[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Notices]
[Pages 54575-54592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17271]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD134]


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

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 
Atlantic Shores Offshore Wind Bight, LLC (Atlantic Shores) to 
incidentally harass, by Level B harassment only, marine mammals during 
marine site characterization survey activities offshore of New Jersey 
and New York.

DATES: This Authorization is effective from August 10, 2023 through 
August 9, 2024.

ADDRESSES: Electronic copies of the original application and supporting 
documents (including NMFS Federal Register notices of the original 
proposed and final authorizations, and the previous IHA), as well as a 
list of the references cited in this document, may be obtained online 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In 
case of problems accessing these documents, please call the contact 
listed below.

FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to

[[Page 54576]]

harassment, a notice of a proposed incidental take authorization may be 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

History of Request

    On April 8, 2022, NMFS received a request from Atlantic Shores for 
an IHA to take marine mammals incidental to marine site 
characterization surveys offshore of New Jersey and New York, in the 
area of Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf Lease Area (OCS-A 0541) and 
the associated ECR area. Atlantic Shores requested authorization to 
take small numbers of 15 species of marine mammals by Level B 
harassment only. NMFS published a notice of the proposed IHA in the 
Federal Register on June 27, 2022 (87 FR 30867). After a 30-day public 
comment period and consideration of all public comments received, we 
subsequently issued the 2022 IHA, which is effective from August 10, 
2022, to August 9, 2023 (87 FR 50293, August 16, 2022).
    Atlantic Shores completed a subset of the survey work under the 
2022 IHA. Atlantic Shores conducted the required marine mammal 
mitigation and monitoring and did not exceed authorized levels of take 
under previous IHAs issued for surveys offshore of New York and New 
Jersey (see 85 FR 21198, April 16, 2020 and 86 FR 21289, April 22, 
2021). These previous monitoring results are available to the public on 
our website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization.
    On March 20, 2023, NMFS received a request from Atlantic Shores for 
an IHA to take marine mammals incidental to high-resolution geophysical 
(HRG) marine site characterization surveys offshore of New Jersey and 
New York in the areas of Bureau of Ocean Energy and Management (BOEM) 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the OCS Lease Area (OCS A-0541) and associated ECR area. Following 
NMFS' review of the application, Atlantic Shores submitted a revised 
request on April 7, 2023. The application (the 2023 request) was deemed 
adequate and complete on April 20, 2023. Atlantic Shores' request is 
for take of 15 species of marine mammals, by Level B harassment only. 
Neither Atlantic Shores nor NMFS expect serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate.
    The activities described in Atlantic Shores' request, the overall 
survey duration, the project location, and the acoustic sources planned 
for use are identical to what was previously analyzed in support of the 
IHA issued by NMFS to Atlantic Shores for 2022 site characterization 
surveys (2022 IHA) (87 FR 38067, June 27, 2022; 87 FR 50293, August 16, 
2022). All mitigation, monitoring, and reporting requirements remain 
the same. While Atlantic Shores' planned activity would have qualified 
for renewal of the 2022 IHA, due to the availability of updated marine 
mammal density data (https://seamap.env.duke .edu/models/Duke/EC/), 
which NMFS has determined represents the best available scientific 
data, NMFS determined to proceed with a new IHA process rather than a 
renewal, providing a 30-day period for the public to comment on this 
action.
    The 2023 request is identical to the 2022 IHA. In evaluating the 
2023 request and to the extent deemed appropriate, NMFS also relied on 
the information presented in notices associated with issuance of the 
2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293, August 16, 2022).
    No changes were made from the proposed IHA to the final IHA.

Description of the Activity and Anticipated Impacts

Overview

    Atlantic Shores will conduct HRG marine site characterization 
surveys in the BOEM Lease Area OCS-A 0541 and along the export cable 
route (ECR) off of New Jersey and New York. The purpose of surveys is 
to obtain an assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of a planned offshore wind facility development area. Surveys 
are also conducted to support engineering design and to map unexploded 
ordnance. As many as three survey vessels may operate concurrently as 
part of the planned surveys. During survey effort, the vessels would 
operate at a maximum speed of 3.5 knots (kn) (6.5 kilometers (km)). 
Underwater sound resulting from Atlantic Shores' activities has the 
potential to result in incidental take of marine mammals in the form of 
Level B harassment.
    The planned activity is estimated to require up to 360 survey days 
using a maximum of three vessels operating concurrently over the course 
of the 1-year period of effectiveness of the IHA. It is expected that 
each vessel would cover approximately 55 km of track line per day based 
on Atlantic Shores' data acquisition efficiency expectations.
    Underwater sound resulting from Atlantic Shores' survey activities 
during use of specific active acoustic sources has the potential to 
result in incidental take of marine mammals in the form of behavioral 
harassment (Level B harassment). Geophysical activities were discussed 
previously for the 2022 IHA NMFS issued to Atlantic Shores (87 FR 
50293, August 16, 2022) and, as no new information has been presented 
that changed our determinations on these activities, this information 
will not be reiterated here. The mitigation, monitoring, and reporting 
measures are described in more detail later in this document (please 
see Description of Mitigation, Monitoring, and Reporting).
    A detailed description of the planned surveys is provided in the 
Federal Register notice for the proposed IHA (88 FR 41912, June 28, 
2023) and 2022 Federal Register notice (87 FR 50293, August 16, 2022). 
Since that time, no changes have been made to the planned activities. 
Therefore, a detailed description is not provided here. Please refer to 
those Federal Register notices for the description of the specific 
activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Atlantic Shores was 
published in the Federal Register on June 28, 2023 (88 FR 41912). That 
notice described, in detail, Atlantic Shores' proposed activities, the 
marine mammal species that may be affected by these activities, and the 
anticipated effects on marine mammals. We requested public input on the 
request for authorization described therein, our analyses, the proposed 
authorization, and requested that interested persons submit relevant 
information, suggestions, and comments.

[[Page 54577]]

    NMFS received 19 public comment letters. Four of these comment 
letters were from non-governmental organizations: Clean Ocean Action 
(COA), Oceana, Sea Life Conservation (SLC), and Green Oceans. The 
remaining 15 comment letters were from private citizens. The majority 
of these expressed general opposition to issuance of the IHA or to the 
underlying associated activities, but without providing specific 
information relevant to NMFS' request for public comment. Seven of the 
letters from private citizens provided substantive comments that are 
addressed below.
    We reiterate here that NMFS' action 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 of the comments 
requested 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 to 
authorize take incidental to Atlantic Shores' survey activities. We do 
not specifically address comments expressing general opposition to 
activities related to wind energy development or respond to comments 
not relevant to the scope of the proposed IHA (88 FR 41912, June 28, 
2023), such as comments on other Federal agency processes and 
activities not authorized under this IHA (e.g., seismic surveys, 
offshore wind construction, installation of wind turbines, other marine 
site characterization surveys).
    All substantive comments and NMFS' responses are provided below, 
and all substantive comments are available on NMFS' website: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please see the comment letters for full 
details regarding the comments and associated rationale.
    Comment 1: COA, SLC, and Green Oceans expressed concern regarding 
ocean noise and the interference it has on communication between 
whales. In addition, Green Oceans claimed that NMFS failed to 
``meaningfully consider'' the potential for Atlantic Shores' HRG survey 
activities to mask marine mammal communication. Specifically, Green 
Oceans stated that the proposed IHA did not address how increasing 
ocean noise will impact masking of ``interspecies cooperation and 
communication,'' and their ``survival,'' as a result.
    Response: NMFS agrees that noise pollution in marine waters is an 
issue with the potential to affect marine mammals, including their 
ability to communicate when noise reaches certain levels. NMFS 
disagrees that the potential impacts of masking were not properly 
considered. NMFS acknowledges our understanding of the scientific 
literature that Green Oceans cited but, 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 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.
    NMFS does not expect that the generally short-term, intermittent, 
and transitory marine site characterization survey activities planned 
by Atlantic Shores will create conditions of acute or chronic acoustic 
exposure leading to long-term physiological impacts in marine mammals. 
NMFS' prescribed mitigation measures are expected to further reduce the 
duration and intensity of acoustic exposure, while limiting the 
potential severity of any possible behavioral disruption.
    Comment 2: 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 and that Atlantic Shores' surveys could 
lead to marine mammal mortalities. However, the commenters did not 
provide any specific information supporting these concerns.
    Response: NMFS authorizes take of marine mammals incidental to 
marine site characterization 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 strandings, 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

[[Page 54578]]

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.
    Acoustic sources used in these HRG surveys are very different from 
seismic airguns used in oil and gas surveys and 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.
    The best available science indicates that only Level B harassment, 
or disruption of behavioral patterns (e.g., avoidance), may occur as a 
result of Atlantic Shores' HRG surveys. 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. Additionally, NMFS cannot authorize mortality or serious 
injury via an IHA, and 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 been a report of any serious 
injuries or mortalities of a marine mammal associated with site 
characterization surveys.
    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 Endangered 
Species Act (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 3: Green Oceans claims that the proposed IHA does not 
properly value biodiversity in its assessment of harm and that 
``impacts to the abundance or distribution of marine mammals can 
disrupt vital systems that regulate the ocean and the climate.'' Green 
Oceans further claims that NMFS dismisses the effects of habitat 
displacement or abandonment on North Atlantic right whales (NARWs) from 
the project.
    Response: Green Oceans provides no further development of this 
comment, e.g., in what way it believes that the MMPA requires that 
``biodiversity'' be accounted for in the analyses required under the 
MMPA, how it believes that these surveys would be likely to impact the 
abundance or distribution of marine mammals, or how such impacts might 
be likely to disrupt unspecified ``vital systems.'' However, we 
reiterate that the magnitude of behavioral harassment authorized is 
very low and the severity of any behavioral responses are expected to 
be primarily limited to temporary displacement and avoidance of the 
area when some activities that have the potential to result in 
harassment are occurring (see Negligible Impact Determinations section 
for our full analysis). NMFS does not anticipate that marine mammals 
would be permanently displaced or displaced for extended periods of 
time from the area where Atlantic Shores' marine site characterization 
surveys would occur, and commenters do not provide evidence that this 
effect should be a reasonably anticipated outcome of the specified 
activity. We expect temporary avoidance to occur, at worst, but that is 
distinctly different from displacement, which suggests longer-term, 
reduced usage of habitat. Similarly, NMFS is not aware of any 
scientific information suggesting that the survey activity would cause 
meaningful shifts in abundance and distribution of marine mammals and 
disagrees that this would be a reasonably anticipated effect of the 
specified activities. The authorized take of NARWs by Level B 
harassment is precautionary but considered unlikely as NMFS' take 
estimation analysis does not account for the use of mitigation and 
monitoring measures (e.g., the requirement for Atlantic Shores to 
implement a shutdown zone for NARWs (500 m) that is more than three 
times as large as the estimated harassment zone (141 m)). These 
requirements are expected to largely eliminate the actual occurrence of 
Level B harassment events and to the extent that harassment does occur, 
would minimize the duration and severity of any such events. Level B 
harassment authorized by this IHA is not expected to negatively impact 
abundance or distribution of other marine mammal species particularly 
given that it does not account for the suite of mitigation and 
monitoring measures NMFS has prescribed, and would be comprised of 
temporary low severity impacts, with no lasting biological 
consequences. Therefore, even if marine mammals are in the area of the 
specified activities, a displacement impact is not anticipated.
    Comment 4: Commenters stated that NMFS was not utilizing the best 
available science when assessing impacts to marine mammals. Green 
Oceans asserted that NMFS had not fully considered the effect of the 
project on NARWs, claiming that ``90% of the population could be 
affected'' by the proposed survey.
    Response: NMFS relied upon the best scientific evidence available, 
including, but not limited to, the most recent Stock Assessment Report 
(SAR) data, scientific literature, and Duke University's density models 
(Roberts et al., 2023), in analyzing the impacts of Atlantic Shores' 
specified activities on marine mammals. While commenters suggest 
generally that NMFS consider the best scientific evidence available, 
none of the commenters provided additional relevant scientific 
information for NMFS to consider.
    NMFS determined that Atlantic Shores' 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. Atlantic Shores requested 
and NMFS is authorizing only five takes of NARWs by Level B harassment, 
which is less than 2 percent of the population. Further, NMFS does not 
expect that the generally short-term, intermittent, and transitory 
nature of Atlantic Shores' marine site characterization survey 
activities will create conditions of acute or chronic acoustic exposure 
leading to

[[Page 54579]]

long-term physiological stress responses in marine mammals.
    Comment 5: Green Oceans states that the ``precautionary principle'' 
does not allow NMFS to authorize the ``introduction of stressors'' to 
populations undergoing an UME, that authorization of take for such 
species ``violates the spirit and intent of the MMPA,'' and that NMFS 
is ``precluded from authorizing wind energy development'' in habitat 
utilized by relevant species for which there are active UMEs (i.e., 
humpback, minke, and North Atlantic right whales).
    Response: Green Oceans refers to supposed standards that do not 
exist in the MMPA, e.g., the MMPA contains no reference to the 
``precautionary principle,'' and fails to adequately explain its 
supposition that NMFS has violated the ``spirit and intent'' of the 
MMPA. As described previously, an IHA does not authorize or allow 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 Atlantic Shores' request to 
incidentally take marine mammals while engaged in marine site 
characterization surveys and determining whether the necessary findings 
can be made based on Atlantic Shores' application. The authorization of 
Atlantic Shores' survey activities, or any other activities that 
introduce stressors, is not within NMFS' jurisdiction.
    Regarding UMEs, the MMPA does not preclude authorization of take 
for species or stocks with ongoing UMEs. Rather, NMFS considers the 
ongoing UME as part of the environmental baseline for the affected 
species or stock as part of its negligible impact analyses. Elevated 
NARW mortalities began in June 2017 and there is an active UME. 
Overall, preliminary findings support human interactions, specifically 
vessel strikes and entanglements, as the cause of death for the 
majority of NARWs. As noted previously, the survey area overlaps a 
migratory corridor for NARWs. Due to the fact that the survey 
activities are temporary and the spatial extent of sound produced by 
the survey would be very small relative to the spatial extent of the 
available migratory habitat in the biologically important area (BIA), 
NARW migration is not expected to be impacted by the survey. Given the 
relatively small size of the ensonified area, it is unlikely that prey 
availability would be adversely affected by HRG survey operations. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration; no ship strike is expected to occur 
during Atlantic Shores' planned activities. Additionally, only very 
limited take by Level B harassment of NARWs has been requested and has 
been authorized by NMFS as HRG survey operations are required to 
maintain a 500 m shutdown zone for NARWs. 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 potential for behavioral harassment of 
this species. As noted previously, Level A harassment is not expected 
due to the small permanent threshold shift (PTS) zones associated with 
HRG equipment types proposed for use. NMFS does not anticipate NARW 
takes that would result from Atlantic Shores' activities would impact 
annual rates of recruitment or survival. Thus, any takes that occur 
would not result in population level impacts.
    Elevated humpback whale mortalities have occurred along the 
Atlantic coast from Maine through Florida since January 2016. Of the 
cases examined, approximately half had evidence of human interaction 
(ship strike or entanglement). The UME does not yet provide cause for 
concern regarding population-level impacts. Despite the UME, the 
relevant population of humpback whales (the West Indies breeding 
population, or distinct population segment (DPS)) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales. The 
minke whale UME is currently non-active, with closure pending.
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species 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 throughout the survey area before HRG survey equipment 
reaches full energy, thus preventing them from being exposed to sound 
levels that have the potential to cause injury (Level A harassment) or 
more severe Level B harassment. 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 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    Comment 6: Some commenters objected to NMFS' small numbers and 
negligible impact determinations for the numbers of marine mammals, 
particularly NARWs, taken by Level B harassment under Atlantic Shores' 
planned activities. Green Oceans claims that NMFS' determination is 
``arbitrary and capricious,'' in part because it fails to account for 
the total amount of take for a given species across all current wind 
development activities for which NMFS has issued incidental take 
authorizations (ITAs). Green Oceans also claims that, for Atlantic 
Shores, NMFS is violating the ``intent of the MMPA'' by proposing to 
authorize incidental take for ``over 12 percent of the stock for over 8 
species.'' Green Oceans also states that NMFS' small numbers finding 
``fails to consider the conservation status of the [NARW].''
    Response: NMFS disagrees with the commenters' arguments on the 
topic of small numbers and negligible impact findings, and the 
commenters do not provide a reasoned basis for finding the effects of 
the specified activity would be greater than negligible on any species 
or stock. The Negligible Impact Analysis and Determination section of 
the proposed and final 2022 IHA (87 FR 38067, April 27, 2022; 87 FR 
50293, August 16, 2022) provides a detailed qualitative discussion 
supporting NMFS' determination that any anticipated impacts from this 
action would be negligible. The section contains a number of factors 
that were considered by NMFS based on the best available scientific 
data and why we concluded that impacts resulting from the specified 
activity are not reasonably expected to, or reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.
    Although there is limited legislative history available to guide 
NMFS and an apparent lack of biological underpinning to the concept, we 
have

[[Page 54580]]

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, for an individual incidental 
take authorization, 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)). As noted above, there is no biological significance associated 
with ``small numbers'' and, as such, NMFS appropriately does not 
consider ``conservation status'' or other issues related to the status 
of a species or stock in making its small numbers finding. Instead, 
these concepts are appropriately considered as part of the negligible 
impact analysis--consideration of ``conservation status'' as part of 
the small numbers finding, as Green Oceans suggests, would 
inappropriately conflate these two independent findings.
    Atlantic Shores requested, and NMFS proposed to authorize, 
incidental take that amounts to less than 2 percent of the Western 
Atlantic stock of NARWs, Gulf of Maine stock of humpback whales, and 
Western North Atlantic stock of gray seals, and less than 1 percent of 
all other stocks, values which do not align with those presented by 
Green Oceans--which do not appear to relate to the proposed action.
    NMFS has made the necessary small numbers finding for all affected 
species and stocks, specifically for the issuance of the Atlantic 
Shores IHA.
    Comment 7: Oceana and Green Oceans noted that chronic stressors are 
an emerging concern for NARW conservation and recovery, and stated that 
chronic stress may result in energetic effects for North Atlantic right 
whales. Oceana and Green Oceans suggested that NMFS has not fully 
considered both the use of the area and the effects of both acute and 
chronic stressors on the health and fitness of North Atlantic right 
whales, as disturbance responses in North Atlantic right whales could 
lead to chronic stress or habitat displacement, leading to an overall 
decline in their health and fitness.
    Response: NMFS agrees with Oceana and Green Oceans that both acute 
and chronic stressors are of concern for NARW conservation and 
recovery. We recognize that acute stress from acoustic exposure is one 
potential impact of these surveys, and that chronic stress can have 
fitness, reproductive, etc. impacts at the population-level scale. NMFS 
has carefully reviewed the best available scientific information in 
assessing impacts to marine mammals, and recognizes that Atlantic 
Shores' surveys have the potential to impact marine mammals through 
behavioral effects, stress responses, and auditory masking. However, 
NMFS does not expect that the generally short-term, intermittent, and 
transitory marine site characterization survey activities planned by 
Atlantic Shores will create conditions of acute or chronic acoustic 
exposure leading to long-term physiological stress responses in marine 
mammals. NMFS has prescribed a robust suite of mitigation measures, 
including extended distance shutdowns for NARW that are expected to 
further reduce the duration and intensity of acoustic exposure, while 
limiting the potential severity of any possible behavioral disruption, 
and may prevent any actual harassment from occurring under this IHA. 
The potential for chronic stress was evaluated in making the 
determinations presented in NMFS' negligible impact analyses. Although 
Green Oceans correctly states that Atlantic Shores' surveys would occur 
in the NARW migratory corridor, they incorrectly claim that the project 
area is a known feeding habitat for NARWs and that any displacement 
would have ``devastating effects on the species.'' NMFS does not 
anticipate that NARWs would be displaced from the area where Atlantic 
Shores' marine site characterization surveys would occur, and neither 
comment provides evidence that this effect should be a reasonably 
anticipated outcome of the specified activity.
    Similarly, NMFS is not aware of any scientific information 
suggesting that the survey activity would drive marine mammals out of 
the survey area, and disagrees that this would be a reasonably 
anticipated effect of the specified activities. The take by Level B 
harassment authorized by NMFS is precautionary and also considered 
unlikely to actually occur, as NMFS' take estimation process does not 
account for the use of extremely precautionary mitigation measures, 
e.g., the requirement for Atlantic Shores to implement a Shutdown Zone 
that is more than 3 times as large as the estimated harassment zone. 
These requirements are expected to largely eliminate the actual 
occurrence of Level B harassment events and, to the extent that 
harassment does occur, would minimize the duration and severity of any 
such events. Therefore, even if a NARW was in the area of Atlantic 
Shores' surveys, a displacement impact is not anticipated.
    Because NARW generally use this location in a transitory manner, 
specifically for migration, any potential impacts from these surveys 
are lessened for other behaviors due to the brief periods where 
exposure is possible. Thus, the transitory nature of occurrence of 
NARWs as they migrate means it is unlikely for any exposure to cause 
chronic effects, as Atlantic Shores' planned survey area and ensonified 
zones are small relative to the overall migratory corridor. As such, 
NMFS does not expect acute or cumulative stress to be a detrimental 
factor to NARWs from Atlantic Shores' described survey activities. The 
potential for impacts related to an overall increase in the amount of 
other OSW development activities is separate from the aforementioned 
analysis of potential for impacts from the specified survey activities 
and is not discussed further as it is outside the scope of this 
specific action.
    Comment 8: Green Oceans criticized NMFS's use of the 160-decibel 
(dB) root mean square (rms) Level B harassment threshold, stating that 
the threshold is based on outdated information and that the best 
available science shows that behavioral impacts can occur at levels 
below the threshold. Criticism of our use of this threshold also 
focused on its nature as a step function, i.e., it assumes animals 
don't respond to received noise levels below the threshold but always 
do respond at higher received levels. Green Oceans also suggests that 
reliance on this threshold results in consistent underestimation of 
impacts because it is ``not sufficiently conservative'' and that any 
determination that relies on this threshold is ``arbitrary and 
capricious.'' Green Oceans implied that NMFS should revise its 
generalized behavioral take thresholds to mirror linear risk functions 
to account for intraspecific and contextual variability, and potential 
impacts at lower received levels (particularly for baleen whales).
    Response: NMFS acknowledges that the 160-dB rms step-function 
approach is simplistic, and that an approach reflecting a more complex 
probabilistic function may more effectively represent

[[Page 54581]]

the known variation in responses at different levels due to differences 
in the receivers, the context of the exposure, and other factors. Green 
Oceans suggested that our use of the 160-dB threshold implies that we 
do not recognize the science indicating that animals may react in ways 
constituting behavioral harassment when exposed to lower received 
levels. However, we do recognize the potential for Level B harassment 
at exposures to received levels below 160 dB rms, in addition to the 
potential that animals exposed to received levels above 160 dB rms will 
not respond in ways constituting behavioral harassment. These comments 
appear to evidence a misconception regarding the concept of the 160-dB 
threshold. While it is correct that in practice it works as a step-
function, i.e., animals exposed to received levels above the threshold 
are considered to be ``taken'' and those exposed to levels below the 
threshold are not, it is in fact intended as a sort of mid-point of 
likely behavioral responses (which are extremely complex depending on 
many factors including species, noise source, individual experience, 
and behavioral context). What this means is that, conceptually, the 
function recognizes that some animals exposed to levels below the 
threshold will in fact react in ways that are appropriately considered 
take, while others that are exposed to levels above the threshold will 
not. Use of the 160-dB threshold allows for a simple quantitative 
estimate of take, while we can qualitatively address the variation in 
responses across different received levels in our discussion and 
analysis.
    We also note Green Oceans' statement that the 160-dB threshold is 
``not sufficiently conservative.'' Green Oceans does not further 
describe the standard of conservatism that it believes NMFS must 
attain, or how that standard relates to the legal requirements of the 
MMPA. Green Oceans goes on to imply that use of the 160-dB threshold is 
inappropriate because it addresses only exposures that cause 
disturbance, versus those exposures that present the potential to 
disturb through disruption of behavioral patterns. Green Oceans does 
not further develop this comment or offer any justification for this 
contention. NMFS affirms that use of the 160-dB criterion is expected 
to be inclusive of acoustic exposures presenting the potential to 
disturb through disruption of behavioral patterns, as required through 
the MMPA's definition.
    Green Oceans cites reports of changes in vocalization, typically 
for baleen whales, as evidence in support of a lower threshold than the 
160-dB threshold currently in use. A mere reaction to noise exposure 
does not, however, mean that a take by Level B harassment, as defined 
by the MMPA, has occurred. For a take to occur requires that an act 
have ``the potential to disturb by causing disruption of behavioral 
patterns,'' not simply result in a detectable change in motion or 
vocalization. Even a moderate cessation or modification of vocalization 
might not appropriately be considered as being of sufficient severity 
to result in take (Ellison et al., 2012). Green Oceans claims these 
reactions result in biological consequences indicating that the 
reaction was indeed a take but does not provide a well-supported link 
between the reported reactions at lower received levels and the claimed 
consequences.
    Overall, there is a lack of scientific consensus regarding what 
criteria might be more appropriate. Defining sound levels that disrupt 
behavioral patterns is difficult because responses depend on the 
context in which the animal receives the sound, including an animal's 
behavioral mode when it hears sounds (e.g., feeding, resting, or 
migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al., 2007, 2019; Ellison et al., 
2012; Bain and Williams, 2006; Gomez et al., 2016).
    Green Ocean references linear risk functions developed for use 
specifically in evaluating the potential impacts of Navy tactical 
sonar. However, Green Oceans provides no suggestion regarding a risk 
function that it believes would be appropriate for use in this case. 
There is currently no agreement on these complex issues, and this 
threshold has remained in use in part because of the practical need to 
use a relatively simple threshold based on available information that 
is both predictable and measurable for most activities.
    Comment 9: Oceana raised objections to NMFS' proposed renewal 
process for potential extension of the 1-year IHA with an abbreviated 
15-day public comment period. Oceana recommended that an additional 30-
day public comment period is necessary for any IHA renewal request.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about IHA renewals (e.g., 
84 FR 52464, October 2, 2019; 85 FR 53342, August 28, 2020), NMFS 
explained the IHA renewal process is consistent with the statutory 
requirements contained in section 101(a)(5)(D) of the MMPA, and 
further, promotes NMFS' goals of improving conservation of marine 
mammals and increasing efficiency in the MMPA compliance process. 
Therefore, we intend to continue to implement the existing renewal 
process.
    All IHAs issued, whether an initial IHA or a renewal, are valid for 
a period of not more than 1 year. The public has 30 days to comment on 
proposed IHAs, with a cumulative total of 45 days for IHA renewals. The 
notice of the proposed IHA published in the Federal Register on June 
28, 2023 (88 FR 41912) provided a 30-day public comment period and made 
clear that NMFS was seeking comment on the proposed IHA and the 
potential issuance of a renewal for this survey. As detailed in the 
Federal Register notice for the proposed IHA and on the agency's 
website, eligibility for renewal is determined on a case-by-case basis, 
renewals are subject to an additional 15-day public comment period, and 
the renewal is limited to up to another year of identical or nearly 
identical activities as described in the Description of Proposed 
Activities section of the proposed IHA notice or the activities 
described in the Description of Proposed Activities section of the 
proposed IHA notice would not be completed by the time the IHA expires 
and a renewal would allow for completion of the activities beyond that 
described in the Dates and Duration section of this notice of the 
proposed IHA (88 FR 41912, June 28, 2023). NMFS' analysis of the 
anticipated impacts on marine mammals caused by the applicant's 
activities covers both the initial IHA period and the possibility of a 
1-year renewal. Therefore, a member of the public considering 
commenting on a proposed initial IHA also knows exactly what activities 
(or subset of activities) would be included in a proposed renewal IHA, 
the potential impacts of those activities, the maximum amount and type 
of take that could be caused by those activities, the mitigation and 
monitoring measures that would be required, and the basis for the 
agency's negligible impact determinations, least practicable adverse 
impact findings, small numbers findings, and (if applicable) the no 
unmitigable adverse impact on subsistence use finding--all the 
information needed to provide complete and meaningful comments on a 
possible renewal at the time of considering the

[[Page 54582]]

proposed initial IHA. Reviewers have the information needed to 
meaningfully comment on both the immediate proposed IHA and a possible 
1-year renewal, should the IHA holder choose to request one.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-day public comment 
period, which includes NMFS' direct notice to anyone who commented on 
the proposed initial IHA, provides the public an opportunity to review 
these few documents, provide any additional pertinent information, and 
comment on whether they think the criteria for a renewal have been met. 
Combined together, the 30-day public comment period on the initial IHA 
and the additional 15-day public comment period on the renewal of the 
same or nearly identical activities, provides the public with a total 
of 45 days to comment on the potential for renewal of the IHA.
    In addition to the IHA renewal process being consistent with all 
requirements under section 101(a)(5)(D) of the MMPA, it is also 
consistent with Congress' intent for issuance of IHAs to the extent 
reflected in statements in the legislative history of the MMPA. Through 
the description of the process and express invitation to comment on 
specific potential renewals in the Request for Public Comments section 
of each proposed IHA, the description of the process on NMFS' website, 
further elaboration on the process through responses to comments such 
as these, posting of substantive documents on the agency's website, and 
provision of 30 or 45 days for public review and comment on all 
proposed initial IHAs and renewals respectively, NMFS has ensured that 
the public is ``invited and encouraged to participate fully in the 
agency's decision-making process,'' as Congress intended.
    Comment 10: Several commenters asserted that NMFS must fully 
consider the discrete effects of each activity and the cumulative 
effects of the suite of approved, proposed and potential activities on 
marine mammals and North Atlantic right whales in particular and ensure 
that the cumulative effects are not excessive before issuing or 
renewing an IHA.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of other unrelated activities and 
their impacts on marine mammal 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 
MMPA 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 at 50 CFR 216.104(a)(1) require 
applicants to include in their request a detailed description of the 
specified activity or class of activities that can be expected to 
result in incidental taking of marine mammals. 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, Atlantic Shores 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 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 Atlantic 
Shores 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 Atlantic Shores' 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; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 2021), which 
are similar to those planned by Atlantic Shores under this current IHA 
request. This Biological Opinion (BiOp) 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.

[[Page 54583]]

    Comment 11: SLC states its opposition to the use of a categorical 
exclusion under NEPA, asserting that, at minimum, an Environmental 
Assessment is the appropriate level of review.
    Response: NMFS does not agree with SLC's comment. A CE is a 
category of actions that an agency has determined does not individually 
or cumulatively have a significant effect on the quality of the human 
environment, and is appropriately applied for such categories of 
actions so long as there are no extraordinary circumstances present 
that would indicate that the effects of the action may be significant. 
Extraordinary circumstances are situations for which NOAA has 
determined further NEPA analysis is required because they are 
circumstances in which a normally excluded action may have significant 
effects. A determination of whether an action that is normally excluded 
requires additional evaluation because of extraordinary circumstances 
focuses on the action's potential effects and considers the 
significance of those effects in terms of both context (consideration 
of the affected region, interests, and resources) and intensity 
(severity of impacts). Potential extraordinary circumstances relevant 
to this action include (1) adverse effects on species or habitats 
protected by the MMPA that are not negligible; (2) highly controversial 
environmental effects; (3) environmental effects that are uncertain, 
unique, or unknown; and (4) the potential for significant cumulative 
impacts when the proposed action is combined with other past, present, 
and reasonably foreseeable future actions.
    The relevant NOAA CE associated with issuance of incidental take 
authorizations is CE B4, ``Issuance of incidental harassment 
authorizations under Section 101(a)(5)(A) and (D) of the MMPA for the 
incidental, but not intentional, take by harassment of marine mammals 
during specified activities and for which no serious injury or 
mortality is anticipated.'' This action falls within CE B4. In 
determining whether a CE is appropriate for a given incidental take 
authorization, NMFS considers the applicant's specified activity and 
the potential extent and magnitude of takes of marine mammals 
associated with that activity along with the extraordinary 
circumstances listed in the Companion Manual for NOAA Administrative 
Order (NAO) 216-6A and summarized above. The evaluation of whether 
extraordinary circumstances (if present) have the potential for 
significant environmental effects is limited to the decision NMFS is 
responsible for, which is issuance of the incidental take 
authorization. While there may be environmental effects associated with 
the underlying action, potential effects of NMFS' action are limited to 
those that would occur due to the authorization of incidental take of 
marine mammals. NMFS prepared numerous EAs analyzing the environmental 
impacts of the categories of activities encompassed by CE B4 which 
resulted in Findings of No Significant Impact (FONSIs) and, in 
particular, EAs prepared in support of issuance of IHAs related to 
similar survey actions are part of NMFS' administrative record 
supporting CE B4. These EAs demonstrate the issuance of a given 
incidental harassment authorization does not affect other aspects of 
the human environment because the action only affects the marine 
mammals that are the subject of the incidental harassment 
authorization. These EAs also addressed factors in 40 CFR 1508.27 
regarding the potential for significant impacts and demonstrate the 
issuance of incidental harassment authorization for the categories of 
activities encompassed by CE B4 do not individually or cumulatively 
have a significant effect on the human environment.
    Specifically for this action, NMFS independently evaluated the use 
of the CE for issuance of Atlantic Shores' IHA, which included 
consideration of extraordinary circumstances. As part of that analysis, 
NMFS considered whether this IHA issuance would result in cumulative 
impacts that could be significant. In particular, the issuance of an 
IHA to Atlantic Shores is expected to result in minor, short-term 
behavioral effects on marine mammal species due to exposure to 
underwater sound from site characterization survey activities. 
Behavioral disturbance is possible to occur intermittently in the 
vicinity of Atlantic Shores' survey area during the 1-year timeframe. 
Level B harassment will be reduced through use of mitigation measures 
described herein. Additionally, as discussed elsewhere, NMFS has 
determined that Atlantic Shores' activities fall within the scope of 
activities analyzed in GARFO's programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021), which concluded surveys such as those planned by Atlantic Shores 
are not likely to adversely affect ESA-listed species or adversely 
modify or destroy critical habitat. Accordingly, NMFS has determined 
that the issuance of this IHA will result in no more than negligible 
(as that term is defined by the Companion Manual for NAO 216-6A) 
adverse effects on species protected by the ESA and the MMPA.
    Further, the issuance of this IHA will not result in highly 
controversial environmental effects or result in environmental effects 
that are uncertain, unique, or unknown because numerous entities have 
been engaged in site characterization surveys that result in Level B 
harassment of marine mammals in the United States. This type of 
activity is well documented; prior authorizations and analysis 
demonstrates issuance of an IHA for this type of action only affects 
the marine mammals that are the subject of the specific authorization 
and, thus, no potential for significant cumulative impacts are 
expected, regardless of past, present, or reasonably foreseeable 
actions, even though the impacts of the action may not be significant 
by itself. Based on this evaluation, we concluded that the issuance of 
the IHA qualifies to be categorically excluded from further NEPA 
review.
    Comment 12: SLC asserts that NMFS is permitting the proposed 
activities without any empirically-determined benchmark for what is the 
injury-causing sound pressure level (``SPL'') against which to measure 
the proposed activities. In addition, SLC indicates that basing the 
shutdown and clearance distances on PTS thresholds is insufficient as 
PTS thresholds are modeled from temporary threshold shift (TTS) data 
and threshold for tissue injury may occur at a lower level than TTS.
    Response: NMFS does not agree with the commenter that shutdown and 
clearance distances based upon PTS thresholds are insufficient due to 
thresholds being modeled from TTS data. Marine mammal PTS thresholds 
are appropriately extrapolated from marine mammal TTS data and data 
from terrestrial mammals, as described in NMFS' 2018 Technical 
Guidance. We refer the commenter to that guidance. Further, TTS is not 
considered injury, as defined for Level A harassment under the MMPA, 
because it is fully recoverable.
    Comment 13: Oceana states that NMFS must make an assessment of 
which activities, technologies and strategies are truly necessary to 
achieve site characterization to inform development of the offshore 
wind projects and which are not critical, asserting that NMFS should 
prescribe the appropriate survey techniques. In general, Oceana stated 
that NMFS must require the IHA applicant to avoid

[[Page 54584]]

adverse effects on NARWs in and around the survey site, and then 
minimize and mitigate the impacts of underwater noise to the fullest 
extent feasible, including through the use of best available technology 
and methods to minimize sound levels from geophysical surveys such as 
through the use of technically and commercially feasible and effective 
noise reduction and attenuation measures.
    Response: The MMPA requires that an IHA include measures that will 
effect the least practicable adverse impact on the affected species and 
stocks and, in practice, NMFS agrees that the IHA should include 
conditions for the survey activities that will first avoid adverse 
effects on NARWs in and around the survey site, where practicable, and 
then minimize the effects that cannot be avoided. NMFS has determined 
that the IHA meets this requirement to effect the least practicable 
adverse impact. As part of the analysis for all marine site 
characterization survey IHAs, NMFS evaluated the effects expected as a 
result of the specified activity, made the necessary findings, and 
prescribed mitigation requirements sufficient to achieve the least 
practicable adverse impact on the affected species and stocks of marine 
mammals. It is not within NMFS' purview to set the activities, 
technologies, and strategies that applicants may employ to meet their 
objectives. As explained above, the ``specified activity'' for which 
incidental take coverage is being sought under section 101(a)(5)(D) is 
defined and described by the applicant, not by NMFS.
    Comment 14: Oceana suggests that NMFS require the use of Protected 
Species Observers (PSOs) and that PSOs complement their survey efforts 
using additional technologies, such as infrared detection devices when 
in low-light conditions. In addition, COA noted a lack of 
standardization for PSOs which could result in differences in recorded 
take responses, and urged NMFS to incorporate updated guidance on 
national standards for PSOs and data management into the take 
authorization process.
    Response: NMFS agrees with the commenters regarding these 
suggestions and requirements to utilize PSOs for monitoring, for PSOs 
to use a thermal (infrared) device during low-light conditions, and to 
include updated standardization of PSO requirements and data 
management. These requirements were included in the proposed Federal 
Register Notice as well as in the issued IHA.
    The report that COA references, National Standards for a Protected 
Species Observer and Data Management Program: A Model Using Geological 
and Geophysical Surveys (Baker et al., 2013), currently serves as a 
basis for NMFS' current standardized PSO requirements, specifically 
review of PSO qualifications as well as collecting and reporting data.
    Comment 15: Oceana recommended that NMFS restrict all vessels of 
all sizes associated with the proposed survey activities to speeds less 
than 10 knots (kn) (18.5 km/hour) at all times due to the risk of 
vessel strikes to NARWs and other large whales.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for vessel strike 
resulting from Atlantic Shores' activity and have determined that based 
on the nature of the activity and the required mitigation measures 
specific to vessel strike avoidance included in the IHA, potential for 
vessel strike is so low as to be discountable. The required mitigation 
measures, all of which were included in the proposed IHA and are now 
required in the final IHA, include: A requirement that all vessel 
operators comply with 10 kn (18.5 km/hour) or less speed restrictions 
in any Seasonal Management Area (SMA), Dynamic Management Area (DMA), 
or Slow Zone while underway, and check daily for information regarding 
the establishment of mandatory or voluntary vessel strike avoidance 
areas (SMAs, DMAs, Slow Zones) and information regarding NARW sighting 
locations; a requirement that all vessels greater than or equal to 19.8 
meters (m) in overall length operating from November 1 through April 30 
operate at speeds of 10 kn (18.5 km/hour) or less; a requirement that 
all vessel operators reduce vessel speed to 10 kn (18.5 km/hour) or 
less when any large whale, any mother/calf pairs, pods, or large 
assemblages of non-delphinid cetaceans are observed near the vessel; a 
requirement that all survey vessels maintain a separation distance of 
500 m or greater from any ESA-listed whales or other unidentified large 
marine mammals visible at the surface while underway; a requirement 
that, if underway, vessels must steer a course away from any sighted 
ESA-listed whale at 10 kn (18.5 km/hour) or less until the 500 m 
minimum separation distance has been established; a requirement that, 
if an ESA-listed whale is sighted in a vessel's path, or within 500 m 
of an underway vessel, the underway vessel must reduce speed and shift 
the engine to neutral; a requirement that all vessels underway must 
maintain a minimum separation distance of 100 m from all non-ESA-listed 
baleen whales; and a requirement that all vessels underway must, to the 
maximum extent practicable, attempt to maintain a minimum separation 
distance of 50 m from all other marine mammals, with an understanding 
that at times this may not be possible (e.g., for animals that approach 
the vessel). We have determined that the vessel strike avoidance 
measures in the IHA are sufficient to ensure the least practicable 
adverse impact on species or stocks and their habitat. Furthermore, no 
documented vessel strikes have occurred for any marine site 
characterization surveys which were issued IHAs from NMFS during the 
survey activities themselves or while transiting to and from survey 
sites.
    Comment 16: Oceana suggests that NMFS require vessels maintain a 
separation distance of at least 500 m from NARWs at all times.
    Response: NMFS agrees with Oceana regarding this suggestion and a 
requirement to maintain a separation distance of at least 500 m from 
NARWs at all times was included in the proposed Federal Register Notice 
and as a requirement in the issued IHA.
    Comment 17: Oceana recommended that the IHA should require all 
vessels supporting site characterization to be equipped with and using 
Class A Automatic Identification System (AIS) devices at all times 
while on the water. Oceana suggested this requirement should apply to 
all vessels, regardless of size, associated with the survey.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and using Class A 
Automatic Identification System (devices) at all times while on the 
water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, these activities carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Atlantic Shores, with the potential for 
both Level A and Level B harassment take. Given the small isopleths and 
small numbers of take authorized by this IHA, NMFS does not agree that 
the benefits of requiring AIS on all vessels associated with the survey 
activities outweigh and warrant the cost and practicability issues 
associated with this requirement and therefore the agency has not 
included this within the issued IHA.
    Comment 18: Oceana asserts that the IHA must include requirements 
to hold

[[Page 54585]]

all vessels associated with site characterization surveys accountable 
to the IHA requirements, including vessels owned by the developer, 
contractors, employees, and others regardless of ownership, operator, 
and contract. They state that exceptions and exemptions will create 
enforcement uncertainty and incentives to evade regulations through 
reclassification and redesignation. They recommend that NMFS simplify 
this by requiring all vessels to abide by the same requirements, 
regardless of size, ownership, function, contract or other specifics.
    Response: NMFS agrees with Oceana and required these measures in 
the proposed IHA and final IHA. The IHA requires that a copy of the IHA 
must be in the possession of Atlantic Shores, the vessel operators, the 
lead PSO, and any other relevant designees of Atlantic Shores operating 
under the authority of this IHA. The IHA also states that Atlantic 
Shores must ensure that the vessel operator and other relevant vessel 
personnel, including the PSO team, are briefed on all responsibilities, 
communication procedures, marine mammal monitoring protocols, 
operational procedures, and IHA requirements prior to the start of 
survey activity, and when relevant new personnel join the survey 
operations.
    Comment 19: Oceana stated that the IHA must include a requirement 
for all phases of site characterization to subscribe to the highest 
level of transparency, including frequent reporting to Federal 
agencies. Oceana recommended requirements to report all visual and 
acoustic detections of NARWs and any dead, injured, or entangled marine 
mammals to NMFS or the Coast Guard as soon as possible and no later 
than the end of the PSO shift. Oceana states that to foster stakeholder 
relationships and allow public engagement and oversight of the 
permitting, the IHA should require all reports and data to be 
accessible on a publicly available website.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA calls for IHAs to incorporate reporting requirements. As included 
in the proposed IHA, the final IHA includes requirements for reporting 
that supports Oceana's recommendations. Atlantic Shores is required to 
submit a monitoring report to NMFS within 90 days after completion of 
survey activities that fully documents the methods and monitoring 
protocols, and summarizes the data recorded during monitoring. PSO 
datasheets or raw sightings data must also be provided with the draft 
and final monitoring report.
    Further, the draft IHA and final IHA stipulate that if a NARW is 
observed at any time by any survey vessels, during surveys or during 
vessel transit, Atlantic Shores must immediately report sighting 
information to the NMFS NARW Sighting Advisory System within 2 hours of 
occurrence, when practicable, or no later than 24 hours after 
occurrence. Atlantic Shores may also report the sighting to the U.S. 
Coast Guard. Additionally, Atlantic Shores must report any discoveries 
of injured or dead marine mammals to the NMFS Office of Protected 
Resources and to the New England/Mid-Atlantic Regional Stranding 
Coordinator as soon as feasible. This includes entangled animals. All 
reports and associated data submitted to NMFS are included on the 
website for public inspection.
    Daily visual and acoustic detections of NARWs and other large whale 
species along the Eastern Seaboard, as well as Slow Zone locations, are 
publicly available on WhaleMap (https://whalemap.org/WhaleMap/). 
Further, recent acoustic detections of NARWs and other large whale 
species are available to the public on NOAA's Passive Acoustic Cetacean 
Map website https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw.
    Comment 20: Oceana recommended that for site characterization 
activities that have the potential to injure or harass NARWs, NMFS 
require a visual clearance and exclusion zone of at least 1,000 m for 
NARWs around each vessel conducting activities with noise levels that 
could result in injury to or harassment of large whales, and also 
require an acoustic clearance and exclusion zone of at least 1,000 m 
for NARWs around each vessel conducting activities with noise levels 
that could harass NARWs.
    Response: NMFS notes that the 500 m clearance Zone for NARWs 
exceeds the modeled distance to the largest 160 dB Level B harassment 
isopleth (141 m during sparker use) by a substantial margin. Oceana 
does not provide a compelling rationale for why the clearance zone 
should be even larger. Given that these surveys are relatively low 
impact and that, regardless, NMFS has prescribed a NARW clearance zone 
that is significantly larger (500 m) than the conservatively estimated 
largest harassment zone (141 m), NMFS has determined that the clearance 
zone is appropriate.
    Comment 21: Oceana recommends a shutdown requirement if a NARW or 
other ESA-listed species are detected in the clearance zone as well as 
a publicly available explanation of any exemptions allowing the 
applicant not to shut down in these situations.
    Response: NMFS reiterates that use of the planned sources is not 
expected to have any potential to cause injury of any species, 
including NARW, even in the absence of mitigation. Consideration of the 
anticipated effectiveness of the mitigation measures (i.e., clearance 
zones and shutdown measures) discussed below and in the Description of 
Mitigation, Monitoring, and Reporting Measures section of this notice 
further strengthens the conclusion that injury is not a reasonably 
anticipated outcome of the survey activity. Nevertheless, there are 
several shutdown requirements described in the Federal Register notice 
of the proposed IHA (88 FR 41912, June 28, 2023), and which are 
included in the final IHA, including the stipulation that geophysical 
survey equipment must be immediately shut down if any marine mammal is 
observed within or entering the relevant Clearance Zone while 
geophysical survey equipment is operational. There is no exemption for 
the shutdown requirement for NARW and ESA-listed species.
    Atlantic Shores is required to implement a 30-minute pre-start 
clearance period prior to the initiation of ramp-up of specified HRG 
equipment. During this period, clearance zones will be monitored by the 
PSOs using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective clearance 
zone. If a marine mammal is observed within a clearance zone during the 
pre-start clearance period, ramp-up may not begin until the animal(s) 
has been observed exiting its respective exclusion zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species). If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective clearance zones.
    In regards to reporting, Atlantic Shores must notify NMFS if a NARW 
is observed at any time by any survey vessels during surveys or during 
vessel transit. Additionally, Atlantic Shores is required to report the 
relevant survey activity information, such as the type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.) as

[[Page 54586]]

well as the estimated distance to an animal and its heading relative to 
the survey vessel at the initial sighting and survey activity 
information. We note that if a NARW is detected within the Clearance 
Zone before a shutdown is implemented, the NARW and its distance from 
the sound source, including if it is within the Level B harassment 
zone, would be reported in Atlantic Shores' final monitoring report and 
made publicly available on NMFS' website. Atlantic Shores is required 
to immediately notify NMFS of any sightings of NARWs and report upon 
survey activity information. NMFS believes that these requirements 
address the commenter's concerns.
    Comment 22: Oceana recommended that NMFS should require Passive 
Acoustic Monitoring (PAM) to establish a clearance zone and maximize 
the probability of detection for NARWs.
    Response: NMFS does not agree that a measure to require PAM is 
warranted, as it is not expected to be effective for use in detecting 
the species of concern. It is generally accepted that, even in the 
absence of additional acoustic sources, using a towed passive acoustic 
sensor to detect baleen whales (including NARWs) is not typically 
effective because the noise from the vessel, the flow noise, and the 
cable noise are in the same frequency band and will mask the vast 
majority of baleen whale calls. Vessels produce low-frequency noise, 
primarily through propeller cavitation, with main energy in the 5-300 
Hertz (Hz) frequency range. Source levels range from about 140 to 195 
decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 
2009), depending on factors such as ship type, load, and speed, and 
ship hull and propeller design. Studies of vessel noise show that it 
appears to increase background noise levels in the 71-224 Hz range by 
10-13 dB (Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 
2012). PAM systems employ hydrophones towed in streamer cables 
approximately 500 m behind a vessel. Noise from water flow around the 
cables and from strumming of the cables themselves is also low-
frequency and typically masks signals in the same range. Experienced 
PAM operators participating in a recent workshop (Thode et al., 2017) 
emphasized that a PAM operation could easily report no acoustic 
encounters, depending on species present, simply because background 
noise levels rendered any acoustic detection impossible. The same 
workshop report stated that a typical eight-element array towed 500 m 
behind a vessel could be expected to detect delphinids, sperm whales, 
and beaked whales at the required range, but not baleen whales, due to 
expected background noise levels (including seismic noise, vessel 
noise, and flow noise).
    Comment 23: Oceana recommended that when HRG surveys are allowed to 
resume after a shutdown event, the surveys should be required to use a 
ramp-up procedure to encourage any nearby marine life to leave the 
area.
    Response: NMFS agrees with this recommendation and included this 
requirement in the Federal Register notice of the proposed IHA (88 FR 
41912, June 28, 2023) and the final IHA as a stipulation that when 
technically feasible, survey equipment must be ramped up at the start 
or restart of survey activities. Ramp-up must begin with the power of 
the smallest acoustic equipment at its lowest practical power output 
appropriate for the survey. When technically feasible the power must 
then be gradually turned up and other acoustic sources added in a way 
such that the source level would increase gradually. NMFS notes that 
ramp-up is not required for short periods where acoustic sources were 
shut down (i.e., less than 30 minutes) if PSOs have maintained constant 
visual observation and no detections of marine mammals occurred within 
the applicable Shutdown Zones.
    Comment 24: COA states that there is no legal authority for 
permitting offshore geotechnical and geophysical survey activities 
under BOEM, based on text from the proposed BOEM Renewable Energy 
Modernization proposed rule (88 FR 5968, January 30, 2023; 88 FR 19578, 
April 3, 2023). They further state that this has allowed for no 
oversight with regards to surveys off New Jersey and New York and that 
they do not understand how BOEM can make assertions without 
regulations/guidance for HRG survey work.
    Response: NMFS' statutory authority for this particular action is 
limited to authorizing incidental take of marine mammals. NMFS 
respectfully refers the commenter to BOEM, the agency with 
responsibility for managing development of U.S. Outer Continental Shelf 
energy and mineral resources in an environmentally and economically 
responsible way.
    Comment 25: COA is concerned regarding the number of species that 
could be impacted by the activities, as well as a lack of baseline data 
available for species in the area, specifically for harbor seals.
    Response: We appreciate the concern expressed by COA. NMFS utilizes 
the best available science when analyzing which species may be impacted 
by an applicant's proposed activities. Based on information found in 
the scientific literature, as well as based on density models developed 
by Duke University, all marine mammal species included in the proposed 
Federal Register notice have some likelihood of occurring in Atlantic 
Shores' survey areas. Furthermore, the MMPA requires us to evaluate the 
effects of the specified activities in consideration of the best 
scientific evidence available and, if the necessary findings are made, 
to issue the requested take authorization. The MMPA does not allow us 
to delay decision making in hopes that additional information may 
become available in the future.
    Regarding the lack of baseline information cited by COA, with 
specific concern pointed out for harbor seals, NMFS points to two 
sources of information for marine mammal baseline information: the 
Ocean/Wind Power Ecological Baseline Studies, January 2008-December 
2009 completed by the New Jersey Department of Environmental Protection 
in July 2010 (https://dspace.njstatelib.org/xmlui/handle/10929/68435) 
and the Atlantic Marine Assessment Program for Protected Species 
(AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that cover the areas across the 
Atlantic Ocean. NMFS has duly considered this and all available 
information.
    Based on the information presented, NMFS has determined that no new 
information has become available, nor do the commenters present 
additional information, that would change our determinations since the 
publication of the proposed notice.
    Comment 26: COA and SLC assert that Level A harassment may occur, 
and that this was not accounted for by NMFS.
    Response: NMFS acknowledges the concerns brought up regarding the 
potential for Level A harassment of marine mammals. However, no Level A 
harassment is expected to result, even in the absence of mitigation, 
given the characteristics of the sources planned for use. This is 
additionally supported by the required mitigation, which further 
reduces the unlikely potential for any Level A harassment to occur, and 
very small estimated Level A harassment zones described in Atlantic 
Shores' 2022 Federal Register notice (87 FR 50293, August 16, 2022) and 
carried through to the 2023 IHA (88 FR 41912,

[[Page 54587]]

June 28, 2023). Furthermore, the commenter does not provide any support 
for the apparent contention that Level A harassment is a potential 
outcome of these activities.
    As discussed in the notice of proposed IHA, NMFS considers this 
category of survey operations to be near de minimis, with the potential 
for Level A harassment for any species to be discountable.
    Comment 27: COA and Green Oceans expressed concerns regarding the 
increased amount of vessel traffic associated with the offshore wind 
project and its impacts on protected resources, as well as concern for 
vessel noise.
    Response: Atlantic Shores did not request authorization for take 
incidental to vessel traffic during their 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. NMFS does not authorize any 
take of marine mammals incidental to vessel strike resulting from the 
survey. If Atlantic Shores were to strike a marine mammal with a 
vessel, this would be an unauthorized take in violation of the MMPA. 
This gives Atlantic Shores a strong incentive to operate its vessels 
with all due caution and to effectively implement the suite of vessel 
strike avoidance measures required by the IHA. Atlantic Shores proposed 
a very conservative suite of mitigation measures related to vessel 
strike avoidance, including measures specifically designed to avoid 
impacts to NARWs. Section 4(g) in the IHA contains a suite of non-
discretionary requirements pertaining to vessel strike avoidance, 
including vessel operation protocols and monitoring. To date, NMFS is 
not aware of any site characterization vessel from surveys reporting a 
vessel strike within the United States. When considered in the context 
of low overall probability of any vessel strike by Atlantic Shores 
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 strike. These measures are described fully in the 
Description of Mitigation, Monitoring, and Reporting section below, and 
include, but are not limited to: training for all vessel observers and 
captains, daily monitoring of NARW Sighting Advisory System, WhaleAlert 
app, and USCG Channel 16 for situational awareness regarding NARW 
presence in the survey area, communication protocols if whales are 
observed by any Atlantic Shores personnel, vessel operational protocol 
should any marine mammal be observed, and visual monitoring.
    The potential for impacts related to an overall increase in the 
amount of vessel traffic due to offshore wind development is separate 
from the aforementioned analysis of potential for vessel strike during 
Atlantic Shores' specified survey activities. For more information, 
please see the response to comment 11 discussing cumulative impacts.
    Comment 28: SLC asserts that NMFS' assessment of sound propagation 
from the proposed activities does not adequately account for sound 
bouncing off the underside of the water's surface and other surface 
reflection.
    Response: NMFS does not agree with the commenter that NMFS' 
analysis of sound propagation is insufficient. While the transmission 
loss model (i.e., spherical spreading) used for HRG sources is fairly 
simplistic and does not directly account for reflections at the 
surface, it adequately accounts for how sound would propagate through 
the environment (note that NMFS' isopleth estimates also account for 
frequency-dependent absorption), and thus provides a realistic 
approximation of how sounds from these sources are believed to travel 
through the environment. Accounting for scattering at the surface is 
heavily dependent on the roughness of the sea surface, with rougher 
surfaces resulting in more propagation loss (dB) per bounce as the 
sound hits the water surface (i.e., this additional dB loss is not 
accounted for in more simple models). Only flat surfaces would allow 
for complete reflection of sound.
    Comment 29: SLC claims that the weighting curves for low frequency 
(LF) cetaceans do not align with mysticetes' infrasonic hearing, and 
urged NMFS to incorporate better estimations for low frequency 
cetaceans and corresponding thresholds based upon the best available 
data.
    Response: NMFS disagrees that the current low-frequency (LF) 
cetacean weighting functions are not based on the best available 
science. While there are very limited data to inform our understanding 
of mysticete hearing, the generalized hearing range used by NMFS for 
mysticetes extends from 7 Hz up to 35 kHz, which reflects 
recommendations made by Southall et al. 2007 and Southall et al. 2019. 
Hearing predictions for mysticetes are based on other methods 
including: anatomical studies and modeling (Houser et al., 2001; Parks 
et al., 2007; Tubelli et al., 2012; Cranford and Krysl, 2015); 
vocalizations (see reviews in Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008); taxonomy; and behavioral 
responses to sound (Dahlheim and Ljungblad, 1990; see review in 
Reichmuth, 2007). The existing weighting functions reflect LF cetacean 
infrasonic hearing capabilities to the greatest extent allowed by 
available data.
    Comment 30: Green Oceans suggests that the surveys may result in 
acute injury of whales as a result of rectified diffusion, i.e., bubble 
growth caused by acoustic exposure.
    Response: With regard to Green Oceans' suggestion that acute injury 
of whales could occur as a result of bubble formation, this effect is 
extremely unlikely to occur in the circumstances considered here, i.e., 
relatively low-level sound exposure in shallow waters. We acknowledge 
that non-auditory physiological effects or injuries can theoretically 
occur in marine mammals exposed to high level underwater sound or as a 
secondary effect of extreme behavioral reactions (e.g., change in dive 
profile as a result of an avoidance reaction) caused by exposure to 
sound. These include neurological effects, resonance effects, and other 
types of organ or tissue damage (Cox et al., 2006; Southall et al., 
2007; Zimmer and Tyack, 2007). The bubble formation, or rectified 
diffusion, referenced by Green Oceans is another such effect (e.g., 
Houser et al., 2001; Tal et al., 2015). However, the survey activities 
considered here do not involve the use of devices such as explosives or 
mid-frequency tactical sonar that produce the high-intensity sounds 
that are associated with these types of effects. While these bubble 
formation effects remain a theoretical potential cause of marine mammal 
stranding, it is important to note that theoretical analysis of this 
potential considers as necessary precedent the condition of deep diving 
and slow ascent/descent speed, which contributes to increased gas-
tissue saturation, prior to high-intensity sound exposure. The survey 
conditions here, aside from the absence of the high-intensity sound 
that would be expected to be necessary to cause this effect, preclude 
the deep diving conditions in which gas supersaturation and the 
potential for bubble growth might occur--as noted previously, the 
maximum survey depth is 38 meter (m). Houser et al. (2001) emphasize 
the importance of dive depth to the rectified diffusion concept in 
marine mammals, stating that beaked whales and sperm whales (species 
not expected to be

[[Page 54588]]

impacted by the proposed survey) may be at greatest risk, with other 
odontocete species at lesser potential risk. Green Oceans focused its 
concern on ``whales,'' which we presume to mean mysticete species, 
which would be at even lower risk due to typically shallow dive 
patterns. In summary, the concern raised by Green Oceans regarding 
potential injury resulting from rectified diffusion is unwarranted due 
to the shallow survey depths, which preclude the gas-tissue saturation 
conditions necessary to potentially lead to bubble formation, and the 
lack of high-intensity sounds necessary to cause bubble expansion.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
can be found in the previous documents and notices for the 2022 IHA (87 
FR 38067, June 27, 2022; 87 FR 50293, August 16, 2022), which remain 
applicable to this IHA. NMFS reviewed the most recent draft Stock 
Assessment Reports (SARs, found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), up-to-date information on relevant Unusual 
Mortality Events (UMEs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events), and recent 
scientific literature and determined that no new information affects 
our original analysis of impacts under the 2022 IHA. More general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).
    NMFS notes that, since issuance of the 2022 IHA, a new SAR is 
available for the NARW. We note that the estimated abundance for the 
species declined from 368 to 338. However, this change does not affect 
our analysis of impacts, as described under the 2022 IHA.

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. Current data indicate that 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) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. Marine mammal hearing groups and their 
associated hearing ranges are provided in Table 1.

                  Table 1--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).

    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 on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293, 
August 16, 2022). NMFS has determined that there is no new information 
on potential effects that would impact our analysis.

Estimated Take

    A detailed description of the methods used to estimate take 
anticipated to occur incidental to the project is found in the previous 
Federal Register notices (87 FR 38067, June 27, 2022; 87 FR 50293, 
August 16, 2022). The methods of estimating take are identical to those 
used in the 2022 IHA. Atlantic Shores updated the marine mammal 
densities based on new information (Roberts et al., 2016; Roberts et 
al., 2023), available online at: https://seamap.env.duke.edu/models/
Duke/EC/. We refer the reader to Table 6 in Atlantic Shores' 2023 IHA 
request for specific density values used in the analysis. The IHA 
request is available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The take that NMFS has authorized can be found in Table 2, which 
presents the results of Atlantic Shores' density-based calculations for 
the survey area. For comparative purposes, we have provided the 2022 
IHA authorized take (87 FR 50293, August 16, 2022). NMFS notes that 
take by Level A harassment was not requested nor does NMFS anticipate 
that it could occur. Therefore, NMFS has not authorized any take by 
Level A harassment. Mortality or serious

[[Page 54589]]

injury is neither anticipated to occur nor authorized.

                                 Table 2--Total Authorized Take, by Level B Harassment Only, Relative to Population Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                     2023 IHA
                                                                                                             2022 IHA    -------------------------------
               Species                      Scientific name               Stock              Abundance      authorized      Authorized      Max percent
                                                                                                               take          take \1\       population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale...........  Eubalaena glacialis.....  Western Atlantic.......             338              24               5             1.5
Humpback whale.......................  Megaptera novaeangliae..  Gulf of Maine..........           1,396               8      \6\ 8 (16)             1.2
Fin whale............................  Balaenoptera physalus...  Western North Atlantic.           6,802              16               9              <1
Sei whale \2\........................  Balaenoptera borealis...  Nova Scotia............           6,292               2               4              <1
Minke whale..........................  Balaenoptera              Canadian East Coastal..          21,968               8              46              <1
                                        acutorostrata.
Sperm whale \2\......................  Physeter macrocephalus..  Western Atlantic.......           4,349               3               2              <1
Long-finned pilot whale \3\..........  Globicephala melas......  Western North Atlantic.          39,215              20          8 (20)              <1
Bottlenose dolphin...................  Tursiops truncatus......  Western North Atlantic           62,851             232             179              <1
                                                                  Offshore Stock.
Common dolphin.......................  Delphinus delphis.......  Western North Atlantic.         172,974             911             588              <1
Atlantic white-sided dolphin.........  Lagenorhynchus acutus...  Western North Atlantic.          93,233             108              63              <1
Atlantic spotted dolphin.............  Stenella frontalis......  Western North Atlantic.          39,921             100        42 (100)              <1
Risso's dolphin......................  Grampus griseus.........  Western North Atlantic.          35,215              30          7 (30)              <1
Harbor porpoise......................  Phocoena phocoena.......  Gulf of Maine/Bay of             95,543             357             281              <1
                                                                  Fundy.
Harbor seal \4\......................  Phoca vitulina..........  Western North Atlantic.          61,336             263             374              <1
Gray seal \4\ \5\....................  Halichoerus grypus......  Western North Atlantic.          27,300             263             374            1.37
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote take authorization where different from calculated take estimates. Increases from calculated values are based on average group
  size for the following species: humpback whale, King et al., 2021; long-finned pilot whale and Risso's dolphin, NOAA, 2022; and Atlantic spotted
  dolphin, Jefferson et al., 2008.
\2\ Where calculated takes for a species in a given survey area were less than 1 individual, the number was rounded up to 1 take in each survey area.
\3\ Roberts et al. (2023) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
  of long-finned pilot whales.
\4\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
  equally in the survey area; therefore, density values were split evenly between the 2 species, i.e., total estimated take for ``seals'' is 748.
\5\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,600.
\6\ According to recent findings that humpback whales were the most commonly sighted species in the New York Bight (King et al., 2021), the number of
  modeled exposures (4) for each of the lease area and ECR is multiplied by an average whale size of two for a total of eight estimated takes in the
  lease area and eight estimated takes in the ECR. The total request (16) represents the sum of estimated take in the lease area (8) and ECR (8).

Description of Mitigation, Monitoring and Reporting Measures

    The required mitigation, monitoring, and reporting measures are 
identical to those included in the Federal Register notice announcing 
the final 2022 IHA and the discussion of the least practicable adverse 
impact included in that document remains accurate. The measures are 
found below.
    Atlantic Shores must also abide by all the marine mammal relevant 
conditions in the NOAA Fisheries GARFO programmatic consultation 
(specifically Project Design Criteria (PDC) 4, 5, and 7) regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (NOAA GARFO, 2021; https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation), pursuant to Section 7 of the Endangered Species Act.
    Additionally, on August 1, 2022, NMFS announced proposed changes to 
the existing NARW vessel speed regulations to further reduce the 
likelihood of mortalities and serious injuries to endangered NARWs from 
vessel collisions, which are a leading cause of the species' decline 
and a primary factor in an ongoing Unusual Mortality Event (87 FR 
46921, August 1, 2023). Should a final vessel speed rule be issued and 
become effective during the effective period of this IHA (or any other 
MMPA incidental take authorization), the authorization holder would be 
required to comply with any and all applicable requirements contained 
within the final rule. Specifically, where measures in any final vessel 
speed rule are more protective or restrictive than those in this or any 
other MMPA authorization, authorization holders would be required to 
comply with the requirements of the rule. Alternatively, where measures 
in this or any other MMPA authorization are more restrictive or 
protective than those in any final vessel speed rule, the measures in 
the MMPA authorization would remain in place. The responsibility to 
comply with the applicable requirements of any vessel speed rule would 
become effective immediately upon the effective date of any final 
vessel speed rule and, when notice is published of the effective date, 
NMFS would also notify Atlantic Shores if the measures in the speed 
rule were to supersede any of the measures in the MMPA authorization 
such that they were no longer applicable.
    Establishment of Shutdown Zones (SZ)--Marine mammal SZs must be 
established around the HRG survey equipment and monitored by NMFS-
approved PSOs as follows:
     500-m SZ for NARWs during use of specified acoustic 
sources (impulsive: Sparkers; non-impulsive: Non-parametric sub-bottom 
profilers); and,
     100-m SZ for all other marine mammals (excluding NARWs) 
during use of specified acoustic sources (except as specified below). 
The only exception for this is for pinnipeds (seals) and small 
delphinids (i.e., those from the genera Delphinus, Lagenorhynchus, 
Stenella or Tursiops).
    If a marine mammal is detected approaching or entering the SZs 
during the HRG survey, the vessel operator will adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
During use of acoustic sources with the potential to result in marine 
mammal harassment (sparkers and non-parametric sub-bottom profilers; 
i.e., anytime the acoustic source is active, including ramp-up), 
occurrences of marine mammals within the monitoring zone (but outside 
the SZs) must be communicated to the vessel operator to prepare for 
potential shutdown of the acoustic source.
    Visual Monitoring--Monitoring must be conducted by qualified PSOs 
who are trained biologists, with minimum qualifications described in 
the Federal Register notices for the 2022 project (87 FR 38067, June 
27, 2022; 87 FR 50293,

[[Page 54590]]

August 16, 2022). Atlantic Shores must have one PSO on duty during the 
day and a minimum of two NMFS-approved PSOs must be on duty and 
conducting visual observations when HRG equipment is in use at night. 
Visual monitoring must begin no less than 30 minutes prior to ramp-up 
of HRG equipment and continue until 30 minutes after use of the 
acoustic source. PSOs must establish and monitor the applicable 
clearance zones, SZs, and vessel separation distances as described in 
the 2022 IHA (87 FR 38067, June 27, 2022; 87 FR 50293, August 16, 
2022). PSOs must coordinate to ensure 360-degree visual coverage around 
the vessel from the most appropriate observation posts, and must 
conduct observations while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs are required to estimate 
distances to observed marine mammals. It is the responsibility of the 
Lead PSO on duty to communicate the presence of marine mammals as well 
as to communicate action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    Pre-Start Clearance--Marine mammal CZs will be established around 
the HRG survey equipment and monitored by NMFS-approved PSOs prior to 
use of sparkers and non-parametric sub-bottom profilers as follows:
     500-m CZ for all ESA-listed species; and,
     100-m CZ for all other marine mammals.
    Prior to initiating HRG survey activities, Atlantic Shores will 
implement a 30-minute pre-start clearance period. The operator must 
notify a designated PSO of the planned start of ramp-up where the 
notification time should not be less than 60 minutes prior to the 
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes 
prior to the initiation of ramp-up. Prior to ramp-up beginning, 
Atlantic Shores will receive confirmation from the PSO that the CZs are 
clear prior to preceding. Any PSO on duty has the authority to delay 
the start of survey operations if a marine mammal is detected within 
the applicable pre-start clearance zones.
    During this 30-minute period, the entire CZ must be visible. The 
exception to this would be in situations where ramp-up must occur 
during periods of poor visibility (inclusive of nighttime) as long as 
appropriate visual monitoring has occurred with no detections of marine 
mammals in 30 minutes prior to the beginning of ramp-up. Acoustic 
source activation must only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If a marine mammal is observed within the relevant CZs during the 
pre-start clearance period, initiation of HRG survey equipment must not 
begin until the animal(s) has been observed exiting the respective 
clearance zone, or until an additional period has elapsed with no 
further sighting (i.e., minimum 15 minutes for small odontocetes and 
seals; 30 minutes for all other species). The pre-start clearance 
requirement includes small delphinids. PSOs must also continue to 
monitor the zone for 30 minutes after survey equipment is shut down or 
survey activity has concluded.
    Ramp-Up of Survey Equipment--When technically feasible, a ramp-up 
procedure must be used for geophysical survey equipment capable of 
adjusting energy levels at the start or re-start of survey activities. 
The ramp-up procedure must be used at the beginning of HRG survey 
activities in order to provide additional protection to marine mammals 
near the project area by allowing them to detect the presence of the 
survey and vacate the area prior to the commencement of survey 
equipment operation at full power. Ramp-up of the survey equipment must 
not begin until the relevant SZs have been cleared by the PSOs, as 
described above. HRG equipment operators must ramp up acoustic sources 
to half power for 5 minutes and then proceed to full power. If any 
marine mammals are detected within the SZs prior to or during ramp-up, 
the HRG equipment must be shut down (as described below).
    Shutdown Procedures--If an HRG source is active and a marine mammal 
is observed within or entering a relevant SZ (as described above), an 
immediate shutdown of the HRG survey equipment is required. When 
shutdown is called for by a PSO, the acoustic source must be 
immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty has the authority to delay the start of 
survey operations or to call for shutdown of the acoustic source if a 
marine mammal is detected within the applicable SZ. The vessel operator 
must establish and maintain clear lines of communication directly 
between PSOs on duty and crew controlling the HRG source(s) to ensure 
that shutdown commands are conveyed swiftly while allowing PSOs to 
maintain watch. Subsequent restart of the HRG equipment may only occur 
after the marine mammal has been observed exiting the relevant SZ, or, 
until an additional period has elapsed with no further sighting of the 
animal within the relevant SZ.
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable SZ or following a clearance period of 15 minutes 
for small odontocetes and seals and 30 minutes for all other species 
with no further observation of the marine mammal(s) within the relevant 
SZ. If the HRG equipment is shut down for brief periods (i.e., less 
than 30 minutes) for reasons other than mitigation (e.g., mechanical or 
electronic failure), the equipment may be re-activated as soon as is 
practicable at full operational level, without 30 minutes of pre-
clearance, only if PSOs have maintained constant visual observation 
during the shutdown and no visual detections of marine mammals occurred 
within the applicable SZs during that time. For a shutdown of 30 
minutes or longer, or if visual observation was not continued 
diligently during the pause, pre-clearance observation is required, as 
described above. The acoustic source(s) must be deactivated when not 
acquiring data or preparing to acquire data, except as necessary for 
testing. Unnecessary use of the acoustic source shall be avoided.
    The shutdown requirement is waived for pinnipeds (seals) and 
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) under certain circumstances. If a delphinid(s) 
from these genera is visually detected within the SZ, shutdown would 
not be 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), 
PSOs must use best professional judgment in making the decision to call 
for a shutdown.
    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 
area encompassing the Level B harassment isopleth (141 m), shutdown 
must occur.
    Vessel Strike Avoidance--Atlantic Shores must comply with vessel 
strike avoidance measures as described in the Federal Register notice 
for the 2022 IHA (87 FR 50293, August 16, 2022). This includes speed 
restrictions (10 kn (18.5 km/hour) or less) when mother/calf pairs, 
pods, or large assemblages of cetaceans are spotted near a vessel; 
species-specific vessel separation distances; appropriate vessel 
actions when a marine mammal is sighted (e.g., avoid excessive speed, 
remain parallel

[[Page 54591]]

to animal's course, etc.); and monitoring of the NMFS NARW reporting 
system and WhaleAlert daily.
    Throughout all phases of the survey activities, Atlantic Shores 
must monitor NOAA Fisheries NARW reporting systems for the 
establishment of a DMA. If NMFS establishes a DMA in the surrounding 
area, including the project area or export cable routes being surveyed, 
Atlantic Shores is required to abide by the 10-kn (18.5 km/hour) speed 
restriction.
    Seasonal Operating Requirements--Atlantic Shores will conduct HRG 
survey activities in the vicinity of a NARW Mid-Atlantic SMA. 
Activities must comply with the seasonal mandatory speed restriction 
period for this SMA (November 1 through April 30) for any survey work 
or transit within this area.
    Training--Project-specific training is required for all vessel crew 
prior to the start of survey activities.
    Reporting--PSOs must record specific information as described in 
the Federal Register notice of the issuance of the 2022 IHA (87 FR 
50293, August 16, 2022). Within 90 days after completion of survey 
activities, Atlantic Shores must provide NMFS with a monitoring report, 
which must include summaries of recorded takes and estimates of the 
number of marine mammals that may have been harassed.
    In the event of a ship strike or discovery of an injured or dead 
marine mammal, Atlantic Shores must report the incident to the Office 
of Protected Resources (OPR), NMFS and to the New England/Mid-Atlantic 
Regional Stranding Coordinator as soon as feasible. The report must 
include the information listed in the Federal Register notice of the 
issuance of the initial IHA (87 FR 50293, August 16, 2022).

Determinations

    Atlantic Shores' HRG survey activities are unchanged from those 
analyzed in support of the 2022 IHA. The effects of the activity, 
taking into consideration the mitigation and related monitoring 
measures, remain unchanged from those evaluated in support of the 2022 
IHA, regardless of the minor increases in estimated take for two marine 
mammal species (humpback whale and minke whale). NMFS expects that all 
potential takes would be short-term Level B behavioral 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). In addition to being temporary, the maximum 
expected harassment zone around a survey vessel is 141 m from use of 
the AA Dura-spark sparker. Although this distance is assumed for all 
survey activity evaluated here and in estimating authorized take 
numbers, in reality, much of the survey activity would involve use of 
non-impulsive acoustic sources with a reduced acoustic harassment zone 
of up to 56 m, producing expected effects of particularly low severity. 
The ensonified area surrounding each vessel is extremely small compared 
to the overall distribution of the animals in the area and the 
available 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. Even 
considering the increased estimated take for some species, the impacts 
of these lower severity exposures are not expected to accrue to a 
degree that the fitness of any individuals would be impacted and, 
therefore, no impacts on the annual rates of recruitment or survival 
would result.
    As previously discussed in the 2022 IHA (87 FR 50293, August 16, 
2022), impacts from the survey are expected to be localized to the 
specific area of activity and only during periods when Atlantic Shores' 
acoustic sources are active. There are no rookeries, mating or calving 
grounds, or any feeding areas known to be biologically important to 
marine mammals within the survey area. There is no designated critical 
habitat for any marine mammals listed under the ESA in the survey area.
    As noted for the 2022 IHA (87 FR 50293, August 16, 2022), the 
survey area overlaps a migratory corridor BIA and migratory route SMA 
(Port of New Jersey/New York) for NARWs. As the survey activities would 
be temporary and the spatial acoustic footprint produced by the survey 
would be very small relative to the spatial extent of the available 
migratory habitat in the BIA (269,448 km\2\), NMFS does not expect NARW 
migration to be impacted by the survey. Required vessel strike 
avoidance measures would also decrease risk of ship strike during 
migration; no ship strike is expected to occur during Atlantic Shores' 
activities. Atlantic Shores would be required to comply with seasonal 
speed restrictions of these SMAs, and in any DMA, should NMFS establish 
one (or more) in the survey area. Additionally, Atlantic Shores 
requested, and NMFS has authorized, only five takes by Level B 
harassment of NARWs. This amount is less than the 24 Level B harassment 
takes authorized in the 2022 IHA due to the updated Duke University 
density data (Roberts et al., 2023).
    Although take by Level B harassment of NARWs has been authorized by 
NMFS, we anticipate such take may not actually occur, and should it 
occur, we anticipate a very low level of harassment because Atlantic 
Shores is required to maintain a shutdown zone of 500 m if a NARW is 
observed. The authorized takes account for any missed animals wherein 
the survey equipment is not shut down immediately. As shutdown would be 
called for immediately upon detection (if the whale is within 500 m), 
it is likely the exposure time would be very limited and received 
levels would not be much above the harassment threshold. Further, the 
500-m SZ for NARWs is conservative, considering the Level B harassment 
isopleth for the most impactful acoustic source (i.e., AA Dura-spark 
sparker) is estimated to be 141 m, and thereby minimizes the potential 
for behavioral harassment of this species. As noted previously, Level A 
harassment is not expected due to the small PTS zones associated with 
HRG equipment types planned for use. NMFS does not anticipate NARW 
takes that would result from Atlantic Shores' activities would impact 
annual rates of recruitment or survival. Thus, any takes that occur 
would not result in population level impacts.
    We also note that our findings for other species with active UMEs 
that were previously described for the 2022 IHA remain applicable to 
this project. Therefore, in conclusion, there is no new information 
suggesting that our analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) the required 
mitigation measures would effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
would have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine

[[Page 54592]]

mammals relative to the affected stock abundances; (4) Atlantic Shores' 
activities would not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action; and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS has authorized the incidental take of four species of marine 
mammals which are listed under the ESA, the North Atlantic right, fin, 
sei, and sperm whale, and has determined that this activity falls 
within the scope of activities analyzed in NMFS Greater Atlantic 
Regional Fisheries Office's programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021).

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

    NMFS has issued an IHA to Atlantic Shores for the potential 
harassment of small numbers of 15 marine mammal species incidental to 
marine site characterization surveys offshore of New Jersey and New 
York, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are followed.

    Dated: August 8, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-17271 Filed 8-10-23; 8:45 am]
BILLING CODE 3510-22-P