[Federal Register Volume 89, Number 162 (Wednesday, August 21, 2024)]
[Notices]
[Pages 67597-67613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18694]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE160]


Takes of Marine Mammals Incidental to Specified Activities; Takes 
of Marine Mammals Incidental to Marine Site Characterization Surveys 
Off Rhode Island and Massachusetts

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from Bay State Wind, LLC (Bay 
State Wind), for authorization to take marine mammals incidental to 
marine site characterization surveys off the coast of Rhode Island and 
Massachusetts in the Bureau of Ocean Energy Management (BOEM) 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS) Lease Area OCS-A 0500 and the 
associated export cable route (ECR) area. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an incidental harassment authorization (IHA) to incidentally take 
marine mammals during the specified activities. NMFS is also requesting 
comments on a possible one-time, 1-year renewal that could be issued 
under certain circumstances and if all requirements are met, as 
described in the Request for Public Comments section at the end of this 
notice. NMFS will consider public comments prior to making any final 
decision on the issuance of the requested MMPA authorization and agency 
responses will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than 
September 20, 2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service and should be submitted via email to 
[email protected]. Electronic copies of the application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, 
please call the contact listed below.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Rachel Hilt, 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 monitoring and 
reporting of the takings. The definitions of all applicable MMPA 
statutory terms

[[Page 67598]]

cited above are included in the relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for 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 would preclude this 
categorical exclusion. Accordingly, NMFS has preliminarily determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On October 6, 2022, NMFS issued an IHA (87 FR 61575; October 12, 
2022) to [Oslash]rsted (parent company of Bay State Wind) to take 
marine mammals incidental to marine site characterization surveys in 
Lease Areas OCS-A 0486, 0487, 0500 off the coasts from New York to 
Massachusetts and along potential ECRs to landfall locations between 
Raritan Bay (part of the New York Bight) and Falmouth, Massachusetts. 
On May 26, 2023, NMFS received a request for a renewal of that initial 
IHA because [Oslash]rsted's marine site characterization surveys under 
the initial IHA had not yet been completed and more time was required. 
The Renewal IHA was issued on September 29, 2023, (88 FR 62337; October 
5, 2023). [Oslash]rsted has complied with all the requirements (e.g., 
mitigation, monitoring, and reporting) of the previous IHAs in Lease 
Areas OCS-A 0486, 0487, and 0500 (84 FR 52464, October 2, 2019; 85 FR 
63508, October 8, 2020; 87 FR 13975, March 11, 2022).
    On March 27, 2024, NMFS received a request from Bay State Wind for 
an IHA to take marine mammals incidental to conducting marine site 
characterization surveys off the coast of Rhode Island and 
Massachusetts only in OCS-A 0500 and the associated ECR area. Following 
NMFS' review of the application, Bay State Wind submitted a revised 
version on June 10, 2024. Following NMFS' additional review of the 
application, Bay State Wind submitted another revised version on July 
29, 2024. The application was deemed adequate and complete on August 1, 
2024. Bay State Wind's request is for take of 17 species of marine 
mammals by Level B harassment only. Neither Bay State Wind nor NMFS 
expect serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.

Description of Proposed Activity

Overview

    Bay State Wind proposes to conduct marine site characterization 
surveys, including high-resolution geophysical (HRG) surveys and 
geotechnical surveys, in BOEM Lease Area OCS-A 0500, and the associated 
ECR. The purpose of the marine site characterization surveys is to 
collect data concerning seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of the offshore wind facility development. Surveys are also 
conducted to support engineering design and to map unexploded ordnance 
(UXO). Underwater sound resulting from Bay State Wind's proposed 
activities, specifically HRG surveys, has the potential to result in 
incidental take of 17 species, in the form of Level B harassment only.

Dates and Duration

    While the exact dates have not yet been established, the proposed 
activities are planned to begin as soon as possible upon issuance of an 
IHA, if appropriate. The proposed activity is expected to require up to 
350 survey days across a maximum of four vessels operating concurrently 
over the course of a single year (``survey day'' defined as a 24-hour 
activity period in which the assumed number of line kilometers (km) are 
surveyed). Vessel days are defined as the number of days any single 
vessel is in operation regardless of any other vessel operations (i.e., 
if two vessels are working concurrently within the same 24-hour period, 
each vessel would be counted as having a vessel day for a total of 2 
vessel days even though the activity occurs within a single 24-hour 
period). The number of anticipated survey days was calculated as the 
number of days needed to reach the overall level of effort required to 
meet survey objectives assuming any single vessel covers, on average 70 
line km per 24-hour operations.

Specific Geographic Region

    The proposed survey activities will occur within the Lease Area and 
potential ECRs off the coasts of Rhode Island and Massachusetts (figure 
1). Water depths in the Lease Area and potential ECRs extend out from 
shoreline to approximately 90 meters (m).
BILLING CODE 3510-22-P

[[Page 67599]]

[GRAPHIC] [TIFF OMITTED] TN21AU24.027

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

    Bay State Wind proposes to conduct HRG survey operations, including 
multibeam depth sounding, seafloor imaging, and shallow and medium 
penetration sub-bottom profiling (SBP). The HRG surveys will include 
the use of seafloor mapping equipment with

[[Page 67600]]

operating frequencies above 180 kilohertz (kHz) (e.g., side-scan sonar 
(SSS), multibeam echosounders (MBES)); magnetometers and gradiometers 
that have no acoustic output; and shallow- to medium-penetration SBP 
equipment (e.g., parametric sonars, compressed high-intensity radiated 
pulses (CHIRPs), boomers, sparkers) with operating frequencies below 
180 kHz. No deep-penetration SBP surveys (e.g., airgun or bubble gun 
surveys) will be conducted. HRG equipment will be deployed from 
multiple vessels or remotely operated vehicles (ROVs) during the HRG 
surveys conducted within the Lease Area and potential ECRs. Typically, 
a survey ROV used for the proposed activities is a tethered platform 
that carries additional HRG equipment to increase the swath of the 
survey or the depth at which the equipment can be operated. The 
equipment deployed from an ROV is identical to the sources deployed 
from the survey vessel; however, sparker systems are not normally 
deployed from an ROV due to the power supply required. The extent of 
ROV usage in this project is unknown at this time, however NMFS expects 
the use of ROVs to have de minimis impacts relative to the use of 
vessels given the smaller sources and inherent nature of utilizing an 
ROV (e.g., much smaller size of an ROV relative to a vessel and less 
acoustic exposure given location of their use in the water column). For 
these reasons, our analysis focuses on the acoustic sources themselves 
and the use of vessels to deploy such sources, rather than the specific 
use of ROVs to deploy the survey equipment. Therefore, ROVs are not 
further analyzed in this notice.
    Acoustic sources planned for use during HRG survey activities 
proposed by Bay State Wind for which sound levels have the potential to 
result in Level B harassment of marine mammals include the following:
     Medium penetration SBPs (boomers) are used to map deeper 
subsurface stratigraphy as needed. A boomer is a broad-band sound 
source operating in the 3.5 Hz to 10 kHz frequency range. This system 
is commonly mounted on a sled and towed behind the vessel. Boomers are 
impulsive and mobile sources; and,
     Medium penetration SBPs (sparkers) are used to map deeper 
subsurface stratigraphy as needed. Sparkers create acoustic pulses from 
50 Hz to 4 kHz omnidirectionally from the source, and are considered to 
be impulsive and mobile sources. Sparkers are typically towed behind 
the vessel with adjacent hydrophone arrays to receive the return 
signals.
    Operation of the following survey equipment types is not reasonably 
expected to result in take of marine mammals and will not be discussed 
further beyond the brief summaries provided below:
     Parametric SBPs, also commonly referred to as sediment 
echosounders, are used to provide high data density in sub-bottom 
profiles that are typically required for cable routes, very shallow 
water, and archaeological surveys. Parametric SPBs are typically 
mounted on a pole, either over the side of the vessel or through a moon 
pool in the bottom of the hull. Crocker and Fratantonio (2016) does not 
provide relevant measurements or source data for parametric SBPs, 
however, some source information is provided by the manufacturer. For 
the proposed project, the SBP used would generate short, very narrow-
beam (1 to 3.5[deg]) sound pulses at relatively high frequencies 
(generally around 85 to 100 kHz). The narrow beam width significantly 
reduces the potential for exposure while the high frequencies of the 
source are rapidly attenuated in seawater. Given the narrow beam width 
and relatively high frequency. NMFS does not reasonably expect there to 
be potential for marine mammals to be exposed to the signal;
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by vessel transceiver and a transponder (or 
beacon) necessary to produce the acoustic profile. It is a two-
component system with a moon-pool- or side-pole-mounted transceiver and 
one or several transponders mounted on other survey equipment. USBLs 
are expected to produce extremely small acoustic propagation distances 
in their typical operating configuration;
     MBES are used to determine water depths and general bottom 
topography. MBES sonar systems project sonar pulses in several angled 
beams from a transducer mounted to a ship's hull. The beams radiate out 
from the transducer in a fan-shaped pattern orthogonally to the ship's 
direction. All of the proposed MBESs have operating frequencies >180 
kHz and, therefore, are outside the general hearing range of marine 
mammals; and,
     SSSs are used for seabed sediment classification purposes 
and to identify natural and man-made acoustic targets on the seafloor. 
The sonar device emits conical or fan-shaped pulses down toward the 
seafloor in multiple beams at a wide angle, perpendicular to the path 
of the sensor through the water column. All of the proposed SSSs have 
operating frequencies >180 kHZ and, therefore, are outside the general 
hearing range of marine mammals.
    Table 1 identifies representative survey equipment with the 
expected potential to result in exposure of marine mammals and thus 
potentially result in take. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending upon the final survey design, 
vessel availability, and survey contractor selection.

                                                 Table 1--Summary of Representative HRG Survey Equipment
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                                                                        SL (SPL dB                                                Pulse
                                                          Operating         re       SL (SEL dB re  SL (PK dBre   Beamwidth      duration     Repetition
            Representative equipment type                 frequency     1[micro]Pa   1[micro]Pa\2\   1[micro]Pa     ranges       (width)      rate (Hz)
                                                        ranges (kHz)        m)          m\2\ s)          m)        (degree)   (millisecond)
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                                               Impulsive, Medium Sub-Bottom Profilers (Sparkers & Boomers)
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AA, Dura-spark UHD Sparker (400 tips, 500 J) \1\.....         0.3-1.2          203             174          211          180           1.1             4
AA, Dura-spark UHD Sparker Model 400 x 400 \1\.......         0.3-1.2          203             174          211          180           1.1             4
GeoMarine, Dual 400 Sparker, Model GeoSource 800 \1\            0.4-5          203             174          211          180           1.1             2
 \2\.................................................
GeoMarine Sparker, Model GeoSource 200-400 \1\ \2\...         0.3-1.2          203             174          211          180           1.1             4
GeoMarine Sparker, Model GeoSource 200 Lightweight            0.3-1.2          203             174          211          180           1.1             4
 \1\ \2\.............................................

[[Page 67601]]

 
AA, triple plate SBoom (700-1,000 J) \3\.............           0.1-5          205             172          211           80           0.6             4
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\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods
  and settings when manufacturer or other reliable measurements are not available. Bay State Wind expects all equipment to operate at a comparable Joule-
  to-tip ratio as the 400 tip 500 J Dura-spark measured by Crocker and Fratantonio (2016) such that the proxy source levels provided in table 3 are
  realistically representative of sound levels that may be produced during sparker operations for the proposed survey.
\2\ The AA Dura-spark (500 J, 400 tips) was used as a proxy source for all proposed sparkers to represent the highest potential source level anticipated
  during the proposed survey. Though the power settings and number of tips may vary among of the sparker systems, all systems will operate with a
  comparable Joule-to-tip ratio which, as discussed above in section 1.3 of the Application, influences the source levels more than just power setting.
  Additionally, the survey would not utilize higher-powered sparker systems operating at >=2,000 J so Dura-spark (500 J, 400 tips) is considered the
  best available proxy for source levels for these equipment.
\3\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
  used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
  in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

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

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 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs). While no serious injury or mortality is anticipated or proposed 
to be authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species or stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
table 2 are the most recent available at the time of publication, 
including, as applicable, from the draft 2023 SARs (available online 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).

                                            Table 2--Species Likely Impacted by the Specified Activities \1\
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                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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N Atlantic Right Whale..............  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             340 (0, 337, 2021) \5\        0.7       27.2
Humpback Whale......................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, N             1,396 (0, 1380, 2016).         22      12.15
Fin Whale...........................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24, 5,573,            11       2.05
                                                                                                             2021).
Sei Whale...........................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02, 3,098,           6.2        0.6
                                                                                                             2021).
Minke Whale.........................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31, 17,002,         170        9.4
                                       acutorostrata.           Coastal.                                     2021).
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                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm Whale.........................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             5,895 (0.29, 4,639,          9.28        0.2
                                                                                                             2021).
Long-Finned Pilot Whale \6\.........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.30, 30,627,         306        5.7
                                                                                                             2021).
Striped Dolphin.....................  Stenella coeruleoalba..  Western North Atlantic.  -, -, N             48,274 (0.29, 38,040,         529          0
                                                                                                             2021).
Atlantic White-Sided Dolphin........  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71, 54,443,         544         28
                                                                                                             2021).
Bottlenose Dolphin..................  Tursiops truncatus.....  Western North Atlantic   -, -, N             64,587 (0.24, 52,801,         507         28
                                                                Offshore.                                    2021) \7\.
Common Dolphin......................  Delphinus delphis......  Western North Atlantic.  -, -, N             93,100 (0.56, 59,897,       1,452        414
                                                                                                             2021).
Atlantic Spotted Dolphin............  Stenella frontalis.....  Western North Atlantic.  -, -, N             31,506 (0.28, 25,042,         250          0
                                                                                                             2021).
Risso's Dolphin.....................  Grampus griseus........  Western North Atlantic.  -, -, N             44,067 (0.19, 30,662,         307         18
                                                                                                             2021).
White-Beaked Dolphin................  Lagenorhynchus           Western North Atlantic.  -, -, N             536,016 (0.31,              4,153          0
                                       albirostris.                                                          415,344, 2016).
Harbor Porpoise.....................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             85,765 (0.53, 56,420,         649        145
                                                                Fundy.                                       2021).
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                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal.........................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08, 57,637,       1,729        339
                                                                                                             2018).

[[Page 67602]]

 
Gray Seal \8\.......................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,911 (0.20, 23,624,       1,512      4,570
                                                                                                             2021).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies).
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: 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, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ The current SAR includes an estimated population (Nbest 340) based on sighting history through December 2021 (NMFS, 2024). In October 2023, NMFS
  released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022 was 356 whales,
  with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023). Total annual average observed North Atlantic right whale mortality during
  the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was 4.6 animals. Numbers presented in this table (27.2 total
  mortality and 17.6 fishery mortality) are 2016-2020 estimated annual means, accounting for undetected mortality and serious injury.
\6\ Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot
  whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due
  to unknown precision and accuracy of the availability bias correction factor that was applied.
\7\ Estimates may include sightings of the coastal form,
\8\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 394,311. The annual M/SI value given is for the total stock.

    As indicated above, all 17 species in table 2 temporally and 
spatially co-occur with the activity to the degree that take is 
reasonably likely to occur. All species that could potentially occur in 
the proposed survey areas are included in table 5 of the IHA 
application. While the blue whale (Balaenoptera musculus), short-finned 
pilot whale (Globicephala macrorhynchus), common bottlenose dolphin 
(western North Atlantic, northern migratory coastal stock; Tursiops 
truncatus), dwarf sperm whale (Kogia sima), killer whale (Orcinus 
orca), pygmy killer whale (Feresa attenuata), false killer whale 
(Pseudorca crassidens), northern bottlenose whale (Hyperoodon 
ampullatus), Cuvier's beaked whale (Ziphius cavirostris), Blainville's 
beaked whale (Mesoplodon densirostris), Gervais beaked whale 
(Mesoplodon europaeus), Sowerby's beaked whale (Mesoplodon bidens), 
True's beaked whale (Mesoplodon mirus), Melon-headed whale 
(Peponocephala electra), Pantropical spotted dolphin (Stenella 
attenuata), Fraser's dolphin (Lagenodelphis hosei), rough toothed 
dolphin (Steno bredanensis), Clymene dolphin (Stenella clymene), 
spinner dolphin (Stenella longirostri), harp seal (Pagophilus 
groenlandica), and hooded seal (Cystophora cristata) have been reported 
in the area, 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 description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice of the proposed IHA for the 2022 IHA (87 FR 
52515, August 26, 2022) addressing Lease Areas OCS-A 0486, 0487, and 
0500. Significant new information is addressed below.
    In addition, Bay State Wind is newly requesting authorization to 
take white-beaked dolphin. The white-beaked dolphin is considered rare 
in the Lease Area and potential ECRs, but two protected species 
observer (PSO) monitoring reports have reported the sighting of the 
species in the Rhode Island-Massachusetts Wind Energy Area (RI-MA WEA) 
where the Project Lease Area is located (EPI Group, 2021; RPS, 2021). 
Therefore, it is reasonable to anticipate take for this animal may 
occur and the take of the animal has been proposed for authorization 
accordingly. A detailed description of the white-beaked dolphin's 
status and trends, distribution and habitat preferences, and behavior 
and life history can be found in section 4.2.9 of the application.

North Atlantic Right Whale

    In January 2024, NMFS released its draft 2023 SARs which updated 
the population estimate (Nbest) of North Atlantic right 
whales to 340 individuals; the annual mortality and serious injury (M/
SI) value dropped from the final 2022 SAR of 31.2 to 27.2 in the draft 
2023 SAR. Beginning in the 2022 SARs, the M/SI for North Atlantic right 
whale included the addition of estimated undetected mortality and 
serious injury, which had not been previously included in the SAR. The 
current population estimate is equal to the North Atlantic Right Whale 
Consortium's 2022 Annual Report Card, which identifies the population 
estimate as 340 individuals (Pettis et al. 2023).
    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017, along the U.S. and Canadian coast, with the leading 
category for the cause of death for this unusual mortality event (UME) 
determined to be ``human interaction,'' specifically from entanglements 
or vessel strikes. As of July 30, 2024, there have been 41 confirmed 
mortalities (dead, stranded, or floaters), 1 pending mortality, and 36 
seriously injured free-swimming whales for a total of 78 whales. The 
UME also considers animals with sublethal injury or illness (called 
``morbidity''; n = 65) bringing the total number of whales in the UME 
to 142. More information about the North Atlantic right whale UME is 
available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    The proposed survey area is within a migratory corridor 
Biologically Important Area (BIA) for NARWs that extends from 
Massachusetts to Florida (LeBrecque et al. 2015). There is possible 
migratory behavior that could occur in this area between November and 
April. Right whale migration is not expected to be impacted by the 
proposed survey due to the very small size of the Lease Area and 
potential ECRs project area relative to the spatial extent of the 
available migratory habitat in the BIA.

Humpback Whale

    Since January 2016, elevated humpback whale mortalities along the

[[Page 67603]]

Atlantic coast from Maine to Florida led to the declaration of a UME. 
As of May 17, 2023, 227 humpback whales have stranded as part of this 
UME. Partial or full necropsy examinations have been conducted on 
approximately 90 of the known cases. Of the whales examined, about 40 
percent had evidence of human interaction, either ship strike or 
entanglement. While a portion of the whales have shown evidence of pre-
mortem vessel strike, this finding is not consistent across all whales 
examined and more research is needed. More information is available at: 
https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    Since December 1, 2022, the number of humpback strandings along the 
mid-Atlantic coast, from North Carolina to New York, has been elevated. 
In some cases, the cause of death is not yet known; in others, vessel 
strike has been deemed the cause of death. As the humpback whale 
population has grown, they are seen more often in the Mid-Atlantic. 
These whales may be following their prey (small fish) which were 
reportedly close to shore in the 2022-2023 winter. Changing 
distributions of prey impact larger marine species that depend on them, 
and result in changing distribution of whales and other marine life. 
These prey also attract fish that are targeted by recreational and 
commercial fishermen, which increases the number of boats and amount of 
fishing gear in these areas. This nearshore movement increases the 
potential for anthropogenic interactions, particularly.
    The Lease Area and potential ECRs do not overlap any ESA-designated 
critical habitat, BIAs, or other important areas for the humpback 
whales. A humpback whale feeding BIA extends throughout the Gulf of 
Maine, Stellwagen Bank, and Great South Channel from May through 
December, annually (LaBrecque et al. 2015). However, this BIA is 
located further east and north of, and thus, does not overlap, the 
project area.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al. 1995; Wartzok and Ketten, 
1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007, 
2019) recommended that marine mammals be divided into hearing groups 
based on directly measured (behavioral or auditory evoked potential 
techniques) or estimated hearing ranges (behavioral response data, 
anatomical modeling, etc.). Note that no direct measurements of hearing 
ability have been successfully completed for mysticetes (i.e., low-
frequency cetaceans). Subsequently, NMFS (2018) described generalized 
hearing ranges for these marine mammal hearing groups. Generalized 
hearing ranges were chosen based on the approximately 65-decibel (dB) 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. Marine mammal hearing groups and their 
associated hearing ranges are provided in table 3.

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

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
The Estimated Take of Marine Mammals section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take of Marine Mammals section, and the Proposed Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and whether those impacts are reasonably expected to, or reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.
    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register notice of the 
proposed IHA for the initial authorization proposed (87 FR 52515, 
August 26, 2022). NMFS has reviewed information on relevant Unusual 
Mortality Events, updated SARs, and other scientific literature and 
data, and preliminarily determined that there is no new information 
that affects our initial analysis of impacts on marine mammals and 
their habitat.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
proposed for authorization through the IHA, which will inform NMFS' 
consideration of ``small numbers,'' the negligible impact 
determinations, and impacts on subsistence uses.
    Harassment is the only type of take expected to result from these 
activities.

[[Page 67604]]

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

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al. 2007, 2021; Ellison et al. 2012). Based 
on what the available science indicates and the practical need to use a 
threshold based on a metric that is both predictable and measurable for 
most activities, NMFS typically uses a generalized acoustic threshold 
based on received level to estimate the onset of behavioral harassment. 
NMFS generally predicts that marine mammals are likely to be 
behaviorally harassed in a manner considered to be Level B harassment 
when exposed to underwater anthropogenic noise above root-mean-squared 
pressure received levels (RMS SPL) of 120 dB (referenced to 1 
micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile 
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources. Generally speaking, Level B harassment take 
estimates based on these behavioral harassment thresholds are expected 
to include any likely takes by temporary threshold shift (TTS) as, in 
most cases, the likelihood of TTS occurs at distances from the source 
less than those at which behavioral harassment is likely. TTS of a 
sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavior patterns that would not otherwise occur.
    Bay State Wind's proposed activity includes the use of impulsive 
(i.e., boomers and sparkers) and non-impulsive (i.e., CHIRP SBPs) 
sources, and therefore the RMS SPL thresholds of 160 dB re 1 [mu]Pa is 
applicable.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0; 
Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive).
    These thresholds are provided in the table below. 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.
    On May 3, 2024, NMFS published (89 FR 36762) and solicited public 
comment on its draft Updated Technical Guidance, which includes updated 
thresholds and weighting functions to inform auditory injury estimates, 
and is intended to replace the 2018 Technical Guidance referenced 
above, once finalized. The public comment period ended on June 17, 
2024, and although the Updated Technical Guidance is not final, we 
expect the Updated Technical Guidance to represent the best available 
science once it is.
    Bay State Wind's HRG surveys include the use of impulsive (i.e., 
boomers and sparkers) and non-impulsive (i.e., CHIRP SBPs). However, as 
discussed above, NMFS has concluded that Level A harassment is not a 
reasonably likely outcome for marine mammals exposed to noise from the 
sources proposed for use here, and the potential for Level A harassment 
is not evaluated further in this document. The pending update to the 
Technical Guidance would not change NMFS' determination regarding the 
likelihood of take by Level A harassment. Please see Bay State Wind's 
application (section 1.4) for details of a quantitative exposure 
analysis exercise, (i.e., calculated Level A harassment isopleths and 
estimated Level A harassment exposures). No take by Level A harassment 
is anticipated or proposed for authorization by NMFS.

[[Page 67605]]



                     Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to reflect American
  National Standards Institute standards (American National Standards Institute, 2013). However, peak sound
  pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical
  Guidance. Hence, the subscript ``flat'' is being included to indicate peak sound pressure should be flat
  weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound
  exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
  cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative
  sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and
  durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under
  which these acoustic thresholds will be exceeded.

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 determining the 
rms sound pressure level at the 160-dB isopleth for the purpose of 
estimating the extent of Level B harassment isopleths associated with 
HRG survey equipment (NMFS, 2020). This methodology incorporates 
frequency and some directionality to refine estimated ensonified zones. 
Bay State Wind used NMFS's methodology, using the source level and 
operation mode of the equipment planned for use during the proposed 
survey, to estimate the maximum ensonified area over a 24-hour period, 
also referred to as the harassment area (table 5). Potential takes by 
Level B harassment are estimated within the ensonified area (i.e., 
harassment area) as an SPL exceeding 160 dB re 1 [micro]Pa for 
impulsive sources (e.g., sparkers, boomers) within an average day of 
activity.
    The harassment zone is a representation of the maximum extent of 
the ensonified area around a sound source over a 24-hour period. The 
harassment zone was calculated for mobile sound sources per the 
following formula:

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

where r is the linear distance from the source to the isopleth for 
Level A or Level B thresholds and day = 1 (i.e., 24 hours).
    The estimated potential daily active survey distance of 70 km was 
used as the estimated areal coverage over a 24-hour period. This 
distance accounts for the vessel traveling at roughly 4 knots (kn) and 
only for periods during which survey equipment that may result in take 
of marine mammals is in operation. A vessel traveling 4 kn can cover 
approximately 110 km per day; however, based on data from 2017, 2018, 
and 2019 surveys, survey coverage over a 24-hour period is closer to 70 
km per day. For daylight only vessels, the distance is reduced to 35 km 
per day; however, to maintain the potential for 24-hour surveys, the 
corresponding Level B harassment zones provided in table 5 were 
calculated for each source category based on the Level B threshold 
distances in table 4 with a 24-hour (70 km) operational period.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG 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, when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 2 shows the HRG equipment 
types that may be used during the proposed surveys and the source 
levels associated with those HRG equipment types.
    Based upon modeling results, of the HRG survey equipment planned 
for use by Bay State Wind that has the potential to result in Level B 
harassment of marine mammals, the Applied Acoustics Dura-Spark UHD and 
GeoMarine Geo-Source sparkers would produce the largest Level B 
harassment isopleth (141 m) or Harassment Zone. Estimated distances to 
Level B harassment isopleths for all sources evaluated here, including 
the sparkers, are provided in table 5. Although Bay State Wind does not 
expect to use sparker sources on all planned survey days, Bay State 
Wind proposes to assume for purposes of analysis that the sparker would 
be used on all survey days. This is a conservative approach, as the 
actual sources used on individual survey days may produce smaller 
harassment distances.

           Table 5--Distance to Level B Harassment Thresholds
                              [160 dB rms]
------------------------------------------------------------------------
                                                            Distance to
                                                              Level B
                         Source                             harassment
                                                           threshold (m)
------------------------------------------------------------------------
Boomers.................................................              76
Sparkers................................................             141
------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations. Habitat based density models 
produced by the Duke University Marine Geospatial Ecology Laboratory 
(Roberts et al. 2016, 2023) represent the best available information 
regarding marine mammal densities in the Lease Area and potential ECRs. 
The density data presented by Roberts et al. (2016, 2023) incorporate 
aerial and

[[Page 67606]]

shipboard line-transect data from NMFS and other organizations and 
incorporate data from 8 physiographic and 16 dynamic oceanographic and 
biological covariates, and control for the influence of sea state, 
group size, availability bias, and perception bias on the probability 
of making a sighting. These density models were originally developed 
for all cetacean taxa in the U.S. Atlantic (Roberts et al. 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at https://seamap.env.duke.edu/models/Duke/EC. 
Marine mammal density estimates in the Lease Area and potential ECRs 
(animals/km\2\) were obtained using the most recent model results for 
all taxa (Roberts et al. 2023). The updated models incorporate sighting 
data, including sightings from NOAA's Atlantic Marine Assessment 
Program for Protected Species (AMAPPS) surveys.
    For exposure analysis, density data from Roberts et al. (2023) were 
mapped using a geographic information system (GIS). Density grid cells 
that included any portion of the proposed Lease Area and potential ECRs 
were selected for all survey months (see figure 4 of Bay State Wind's 
application). The densities for each species as reported by Roberts et 
al. (2023) for each of the Lease Area and ECR were averaged by month; 
those values were then used to calculate the mean annual density for 
each species within the Lease Area and potential ECRs. Estimated mean 
monthly and annual densities (animals per km\2\) of all marine mammal 
species that may be taken by the proposed survey are shown in table 7 
of Bay State Wind's application. Please see table 6 for density values 
used in the exposure estimation process.
    Due to limited data availability and difficulties identifying 
individuals to species level during visual surveys, individual 
densities are not able to be provided for all species and they are 
instead grouped into ``guilds'' (Roberts et al. 2023). These guilds 
include pilot whales, common bottlenose dolphins, and seals.
    Long- and short-finned pilot whales are difficult to distinguish 
during shipboard surveys so individual habitat models were not able to 
be developed. However, as discussed in section 4.2.3 of Bay State 
Wind's application, all pilot whales in the Lease Area and potential 
ECRs are assumed to be long-finned pilot whales, so the densities and 
subsequent takes would apply only to this species.
    The density models do not distinguish between common bottlenose 
dolphin stocks due to limited data regarding distributions of these 
stocks. As discussed in section 4.2.7 of Bay State Wind's application, 
only the western North Atlantic offshore stock is expected to occur in 
the Lease Area and potential ECRs. Therefore, the densities in table 6 
and subsequent take calculations would only apply to this stock of 
bottlenose dolphins.
    Gray seals and harbor seals are reasonably identifiable during 
shipboard visual surveys; therefore, it is expected that some sightings 
will be assigned to species rather than to the generalized seal guild. 
Additionally, seals tend to occur in very small numbers when away from 
haul out areas; therefore, sighting events are not likely to constitute 
large numbers of animals. For these reasons, the seal guild density was 
split evenly between both gray and harbor seal species.

         Table 6--Average Annual Marine Mammal Density Estimates
------------------------------------------------------------------------
                                                          Average annual
                         Species                              density
                                                              (km\2\)
------------------------------------------------------------------------
                         Low-frequency Cetaceans
------------------------------------------------------------------------
Fin whale...............................................          0.0022
Sei whale...............................................          0.0006
Minke whale.............................................          0.0056
Humpback whale..........................................          0.0014
North Atlantic right whale..............................          0.0022
------------------------------------------------------------------------
                         Mid-frequency cetaceans
------------------------------------------------------------------------
Sperm whale.............................................          0.0002
Atlantic white-sided dolphin............................          0.0143
Atlantic spotted dolphin................................          0.0006
Common bottlenose dolphin (Offshore)....................          0.0093
Long-finned pilot whale.................................          0.0016
Risso's dolphin.........................................          0.0006
Common dolphin..........................................          0.0846
Striped dolphin.........................................          0.0000
White-beaked dolphin....................................          0.0000
------------------------------------------------------------------------
                        High-frequency Cetaceans
------------------------------------------------------------------------
Harbor porpoise.........................................          0.0423
------------------------------------------------------------------------
                              Pinnipeds \1\
------------------------------------------------------------------------
Gray seal...............................................          0.0845
Harbor seal.............................................          0.0845
------------------------------------------------------------------------
\1\ Seal species are not separated in the Roberts (2022) data therefore
  densities were evenly split between the two species expected to occur
  in the Lease Area and potential ECRs.

Take Estimation

    Here we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and proposed for authorization.
    Level B harassment events were estimated by multiplying the average 
annual density of each species within the Lease Area and potential ECRs 
(table 6) by the largest harassment zone (141 m; table 5). That result 
was then multiplied by the number of survey days in that Lease Area or 
ECR (350 survey days), and rounded to the nearest whole number to 
arrive at estimated take. This final number equals the instances of 
take for the entire operational period. It was assumed the sparker 
systems were operating all 350 survey days as it is the sound source 
expected to produce the largest harassment zone. A summary of this 
method is illustrated in the following formula with the resulting 
proposed take of marine mammals is shown below in table 7:

Estimated take = Species Density x Harassment Zone x # of survey days

                               Table 7--Total Estimated and Requested Take Numbers
                                          [By Level B harassment only]
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated       Requested      Max percent
                     Species                         Abundance     Level B takes   Level B takes    population
----------------------------------------------------------------------------------------------------------------
                                             Low-frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Fin whale.......................................           6,802              15              15            0.22
Sei whale.......................................           6,292               4               4            0.06

[[Page 67607]]

 
Minke whale.....................................          21,968              39              39            0.18
Humpback whale..................................           1,396              10              10            0.72
North Atlantic right whale......................             340              15              15            4.41
----------------------------------------------------------------------------------------------------------------
                                             Mid-frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Sperm whale.....................................           5,895               2               2            0.03
Atlantic white-sided dolphin....................          93,233              99              99            0.11
Atlantic spotted dolphin........................          31,506               4               4            0.01
Common bottlenose dolphin (offshore stock)......          64,587              65              65            0.10
Long-finned pilot whale.........................          39,215              11              11            0.03
Risso's dolphin.................................          44,067               4          4 (14)            0.03
Common dolphin..................................          93,100             586     586 (1,485)            1.60
Striped dolphin.................................          48,274               0          0 (46)            0.10
White-beaked dolphin............................         536,016               0          0 (12)            0.00
----------------------------------------------------------------------------------------------------------------
                                            High-frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................................          85,765             293             293            0.34
----------------------------------------------------------------------------------------------------------------
                                                    Pinnipeds
----------------------------------------------------------------------------------------------------------------
Seals:
    Gray seal...................................          27,911             586             586            2.10
    Harbor seal.................................          61,336             586             586            0.96
----------------------------------------------------------------------------------------------------------------

    Additional data regarding average group sizes from survey effort in 
the region was considered to ensure adequate take estimates are 
evaluated. Take estimates for several species were adjusted based upon 
observed group sizes in the area. The adjusted take estimates for these 
species are indicated in bold in table 7. These calculated take 
estimates were adjusted for these species as follows:
     Striped dolphin: No takes were calculated for this species 
(table 7), but data from AMAPPS data indicate this species was observed 
in the RI-MA WEA (Palka et al. 2017) where this Project Lease Area is 
located. Therefore, 1 group of 46 was added to the requested takes, 
based on a sighting of 1 group of 46 from AMAPPS data (Palka et al. 
2017).
     Risso's dolphin: Only 4 takes were calculated but based on 
2 reported detections with a total of 14 individuals of this species in 
PSO monitoring reports for projects in the RI-MA WEA where this Project 
Lease Area is located (Bay State Wind, 2019; Smultea Environmental 
Sciences, 2020), the take number was increased to 14.
     Common dolphin: The Applicant requested to increase their 
take numbers from 586 to 1,485 based on PSO data where 4,457 
individuals were observed in the estimated Level B harassment zone over 
a total of 1,300 survey days (Smultea Environmental Sciences, 2020). 
The proposed survey is only 350 survey days which is approximately \1/
3\ of the survey days considered in the PSO data, so the number of 
takes has been recalculated to \1/3\ of the 4,457 detections which 
equates to 1,485.
     White-beaked dolphin: no takes were calculated but based 
on reported detections of this species in 2 PSO monitoring reports for 
projects in the RI-MA WEA where this Project Lease Area is located (EPI 
Group, 2021; RPS, 2021), 1 group of 12 was added to the requested 
takes.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, 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, impact on 
operations.
    NMFS proposes the following mitigation measures be implemented 
during Bay State Wind's proposed marine site characterization surveys. 
Pursuant to section 7 of the ESA, Bay State Wind would also be required 
to adhere to relevant Project Design Criteria (PDC) of the NMFS' 
Greater

[[Page 67608]]

Atlantic Regional Fisheries Office (GARFO) programmatic consultation 
(specifically PDCs 4, 5, and 7) regarding geophysical surveys along the 
U.S. Atlantic coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Marine Mammal Shutdown Zones

    Marine mammal shutdown zones would be established around impulsive 
HRG survey equipment (e.g., sparkers and boomers) for all marine 
mammals. Shutdown zones would be monitored by PSOs based upon the 
radial distance from the acoustic source rather than being based around 
the vessel itself. An immediate shutdown of impulsive HRG survey 
equipment will be required if a whale is sighted at or within the 
corresponding marine mammal shutdown zones to minimize noise impacts on 
the animals. If a shutdown is required, a PSO will notify the survey 
crew immediately. Vessel operators and crews will comply immediately 
with any call for shutdown. The shutdown zone may or may not encompass 
the Level B harassment zone. Shutdown zone distances are as follows:
     A 500 m shutdown zone for North Atlantic right whales for 
use of impulsive acoustic sources (e.g., boomers and/or sparkers) and 
non-impulsive, non-parametric sub-bottom profilers; and
     A 100-m shutdown zone for use of impulsive acoustic 
sources for all other marine mammals, with the exception of small 
delphinids, i.e., those belonging to the genera Delphinus, 
Lagenorhynchus, Stenella, or Tursiops, and pinnipeds.
    Shutdown will remain in effect until the minimum separation 
distances (detailed above) between the animal and noise source are re-
established. If a marine mammal enters the respective shutdown zone 
during a shutdown period, the equipment may not restart until that 
animal is confirmed outside the clearance zone as stated previously in 
the pre-start clearance procedures. These stated requirements will be 
included in the site-specific training to be provided to the survey 
team.

Pre-Start Clearance

    Marine mammal clearance zones would be established at the following 
distances around the HRG survey equipment and monitored by PSOs:
     500 m for NARWs and all other ESA-listed whales;
     100 m for non-ESA listed large whales; and
     50 m for dolphins, seals, and porpoises.
    Bay State Wind would implement a 30-minute pre-start clearance 
period prior to the initiation of ramp-up of specified HRG equipment. 
During this period, clearance zones will be monitored by PSOs, using 
the appropriate visual technology. Ramp-up may not be initiated if any 
marine mammal(s) is within its respective clearance zone. If a marine 
mammal is observed within a clearance zone during the pre-start 
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals, and 30 minutes for all other species). 
Monitoring would be conducted throughout all pre-clearance and shutdown 
zones as well as all visible waters surrounding the sound sources and 
the vessel. All marine mammals detected will be recorded as described 
in the Proposed Monitoring and Reporting section.

Ramp-Up of Survey Equipment

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
acoustic source when technically feasible. The ramp-up procedure would 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the Lease Area and 
potential ECRs by allowing them to vacate the area prior to the 
commencement of survey equipment operation at full power. Operators 
should ramp-up sources to half power for 5 minutes and then proceed to 
full power.
    The ramp-up procedure will not be initiated (i.e., equipment will 
not be started) during periods of inclement conditions when the marine 
mammal pre-start clearance zone cannot be adequately monitored by the 
PSOs for a 30 minute period using the appropriate visual technology. If 
any marine mammal enters the clearance zone, ramp-up will not be 
initiated until the animal is confirmed outside the marine mammal 
clearance zone, or until the appropriate time (30 minutes for whales, 
15 minutes for dolphins, porpoises, and seals) has elapsed since the 
last sighting of the animal in the clearance zone.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., echosounders) other than non-parametric sub-bottom profilers 
(e.g., CHIRPs).

Vessel Strike Avoidance

    Bay State Wind must adhere to the following measures except in the 
case where compliance would create an imminent and serious threat to a 
person or vessel or to the extent that a vessel is restricted in its 
ability to maneuver and, because of the restriction, cannot comply.
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated 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 protected species from other phenomena, and (2) broadly 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal;
    a. All survey vessels, regardless of size, must observe a 10-kn 
speed restriction in specified areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes including 
seasonal management areas (SMAs) and dynamic management areas (DMAs) 
when in effect;
    b. Members of the monitoring team will consult NMFS North Atlantic 
right whale reporting system and Whale Alert, as able, for the presence 
of North Atlantic right whales throughout survey operations, and for 
the establishment of a DMA. If NMFS should establish a DMA in the Lease 
Area and potential ECRs during the survey, the vessels will abide by 
speed restrictions in the DMA;
    c. All vessels greater than or equal to 19.8 m in overall length 
operating from November 1 through April 30 will operate at speeds of 10 
kn (5.1 m/second) or less at all times;
    d. All vessels must reduce their speed to 10 kn (5.1 m/second) or 
less when mother/calf pairs, pods, or large assemblages of any species 
of cetaceans is observed near a vessel;
    e. All vessels must maintain a minimum separation distance of 500 m 
from right whales and other ESA-listed large whales;
    f. If a whale is observed but cannot be confirmed as a species 
other than a right

[[Page 67609]]

whale or other ESA-listed large whale, the vessel operator must assume 
that it is a right whale and take appropriate action;
    g. All vessels must maintain a minimum separation distance of 100 m 
from non-ESA listed 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 shall 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). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means of effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

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

Proposed Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Bay State Wind would 
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 their designated task. 
On a case-by-case basis, non-independent observers may be approved by 
NMFS for limited, specified duties in support of approved, independent 
PSOs on smaller vessels with limited crew operating in nearshore 
waters.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including shutdown and pre-clearance zones, during all HRG 
survey operations. PSOs will visually monitor and identify marine 
mammals, including those approaching or entering the established 
shutdown and pre-clearance zones during survey activities. It will be 
the responsibility of the Lead PSO 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.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) would ensure 360-degree visual coverage around 
the vessel from the most appropriate observation posts and would 
conduct visual observations using binoculars and/or night vision 
goggles and the naked eye while free from distractions and in a 
consistent, systematic, and diligent manner. PSOs may be on watch for a 
maximum of four consecutive hours followed by a break of at least one 
hour between watches and may conduct a maximum of 12 hours of 
observations per 24-hour period. In cases where multiple vessels are 
surveying concurrently, any observations of marine mammals would be 
communicated to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion 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, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would 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. Any

[[Page 67610]]

observations of marine mammals by crew members aboard any vessel 
associated with the survey would be relayed to the PSO team. Data on 
all PSO observations would be recorded based on standard PSO collection 
requirements. This would include dates, times, and locations of survey 
operations; dates and times of observations, location and weather, 
details of marine mammal sightings (e.g., species, numbers, behaviors); 
and details of any observed marine mammal behavior that occurs (e.g., 
notes behavioral disturbances). For more detail on the proposed 
monitoring requirements, see condition 5 of the draft IHA.

Proposed Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a draft comprehensive report will 
be provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys including what type of mitigation and the species and number of 
animals that prompted the mitigation action, when known), and provides 
an interpretation of the results and effectiveness of all mitigation 
and monitoring. Any recommendations made by NMFS must be addressed in 
the final report prior to acceptance by NMFS. A final report must be 
submitted within 30 days following any comments on the draft report. 
All draft and final marine mammal and acoustic monitoring reports must 
be submitted to [email protected] and 
[email protected]. The report must contain at minimum, the following:
     PSO names and affiliations;
    a. Dates of departures and returns to port with port names;
    b. Dates and times (Greenwich Mean Time) of survey effort and times 
corresponding with PSO effort;
    c. Vessel location (latitude/longitude) when survey effort begins 
and ends; vessel location at beginning and end of visual PSO duty 
shifts;
    d. Vessel heading and speed at beginning and end of visual PSO duty 
shifts and upon any line change;
    e. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including wind speed and direction, BSS, Beaufort wind force, swell 
height, weather conditions, cloud cover, sun glare, and overall 
visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.).
     Survey activity information (and changes thereof), 
including at minimum the general specifications of all acoustic 
sources, power output of all sparkers and boomers while in operation, 
number of operational sparker tips for all sparkers, tow depth(s) of 
all towed acoustic sources, and any other notes of significance (i.e., 
pre-start clearance, ramp-up, shutdown, testing, shooting, ramp-up 
completion, end of operations, streamers, etc.).
     If a marine mammal is sighted, the following information 
should be recorded:
    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. PSO who sighted the animal;
    c. Time of sighting;
    d. Vessel location at time of sighting;
    e. Water depth;
    f. Direction of vessel's travel (compass direction);
    g. Direction of animal's travel relative to the vessel;
    h. Pace of the animal;
    i. Estimated distance to the animal and its heading relative to 
vessel at initial sighting;
     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;
    a. Estimated number of animals (high/low/best);
    b. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    c. 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);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
    a. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during surveys or during vessel 
transit, Bay State Wind must immediately report sighting information to 
the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 
755-6622. North Atlantic right whale sightings in any location may also 
be reported to the U.S. Coast Guard via channel 16.
    In the event that Bay State Wind personnel discover an injured or 
dead marine mammal, Bay State Wind will report the incident to the NMFS 
Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would 
include the following information:
    a. Species identification (if known) or description of the 
animal(s) involved;
    b. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    c. Observed behaviors of the animal(s), if alive;
    d. If available, photographs or video footage of the animal(s); and
    e. General circumstances under which the animal was discovered;
    f. Time;
    g. Date; and
    h. location (latitude/longitude) of the first discovery (and 
updated location information if known and applicable).
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in this activities covered by the IHA, Bay State 
Wind would report the incident to NMFS OPR and the NMFS New/England/
Mid-Atlantic Stranding Coordinator as soon as feasible. The report 
would include the following information:
    a. Time, date, and location (latitude/longitude) of the incident;
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Vessel's speed during and leading up to the incident;
    d. Vessel's course/heading and what operations were being conducted 
(if applicable);
    e. Status of all sound sources in use;
    f. 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;
    g. Environmental conditions (e.g., wind speed and direction, BSS, 
cloud

[[Page 67611]]

cover, visibility) immediately preceding the strike;
    h. Estimated size and length of animal that was struck;
    i. Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    j. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    k. 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
    l. 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 2, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. Where there are meaningful differences between species or 
stocks as--is the case of the North Atlantic right whale--they are 
included as separate subsections below. NMFS does not anticipate that 
serious injury or mortality would occur as a result from HRG surveys, 
even in the absence of mitigation, and no serious injury or mortality 
is proposed to be authorized. As discussed in the Potential Effects of 
Specified Activities on Marine Mammals and their Habitat section, non-
auditory physical effects and vessel strike are not expected to occur. 
NMFS expects that all potential takes would be in the form of Level B 
harassment in the form of temporary avoidance of the area or decreased 
foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al. 2007, 2021). As described above, 
Level A harassment is not expected to occur given the nature of the 
operations and the estimated small size of the Level A harassment 
zones.
    In addition to being temporary, the maximum expected harassment 
zone around the survey vessel is 141 m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the Lease 
Area and potential ECRs; 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 proposed Lease Area 
and potential ECRs. Two harbor and gray seal breeding and pupping 
grounds have been identified on Nantucket Sound at Monomoy and Muskeget 
Island. As the acoustic footprint of the proposed HRG activities is 
relatively small and these areas occur outside the Lease Area and 
potential ECRs, hauled seals are not expected to be impacted by these 
activities.

North Atlantic Right Whale

    The status of the North Atlantic right whale (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 support human 
interactions, specifically vessel strikes and entanglements, as the 
cause of death for the majority of right whales. The proposed Lease 
Area and potential ECRs overlaps with a migratory corridor biologically 
important area (BIA) for North Atlantic right whales (effective March-
April; November-December) that extends from Massachusetts to Florida 
and, off the coast of NY and RI, from the coast to beyond the shelf 
break (LaBrecque et al. 2015). Right whale migration is not expected to 
be impacted by the proposed survey due to the very small size of the 
Lease Area and potential ECRs relative to the spatial extent of the 
available migratory habitat in the BIA. The proposed Lease Area and 
potential ECRs also overlap with the Block Island SMA, active from 
November 1 to April 30. NARWs may be feeding or migrating within the 
SMA. Required vessel strike avoidance measures and following the speed 
restrictions of the SMA will decrease the risk of ship strike during 
NARW migration; no ship strike is expected to occur during Bay State 
Wind's proposed activities. For reasons as described above, minimal 
impacts are expected to prey availability and feeding success. 
Additionally, HRG survey operations are required to maintain a 500 
distance and shutdown if a NARW is sighted at or within 500 m. The 500-
m shutdown zone for right whales is conservative, considering the Level 
B harassment isopleth for the most impactful sources (i.e., GeoMarine 
Sparkers, AA Dura-spark UHD Sparkers, AA Triple plate S-Boom) is 
estimated to be 141 m, and thereby minimizes the potential for 
behavioral harassment of this species. Therefore only very limited take 
by Level B harassment of NARW has been requested and is being proposed 
for authorization by NMFS. As noted previously, Level A harassment is 
not expected, nor authorized, due to the small PTS zones associated 
with HRG equipment types proposed for use. NMFS does not anticipate 
NARW takes that result from the proposed survey activities would impact 
annual rates of recruitment or survival. Thus, any takes that occur 
would not result in population level impacts.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North

[[Page 67612]]

Atlantic right whale vessel speed regulations to further reduce the 
likelihood of mortalities and serious injuries to endangered right 
whales from vessel collisions, which are a leading cause of the 
species' decline and a primary factor in an ongoing Unusual Mortality 
Event (87 FR 46921, September 9, 2022). Should a final vessel speed 
rule be issued and become effective during the effective period of this 
IHA (or any other MMPA incidental take authorization), the 
authorization holder would be required to comply with any and all 
applicable requirements contained within the final rule. Specifically, 
where measures in any final vessel speed rule are more protective or 
restrictive than those in this or any other MMPA authorization, 
authorization holders would be required to comply with the requirements 
of the rule. Alternatively, where measures in this or any other MMPA 
authorization are more restrictive or protective than those in any 
final vessel speed rule, the measures in the MMPA authorization would 
remain in place. These changes would become effective immediately upon 
the effective date of any final vessel speed rule and would not require 
any further action on NMFS's part.

Other Marine Mammals With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Bay State Wind's proposed Lease Area and potential ECRs. 
Elevated humpback whale mortalities have occurred along the Atlantic 
coast from Maine through Florida since January 2016. Of the cases 
examined, approximately half had evidence of human interaction (ship 
strike or entanglement). The UME does not yet provide cause for concern 
regarding population-level impacts. Despite the UME, the relevant 
population of humpback whales (the West Indies breeding population, or 
distinct population segment) 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 required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in table 2, 
including those with active UMEs, to the level of least practicable 
adverse impact. In particular, they would provide animals the 
opportunity to move away from the sound source before HRG survey 
equipment reaches full energy, thus preventing them from being exposed 
to more severe Level B harassment. No Level A harassment is 
anticipated, even in the absence of mitigation measures, or proposed 
for authorization.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging in the area (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. Required mitigation 
measures, such as shutdown zones and ramp up, would further reduce 
exposure to sound that could result in more severe behavioral 
harassment.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect any of the species 
or stocks through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures or proposed for authorization;
     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 area 
during the planned surveys to avoid exposure to sounds from the 
activity;
     Take is anticipated to be of Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the ensonified area;
     While the Lease Area and potential ECRs is within areas 
noted as a migratory BIA and SMA for North Atlantic right whales, the 
activities would occur in such a comparatively small area such that any 
avoidance of the ensonified area due to activities would not affect 
migration. In addition, mitigation measures require shutdown at 500 m 
(almost four times the size of the Level B harassment isopleth (141 m), 
which minimizes the effects of the take on the species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    The amount of take NMFS proposes to authorize is below one-third of 
the estimated stock abundance for all species (in fact, take of 
individuals is less than 5 percent of the abundance of the affected 
stocks for these species, see table 7). The figures presented in table 
7 are likely conservative estimates as they assume all takes are of 
different individual animals which is likely not to be the case. Some 
individuals may return multiple times in a day, but PSOs would count 
them as separate takes if they cannot be individually identified.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

[[Page 67613]]

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Bay State Wind for conducting site characterization 
surveys off the coast of Rhode Island and Massachusetts from October 6, 
2024, to October 5, 2025, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. A draft of the 
proposed IHA can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed HRG 
surveys. We also request comment on the potential renewal of this 
proposed IHA as described in the paragraph below. Please include with 
your comments any supporting data or literature citations to help 
inform decisions on the request for this IHA or a subsequent renewal 
IHA.
    On a case-by-case basis, NMFS may issue a one-time, 1-year renewal 
IHA following notice to the public providing an additional 15 days for 
public comments when (1) up to another year of identical or nearly 
identical activities as described in the Description of Proposed 
Activity section of this notice is planned or (2) the activities as 
described in the Description of Proposed Activity section of this 
notice would not be completed by the time the IHA expires and a renewal 
would allow for completion of the activities beyond that described in 
the Dates and Duration section of this notice, provided all of the 
following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed renewal IHA effective date (recognizing that the 
renewal IHA expiration date cannot extend beyond 1 year from expiration 
of the initial IHA);
     The request for renewal must include the following:
    [cir] An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take); 
and
    [cir] A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: August 15, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-18694 Filed 8-20-24; 8:45 am]
BILLING CODE 3510-22-P