[Federal Register Volume 89, Number 57 (Friday, March 22, 2024)]
[Notices]
[Pages 20434-20455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06063]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD648]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys off New York, New Jersey, Delaware, and Maryland

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, LLC (Atlantic Shores) to incidentally 
harass, by Level B harassment only, marine mammals during marine site 
characterization surveys in waters off of New York, New Jersey, 
Delaware, and Maryland, including in the Bureau of Ocean Energy 
Management (BOEM) Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf (OCS) Lease Areas 
OCS-A 0499, OCS-A 0541, OCS-A 0549, and associated export cable 
corridor (ECC) areas.

DATES: This authorization is effective from April 1, 2024, through 
March 31, 2025.

ADDRESSES: Electronic copies of the application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llcs-marine-site. In case of problems accessing these documents, please call 
the contact listed below.

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

Summary of Request

    August 31, 2023, NMFS received a request from Atlantic Shores for 
an IHA to take marine mammals incidental to conducting marine site 
characterization surveys in waters off of New York, New Jersey, 
Delaware, and Maryland, specifically within BOEM Lease Areas OCS-A 
0499, OCS-A 0541, OCS-A 0549, and associated ECC areas. Following NMFS' 
review of the application, Atlantic Shores submitted revised versions 
on October 11 and November 17, 2023. The application was deemed 
adequate and complete on November 20, 2023. Atlantic Shores' request is 
for take of small numbers of 14 species (15 stocks) of marine mammals 
by Level B harassment. Neither Atlantic Shores nor NMFS expect serious 
injury or mortality to result from this activity and, therefore, an IHA 
is appropriate.
    NMFS previously issued IHAs to Atlantic Shores for similar work (85 
FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021; 87 FR 24103, 
April 20, 2022; 87 FR 50293, August 10, 2022; 88 FR 38821, June 9, 
2023; 88 FR 54575, August 10, 2023). Atlantic Shores complied with all 
the requirements (e.g., mitigation, monitoring, and reporting) of the 
previous IHAs and did not exceed authorized levels of take under 
previous IHAs issued for surveys offshore of New York and New Jersey. 
These previous monitoring results are available to the

[[Page 20435]]

public on our website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization and https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llc-marine-site.

Description of Specified Activity

Overview

    Atlantic Shores plans to conduct marine site characterization 
surveys, including high-resolution geophysical (HRG) surveys, in waters 
off of New York, New Jersey, Delaware, and Maryland, specifically 
within BOEM Lease Areas OCS-A 0499, OCS-A 0541, OCS-A 0549, and 
associated ECC areas, collectively considered the Survey Area.
    Atlantic Shores currently has two active IHAs associated with 
ongoing HRG survey activities: one in BOEM Lease Areas OCS-A 0499 and 
OCS-A 0549 effective June 9, 2023 through June 8, 2024 (88 FR 38821) 
and another in BOEM Lease Area OCS-A 0541 effective August 10, 2023 
through August 9, 2024 (88 FR 54575). The purpose of the IHA authorized 
herein is to combine all ongoing HRG survey activities, including 
remaining survey activity associated with the two existing IHAs as well 
as new activity, under a single IHA. The new activity includes 
additional areas not covered under either currently active Atlantic 
Shores HRG survey IHAs. NMFS has made the required determinations and 
has issued the IHA. As such, NMFS has concurrently modified the 
effective dates of the two active IHAs to reflect an end date (March 
31, 2024) that is 1 day earlier in time than the start date of the 
issued IHA (April 1, 2024).
    The planned marine site characterization surveys are designed to 
obtain data sufficient to meet BOEM guidelines for providing 
geophysical, geotechnical, and geohazard information for site 
assessment plan surveys and/or construction and operations plan 
development. The objective of the surveys is to support the site 
characterization, siting, and engineering design of offshore wind 
project facilities including wind turbine generators, offshore 
substations, and submarine cables within the Survey Area. Up to two 
vessels may conduct survey efforts concurrently. Underwater sound 
resulting from Atlantic Shores' marine site characterization survey 
activities, specifically HRG surveys, has the potential to result in 
incidental take of marine mammals in the form of Level B harassment.

Dates and Duration

    The surveys are planned to begin no earlier than April 1, 2024 and 
are estimated to require a maximum of 300 survey days within a single 
year across a maximum of two vessels, which will include one vessel 
operating nearshore (less than 10 meters (m; 33 feet (ft)) depth) and 
one vessel operating offshore (greater than 10 m (33 ft) depth). The 
survey days may occur any month throughout the year as the exact timing 
of the surveys during the year is not yet certain. A ``survey day'' is 
defined as a 24-hour (hr) activity period in which an active acoustic 
sound source is used offshore and a 12-hr activity period when a vessel 
is operating nearshore. Surveyed at a speed of approximately 3.5 knots 
(kn; 6.5 kilometer (km) per hr (km/hr)), it is expected that the 
nearshore vessel will cover approximately 30 km (18.6 miles (mi)) of 
trackline per day, and the offshore vessel will cover approximately 140 
km (87 mi) of trackline per day, based on Atlantic Shores' data 
acquisition efficiency expectations.

Specific Geographic Region

    Atlantic Shores' survey activities will occur in the Northwest 
Atlantic Ocean within Federal and State waters off of New York, New 
Jersey, Delaware, and Maryland in BOEM Lease Areas OCS-A 0499, OCS-A 
0541, OCS-A 0549, and along the associated ECC areas (figure 1). 
Overall, the Survey Area is approximately 20,251 square kilometers 
(km\2\; 7,819 mi\2\) and extends from the shoreline to approximately 74 
km (46 mi) offshore and a maximum depth of approximately 60 m (197 ft).
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN22MR24.003

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

    Atlantic Shores' marine site characterization surveys within the 
Survey Area include geotechnical and geophysical surveys, including 
depth sounding to determine water depth, site bathymetry, and general 
seafloor topography using a single beam and multibeam echosounder 
(MBES); magnetic intensity measurements using a gradiometer; seafloor 
imaging using a side scan sonar; shallow penetration sub-bottom 
profilers (SBPs; parametric); and a medium penetration SBP (sparker). 
NMFS does not expect geotechnical survey activities or HRG survey 
activities using single and MBES, side-scan sonar, gradiometer, or 
parametric SBP to present a reasonably anticipated risk of causing 
incidental take of marine mammals, so these

[[Page 20437]]

activities are not discussed further in this notice.
    The only acoustic source planned for use during Atlantic Shores' 
planned HRG survey activities with the potential to cause incidental 
take of marine mammals is a sparker. There is only one sparker system 
planned for use (GeoMarine Geo-Source 400), which will collect two-
dimensional (2D) single-channel ultra-high resolution seismic (SUHRS) 
data while operating 400 tips at a power level of 400 Joules (J).
    A detailed description of Atlantic Shores' planned HRG surveys is 
provided in the Federal Register notice for the proposed IHA (89 FR 
753, January 5, 2024). Since that time, no changes have been made to 
the planned HRG survey activities. Therefore, a detailed description is 
not provided here. Please refer to that Federal Register notice for the 
detailed description of the specified activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Atlantic Shores was 
published in the Federal Register on January 5, 2024 (89 FR 753). That 
notice described, in detail, Atlantic Shores' specified activities, the 
marine mammal species that may be affected by the activities, and the 
anticipated effects on marine mammals. In that notice, we requested 
interested persons submit relevant information, suggestions, and 
comments on the request for authorization described therein, our 
analyses, the proposed authorization, and any other aspect of the 
notice of proposed IHA. The proposed notice was available for a 30-day 
public comment period.
    In total, NMFS received 363 comment submissions, comprising 356 
individual comments from private citizens, six comment letters from 
organizations or public groups (Clean Ocean Action, Green Oceans, 
Defend Brigantine Beach Inc., Protect Our Coast New Jersey, the Warwick 
Group Consultants, LLC on behalf of the County of Cape May, New Jersey; 
the State of Delaware Department of Natural Resources and Environmental 
Control); and one from an elected official for the Borough of Seaside 
Park, New Jersey. Many of the comments received express concerns 
related to topics that are outside the scope of NMFS' authority under 
the MMPA (e.g., offshore wind farm construction; impacts to the coastal 
ecosystem and local community that are unrelated to marine mammals and 
marine mammal habitat; concerns for other species outside of NMFS' 
jurisdiction (i.e., birds, bats); costs associated with offshore wind 
development; turbine components; national security concerns; other MMPA 
incidental take authorizations; fishing and the commercial fishing 
industry; and project decommissioning). These comments are not 
described herein or discussed further. Moreover, where comments 
recommended that the final authorization include mitigation, 
monitoring, or reporting measures that were already included in the 
proposed authorization and such measures are carried forward in this 
final authorization, they are not included here as those comments did 
not raise significant points for NMFS to consider.
    Most comments expressed general opposition to issuance of the IHA, 
takes of any marine mammals, or the underlying associated activities. 
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 specified activities themselves. 
We reiterate here that no mortality or injury of marine mammals is 
anticipated or authorized. We do not specifically address comments 
expressing general opposition to activities related to wind energy 
development or respond to comments that are out of scope of the 
proposed IHA (89 FR 753, January 5, 2024), such as comments on other 
Federal agency processes and activities not planned under this IHA.
    All comments received during the public comment period which 
contained significant points were considered by NMFS and are described 
and responded to below. All comment letters are available on NMFS' 
website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llcs-marine-site) and are 
reflective of the comments received by private citizens.
    Comment 1: Commenters stated there is no scientific evidence 
proving that the project and marine site characterization surveys more 
broadly would not indirectly lead to the mortality (death) or serious 
injury of marine mammals via significant behavioral changes due to 
noise associated with the project. A few commenters stated such 
significant behavioral changes may cause marine mammals to be displaced 
from the project area into shipping lanes or areas of higher vessel 
traffic, which could result in higher risks of vessel strike and that 
was not considered in NMFS' analysis.
    Response: NMFS acknowledges that whales may temporarily avoid the 
area where the specified activities occur. However, NMFS does not 
anticipate that whales will be displaced in a manner that would result 
in a higher risk of vessel strike, and the commenters do not provide 
scientific evidence that either of these effects should be a reasonably 
anticipated outcome of the specified activity.
    Regarding take by serious injury or mortality, NMFS has carefully 
reviewed the best available scientific information in assessing impacts 
to marine mammals and determined that the surveys have the potential to 
impact marine mammals through behavioral effects. 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 or other lethal impacts to marine 
mammals. Based on the characteristics of the signals produced by the 
acoustic source planned for use (i.e., sparker), Level A harassment is 
neither anticipated (even absent mitigation) nor authorized and 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. NMFS has 
determined Atlantic Shores' activities will not result in injury or 
mortality of any marine mammal species.
    Further, NMFS has determined that any harassment from any specified 
activity is anticipated to, at most, result in some avoidance that 
would be limited spatially and temporally. It is unlikely that any 
impacts from the project would increase the risk of vessel strike from 
non-Atlantic Shores vessels. The commenter has presented no information 
supporting the speculation that whales would be displaced from the 
Survey Area into shipping lanes or areas of higher vessel traffic in a 
manner that would be expected to result in higher risks of vessel 
strike.
    Comment 2: Commenters stated the terms ``take'' and ``harassment'' 
are misleading and inappropriate regulatory language without formal 
definition or adoption by the U.S. Congress. Several commenters assert 
that the request for an IHA should be denied because the potential 
taking of marine mammals is known and, therefore, not considered 
incidental.
    Response: We refer the commenters to the definitions of ``take'' 
and ``harassment'' provided in the MMPA (16 U.S.C. 1362(13), (18)) and 
the definition of incidental taking in NMFS'

[[Page 20438]]

implementing regulations (50 CFR 216.103).
    Comment 3: A commenter recommended that NMFS increase the size of 
all pre-start clearance, separation, and shutdown zones for all baleen 
whales to 500 m regardless of Endangered Species Act (ESA) status.
    Response: NMFS disagrees with this recommendation. As described in 
the proposed notice and this final notice, the required 500-m shutdown 
zone for North Atlantic right whales (NARWs) and 100-m shutdown zone 
for other baleen whales (e.g., fin, sei, minke, and humpback whales) 
exceeds the calculated distance to the largest harassment isopleth (56 
m). These mitigation measures ensure the survey activities will have 
the least practicable adverse impact on baleen whales (i.e., reduce the 
likelihood they will be harassed by this activity). For other ESA-
listed species (e.g., fin and sei whales), NMFS Greater Atlantic 
Regional Fisheries Office's (GARFO's) 2021 Offshore Wind Site 
Assessment Survey Programmatic ESA consultation (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic) determined that a 100-
m shutdown zone is sufficient to minimize exposure to noise that could 
be disturbing sufficiently to avoid the potential for take (as defined 
under the ESA). Accordingly, NMFS has adopted this shutdown zone size 
for all baleen whale species other than the NARW. Commenters did not 
provide scientific information for NMFS to consider to support their 
recommendation to expand the shutdown zone. Therefore, NMFS has 
determined that an increase in the size of the zones during HRG survey 
activities is not warranted.
    Comment 4: To minimize the risk of vessel strikes for all whales 
and especially in recognition of the imperiled state of NARWs, 
commenters do not believe that mitigation measures to reduce the risk 
of vessel strike are strong enough and have instead suggested NMFS 
strengthen its existing vessel speed restrictions or require a 
mandatory 10-knot (kn) (5.14 m/s) speed restriction for all survey 
vessels at all times, except for reasons of safety, and in all places 
except in limited circumstances where the best available scientific 
information demonstrates that whales do not occur in the area.
    Response: NMFS acknowledges that vessel strikes pose a risk to 
marine wildlife, including NARWs, but disagrees with the commenters 
that the mitigation measures to prevent vessel strike are insufficient. 
Under the MMPA, NMFS must prescribe regulations setting forth other 
means of effecting the least practicable adverse impact of the 
requestor's specified activities on species or stocks and its habitat. 
In both the proposed and final notices, we analyzed the potential for 
vessel strike resulting from the planned activities. We determined that 
the risk of vessel strike is low, based on the nature of the 
activities, including the number of vessels involved in those 
activities and the relative slow speed of those vessels (e.g., roughly 
3.5 kn (1.8 m/s)).
    To effect the least practicable adverse impact from vessels, NMFS 
has required several mitigation measures specific to vessel strike 
avoidance. With the implementation of these measures, NMFS has 
determined that the potential for vessel strike is so low as to be 
discountable. Whales and other marine mammal species are present within 
the Project area year-round. As described in the proposed notice and 
included in this final notice, NMFS is requiring Atlantic Shores to 
reduce speeds to 10 kn (5.14 m/s) or less in circumstances when NARWs 
are known to be present or more likely to be in the area where vessels 
are transiting, which include, but are not limited to, all seasonal 
management areas (SMAs) established under 50 CFR 224.105 (when in 
effect), any dynamic management areas (DMA) (when in effect), and Slow 
Zones (if established by NMFS). Vessels are also required to slow and 
maintain separation distances for all marine mammals.
    While we acknowledge that a year-round 10-kn (5.14 m/s) requirement 
could potentially reduce the already discountable probability of a 
vessel strike, this theoretical reduction would not be expected to 
manifest in measurable real-world differences in impact. NMFS has 
determined that these and other included measures ensure the least 
practicable adverse impact on species or stocks and their habitat. 
Therefore, we are not requiring project-related vessels to travel 10 kn 
(5.14 m/s) or less at all times.
    On August 1, 2022, NMFS announced proposed changes to the existing 
NARW vessel speed regulations (87 FR 46921, August 1, 2022) to further 
reduce the likelihood of mortalities and serious injuries to endangered 
NARWs from vessel collisions, which are a leading cause of the species' 
decline and a primary factor in an ongoing UME. Should a final vessel 
speed rule be issued and become effective during the effective period 
of this authorization (or any other MMPA incidental take 
authorization), the authorization holder will be required to comply 
with any and all applicable requirements contained within the final 
vessel speed 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 will be required to 
comply with the requirements of the vessel speed 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 will remain in place. The 
responsibility to comply with the applicable requirements of any vessel 
speed rule will become effective immediately upon the effective date of 
any final vessel speed rule, and when notice is published on the 
effective date, NMFS will also notify Atlantic Shores if the measures 
in the vessel speed rule were to supersede any of the measures in the 
MMPA authorization.
    Comment 5: Commenters expressed concern about cumulative impacts 
generally and how such impacts to the marine ecosystem would be 
measured.
    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 (54 FR 40338, September 29, 1989). 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

[[Page 20439]]

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 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 (54 FR 40338, September 29, 1989), 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 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 to Atlantic Shores 
(e.g., 88 FR 38821, June 9, 2023; 88 FR 54575, August 10, 2023), 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.
    Comment 6: Two commenters claimed sperm whales should have been 
included in the estimated take analysis of the proposed IHA because 
takes were anticipated and authorized in two currently active Atlantic 
Shores IHAs.
    Response: NMFS acknowledges that Atlantic Shores has previously 
requested and NMFS has previously authorized the taking, by Level B 
harassment only, of small numbers of sperm whales incidental to marine 
site characterization surveys using other equipment types and 
configurations not planned for use here (see 88 FR 38821, June 9, 2023 
and 88 FR 54575, August 10, 2023). However, in this case, Atlantic 
Shores did not request and NMFS, using the best scientific information 
available, did not estimate take of sperm whales from Atlantic Shores' 
proposed survey activities. Specifically, the GeoMarine Geo-Source 400 
operating 400 tips at a power level of 400 J is the only equipment and 
configuration planned for use by Atlantic Shores for this project with 
the potential to cause incidental take of marine mammals, which results 
in an estimated Level B harassment zone of 56 m; the maximum depth of 
the survey area is 60 m and sperm whales are rarely found in waters 
less than 300 m, which is consistent with Roberts et al. (2023) sperm 
whale density values in the survey area (see Table 6-4 of Atlantic 
Shores' application). We emphasize that take of any marine mammal that 
is not authorized is prohibited under the MMPA as well as this IHA (see 
Condition 3(c)).
    NMFS has noted in the Description of Marine Mammals in the Area of 
Specified Activities section that the spatial occurrence of species, 
including sperm whales, is such that take is not expected to occur and 
they are not discussed further.
    Comment 7: Commenters asserted sound levels expected from the 
equipment planned for use are inaccurate, citing Rand Acoustics data 
that ``the frequency and sound power levels [Rand] measured did not 
match the equipment cited in the [Atlantic Shores] IHA. This finding 
prompted a comprehensive review of other expired and active IHAs [by 
the commenters] which revealed a regular pattern of NMFS accepting 
Level B harassment distances that are well under those expected given 
the peak (pk) and root-mean-square (RMS) source sound pressure levels 
(SPLpk and SPLrms) for the sonar devices in use, specifically sub-
bottom profilers or `sparkers.' . . . We see no reasonable path under 
NMFS' recommendations to rely on proxy devices.''
    The Warwick Group and Defend Brigantine Beach also provided an 
example using another type of equipment as a proxy and asserted that, 
based on their own choice of source levels from Crocker and Fratantonio 
(2016), the output source levels and resulting calculated distances to 
the Level B harassment isopleth were accurate while the applicant's and 
NMFS' were underestimated and incorrect.
    Response: NMFS refers the commenters to the Detailed Description of 
the Specified Activity section in the proposed IHA notice (89 FR 753, 
January 5, 2024), which provides operational information from Crocker 
and Fratantonio (2016) and the reasoning for selecting the SIG ELC 820 
operating at 400 J with 100 electrode tips as a proxy for the GeoMarine 
Geo-Source operating at 400 J with 400 electrode tips. The use of this 
information and source levels appropriately addresses the equipment and 
configuration planned for use, which means that the analysis herein, 
including the selection of source level, is conservative for most 
typical applications of the acoustic source.
    Comment 8: Defend Brigantine Beach suggested a 20 decibel (dB) 
propagation loss coefficient is only valid until the noise hits the 
bottom, suggesting that use of the spherical spreading model is 
inappropriate, inconsistent with the physical laws governing noise 
propagation in a shallow water environment and contradicted by existing 
NMFS and BOEM Guidance documents.
    Response: A major component of transmission loss is spreading loss 
and from a point source in a uniform medium, sound spreads outward as 
spherical waves (``spherical spreading'') (Richardson et al., 1995). In 
water, these conditions are often thought of as being related to deep 
water, where more homogenous conditions may be likely. However, the 
theoretical distinction between deep and shallow water is related more 
to the wavelength of the

[[Page 20440]]

sound relative to the water depth versus to water depth itself. 
Therefore, when the sound produced is in the kilohertz range, where 
wavelength is relatively short, much of the continental shelf may be 
considered ``deep'' for purposes of evaluating likely propagation 
conditions.
    As described in the notice of proposed IHA, the area of water 
ensonified at or above the RMS 160 dB threshold was calculated using a 
simple model of sound propagation loss, which accounts for the loss of 
sound energy over increasing range. Our use of the spherical spreading 
model (where propagation loss = 20 * log [range]; such that there would 
be a 6-dB reduction in sound level for each doubling of distance from 
the source) is a reasonable approximation over the relatively short 
ranges involved. Even in conditions where cylindrical spreading (where 
propagation loss = 10 * log [range]; such that there would be a 3-dB 
reduction in sound level for each doubling of distance from the source) 
may be appropriate (e.g., non-homogenous conditions where sound may be 
trapped between the surface and bottom), this effect does not begin at 
the source. In any case, spreading is usually more or less spherical 
from the source out to some distance, and then may transition to 
cylindrical (Richardson et al., 1995). For these types of surveys, NMFS 
has determined that spherical spreading is a reasonable assumption even 
in relatively shallow waters (in an absolute sense) as the reflected 
energy from the seafloor will be much weaker than the direct source and 
the volume influenced by the reflected acoustic energy would be much 
smaller over the relatively short ranges involved.
    NMFS notes the commenter did not specify or provide the guidance 
documents they referred to when stating this approach contradicts NMFS 
and BOEM guidance and NMFS is unaware of guidance documents that 
support the Commenter's claim. Moreover, NMFS has relied on this 
approach for past IHAs with similar equipment, locations, and depths. 
NMFS' User Spreadsheet tool assumes a ``safe distance'' methodology for 
mobile sources where propagation loss is spherical spreading (20LogR) 
(https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null), and NMFS calculator tool for 
estimating isopleths to Level B harassment thresholds also incorporates 
the use of spherical spreading. NMFS has determined that spherical 
spreading is the most appropriate form of propagation loss for these 
surveys and represents the best scientific information available.
    Comment 9: A commenter asserted the mitigation requirements have 
little impact on protecting marine mammals citing the ongoing Unusual 
Mortality Events (UMEs) as evidence, and many commenters asserted a 
correlation of offshore wind survey activities to currently active UMEs 
in the region. Several commenters expressed concern regarding the 
recent whale deaths, which they claim are the result of offshore wind 
activities and marine site characterization survey activities. Another 
commenter has suggested that NMFS should consider whether or not 
authorizing any level of harassment should be permissible given the 
recent elevated public concern about potential impacts on marine 
mammals from offshore wind activities. Many commenters stated that NMFS 
cannot determine the cause of the recent whale deaths accurately 
without doing necropsies and, therefore, NMFS cannot determine that 
recent whale mortalities were not related to offshore wind-related 
surveys.
    Response: There is no evidence that noise resulting from offshore 
wind development-related site characterization surveys, which are 
conducted prior to construction, 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 or other scientific information to substantiate their claim. 
NMFS will continue to gather data to help us determine the cause of 
death for these stranded whales.
    The Marine Mammal Commission's recent statement supports NMFS' 
analysis: ``There continues to be no evidence to link these large whale 
strandings to offshore wind energy development, including no evidence 
to link them to sound emitted during wind development-related site 
characterization surveys, known as HRG surveys. Although HRG surveys 
have been occurring off New England and the mid-Atlantic coast, HRG 
devices have never been implicated or causatively associated with 
baleen whale strandings.'' (Marine Mammal Commission Newsletter, Spring 
2023). There is an ongoing 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 individuals), 
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. The best 
available science indicates that only Level B harassment, or disruption 
of behavioral patterns, 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, and commenters 
provide none. NMFS notes there has never been a report of any serious 
injuries or mortalities of a marine mammal associated with site 
characterization surveys.
    Furthermore, while NMFS agrees in the value of necropsies in 
determining the cause of death of a stranded marine mammal, NMFS' 
stranding partners cannot perform necropsies on every dead animal as 
some of the carcasses were too decomposed, not brought to land, or 
stranded on protected lands (e.g., national and state parks) with 
limited or no access. Furthermore, large whale necropsies are very 
complicated, requiring many people and typically heavy equipment (e.g., 
front loaders, etc.). Some whales are found dead floating offshore and 
need to be towed to land for an examination. There can be limitations 
for access and using heavy equipment depending on the location where 
the whale stranded, including protected lands (parks or concerns for 
other endangered species) and accessibility (remote areas, tides that 
prevent access at times of day). Also, necropsies are the most 
informative when the animal died relatively recently. Some whales are 
not found until they are already decomposed, which limits the amount of 
information that can be obtained. For more information on offshore wind 
and whales, we reference the commenter to our website (https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales).
    Comment 10: The Warwick Group, on behalf of the County of Cape May, 
New Jersey, asserted a sparker should be considered a continuous noise 
source,

[[Page 20441]]

thus the NMFS acoustic threshold of 120 dB (referenced to 1 microPascal 
(re 1 [mu]Pa) for Level B harassment should be used.
    Response: As is consistent with the best available science, 
including, but not limited to, Crocker and Fratantonio (2016), sparkers 
constitute an impulsive source and, therefore, the SPL threshold of 160 
dB re 1 [mu]Pa is applicable for assessing potential acoustic impacts 
from Atlantic Shores' marine site characterization surveys.
    Comment 11: Several commenters stated that more time and research 
is needed to understand what the impacts of offshore wind may be on the 
ocean and marine life, including a suggestion that all offshore wind-
related work should be halted until a pilot project is conducted.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the total incidental take of small numbers of marine 
mammals by U.S. citizens while engaging in a specified activity within 
a specified geographic region during a 1-year period will have a 
negligible impact on such species or stock and where appropriate, will 
not have an unmitigable adverse impact on the availability of such 
species or stock for subsistence uses (16 U.S.C. 1371(a)(5)(A)). While 
the incidental take authorization must be based on the best scientific 
information available, the MMPA does not allow NMFS to delay issuance 
of the requested authorization on the presumption that new information 
will become available in the future. NMFS has made the required 
findings, based on the best scientific information available, and has 
included mitigation measures to effect the least practicable adverse 
impacts on marine mammals.
    Comment 12: Commenters suggested denial of the IHA because ``a full 
re-evaluation of the humpback whales Potential Biological Removal (PBR) 
level for 2024'' is needed in light of the increased number of deaths 
between December 2022 and December 2023.
    Response: NMFS reiterates that no mortality or injury is authorized 
for any species in this IHA and thus, PBR is not part of the negligible 
impact determination. For additional information on the SAR process, 
please see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
    Comment 13: Clean Ocean Action noted that, because survey vessel 
type and number of trips are not provided within the proposed notice, 
it is insufficient for NMFS to claim that the probability of vessel 
strikes from project-associated survey vessels is low enough to be 
discountable when the vessels are not towing gear because the vessel 
trip information is not provided.
    Response: NMFS disagrees with the commenter that the risk of vessel 
strike was not considered in the analysis or the lack of information on 
vessel type and number of vessel trips leads to an inability to 
appropriately assess the potential risks related to vessel strike. NMFS 
takes the risk of vessel strike seriously and while we acknowledge that 
vessel strikes can result in injury or mortality, we have analyzed and 
determined that the potential for vessel strike is so low as to be 
discountable. Moreover, to effect the least practicable adverse impact, 
Atlantic Shores must abide by a suite of vessel strike avoidance 
measures that include, for example, vessel speed restrictions to 10 kn 
(5.14 m/s) or less in SMAs and DMAs or when mother/calf pairs, pods, or 
large assemblages of marine mammals are observed; required use of 
dedicated observers on all survey vessels; maintaining awareness of 
NARW presence through monitoring of NARW sighting systems (see 
Condition 5(m)). Further, any observations of a NARW by project-related 
personnel would be reported to sighting networks, alerting other 
mariners to NARW presence. Both Atlantic Shores and other mariners are 
required to abide by all existing approach and speed regulations 
designed to minimize the risk of vessel strike.
    Comment 14: Defend Brigantine Beach questioned the model and 
measurements that lead to the conclusion ``that there is now a very 
low-density number'' of NARW from the Duke University study (Roberts et 
al., 2023), asserting it contradicts density data used previously by 
Atlantic Shores in their application for construction as well as 10 
years of observational data.
    Response: NMFS disagrees that Roberts et al. (2023) is not the best 
scientific information available on NARW density. The commenter 
provided a New York State Department of Environmental Conservation 
``Species Status Assessment,'' along with links to the WhaleMap 
(https://whalemap.org) to support the claim that the Roberts et al. 
(2023) density estimates are not representative of NARW density in the 
Survey Area.
    The Species Status Assessment referenced by the commenter was last 
revised June 26, 2013, and although it provides information regarding 
NARW, including multiple references to NOAA-generated data and reports, 
it does not include density information and is therefore not 
appropriate for comparison to Roberts et al. (2023). Similarly, 
WhaleMap was designed to communicate the latest whale survey results 
but does not include density information.
    Regarding data used in previous applications for ITAs by Atlantic 
Shores, the take numbers, as shown in the proposed and final notice, 
are based on the best available marine mammal density data, published 
and peer reviewed scientific literature, on-the-water reports from 
other nearby projects or past MMPA actions, and, in the case of the 
proposed rule for Atlantic Shores construction activities (see 88 FR 
65430, September 2, 2023), highly complex statistical models of which 
real-world assumptions and inputs have been incorporated to estimate 
take on a project-by-project basis. Both actions calculate density 
estimates based on density data from Roberts et al. (2023) but, because 
planned activities and specific geographic areas differ between 
projects, it would not be appropriate to compare those calculated 
density estimates between projects.
    Comment 15: 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.''
    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 Analysis and 
Determination 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 the planned activities 
will occur, and the commenter does 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

[[Page 20442]]

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 eight times as large as the estimated 
harassment zone (56 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 16: Several commenters stated 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 NARW).
    Response: The commenters refer 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 is 
authorized by NMFS as HRG survey operations are required to maintain a 
500 m distance and shutdown if a NARW is sighted at or within that 
distance. The 500 m shutdown zone for NARWs is conservative, 
considering the Level B harassment isopleth is estimated to be 56 m, 
and thereby minimizes the potential for behavioral harassment of this 
species. NMFS does not anticipate NARW takes that would result from 
Atlantic Shores' activities will 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 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 3, 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 17: Green Oceans criticized NMFS's use of the 160-dB 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 suggested 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 stated 
that NMFS generalized behavioral take thresholds are insufficient and 
should be revised because they do ``not properly consider the nonlinear 
effects of interactions

[[Page 20443]]

between multiple stressors on marine mammals.''
    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 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.
    NMFS also notes 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 cited 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 referenced linear risk functions developed for use 
specifically in evaluating the potential impacts of Navy tactical 
sonar. However, Green Oceans provided 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 18: Delaware DNREC recommends: (1) requiring Atlantic 
Shores follow the proposed speed limitation for smaller vessels 
outlined in 50 CFR 224 ``Amendments to the North Atlantic Right Whale 
Vessel Strike Reduction Rule'' (87 FR 46921, August 1, 2022) if the 
rule has not been finalized by the time the IHA becomes effective; (2) 
removing the waiver for shutdown requirements for small delphinids and 
pinnipeds if the PSO identifies any individuals in distress.
    Response: NMFS appreciates the recommendations from DNREC and 
reiterates that, should a final vessel speed rule be issued and become 
effective during the effective period of these regulations (or any 
other MMPA incidental take authorization), Atlantic Shores will be 
required to comply with any and all applicable requirements contained 
within the final vessel speed rule.
    Regarding removal of the waiver for shutdown requirement for 
certain delphinids and pinnipeds should PSOs identify an individual in 
distress, NMFS directs the commenter to measures in the Monitoring and 
Reporting section of the proposed notice and final authorization for 
the reporting of injured or dead marine mammals. PSOs are required to 
record all sightings of marine mammals and provide details of any 
observed behavioral disturbances. Based on reporting, NMFS may modify 
the IHA if the prescribed measures are likely not affecting the least 
practicable adverse impact on the affected marine mammals. There have 
also been no such observations reported in any reports from similar 
survey activities.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, instead of reprinting the information. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is likely and 
authorized for this activity and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and PBR, where known. PBR is defined by the MMPA as the maximum number 
of animals, not

[[Page 20444]]

including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population (as described in NMFS' SARs). While no serious 
injury or mortality is anticipated or authorized here, PBR and annual 
serious injury and mortality from anthropogenic sources are included 
here as gross indicators of the status of the species or stocks and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic SARs. All values presented in table 1 are the most 
recent available at the time of publication and are available online 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                Table 1--Marine Mammal Species and Stocks Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        ESA/ MMPA  status;   Stock abundance  (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    N Atlantic Right Whale \5\......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             338 (0, 332, 2020)....        0.7       31.2
Family Balaenopteridae (rorquals):
Fin Whale...........................  Balaenoptera physalus..  Western N Atlantic.....  E, D, Y             6,802 (0.24, 5,573,            11        1.8
                                                                                                             2016).
    Humpback Whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, N             1,396 (0, 1380, 2016).         22      12.15
    Minke Whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31, 17,002,         170       10.6
                                       acutorostrata.           Coastal.                                     2016).
    Sei Whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02, 3,098,           6.2        0.8
                                                                                                             2016).
Family Delphinidae:
    Long-Finned Pilot Whale.........  Globicephala melas.....  Western N Atlantic.....  -, -, N             39,215 (0.30, 30,627,         306          9
                                                                                                             2016).
    Atlantic Spotted Dolphin........  Stenella frontalis.....  Western N Atlantic.....  -, -, N             39,921 (0.27, 32,032,         320          0
                                                                                                             2016).
    Atlantic White-Sided Dolphin....  Lagenorhynchus acutus..  Western N Atlantic.....  -, -, N             93,233 (0.71, 54,443,         544         27
                                                                                                             2016).
    Bottlenose Dolphin..............  Tursiops truncatus.....  Northern Migratory       -, -, Y             6,639 (0.41, 4,759,            48      12.2-
                                                                Coastal.                                     2016).                                 21.5
    Bottlenose Dolphin..............  Tursiops truncatus.....  Western N Atlantic       -, -, N             62,851 (0.23, 51,914,         519         28
                                                                Offshore.                                    2016).
    Risso's Dolphin.................  Grampus griseus........  Western N Atlantic.....  -, -, N             35,215 (0.19, 30,051,         301         34
                                                                                                             2016).
    Common Dolphin..................  Delphinus delphis......  Western N Atlantic.....  -, -, N             172,974 (0.21,              1,452        390
                                                                                                             145,216, 2016).
Family Phocoenidae (porpoises):
    Harbor Porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31, 74,034,         851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray Seal \6\...................  Halichoerus grypus.....  Western N Atlantic.....  -, -, N             27,300 (0.22, 22,785,       1,458      4,453
                                                                                                             2016).
    Harbor Seal.....................  Phoca vitulina.........  Western N Atlantic.....  -, -, N             61,336 (0.08, 57,637,       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.
  CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, vessel strike). Annual mortality and serious injury (M/SI) often cannot be determined precisely and is in some cases presented
  as a minimum value or range.
\5\ Linden (2023) estimated the population size in 2022 as 356 individuals, with a 95 percent credible interval ranging from 346 to 363, and the draft
  2023 SAR provides an estimated stock abundance of 340 (Hayes et al., 2024). NMFS acknowledges these recent estimations in addition to the 2022 SAR
  stock abundance estimate.
\6\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,600. The annual M/SI given is for the total stock.

    As indicated above, all 14 species (15 stocks) in table 1 
temporally and spatially co-occur with the proposed activity to the 
degree that take is reasonably likely to occur. While other species 
(e.g., sperm whales) have been documented in the area (see table 3-1 
and 6-4 of the IHA application), the temporal and/or spatial occurrence 
of these species is such that take is not expected to occur and they 
are not discussed further beyond the explanation provided here.
    A detailed description of the species likely to be affected by this 
project, including brief introductions to the species and relevant 
stocks, population trends and threats, and local occurrence, were 
provided in the Federal Register notice for the proposed IHA (89 FR 
753,

[[Page 20445]]

January 5, 2024). Since that time, we are not aware of any changes in 
the status of these species and stocks; therefore, detailed 
descriptions are not provided here. Please refer to the Federal 
Register notice (89 FR 753, January 5, 2024) for these descriptions. 
Please also refer to the NMFS website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 2005, Wartzok and 
Ketten, 1999, Au and Hastings, 2008). To reflect this, Southall et al. 
(2007), Southall et al. (2019) recommended that marine mammals be 
divided into hearing groups based on directly measured (behavioral or 
auditory evoked potential techniques) or estimated hearing ranges 
(behavioral response data, anatomical modeling, etc.). Note that no 
direct measurements of hearing ability have been successfully completed 
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS 
(2018) described generalized hearing ranges for these marine mammal 
hearing groups. Generalized hearing ranges were chosen based on the 
approximately 65 dB threshold from the normalized composite audiograms, 
with the exception for lower limits for low-frequency cetaceans where 
the lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in table 2.

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

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat can be found in the Federal 
Register notice for the proposed IHA (89 FR 753, January 5, 2024). 
There is no new information on the potential effects of the specified 
activities on marine mammals. Therefore, that information is not 
repeated here; please refer to the Federal Register notice (89 FR 753, 
January 5, 2024).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which informs NMFS' consideration of 
``small numbers'' and the negligible impact determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to sound produced by the sparker. Based on the 
nature of the activity, Level A harassment is neither anticipated nor 
authorized. As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below, we describe how the 
take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the authorized take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure

[[Page 20446]]

context (e.g., frequency, predictability, duty cycle, duration of the 
exposure, signal-to-noise ratio, distance to the source), the 
environment (e.g., bathymetry, other noises in the area, predators in 
the area), and the receiving animals (hearing, motivation, experience, 
demography, life stage, depth) and can be difficult to predict (e.g., 
Southall et al., 2007, Southall et al., 2021, Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above RMS SPL 
of 120 dB re 1 [mu]Pa for continuous (e.g., vibratory pile driving, 
drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-explosive 
impulsive (e.g., seismic airguns) or intermittent (e.g., scientific 
sonar) sources.
    Generally speaking, Level B harassment take estimates based on 
these behavioral harassment thresholds are expected to include any 
likely takes by temporary threshold shift (TTS) as, in most cases, the 
likelihood of TTS occurs at distances from the source less than those 
at which behavioral harassment is likely. TTS of a sufficient degree 
can manifest as behavioral harassment, as reduced hearing sensitivity 
and the potential reduced opportunities to detect important signals 
(conspecific communication, predators, prey) may result in changes in 
behavior patterns that would not otherwise occur.
    Atlantic Shores' marine site characterization surveys include the 
use of an impulsive (i.e., sparker) source, and therefore the SPL 
threshold of 160 dB re 1 [mu]Pa is applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive).
    The references, analysis, and methodology used in the development 
of the thresholds are described in NMFS' 2018 Technical Guidance, which 
may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality (when relevant) to refine estimated ensonified 
zones. For acoustic sources that operate with different beamwidths, the 
maximum beamwidth was used, and the lowest frequency of the source was 
used when calculating the frequency-dependent absorption coefficient. 
Atlantic Shores used 180[deg] beamwidth in the calculation for the 
sparker system as is appropriate for an omnidirectional source.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases where the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that, in instances where data from a suitable proxy is 
presented, Crocker and Fratantonio (2016) be used, or, alternatively, 
when no suitable proxy is available, source levels provided by the 
manufacturer may be used instead. Table 2 in the Federal Register 
notice for the proposed IHA (89 FR 753, January 5, 2024) shows the 
sparker type used during the planned surveys and the source levels 
associated with the sparker.
    Atlantic Shores plans to use the GeoMarine Geo-Source 400 Marine 
Multi-tip Sparker System (400 tip/400 J). No data are provided by 
Crocker and Fratantonio (2016) for the GeoMarine Geo-Source sparker 
system, therefore, Atlantic Shores has used the data provided for the 
SIG ELC 820 operating at 400 J with 100 electrode tips as a proxy for 
the GeoMarine Geo-Source operating at 400 J with 400 electrode tips. 
Crocker and Fratantonio (2016) indicates an operational source level of 
195 dBRMS for the SIG ELC 820 while operating at a power of 
400 J using 100 electrode tips, and Atlantic Shores has determined that 
an increase in the number of electrode tips decreases the overall peak 
source pressure translating to a lower operational source level. NMFS 
concurs with this selection, which is described in table 2 of the 
Federal Register notice for the proposed IHA (89 FR 753, January 5, 
2024). Using the proxy source level of 195 dB RMS SPL results in an 
estimated distance of 56 m to the Level B harassment isopleth. More 
detail is provided on the acoustic sources and methodology in the 
Federal Register notice for the proposed IHA; please refer to the 
Federal Register notice (89 FR 753, January 5, 2024).

Marine Mammal Occurrence

    In this section, we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2023) represent the best 
available information regarding marine mammal densities in the Survey 
Area. These density data incorporate aerial and shipboard line-transect 
survey data from NMFS and other organizations and incorporate data from 
numerous physiographic and dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic in 2016 and models for all taxa were 
updated in 2022 (Roberts et al., 2023). More information is available 
online at: https://seamap.env.duke.edu/models/Duke/EC/. Marine mammal 
density estimates in the Survey Area (animals/km\2\) were obtained 
using the most recent model results for all taxa.
    For the exposure analysis, density data from Roberts et al. (2023) 
were mapped using a geographic information system (GIS). For the Survey 
Area, the monthly densities of each species as reported by Roberts et 
al. (2023) were averaged by season; thus, a density was calculated for 
each species for spring, summer, fall, and winter. Density seasonal 
averages were calculated for both the nearshore and offshore areas 
(i.e., inside and outside the 10-m isobath) for each species to assess 
the greatest average seasonal densities for each species. To be 
conservative since the exact timing for the survey during the year is 
uncertain, the greatest average seasonal density calculated for each 
species was carried forward in the exposure analysis, with exceptions

[[Page 20447]]

noted later in this discussion. Estimated greatest average seasonal 
densities (animals/km\2\) of marine mammal species that may be taken 
incidental to the planned survey can be found in tables C-1 and C-2 of 
Atlantic Shores' IHA application. Below, we discuss how densities were 
assumed to apply to specific species for which the Roberts et al. 
(2023) models provide results at the genus or guild level.
    There are two stocks of bottlenose dolphins that may be impacted by 
the surveys (Western North Atlantic Northern Migratory Coastal Stock 
(coastal stock) and Western North Atlantic Offshore Stock (offshore 
stock)), however, Roberts et al. (2023) do not differentiate by stock. 
These two stocks are considered geographically separated and multiple 
isobaths, including the 20-m (Hayes et al. 2021) and 25-m (Hayes et al. 
2020), have been considered as the delineation between the two. 
Atlantic Shores used the 25-m isobath in their calculation and NMFS has 
accepted this interpretation. The nearshore area of the Survey Area is 
considered waters less than 10 m depth and only the coastal stock will 
occur and potentially be taken by survey effort in that area. Both 
stocks could occur in the offshore area (greater than 10 m depth), so 
Atlantic Shores calculated separate mean seasonal densities to use for 
estimating take of the coastal and offshore stocks of bottlenose 
dolphins, respectively.
    In addition, the Roberts et al. (2023) density model does not 
differentiate between the different pinniped species. For seals, given 
their size and behavior when in the water, seasonality, and feeding 
preferences, there is limited information available on species-specific 
distribution. Density estimates from Roberts et al. (2023) include all 
seal species that may occur in the Western North Atlantic combined 
(i.e., gray, harbor, harp, hooded). For this IHA, only gray seals and 
harbor seals are reasonably expected to occur in the Survey Area; 
densities of seals were split evenly between these two species.
    Finally, the Roberts et al. (2023) density model does not 
differentiate between pilot whale species. While the exact latitudinal 
ranges of the two species are uncertain, only long-finned pilot whales 
are expected to occur in this project area due to their more northerly 
distribution and tolerance of shallower, colder shelf waters (Hayes et 
al., 2022). Short-finned pilot whales are not anticipated to occur as 
far north as the Survey Area so we assume that all pilot whales near 
the project area will be long-finned pilot whales (Garrison and Rosel, 
2017). For this IHA, densities of pilot whales are assumed to be only 
long-finned pilot whale.

Take Estimation

    Here, we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and authorized.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to Level B harassment 
thresholds were calculated, as described above. The distance (i.e., 56 
m distance associated with the sparker system) to the Level B 
harassment criterion and the total length of the survey trackline were 
then used to calculate the total ensonified area, or harassment zone, 
around the survey vessel. Atlantic Shores plans to conduct HRG surveys 
for a maximum total of 28,800 km trackline length, of which 25,200 km 
are in the offshore area and 3,600 km are in the nearshore area. Based 
on the maximum estimated distance to the Level B harassment threshold 
(56 m) for the sparker system and maximum total survey length, the 
total ensonified area is 3,228 km\2\ (2,824 km\2\ offshore area and 404 
km\2\ nearshore area), based on the following formula, where the total 
estimated trackline length (Distance/day) in each area was used and 
buffered with the horizontal distance to the Level B harassment 
threshold (r) to determine the total area ensonified to 160 dB SPL.

Harassment Zone = (Distance/day x 2r) [pi]r\2\

    The number of marine mammals expected to be incidentally taken 
during the total survey is then calculated by estimating the number of 
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the greatest seasonal estimated marine mammal 
densities as described above. The product is then rounded to generate 
an estimate of the total number of instances of harassment expected for 
each species over the duration of the survey (up to 300 days). A 
summary of this method is illustrated in the following formula, where 
the Harassment Zone is multiplied by the highest seasonal mean density 
(D) of each species or stock (animals/km\2\; except for pilot whales 
where annual density was used based on data availability).

Estimated Take = Harassment Zone x D x number of days

    The resulting take of marine mammals (Level B harassment) is shown 
in table 3.

                                                Table 3--Estimated Take Numbers and Total Take Authorized
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Nearshore                       Offshore
                                                            survey area      Nearshore      survey area      Offshore     Total adjusted     Estimated
                                                              maximum       survey area       maximum       survey area   estimated take    takes as a
                         Species                             seasonal       calculated       seasonal       calculated       requested     percentage of
                                                           density (No./       take        density (No./       take            (No.)        population
                                                          100 km\2\) \a\                  100 km\2\) \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
N Atlantic right whale..................................           0.058               0           0.075               2               2              <1
Fin whale...............................................           0.004               0           0.135               4               4              <1
Humpback whale..........................................           0.058               0           0.105               3               3              <1
Minke whale.............................................            0.04               0           0.585              17              17              <1
Sei whale...............................................           0.004               0           0.046               1           \d\ 2              <1
Long-finned pilot whale \b\.............................               0               0           0.071               2           \d\ 9              <1
Atlantic spotted dolphin................................           0.002               0           0.657              19          \d\ 25              <1
Atlantic white-sided dolphin............................           0.009               0           0.731              21              21              <1
Bottlenose dolphin Northern migratory coastal stock.....          64.596             261          17.155         \e\ 194             455             6.9
Bottlenose dolphin offshore stock.......................              NA              NA          17.155         \e\ 291             291              <1
Risso's dolphin.........................................               0               0           0.078               2           \d\ 8              <1
Common dolphin..........................................           0.128             0.5           6.517             184             185              <1
Harbor porpoise.........................................           0.393               2           3.374              95              97              <1
Gray seal \c\...........................................          10.022              41           5.886             166             207              <1
Harbor seal \c\.........................................          10.022              41           5.886             166             207              <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The nearshore survey area is delineated as waters less than 10 m depth while the offshore survey area is delineated as waters greater than 10 m
  depth.
\a\ Cetacean density values from Duke University (Roberts et al., 2023).

[[Page 20448]]

 
\b\ Pilot whale density models from Duke University (Roberts et al., 2023) represent pilot whales as a `guild' rather than by species. However, since
  the Survey Area is only expected to contain long-finned pilot whales, it is assumed that pilot whale densities modeled by Roberts et al., (2023) in
  the Survey Area only reflect the presence of long-finned pilot whales.
\c\ Pinniped density models from Duke University (Roberts et al., 2023) represent `seals' as a guild rather than by species. These each represent 50
  percent of a generic seal density value.
\d\ The number of authorized takes (Level B harassment only) for these species has been increased from the calculated take to consider the mean group
  size. Source for Atlantic spotted dolphin, long-finned pilot whale, Risso's dolphin, and sei whale group size estimates is Annual Report of a
  Comprehensive Assessment of Marine Mammal, Marine Turtle, and Seabird Abundance and Spatial Distribution in U.S. waters of the Western North Atlantic
  Ocean, Atlantic Marine Assessment Program for Protected Species (AMAPPS; NEFSC and SEFSC, 2022).
\e\ Density and take numbers were proportioned per stock as a function of depth. More information provided in section 6.3 of the IHA application.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, and impact on 
operations.
    Pursuant to section 7 of the ESA, Atlantic Shores is also required 
to adhere to relevant Project Design Criteria (PDC) of the NMFS' GARFO 
programmatic consultation (specifically PDCs 4, 5, and 7) regarding 
geophysical surveys along the U.S. Atlantic coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Visual Monitoring and Shutdown Zones

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

Pre-Start Clearance and Ramp-Up Procedures

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
sparker system when technically feasible. If technically feasible, 
operators must ramp up sparker to half power for 5 min and then proceed 
to full power. A 30 min pre-start clearance observation period of the 
pre-start clearance zones must occur prior to the start of ramp-up. The 
intent of the pre-start clearance observation period (30 min) is to 
ensure no marine mammals are within the pre-start clearance zones prior 
to the beginning of ramp-up. The intent of the ramp-up is to warn 
marine mammals of pending operations and to allow sufficient time for 
those animals to leave the immediate vicinity. All operators must 
adhere to the following pre-start clearance and ramp-up requirements:
     The operator must notify a designated PSO of the planned 
start of ramp-up as agreed upon with the lead PSO; the notification 
time should not be less than 60 min prior to the planned ramp-up in 
order to allow the PSOs time to monitor the pre-start clearance zones 
for 30 min prior to the initiation of ramp-up (pre-start clearance). 
During this 30 min pre-start clearance period the entire pre-start 
clearance zone must be visible, except as indicated below.
     Ramp-ups shall be scheduled so as to minimize the time 
spent with the sparker activated.
     A visual PSO conducting pre-start clearance observations 
must be notified

[[Page 20449]]

again immediately prior to initiating ramp-up procedures and the 
operator must receive confirmation from the PSO to proceed.
     Any PSO on duty has the authority to delay the start of 
survey operations if a marine mammal is detected within the applicable 
pre-start clearance zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that mitigation commands are conveyed swiftly 
while allowing PSOs to maintain watch.
    If there is uncertainty regarding identification of a marine mammal 
species, PSOs may use best professional judgment in making the decision 
to call for a shutdown.
     Ramp-up may not be initiated if any marine mammal to which 
the pre-start clearance requirement applies is within the pre-start 
clearance zone. If a marine mammal is observed within the pre-start 
clearance zone during the 30 min pre-start clearance period, ramp-up 
may not begin until the animal(s) has been observed exiting the zones 
or until an additional time period has elapsed with no further 
sightings.
     PSOs must monitor the pre-start clearance zones 30 min 
before and during ramp-up, and ramp-up must cease and the sparker must 
be shut down upon observation of a marine mammal within the applicable 
pre-start clearance zone.
     Ramp-up may occur at times of poor visibility, including 
nighttime, if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 min prior to beginning ramp-up. 
Sparker activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If the sparker is shut down for brief periods (i.e., less than 30 
min) for reasons other than implementation of prescribed mitigation 
(e.g., mechanical difficulty), it may be activated again without ramp-
up if PSOs have maintained constant visual observation and no 
detections of marine mammals have occurred within the applicable pre-
start clearance zone. For any longer shutdown, pre-start clearance 
observation and ramp-up are required.

Shutdown Procedures

    All operators must adhere to the following shutdown requirements:
     Any PSO on duty has the authority to call for shutdown of 
the sparker system if a marine mammal is detected within the applicable 
shutdown zones.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
source to ensure that shutdown commands are conveyed swiftly while 
allowing PSOs to maintain watch.
     When the sparker system is active and a marine mammal 
appears within or enters the applicable shutdown zones, the sparker 
must be shut down. When shutdown is instructed by a PSO, the sparker 
system must be immediately deactivated and any dispute resolved only 
following deactivation.
     Two shutdown zones are defined, depending on the species 
and context. An extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 m from the sparker system 
(0-500 m) is defined for NARW. For all other marine mammals, the 
shutdown zone encompasses a standard distance of 100 m (0-100 m) during 
the use of the sparker.
    The shutdown requirement is waived for small delphinids and 
pinnipeds. If a small delphinid (individual belonging to the following 
genera of the Family Delphinidae: Delphinus, Lagenorhynchus, Stenella, 
and Tursiops) or pinniped is visually detected within the shutdown 
zones, no shutdown is required unless the PSO confirms the individual 
to be of a genus other than those listed, in which case a shutdown is 
required.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived or one of the species 
with a larger shutdown zone), PSOs may use best professional judgment 
in making the decision to call for a shutdown.
    Upon implementation of shutdown, the sparker may be reactivated 
after the marine mammal has been observed exiting the applicable 
shutdown zone or following a clearance period (30 min for all baleen 
whale species, long-finned pilot whales, and Risso's dolphins; 15 min 
for harbor porpoises) with no further detection of the marine mammal.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (56 m), shutdown must occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel must use an appropriate reference 
guide that includes identifying information on all marine mammals that 
may be encountered. Vessel operators must comply with the below 
measures except under extraordinary circumstances when the safety of 
the vessel or crew is in doubt or the safety of life at sea is in 
question. These requirements do not apply in any case where compliance 
will create an imminent and serious threat to a person or vessel or to 
the extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.
    Vessel operators and crews must maintain a vigilant watch for all 
marine mammals and slow down, stop their vessel(s), or alter course, as 
appropriate and regardless of vessel size, to avoid striking any marine 
mammals. A single marine mammal at the surface may indicate the 
presence of submerged animals in the vicinity of the vessel; therefore, 
precautionary measures should always be exercised. A visual observer 
aboard the vessel must monitor a vessel strike avoidance zone around 
the vessel (species-specific distances are detailed below). Visual 
observers monitoring the vessel strike avoidance zone may be third-
party observers (i.e., PSOs) or crew members, but crew members 
responsible for these duties must be provided sufficient training to 
(1) distinguish marine mammal from other phenomena, and (2) broadly to 
identify a marine mammal as a NARW, other whale (defined in this 
context as baleen whales other than NARWs), or other marine mammals.
    All survey vessels, regardless of size, must observe a 10-kn (5.14 
m/s) speed restriction in specific areas designated by NMFS for the 
protection of NARWs from vessel strikes. These include all seasonal 
management areas (SMA) established under 50 CFR 224.105 (when in 
effect), any dynamic management areas (DMA) (when in effect), and Slow 
Zones. See https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales for 
specific detail regarding these areas.
     All vessels must reduce speed to 10 kn (5.14 m/s) or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from NARWs, other ESA-listed species, and any unidentified large 
whales. If a NARW, other ESA-listed species, and any unidentified large 
whale is sighted within the relevant separation distance, the vessel 
must steer a course away at 10 kn (5.14 m/s) or less until the 500-m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species other than a NARW, the vessel operator 
must

[[Page 20450]]

assume that it is a NARW and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from all non-ESA-listed baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel).
     When marine mammals are sighted while a vessel is 
underway, the vessel must take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area, reduce speed and shift 
the engine to neutral). This does not apply to any vessel towing gear 
or any vessel that is navigationally constrained.
    Atlantic Shores and members of the PSO team will consult the NMFS 
NARW reporting system and Whale Alert, daily and as able, for the 
presence of NARWs throughout survey operations, and for the 
establishment of DMAs and/or Slow Zones. It is Atlantic Shores' 
responsibility to maintain awareness of the establishment and location 
of any such areas and to abide by these requirements accordingly.

Seasonal Operating Requirements

    As described above, a section of the Survey Area partially overlaps 
with portions of two NARW SMAs off the ports of New York/New Jersey and 
the entrance to Delaware Bay. These SMAs are active from November 1 
through April 30 of each year. The survey vessels, regardless of 
length, are required to adhere to vessel speed restrictions (less than 
10 kn (5.14 m/s)) when operating within the SMAs during times when the 
SMAs are active (table 4).

      Table 4--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                       Restrictions Within the Survey Area
----------------------------------------------------------------------------------------------------------------
         Survey area               Species        DMA restrictions         Slow zones         SMA restrictions
----------------------------------------------------------------------------------------------------------------
Survey Area (outside SMA)....  North Atlantic   If established by     If established by     N/A.
                                right whale.     NMFS, all of          NMFS, all of
                                                 Atlantic Shores'      Atlantic Shores'
                                                 vessel will abide     vessel will abide
                                                 by the described      by the described
                                                 restrictions.         restrictions.
Survey Area (within SMA).....  North Atlantic   If established by     If established by     November 1 through
                                right whale.     NMFS, all of          NMFS, all of          April 30 (Ports of
                                                 Atlantic Shores'      Atlantic Shores'      New York/New Jersey
                                                 vessel will abide     vessel will abide     and entrance to the
                                                 by the described      by the described      Delaware Bay).
                                                 restrictions.         restrictions.
----------------------------------------------------------------------------------------------------------------
Note: More information on Vessel Strike Reduction for the NARW can be found at NMFS' website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales whales.

    Based on our evaluation of the applicant's planned measures, NMFS 
has determined that the planned mitigation measures provide the means 
of effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

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

Monitoring Measures

    Visual monitoring must be performed by qualified, NMFS-approved 
PSOs. Atlantic Shores must submit PSO resumes for NMFS review and 
approval prior to commencement of the survey. Resumes should include 
dates of training and any prior NMFS approval, as well as dates and 
description of last experience, and must be accompanied by information 
documenting successful completion of an acceptable training course.
    For prospective PSOs not previously approved, or for PSOs whose 
approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during

[[Page 20451]]

a geophysical survey, with the conclusion of the most recent relevant 
experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, who will coordinate duty 
schedules and roles for the PSO team and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.
    At least one PSO aboard each acoustic source vessel must have a 
minimum of 90 days at-sea experience working in the role, with no more 
than 18 months elapsed since the conclusion of the at-sea experience. 
One PSO with such experience must be designated as the lead for the 
entire PSO team and serve as the primary point of contact for the 
vessel operator. (Note that the responsibility of coordinating duty 
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the 
lead PSO must devise the duty schedule such that experienced PSOs are 
on duty with those PSOs with appropriate training but who have not yet 
gained relevant experience.
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or more) 
a written and/or oral examination developed for the training program.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    Atlantic Shores must work with the selected third-party PSO 
provider to ensure PSOs have all equipment (including backup equipment) 
needed to adequately perform necessary tasks, including accurate 
determination of distance and bearing to observed marine mammals, and 
to ensure that PSOs are capable of calibrating equipment as necessary 
for accurate distance estimates and species identification. Such 
equipment, at a minimum, shall include:
     At least one thermal (infrared) imaging device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global positioning units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least 
one plus backups). The camera or lens should also have an image 
stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and,
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-party PSO provider, or the operator, but Atlantic Shores is 
responsible for ensuring PSOs have the proper equipment required to 
perform the duties specified in the IHA. Reference materials must be 
available aboard all project vessels for identification of protected 
species.
    The PSOs will be responsible for monitoring the waters surrounding 
the survey vessel to the farthest extent permitted by sighting 
conditions, including pre-start clearance and shutdown zones, during 
all HRG survey operations. PSOs will visually monitor and identify 
marine mammals, including those approaching or entering the established 
pre-start clearance and shutdown zones during survey activities. It 
will be the responsibility of the PSO(s) on duty to communicate the 
presence of marine mammals as well as to communicate the action(s) that 
are necessary to ensure mitigation and monitoring requirements are 
implemented as appropriate.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to shutdown zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, appropriate night-vision devices (e.g., 
night-vision goggles with thermal clip-ons and infrared technology) 
will be used. Position data will be recorded using hand-held or vessel 
GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs must also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources and between acquisition periods. Any 
observations of marine mammals by crew members aboard the vessel 
associated with the survey will be relayed to the PSO team.
    Data on all PSO observations will be recorded based on standard PSO 
collection requirements (see Reporting Measures). This will include 
dates, times, and locations of survey operations; dates and times of 
observations, location and weather; details of marine mammal sightings 
(e.g., species, numbers, behavior); and details of any observed marine 
mammal behavior that occurs (e.g., noted behavioral disturbances). 
Members of the PSO team shall consult the NMFS NARW reporting system 
and Whale Alert, daily and as able, for the presence of NARWs 
throughout survey operations.

Reporting Measures

    Atlantic Shores shall submit a draft comprehensive report to NMFS 
on all activities and monitoring results within 90 days of the 
completion of the survey or expiration of the IHA, whichever comes 
sooner. The report must describe all activities conducted and sightings 
of marine mammals, must provide full documentation of methods, results, 
and interpretation pertaining to all monitoring, and must summarize the 
dates and locations of survey operations and all marine mammals 
sightings (dates, times, locations, activities, associated survey 
activities). The draft report shall also include geo-referenced, time-
stamped vessel tracklines for all time periods during which acoustic 
sources were operating. Tracklines should include points recording any 
change in acoustic source status (e.g., when the sources began 
operating, when they were turned off, or when they changed operational 
status such as from full array to single gun or vice versa).

[[Page 20452]]

GIS files shall be provided in Environmental Systems Research 
Institute, Inc. (ESRI) shapefile format and include the Coordinated 
Universal Time (UTC) date and time, latitude in decimal degrees, and 
longitude in decimal degrees. All coordinates shall be referenced to 
the WGS84 geographic coordinate system. In addition to the report, all 
raw observational data shall be made available. The report must 
summarize the information. A final report must be submitted within 30 
days following resolution of any comments on the draft report. All 
draft and final marine mammal monitoring reports must be submitted to 
[email protected], [email protected], 
and [email protected].
    PSOs must use standardized electronic data forms to record data. 
PSOs shall record detailed information about any implementation of 
mitigation requirements, including the distance of marine mammal to the 
acoustic source and description of specific actions that ensued, the 
behavior of the animal(s), any observed changes in behavior before and 
after implementation of mitigation, and if shutdown was implemented, 
the length of time before any subsequent ramp-up of the acoustic 
source. If required mitigation was not implemented, PSOs should record 
a description of the circumstances. At a minimum, the following 
information must be recorded:
    1. Vessel names (source vessel), vessel size and type, maximum 
speed capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. PSO names and affiliations;
    4. Date and participants of PSO briefings;
    5. Visual monitoring equipment used;
    6. PSO location on vessel and height of observation location above 
water surface;
    7. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    8. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    9. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval;
    10. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    11. Water depth (if obtainable from data collection software);
    12. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    13. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions); and,
    14. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.).
    15. Upon visual observation of any marine mammal, the following 
information must be recorded:
    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    c. PSO who sighted the animal;
    d. Time of sighting;
    e. Initial detection method;
    f. Sightings cue;
    g. Vessel location at time of sighting (decimal degrees);
    h. Direction of vessel's travel (compass direction);
    i. Speed of the vessel(s) from which the observation was made;
    j. Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level or unidentified); also note the composition of 
the group if there is a mix of species;
    k. Species reliability (an indicator of confidence in 
identification);
    l. Estimated distance to the animal and method of estimating 
distance;
    m. Estimated number of animals (high/low/best);
    n. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    o. Description (as many distinguishing features as possible of each 
individual seen, including length, shape, color, pattern, scars, or 
markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    p. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    q. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    r. Equipment operating during sighting;
    s. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and,
    t. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a NARW is observed at any time by PSOs or personnel on the 
project vessel, during surveys or during vessel transit, Atlantic 
Shores must report the sighting information to the NMFS NARW Sighting 
Advisory System (866-755-6622) within 2 hr of occurrence, when 
practicable, or no later than 24 hr after occurrence. NARW sightings in 
any location may also be reported to the U.S. Coast Guard via channel 
16 and through the Whale Alert app (https://www.whalealert.org).
    In the event that personnel involved in the survey activities 
discover an injured or dead marine mammal, the incident must be 
reported to NMFS as soon as feasible by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]). The report must include the 
following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the event of a vessel strike of a marine mammal by any vessel 
involved in the activities, Atlantic Shores must report the incident to 
NMFS by phone (866-755-6622) and by email ([email protected] and [email protected]) as soon as 
feasible. The report will include the following information:
    1. Time, date, and location (latitude/longitude) of the incident;
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Vessel's speed during and leading up to the incident;
    4. Vessel's course/heading and what operations were being conducted 
(if applicable);
    5. Status of all sound sources in use;

[[Page 20453]]

    6. Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    7. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    8. Estimated size and length of animal that was struck;
    9. Description of the behavior of the marine mammal immediately 
preceding and/or following the strike;
    10. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    11. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    12. To the extent practicable, photographs or video footage of the 
animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the discussion of our analysis applies to all 
the species listed in table 1, given that some of the anticipated 
effects of this activity on these different marine mammal stocks are 
expected to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are included as separate sub-sections below. 
Specifically, we provide additional discussion related to NARW and to 
other species currently experiencing UMEs.
    NMFS does not anticipate that serious injury or mortality will 
occur as a result from HRG surveys, even in the absence of mitigation, 
and no serious injury or mortality is authorized. As discussed in the 
Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat section, non-auditory physical effects, auditory physical 
effects, and vessel strike are not expected to occur. NMFS expects that 
all potential takes will be in the form of Level B harassment in the 
form of temporary avoidance of the area or decreased foraging (if such 
activity was occurring), reactions that are considered to be of low 
severity and with no lasting biological consequences (e.g., Southall et 
al., 2007, Ellison et al., 2012).
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 56 m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the Survey 
Area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the Survey Area and 
there are no feeding areas known to be biologically important to marine 
mammals within the Survey Area. There is no designated critical habitat 
for any ESA-listed marine mammals in the Survey Area.

North Atlantic Right Whales

    The status of the NARW population is of heightened concern and, 
therefore, merits additional analysis. As noted previously, elevated 
NARW mortalities began in June 2017 and there is an active UME. 
Overall, preliminary findings attribute human interactions, 
specifically vessel strikes and entanglements, as the cause of death 
for the majority of NARWs. As noted previously, the Survey Area 
overlaps a migratory corridor BIA for NARWs that extends from 
Massachusetts to Florida and from the coast to beyond the shelf break. 
Due to the fact that the planned survey activities are temporary (will 
occur for up to 1 year) and the spatial extent of sound produced by the 
survey will be small relative to the spatial extent of the available 
migratory habitat in the BIA, NARW migration is not expected to be 
impacted by the survey. This important migratory area is approximately 
269,488 km\2\ in size (compared with the approximately 3,228 km\2\ of 
total estimated Level B harassment ensonified area associated with the 
Survey Area) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts.
    Given the relatively small size of the ensonified area, it is 
unlikely that prey availability will be adversely affected by HRG 
survey operations. Required vessel strike avoidance measures will also 
decrease risk of vessel strike during migration; no vessel strike is 
expected to occur during Atlantic Shores' planned activities. 
Additionally, only very limited take by Level B harassment of NARWs has 
been requested and is authorized by NMFS as HRG survey operations are 
required to maintain and implement a 500-m shutdown zone. The 500-m 
shutdown zone for NARWs is conservative, considering the Level B 
harassment zone for the acoustic source (i.e., sparker) is estimated to 
be 56 m, and thereby minimizes the intensity and duration of any 
potential incidents of behavioral harassment for this species. As noted 
previously, Level A harassment is not expected due to the small 
estimated zones in conjunction with the aforementioned shutdown 
requirements. NMFS does not anticipate NARW takes that will result from 
Atlantic Shores' planned activities will impact annual rates of 
recruitment or

[[Page 20454]]

survival. Thus, any takes that occur will not result in population 
level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Atlantic Shores' Survey Area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (i.e., vessel strike, entanglement). 
The UME does not yet provide cause for concern regarding population-
level impacts. Despite the UME, the relevant population of humpback 
whales (the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed from 2018-2020 and, as part of a separate UME, again in 
2022. These have occurred across Maine, New Hampshire, and 
Massachusetts. Based on tests conducted so far, the main pathogen found 
in the seals is phocine distemper virus (2018-2020) and avian influenza 
(2022), although additional testing to identify other factors that may 
be involved in the UMEs is underway. The UMEs do not provide cause for 
concern regarding population-level impacts to any of these stocks. For 
harbor seals, the population abundance is over 60,000 and annual M/SI 
(339) is well below PBR (1,729) (Hayes et al., 2022). The population 
abundance for gray seals in the United States is over 27,000, with an 
estimated abundance, including seals in Canada, of approximately 
450,000. In addition, the abundance of gray seals is likely increasing 
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021, Hayes et 
al., 2022).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in table 3, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular, they will provide animals the opportunity to 
move away from the sound source before HRG survey equipment reaches 
full energy, thus preventing them from being exposed to sound levels 
that have the potential to cause injury. No Level A harassment is 
anticipated, even in the absence of mitigation measures, or authorized.
    NMFS expects that takes will be in the form of short-term Level B 
harassment by way of brief startling reactions and/or temporary 
vacating of the area, or decreased foraging (if such activity was 
occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals will only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures will 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect any of the species or stocks 
through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the ensonified areas 
during the planned survey to avoid exposure to sounds from the 
activity;
     Take is anticipated to be by Level B harassment only 
consisting of brief startling reactions and/or temporary avoidance of 
the ensonified area;
     Survey activities will occur in such a comparatively small 
portion of the BIA for the NARW migration that any avoidance of the 
area due to survey activities will not affect migration. In addition, 
mitigation measures require shutdown at 500 m (over eight times the 
size of the Level B harassment zone of 56 m) to minimize the effects of 
any Level B harassment take of the species; and
     The required mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    The number of take NMFS has authorized relative to the best 
available population abundance is less than 1 percent for 14 of the 15 
managed stocks (less than 7 percent for the Western North Atlantic 
Northern Migratory Coastal Stock of bottlenose dolphins; table 3). The 
take numbers authorized are considered conservative estimates for 
purposes of the small numbers determination as they assume all takes 
represent different individual animals, which is unlikely to be the 
case.
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it

[[Page 20455]]

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, in this case, with NMFS GARFO.
    NMFS Office of Protected Resources has authorized take of three 
species of marine mammals which are listed under the ESA (i.e., NARW, 
fin whale, and sei whale) and has determined these activities fall 
within the scope of activities analyzed in the NMFS GARFO programmatic 
consultation regarding geophysical surveys along the U.S. Atlantic 
coast in the three Atlantic Renewable Energy Regions (completed June 
29, 2021; revised September 2021).

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NAO 216-6A, NMFS must review our proposed 
action (i.e., the issuance of an IHA) and alternatives 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 NAO 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 will preclude this 
categorical exclusion. Accordingly, NMFS has determined that the 
issuance of this IHA qualifies to be categorically excluded from 
further NEPA review.

Authorization

    NMFS has issued an IHA to Atlantic Shores for the harassment of 
small numbers of 14 marine mammal species (15 stocks) incidental to 
conducting marine site characterization surveys in waters off of New 
York, New Jersey, Delaware, and Maryland for a period of 1 year, that 
includes the previously explained mitigation, monitoring, and reporting 
requirements. The IHA can be found at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llcs-marine-site.

    Dated: March 18, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-06063 Filed 3-21-24; 8:45 am]
BILLING CODE 3510-22-P