mammal Occurrence

    In this section, we provide information about the occurrence of 
marine mammals, including density or other relevant information, which 
will inform the take calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016; Roberts and 
Halpin, 2022) represent the best available information regarding marine 
mammal densities in the survey area. These density data incorporate 
aerial and shipboard line-transect survey data from NMFS and other 
organizations and incorporate data from numerous physiographic and 
dynamic oceanographic and biological covariates, and controls for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. These density models were 
originally developed for all cetacean taxa in the U.S. Atlantic 
(Roberts et al., 2016). Most recently, in 2022, models for all taxa 
were updated. More information is available online at 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 AE'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 the 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 and the Offshore Stock in waters deeper than 20 m (65-ft) 
isobath.
    The Lease Area is in waters deeper than 20 m and only the Offshore 
Stock would occur and could be potentially taken by survey effort in 
that area. For the ECR survey area, both stocks could occur in the 
area, so AE calculated separate mean seasonal densities for the portion 
to be surveyed that is less than 20 m in depth and for the portion that 
is greater than 20 m in depth to use for estimating take of the Coastal 
and Offshore Stocks of bottlenose dolphins, respectively. The total 
tracklines in waters deeper than 20 m, between the ECR and the lease 
area, are 20,305 km. The total tracklines in waters less than 20 m 
depth, only found in portions of the ECR, are 1,440 km. Therefore, 
different trackline totals were used to calculate take of the Coastal 
and Offshore Stocks of bottlenose dolphins (20,305 km trackline of 
Offshore Stock and 1,440 km trackline of the Coastal Stock). All other 
species analyzed used the total 21,745 km of trackline for 
calculations.
    Furthermore, the Roberts 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

[[Page 41900]]

estimates of Roberts and Halpin (2022) include all seal species that 
may occur in the Western North Atlantic combined (i.e., harbor, gray, 
hooded, and harp). For this IHA, only the harbor seals and gray seals 
are reasonably expected to occur in the survey area; densities of seals 
were split evenly between these two species.
    Lastly, the Roberts and Halpin (2022) density model does not 
differentiate between the pilot whale species. While the exact 
latitudinal ranges of the two species are uncertain, only long-finned 
pilot whales are expected to occur in this project area due to their 
more northerly distribution and tolerance of shallower, colder shelf 
waters (Hayes et al., 2022).

Take Estimation

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

Mobile Source ZOI = (Total survey length x 2r) + [pi]r2

    Where total survey length is equal to the total distance of the 
survey track lines within the lease area; and r is equal to the maximum 
radial distance from a given sound source to the Level B harassment 
threshold.
    This is a conservative estimate as it assumes the HRG source that 
results in the greatest isopleth distance to the Level B harassment 
threshold would be operated at all times during the entire survey, 
which may not ultimately occur and assumes the worst case scenario is 
the scenario chosen for the surveys. The number of marine mammals 
expected to be incidentally taken during the total survey is then 
calculated by estimating the number of each species predicted to occur 
within the ensonified area (animals/km\2\), incorporating the greatest 
seasonal estimated marine mammal densities as described above. The 
product is then rounded, to generate an estimate of the total number of 
instances of harassment expected for each species over the duration of 
the survey. A summary of this method is illustrated in the following 
formula with the resulting take of marine mammals shown below in Table 
3:

Estimated Take = D x ZOI

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

                            Table 3--Estimated Take Numbers and Total Take Authorized
----------------------------------------------------------------------------------------------------------------
                                            Ensonified      Density
                 Species                       area        (animals/     Estimated    Total take    Percent of
                                             (km\2\)        km\2\)          take      authorized   abundance \c\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...............        6,133        0.001932           12           12            3.51
Humpback whale...........................        6,133        0.003853           24           24            1.69
Fin whale................................        6,133        0.006256           38           38            0.56
Sei whale................................        6,133        0.001972           12           12            0.19
Minke whale..............................        6,133        0.029226          179          179            0.82
Sperm whale..............................        6,133        0.000447            3            3            0.06
Risso's dolphin..........................        6,133        0.003695           23           23            0.06
Long-finned pilot whale..................        6,133        0.003363           21           21            0.05
Atlantic white-sided dolphin.............        6,133        0.033740          207          207            0.22
Common dolphin...........................        6,133        0.335271        2,056        2,056            1.19
Atlantic spotted dolphin.................        6,133        0.014496           89           89            0.22
Bottlenose dolphin (W.N. Atlantic                5,727        0.304831        1,746        1,746            2.78
 Offshore) \a\...........................
Bottlenose dolphin (Northern Migratory             407        0.956430          389          389            5.86
 Coastal) \b\............................
Harbor porpoise..........................        6,133        0.178544        1,095        1,095            1.15
Harbor seal..............................        6,133    \d\ 0.260186        1,596        1,596            2.60
Gray seal................................        6,133    \d\ 0.260186        1,596        1,596        \e\ 0.35
----------------------------------------------------------------------------------------------------------------
\a\ The ensonified area for the offshore stock is for >20 m water depth includes all the lease area and portions
  of the ECR.
\b\ The ensonified area for the migratory coastal stock is only the areas of <20 m water depth (found only in
  portions of the ECR).
\c\ Based on the 2022 draft marine mammal stock assessment reports (SAR).
\d\ These each represent 50 percent of a generic seal density value.
\e\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock
  abundance estimate for US population is only 27,300.

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

[[Page 41901]]

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

Visual Monitoring and Shutdown Zones

    AE must employ independent, dedicated, trained PSOs, meaning that 
the PSOs must (1) be employed by a third-party observer provider, (2) 
have no tasks other than to conduct observational effort, collect data, 
and communicate with and instruct relevant vessel crew with regard to 
the presence of marine mammals and mitigation requirements (including 
brief alerts regarding maritime hazards), and (3) have successfully 
completed an approved PSO training course appropriate for geophysical 
surveys. Visual monitoring must be performed by qualified, NMFS-
approved PSOs. PSO resumes must be provided to NMFS for review and 
approval prior to the start of survey activities.
    During survey operations (e.g., any day on which use of the sparker 
or boomer sources is planned to occur, and whenever the sparker or 
boomer source is in the water, whether activated or not), a minimum of 
one visual marine mammal observer (PSO) must be on duty on each source 
vessel and conducting visual observations at all times during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). A minimum of two PSOs must be on duty on each source 
vessel during nighttime hours. Visual monitoring must begin no less 
than 30 minutes prior to ramp-up (described below) and must continue 
until one hour after use of the sparker or boomer source ceases.
    Visual PSOs shall coordinate to ensure 360[deg] visual coverage 
around the vessel from the most appropriate observation posts and shall 
conduct visual observations using binoculars and the naked eye while 
free from distractions and in a consistent, systematic, and diligent 
manner. PSOs shall establish and monitor applicable shutdown zones (see 
below). These zones shall be based upon the radial distance from the 
sparker or boomer source (rather than being based around the vessel 
itself).
    Four shutdown zones are defined, depending on the species and 
context. An extended shutdown zone encompassing the area at and below 
the sea surface out to a radius of 500 m from the sparker or boomer 
source (0-500 m) is defined for NARW. For all other marine mammals, the 
shutdown zone encompasses a standard distance of 100 m (0-100 m) during 
the use of the sparker. For ESA-listed marine mammals during the use of 
the boomer, the shutdown zone is 100 m (0-100 m). For all non-ESA-
listed marine mammals, the shutdown zone during the use of the boomer 
is 50 m (0-50 m). Any observations of marine mammals by crew members 
aboard any vessel associated with the survey shall be relayed to the 
PSO team.
    Visual PSOs may be on watch for a maximum of 4 consecutive hours 
followed by a break of at least 1 hour between watches and may conduct 
a maximum of 12 hours of observation per 24-hour period.

Pre-Start Clearance and Ramp-Up

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
sparker and boomer sources when technically feasible. Operators should 
ramp up sparker and boomer to half power for 5 minutes and then proceed 
to full power. A 30-minute pre-start clearance observation period of 
the shutdown zones must occur prior to the start of ramp-up. The intent 
of the pre-start clearance observation period (30 minutes) is to ensure 
no marine mammals are within the shutdown zones prior to the beginning 
of ramp-up. The intent of the ramp-up is to warn marine mammals of 
pending operations and to allow sufficient time for those animals to 
leave the immediate vicinity. All operators must adhere to the 
following pre-start clearance and ramp-up requirements:
     The operator must notify a designated PSO of the planned 
start of ramp-up as agreed upon with the lead PSO; the notification 
time should not be less than 60 minutes prior to the planned ramp-up in 
order to allow the PSOs time to monitor the shutdown zones for 30 
minutes prior to the initiation of ramp-up (pre-start clearance). 
During this 30 minute pre-start clearance period the entire shutdown 
zone must be visible, except as indicated below.
     Ramp-ups shall be scheduled so as to minimize the time 
spent with the source activated.
     A visual PSO conducting pre-start clearance observations 
must be notified again immediately prior to initiating ramp-up 
procedures and the operator must receive confirmation from the PSO to 
proceed.
     Any PSO on duty has the authority to delay the start of 
survey operations if a marine mammal is detected within the applicable 
pre-start clearance zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that mitigation commands are conveyed swiftly 
while allowing PSOs to maintain watch.
    The pre-start clearance requirement is waived for small delphinids 
and pinnipeds. Detection of a small delphinid (individual belonging to 
the following genera of the Family Delphinidae: Steno, Delphinus, 
Lagenorhynchus, Stenella, and Tursiops) or pinniped within the shutdown 
zone does not preclude beginning of ramp-up, unless the PSO confirms 
the individual to be of a genus other than those listed, in which case 
normal pre-clearance requirements apply.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which the pre-clearance requirement is 
waived), PSOs may use best professional judgment in making the decision 
to call for a shutdown.

[[Page 41902]]

     Ramp-up may not be initiated if any marine mammal to which 
the pre-start clearance requirement applies is within the shutdown 
zone. If a marine mammal is observed within the shutdown zone during 
the 30-minute pre-start clearance period, ramp-up may not begin until 
the animal(s) has been observed exiting the zones or until an 
additional time period has elapsed with no further sightings (30 
minutes for all baleen whale species and sperm whales and 15 minutes 
for all other species).
     PSOs must monitor the shutdown zones 30 minutes before and 
during ramp-up, and ramp-up must cease and the source must be shut down 
upon observation of a marine mammal within the applicable shutdown 
zone.
     Ramp-up may occur at times of poor visibility, including 
nighttime, if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 minutes prior to beginning ramp-
up. Sparker or boomer activation may only occur at night where 
operational planning cannot reasonably avoid such circumstances.
    If the acoustic source is shut down for brief periods (i.e., less 
than 30 minutes) for reasons other than implementation of prescribed 
mitigation (e.g., mechanical difficulty), it may be activated again 
without ramp-up if PSOs have maintained constant visual observation and 
no detections of marine mammals have occurred within the applicable 
shutdown zone. For any longer shutdown, pre-start clearance observation 
and ramp-up are required.

Shutdown

    All operators must adhere to the following shutdown requirements:
     Any PSO on duty has the authority to call for shutdown of 
the sparker or boomer source if a marine mammal is detected within the 
applicable shutdown zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
source to ensure that shutdown commands are conveyed swiftly while 
allowing PSOs to maintain watch.
     When the sparker or boomer source is active and a marine 
mammal appears within or enters the applicable shutdown zone, the 
source must be shut down. When shutdown is instructed by a PSO, the 
sparker or boomer source must be immediately deactivated and any 
dispute resolved only following deactivation.
     Four shutdown zones are defined, depending on the species 
and context. An extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 m from the sparker or 
boomer source (0-500 m) is defined for NARW. For all other marine 
mammals, the shutdown zone encompasses a standard distance of 100 m (0-
100 m) during the use of the sparker. For ESA-listed marine mammals 
during the use of the boomer, the shutdown zone is 100 m (0-100 m). For 
all non-ESA-listed marine mammals, the shutdown zone during use of the 
boomer is 50 m (0-50 m).
    The shutdown requirement is waived for small delphinids and 
pinnipeds. If a small delphinid (individual belonging to the following 
genera of the Family Delphinidae: Steno, Delphinus, Lagenorhynchus, 
Stenella, and Tursiops) or pinniped is visually detected within the 
shutdown zone, no shutdown is required unless the PSO confirms the 
individual to be of a genus other than those listed, in which case a 
shutdown is required.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived or one of the species 
with a larger shutdown zone), PSOs may use best professional judgment 
in making the decision to call for a shutdown.
    Upon implementation of shutdown, the source may be reactivated 
after the marine mammal has been observed exiting the applicable 
shutdown zone or following a clearance period (30 minutes for all 
baleen whale species and sperm whales and 15 minutes for all other 
species) with no further detection of the marine mammal.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (141 m sparkers, 51 m boomers), shutdown must 
occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel must have access to and use an 
appropriate reference guide that includes identifying information on 
all marine mammals that may be encountered. Vessel operators must 
comply with the below measures except under extraordinary circumstances 
when the safety of the vessel or crew is in doubt or the safety of life 
at sea is in question. These requirements do not apply in any case 
where compliance would create an imminent and serious threat to a 
person or vessel or to the extent that a vessel is restricted in its 
ability to maneuver and, because of the restriction, cannot comply.
    Vessel operators and crews must maintain a vigilant watch for all 
marine mammals and slow down, stop their vessel(s), or alter course, as 
appropriate and regardless of vessel size, to avoid striking any marine 
mammals. A single marine mammal at the surface may indicate the 
presence of submerged animals in the vicinity of the vessel; therefore, 
precautionary measures should always be exercised. A visual observer 
aboard the vessel must monitor a vessel strike avoidance zone around 
the vessel (species-specific distances are detailed below). Visual 
observers monitoring the vessel strike avoidance zone may be third-
party observers (i.e., PSOs) or crew members, but crew members 
responsible for these duties must be provided sufficient training to 
(1) distinguish marine mammal from other phenomena and (2) broadly to 
identify a marine mammal as a NARW, other whale (defined in this 
context as sperm whales or baleen whales other than NARWs), or other 
marine mammals.
    All survey vessels, regardless of size, must observe a 10-knot 
(18.52 km/h) speed restriction in specific areas designated by NMFS for 
the protection of NARWs from vessel strikes. These include all Seasonal 
Management Areas (SMA) established under 50 CFR 224.105 (when in 
effect), any dynamic management areas (DMA) (when in effect), and Slow 
Zones. See www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for 
specific detail regarding these areas.
     All vessels must reduce speed to 10 knots (18.52 km/h) or 
less when mother/calf pairs, pods, or large assemblages of cetaceans 
are observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from NARWs, baleen whales (except humpback and minke), sperm 
whales, and any unidentified large whales. If a NARW, baleen whale 
(except humpback and minke), or an unidentified large whale is sighted 
within the relevant separation distance, the vessel must steer a course 
away at 10 kn (18.52 km/h) or less until the 500-m separation distance 
has been established. If a whale is observed but cannot be confirmed as 
a species other than a NARW, the vessel operator must assume that it is 
a NARW and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from all humpback and mike whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an

[[Page 41903]]

understanding that at times this may not be possible (e.g., for animals 
that approach the vessel).
     When marine mammals are sighted while a vessel is 
underway, the vessel must take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area, reduce speed and shift 
the engine to neutral). This does not apply to any vessel towing gear 
or any vessel that is navigationally constrained.
    Members of the PSO team will consult NMFS NARW reporting system and 
Whale Alert, daily and as able, for the presence of NARWs throughout 
survey operations, and for the establishment of DMAs and/or Slow Zones. 
It is AE's responsibility to maintain awareness of the establishment 
and location of any such areas and to abide by these requirements 
accordingly.

Seasonal Operating Requirements

    As described above, a section of the survey area partially overlaps 
with a portion of a NARW SMA off the port of New York/New Jersey. This 
SMA is active from November 1 through April 30 of each year. The survey 
vessel, regardless of length, would be required to adhere to vessel 
speed restrictions (<10 knots (18.52 km/h)) when operating within the 
SMA during times when the SMA is active (Table 4).

      Table 4--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                      Restrictions Within the Survey Areas
----------------------------------------------------------------------------------------------------------------
           Survey area                   Species        DMA restrictions       Slow zones       SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area.......................  North Atlantic      If established by NMFS, all of AE's     N/A.
                                    right whale         vessel will abide by the described
                                    (Eubalaena          restrictions
                                    glacialis).
ECR (within SMA).................                                                              November 1
                                                                                                through April 31
                                                                                                (Ports of New
                                                                                                York/New
                                                                                                Jersey).
ECR (outside SMA)................                                                              N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the NARW can be found at NMFS' website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales whales.

    Based on our evaluation of the applicant's planned measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
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.

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.

Monitoring Measures

    Visual monitoring must be performed by qualified, NMFS-approved 
PSOs. AE must submit PSO resumes for NMFS review and approval prior to 
commencement of the survey. Resumes should include dates of training 
and any prior NMFS approval, as well as dates and description of last 
experience, and must be accompanied by information documenting 
successful completion of an acceptable training course.
    For prospective PSOs not previously approved, or for PSOs whose 
approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, who would coordinate 
duty schedules and roles for the PSO team and serve as primary point of 
contact for the vessel

[[Page 41904]]

operator. To the maximum extent practicable, the duty schedule shall be 
planned such that unconditionally-approved PSOs are on duty with 
conditionally-approved PSOs.
    At least one PSO aboard each acoustic source vessel must have a 
minimum of 90 days at-sea experience working in the role, with no more 
than 18 months elapsed since the conclusion of the at-sea experience. 
One PSO with such experience must be designated as the lead for the 
entire PSO team and serve as the primary point of contact for the 
vessel operator. (Note that the responsibility of coordinating duty 
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the 
lead PSO must devise the duty schedule such that experienced PSOs are 
on duty with those PSOs with appropriate training but who have not yet 
gained relevant experience.
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or 
greater) a written and/or oral examination developed for the training 
program.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    AE must work with the selected third-party PSO provider to ensure 
PSOs have all equipment (including backup equipment) needed to 
adequately perform necessary tasks, including accurate determination of 
distance and bearing to observed marine mammals, and to ensure that 
PSOs are capable of calibrating equipment as necessary for accurate 
distance estimates and species identification. Such equipment, at a 
minimum, shall include:
     At least one thermal (infrared) imagine device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global Positioning Units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least 
one plus backups). The camera or lens should also have an image 
stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and,
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-party PSO provider, or the operator, but AE is responsible 
for ensuring PSOs have the proper equipment required to perform the 
duties specified in the IHA.
    The PSOs will be responsible for monitoring the waters surrounding 
the survey vessel to the farthest extent permitted by sighting 
conditions, including Shutdown Zones, during all HRG survey operations. 
PSOs will visually monitor and identify marine mammals, including those 
approaching or entering the established Shutdown Zones during survey 
activities. It will be the responsibility of the PSO(s) on duty to 
communicate the presence of marine 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 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.

Reporting Measures

    AE shall submit a draft comprehensive report to NMFS on all 
activities and monitoring results within 90 days of the completion of 
the survey or expiration of the IHA, whichever comes sooner. The report 
must describe all activities conducted and sightings of marine mammals, 
must provide full documentation of methods, results, and interpretation 
pertaining to all monitoring, and must summarize the dates and 
locations of survey operations and all marine mammals sightings (dates, 
times, locations, activities, associated survey activities). The draft 
report shall also include geo-referenced, time-stamped vessel 
tracklines for all time periods during which acoustic sources were 
operating. Tracklines should include points recording any change in 
acoustic source status (e.g., when the sources began operating, when 
they were turned off, or when they changed operational status such as 
from full array to single gun or vice versa). GIS files shall be 
provided in Environmental Systems Research Institute, Inc. (ESRI) 
shapefile format and include the Coordinated Universal Time (UTC) date 
and time, latitude in decimal degrees, and longitude in decimal 
degrees. All coordinates shall be referenced to the WGS84 geographic 
coordinate system. In addition to the report, all raw observational 
data shall be made available. The report must summarize the 
information. A final report must be submitted within 30 days following 
resolution of any comments on the draft report. All draft and final 
marine mammal monitoring reports must be submitted to

[[Page 41905]]

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

[[Page 41906]]

marine mammals immediately preceding the strike;
    11. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and,
    12. To the extent practicable, photographs or video footage of the 
animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Table 2, given that some of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are included as separate subsections below. 
Specifically, we provide additional discussion related to NARW and to 
other species currently experiencing UMEs.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result from HRG surveys, even in the absence of mitigation, 
and no serious injury or mortality is 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 worst case scenario of 
approximately 6,133 km\2\ of total estimated Level B harassment 
ensonified area associated with both the Lease Area and the ECR area 
surveys) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts.
    Given the relatively small size of the ensonified area, it is 
unlikely that prey availability would be adversely affected by HRG 
survey operations. Required vessel strike avoidance measures will also 
decrease risk of ship strike during migration; no ship strike is 
expected to occur during AE's planned activities. Additionally, only 
very limited take by Level B harassment of NARWs has been requested and 
is being authorized by NMFS as HRG survey operations are required to 
maintain and implement a 500-m shutdown zone. The 500-m shutdown zone 
for NARWs is conservative, considering the Level B harassment isopleth 
for the most impactful acoustic source (i.e., sparker) is estimated to 
be 141-m, and thereby minimizes the intensity and duration of any 
potential incidents of behavioral harassment for this species. As noted 
previously, Level A harassment is not expected due to the small 
estimated zones in conjunction with the aforementioned shutdown 
requirements. NMFS does not anticipate NARWs takes that result from 
AE's planned activities will impact annual rates of recruitment or 
survival. Thus, any takes that occur will not result in population 
level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of AE's survey area. Elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida since 
January 2016. Of the cases examined, approximately half had evidence of 
human interaction (ship strike or entanglement). The UME does not yet 
provide cause for concern

[[Page 41907]]

regarding population-level impacts. Despite the UME, the relevant 
population of humpback whales (the West Indies breeding population, or 
distinct population segment (DPS)) remains stable at approximately 
12,000 individuals.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed between 2018-2020 and, as part of a separate UME, again 
in 2022. These have occurred across Maine, New Hampshire, and 
Massachusetts. Based on tests conducted so far, the main pathogen found 
in the seals is phocine distemper virus (2018-2020) and avian influenza 
(2022), although additional testing to identify other factors that may 
be involved in the UMEs is underway. The UMEs do not provide cause for 
concern regarding population-level impacts to any of these stocks. For 
harbor seals, the population abundance is over 60,000 and annual M/SI 
(339) is well below PBR (1,729) (Hayes et al., 2023). The population 
abundance for gray seals in the United States is over 27,000, with an 
estimated abundance, including seals in Canada, of approximately 
450,000. In addition, the abundance of gray seals is likely increasing 
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021; Hayes et 
al., 2023).
    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. This 
UME is no longer active and is pending closure.
    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 authorized.
    NMFS expects that takes would be in the form of short-term Level B 
harassment by way of brief startling reactions and/or temporary 
vacating of the area, or decreased foraging (if such activity was 
occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect any of the species or stocks 
through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or 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 will 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 (almost four times the 
size of the Level B harassment zone of 141 m) to minimize the effects 
of any Level B harassment take of the species; and,
     The mitigation measures, including visual monitoring and 
shutdowns, are expected to minimize potential impacts to marine 
mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
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 authorizes incidental take by Level B harassment only of 15 
marine mammal species with 16 managed stocks. The total amount of takes 
authorized is less than 6 percent relative to the best available 
population abundance for any of the 16 managed stocks (highest being 
for the Western North Atlantic Migratory Coastal Stock of Bottlenose 
dolphins) (Table 3). The take numbers authorized 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 planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
would be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally

[[Page 41908]]

whenever we propose to authorize take for endangered or threatened 
species.
    NMFS Office of Protected Resources (OPR) has authorized take of 
four species of marine mammals which are listed under the ESA, 
including the North Atlantic right, fin, sei, and sperm whale, and has 
determined that these activities fall within the scope of activities 
analyzed in NMFS Greater Atlantic Regional Fisheries Office's (GARFO) 
programmatic consultation regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021).

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 determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to AE 
for conducting marine site characterization surveys in coastal waters 
off of New York and New Jersey in the New York Bight for a period of 1 
year, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated. The IHA can be found at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

    Dated: June 22, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-13719 Filed 6-27-23; 8:45 am]
BILLING CODE 3510-22-P