[Federal Register Volume 89, Number 195 (Tuesday, October 8, 2024)]
[Notices]
[Pages 81458-81473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23259]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE296]


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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Bay State Wind, LLC (Bay State Wind), to incidentally harass marine 
mammals during 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.

DATES: The authorization is effective from October 6, 2024, to October 
5, 2025.

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

FOR FURTHER INFORMATION CONTACT: 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 cited above are included in the relevant sections 
below.

History of Request

    On October 6, 2022, NMFS issued an IHA 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 (87 FR 61575; October 12, 2022). 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.
    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 coasts of Rhode Island and 
Massachusetts. This request was limited to planned survey activity in 
OCS-A 0500 (i.e., [Oslash]rsted's planned Bay State Wind development) 
and the associated ECR area. Following NMFS' review of the application, 
Bay State Wind submitted a revised version on June 10, 2024. Following 
additional review of the application, Bay State Wind submitted another 
revised version on July 29, 2024, which 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. There are no 
changes from the proposed IHA to the final IHA.

Description of the Activity and Anticipated Impacts

Overview

    Bay State Wind will 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

[[Page 81459]]

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 activities 
are planned to begin as soon as possible upon issuance of an IHA, if 
appropriate. The 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 two 
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 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 81460]]

[GRAPHIC] [TIFF OMITTED] TN08OC24.016

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

    A detailed description of the planned site characterization surveys 
is provided in the Federal Register notice for the proposed IHA (89 FR 
67597, August 21, 2024). The nature of the specified activities, 
including the types of HRG equipment planned for use (e.g.,

[[Page 81461]]

CHIRPs, boomers, and sparkers), daily trackline distances (70 line km 
per 24-hr period), and number of survey vessels (up to four operating 
concurrently), are identical to those described in the previous notice.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Bay State Wind was 
published in the Federal Register on August 21, 2024 (89 FR 6759). That 
notice described, in detail, or referenced descriptions of Bay State 
Wind's activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated number and manner of take, and proposed mitigation, 
monitoring and reporting measures.
    During the 30-day public comment period, NMFS received one 
substantive comment letter, from the Wampanoag Tribe of Gay Head 
(Aquinnah) (Tribe). We reiterate here that NMFS' proposed action 
concerns only the authorization of marine mammal take incidental to the 
planned surveys--NMFS' authority under the MMPA does not extend to the 
surveys themselves or to wind energy development more generally. 
Comments from the Wampanoag Tribe of Gay Head (Aquinnah) (Tribe)'s 
letter considered out of scope include (1) a request that NMFS fully 
study the implications of the Vineyard Wind blade failure on marine 
mammals ``prior to any further federal action concerning offshore wind 
farms,'' (2) general opposition to authorization of take incidental to 
any activities associated with offshore wind development until ``the 
Coast Guard has finished establishing shipping safety fairways,'' a 
statement that ``offshore wind development needs to be balanced with 
navigational safety,'' and criticism of NMFS and BOEM for allegedly 
``improperly segmenting offshore wind activities in the Atlantic 
Ocean.'' All substantive comments, and NMFS' responses, are provided 
below. The comments and recommendations are available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. 
Please see the comment submissions for full details regarding the 
recommendations and supporting rationale.
    Comment 1: The Tribe asserted generally that NMFS is not 
appropriately complying with Executive Order 13175, which requires 
meaningful government-to-government consultation with tribes on matters 
that have implications for tribes.
    Response: NMFS is committed to engaging with the Tribe moving 
forward. However, for the reasons included in this notice, we disagree 
that no IHAs for HRG surveys should be renewed in the New York Bight 
pending engagement with the Tribe.
    Comment 2: The Tribe stated they do not agree that use of a 
Categorical Exclusion (CE) under National Environmental Policy Act 
(NEPA) is appropriate, suggesting that NMFS must conduct additional 
analysis of the cumulative impact of projects in the Massachusetts and 
Rhode Island offshore area, especially to Endangered Species Act (ESA)-
listed species, and particularly to the North Atlantic right whale 
(NARW).
    Response: NMFS disagrees with the commenter's statement and has 
determined that the issuance of the IHA qualifies to be categorically 
excluded from further NEPA review. A CE is a category of actions that 
an agency has determined does not individually or cumulatively have a 
significant effect on the quality of the human environment and is 
appropriately applied for such categories of actions so long as there 
are no extraordinary circumstances present that would indicate that the 
effects of the action may be significant. Extraordinary circumstances 
are situations for which NOAA has determined further NEPA analysis is 
required because they are circumstances in which a normally excluded 
action may have significant effects. A determination of whether an 
action that is normally excluded requires additional evaluation because 
of extraordinary circumstances focuses on the action's potential 
effects and considers the significance of those effects in terms of 
both context (consideration of the affected region, interests, and 
resources) and intensity (severity of impacts). Potential extraordinary 
circumstances relevant to this action include: (1) adverse effects on 
species or habitats protected by the MMPA that are not negligible; (2) 
highly controversial environmental effects; (3) environmental effects 
that are uncertain, unique, or unknown; and (4) the potential for 
significant cumulative impacts when the proposed action is combined 
with other past, present, and reasonably foreseeable future actions.
    The relevant NOAA CE associated with issuance of incidental take 
authorizations is CE B4, ``Issuance of incidental harassment 
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the 
incidental, but not intentional, take by harassment of marine mammals 
during specified activities and for which no serious injury or 
mortality is anticipated.'' This action falls within CE B4. In 
determining whether a CE is appropriate for a given incidental take 
authorization, NMFS considers the applicant's specified activity and 
the potential extent and magnitude of takes of marine mammals 
associated with that activity along with the extraordinary 
circumstances listed in the Companion Manual for NOAA Administrative 
Order (NAO) 216-6A and summarized above.
    The evaluation of whether extraordinary circumstances (if present) 
have the potential for significant environmental effects is limited to 
the decision NMFS is responsible for, which is issuance of the 
incidental take authorization. Potential effects of NMFS' action are 
limited to those that would occur due to the authorization of 
incidental take of marine mammals. NMFS prepared numerous EAs analyzing 
the environmental impacts of the categories of activities encompassed 
by CE B4, which resulted in Findings of No Significant Impacts (FONSIs) 
and, in particular, numerous EAs prepared in support of issuance of 
IHAs related to similar survey actions are part of NMFS' administrative 
record supporting CE B4. These EAs demonstrate the issuance of a given 
incidental harassment authorization does not affect other aspects of 
the human environment because the action only affects the marine 
mammals that are the subject of the incidental harassment 
authorization.
    Specifically for this action, NMFS independently evaluated the use 
of the CE for issuance of Bay State Wind's IHA, which included 
consideration of extraordinary circumstances. As part of that analysis, 
NMFS considered whether this IHA issuance would result in cumulative 
impacts that could be significant. In particular, the issuance of an 
IHA to Bay State Wind is expected to result in minor, short-term 
behavioral effects on marine mammal species due to exposure to 
underwater sound from site characterization survey activities. 
Behavioral disturbance is possible to occur intermittently in the 
vicinity of Bay State Wind's survey area during the 1-year timeframe. 
Level B harassment will be reduced through use of mitigation measures 
described herein. Additionally, as discussed elsewhere, NMFS has 
determined that Bay State Wind's activities fall within the scope of 
activities analyzed in Greater Atlantic Regional Fisheries Office's 
(GARFO's) programmatic consultation regarding geophysical surveys along 
the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021), which concluded 
surveys such as those

[[Page 81462]]

planned by Bay State Wind are not likely to adversely affect ESA-listed 
species or adversely modify or destroy critical habitat. Accordingly, 
NMFS has determined that the issuance of this IHA will result in no 
more than negligible (as that term is defined by the Companion Manual 
for NAO 216-6A) adverse effects on species protected by the ESA and the 
MMPA.
    Further, the issuance of this IHA will not result in highly 
controversial environmental effects or result in environmental effects 
that are uncertain, unique, or unknown because numerous entities have 
been engaged in site characterization surveys that result in Level B 
harassment of marine mammals in the United States. This type of 
activity is well documented; prior authorizations and analysis 
demonstrates issuance of an IHA for this type of action only affects 
the marine mammals that are the subject of the specific authorization 
and, thus, no potential for significant cumulative impacts are 
expected, regardless of past, present, or reasonably foreseeable 
actions, even though the impacts of the action may not be significant 
by itself. Based on this evaluation, we concluded that the issuance of 
the IHA qualifies to be categorically excluded from further NEPA 
review.
    The commenters did not provide any new or compelling evidence that 
suggests that wind energy development activities have the potential to 
negatively impact NARW. NMFS recognizes and appreciates the importance 
of the NARW as an integral part of traditional lifeways and cultural 
practices. However, NMFS emphasizes that there is no credible 
scientific evidence available suggesting that mortality and/or serious 
injury or Level A harassment is a potential outcome of the planned 
survey activity, and no additional evidence was presented by the 
commenter. NMFS notes there have never been reports of any serious 
injuries or mortalities of any marine mammal associated with site 
characterization surveys. The best available science indicates that 
Level B harassment, or disruption of behavioral patterns, may occur as 
a result of Bay State Wind's specified activities. This point has been 
well supported by other agencies, including the BOEM and the Marine 
Mammal Commission (Marine Mammal Commission Newsletter, Spring 2023). 
In addition, a recent study by Thorne and Wiley (2024) reviewed 
spatiotemporal patterns of strandings, mortalities, and serious 
injuries of humpback whales along the U.S. east coast from 2016-2022 
and found vessel strikes to be the major driver in the increase of 
humpback whale strandings, mortalities, and serious injuries. Based 
upon the spatiotemporal analysis, no evidence was found that offshore 
wind development played a role in the increased number of strandings 
over time; for example, spatiotemporal patterns between strandings and 
site assessment surveys did not seem associated. In fact, the potential 
for vessel strike increased from 2016-2022 in association with 
increased container vessel traffic that overlapped with whales in new 
and shallow foraging areas. This potential for vessel strike also 
seemed to increase with the increased presence of juvenile humpback 
whales foraging off the Mid-Atlantic States. Under the IHA, NMFS 
requires Bay State Wind to abide by vessel speed restrictions and 
maintain separation distances between vessels and marine mammals that 
are intended to minimize the risk of any potential vessel strikes. The 
impacts of Level B harassment (i.e., behavioral disturbance) are 
expected to have a negligible impact on the NARW population as well as 
other potentially impacted marine mammal populations. NMFS has made the 
required findings based on the best scientific information available 
and has included mitigation measures to effect the least practicable 
adverse impacts on NARWs and other potentially impacted marine mammals. 
There is an active unusual mortality event (UME) for NARWs that began 
in June 2017. Overall, preliminary findings support human interactions, 
specifically vessel strikes and entanglements, as the cause of death 
for the majority of right whales. NMFS will continue to gather data to 
help us determine the cause of death for stranded whales. Vessel 
strikes and entanglement in fishing gear continue to be the greatest 
human threats to large whales.

Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by Bay 
State Wind's marine site characterization surveys, including brief 
introductions to the species and relevant stocks as well as available 
information regarding population trends and threats, and information 
regarding local occurrence, were provided in sections 3 and 4 of the 
application, the Federal Register notice of the proposed IHA (89 FR 
67597, August 21, 2024), and 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. NMFS fully considered all of 
this information, and we refer the reader to these descriptions, 
instead of reprinting the information. Additional information regarding 
population trends and threats may be found in NMFS' Stock Assessment 
Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is 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 (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 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 1 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).

[[Page 81463]]



                                             Table 1--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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            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).
Gray Seal \8\.......................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,911 (0.20, 23,624,       1,512      4,570
                                                                                                             2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 mortality and serious injury (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 NARW 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 NARW 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.

Marine Mammal Hearing

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

                  Table 2--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans(baleen    7 Hz to 35 kHz.
 whales).
Mid-frequency (MF)                     150 Hz to 160 kHz.
 cetaceans(dolphins, toothed whales,
 beaked whales, bottlenose whales).
High-frequency (HF) cetaceans(true     275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).

[[Page 81464]]

 
Phocid pinnipeds (PW)                  50 Hz to 86 kHz.
 (underwater)(true seals).
Otariid pinnipeds (OW)                 60 Hz to 39 kHz.
 (underwater)(sea lions and fur
 seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65-dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified 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). At present, there is no new information on potential 
effects that would change our analysis.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized 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. 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 will 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 Mitigation section, Level A harassment 
is neither anticipated nor authorized.
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will 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 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 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,

[[Page 81465]]

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 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 
authorized by NMFS.

                     Table 3--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 (ANSI) 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 survey, to 
estimate the maximum ensonified area over a 24-hour period, also 
referred to as the harassment area (table 4). 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) (2.1 
m/second) and only for periods during which survey equipment that may 
result in take of marine mammals is in operation. A vessel traveling 4 
kn (2.1 m/second) 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 4 were calculated for each source category 
based on the Level B threshold distances in table 3 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 surveys and the source levels 
associated with those HRG equipment types.

[[Page 81466]]

    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 4. Although Bay State Wind does not 
expect to use sparker sources on all planned survey days, Bay State 
Wind assumes 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 4--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 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 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 survey are shown in table 6 of Bay 
State Wind's application. Please see table 5 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 5 
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 5--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.


[[Page 81467]]

Take Estimation

    Here we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and is authorized.
    Level B harassment events were estimated by multiplying the average 
annual density of each species within the Lease Area and potential ECRs 
(table 5) by the largest harassment zone (141 m; table 4). 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 take 
of marine mammals is shown below in table 6:

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

                               Table 6--Total Estimated and Requested Take Numbers
                                          [By Level B harassment only]
----------------------------------------------------------------------------------------------------------------
                                                                          Estimated     Requested
                          Species                            Abundance     Level B       Level B     Max percent
                                                                            takes         takes      population
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans:
    Fin whale.............................................        6,802           15            15          0.22
    Sei whale.............................................        6,292            4             4          0.06
    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 6. These calculated take 
estimates were adjusted for these species as follows:
    <bullet> Striped dolphin: No takes were calculated for this species 
(table 6), but data from AMAPPS data indicate this species was observed 
in the RI-MA Wind Energy Area (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).
    <bullet> Risso's dolphin: Only 4 takes were calculated but based on 
two 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.
    <bullet> 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 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.
    <bullet> 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.

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

[[Page 81468]]

expected to reduce impacts to marine mammals, marine mammal species or 
stocks, and their habitat. This considers the nature of the potential 
adverse impact being mitigated (likelihood, scope, range). It further 
considers the likelihood that the measure will be effective if 
implemented (probability of accomplishing the mitigating result if 
implemented as planned), the likelihood of effective implementation 
(probability implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    NMFS requires that the following mitigation measures be implemented 
during Bay State Wind's marine site characterization surveys. Pursuant 
to section 7 of the ESA, Bay State Wind will also be required to adhere 
to relevant Project Design Criteria (PDC) of the NMFS' GARFO 
programmatic consultation (specifically PDCs 4, 5, and 7) regarding 
geophysical surveys along the U.S. Atlantic coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Marine Mammal Shutdown Zones

    Marine mammal shutdown zones will be established around impulsive 
HRG survey equipment (e.g., sparkers and boomers) for all marine 
mammals. Shutdown zones will 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:
    <bullet> A 500 m shutdown zone for NARWs for use of impulsive 
acoustic sources (e.g., boomers and/or sparkers) and non-impulsive, 
non-parametric sub-bottom profilers; and
    <bullet> 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 will be established at the following 
distances around the HRG survey equipment and monitored by PSOs:
    <bullet> 500 m for NARWs and all other ESA-listed whales;
    <bullet> 100 m for non-ESA listed large whales; and
    <bullet> 50 m for dolphins, seals, and porpoises.
    Bay State Wind will 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 will 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 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 will 
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.
    <bullet> 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 
(5.1 m/second) speed restriction in specified areas designated by NMFS 
for the protection of NARWs 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 NARW reporting 
system and Whale Alert, as able, for the presence of NARWs throughout 
survey

[[Page 81469]]

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 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;
    <bullet> 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);
    <bullet> 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 measures, NMFS has 
determined that the mitigation measures provide the means of effecting 
the least practicable impact on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

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

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) will 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

[[Page 81470]]

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 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 monitoring requirements, see condition 5 of the 
draft IHA.

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 <a href="/cdn-cgi/l/email-protection#5e0e0c70170a0e70133130372a312c3730390c3b2e312c2a2d1e30313f3f70393128"><span class="__cf_email__" data-cfemail="065654284f5256284b69686f7269746f686154637669747275466869676728616970">[email protected]</span></a> and 
<a href="/cdn-cgi/l/email-protection#410815116f09282d35012f2e20206f262e37"><span class="__cf_email__" data-cfemail="7d34292d53351411093d13121c1c531a120b">[email protected]</span></a>. The report must contain at minimum, the following:
    <bullet> 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; and
    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;
    <bullet> 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);
    <bullet> 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.);
    <bullet> 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.);
    <bullet> 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; and
    i. Estimated distance to the animal and its heading relative to 
vessel at initial sighting;
    <bullet> 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.); and
    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);
    <bullet> 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);
    [cir] Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
    <bullet> Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
    <bullet> 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 NARW 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. NARW 
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 will 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:

[[Page 81471]]

    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 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 1, 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 with the NARW--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 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 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 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 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 Lease Area and potential ECRs overlaps 
with a migratory corridor biologically important area (BIA) for NARWs 
(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 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 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 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 m distance and shut 
down 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 authorized by NMFS. As noted previously, 
Level A harassment is not expected, nor

[[Page 81472]]

authorized, due to the small PTS zones associated with HRG equipment 
types for use. NMFS does not anticipate NARW takes that result from the 
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 
NARW 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 UME (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. More 
information about the NARW UME is provided in the Federal Register 
notice for the proposed IHA (89 FR 67597, August 21, 2024) and is 
available online at https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.

Other Marine Mammals With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Bay State Wind's Lease Area and potential ECRs. Elevated 
humpback whale mortalities have occurred along the Atlantic coast from 
Maine through Florida since January 2016. As of July 16, 2024, 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. 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. 
More information about the humpback whale UME is provided in the 
Federal Register notice for the proposed IHA (89 FR 67597, August 21, 
2024) and is available online at https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    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. As of 
August 7, 2024, 174 minke whales have stranded as part of this UME. 
Partial or full necropsy examinations have been conducted on 
approximately 60% of the whales. Several of the whales showed evidence 
of human interactions or infectious diseases. This finding is not 
consistent across all whales examined and more research is needed. This 
event does not provide cause for concern regarding population level 
impacts, as the likely population abundance is greater than 20,000 
whales. More information about the minke whale UME is available online 
at https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in table 1, 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 authorized.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging 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 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:
    <bullet> No serious injury or mortality is anticipated or 
authorized;
    <bullet> No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures or authorized;
    <bullet> 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;
    <bullet> 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;
    <bullet> Take is anticipated to be of Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the ensonified area;
    <bullet> While the Lease Area and potential ECRs is within areas 
noted as a migratory BIA and SMA for NARW, 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
    <bullet> The mitigation measures, including visual monitoring and 
shutdowns, are expected to minimize potential impacts to marine 
mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
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 
will 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

[[Page 81473]]

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 has authorized 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 6). The figures presented in table 6 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 activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

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

Authorization

    NMFS has issued an IHA to Bay State Wind for the potential 
harassment of small numbers of 17 marine mammal species incidental to 
conducting site characterization surveys off the coast of Rhode Island 
and Massachusetts that includes the previously explained mitigation, 
monitoring and reporting requirements.

    Dated: October 3, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-23259 Filed 10-7-24; 8:45 am]
BILLING CODE 3510-22-P


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