[Federal Register Volume 89, Number 201 (Thursday, October 17, 2024)]
[Notices]
[Pages 83655-83669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23984]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE297]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys in the New York Bight

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

ACTION: Notice; issuance of renewal 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 a renewal incidental harassment authorization 
(IHA) to Community Offshore Wind, LLC (COSW) to incidentally harass 
marine mammals incidental to marine site characterization surveys 
offshore from New Jersey and New York in the New York Bight, 
specifically within the Bureau of Ocean Energy Management (BOEM) 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS) Lease Area OCS-A 0539 (Lease Area) 
and associated Export Cable Route (ECR) survey area (ECR Area). There 
are no changes from the proposed authorization to this final 
authorization.

DATES: This authorization is effective from October 9, 2024 through 
June 30, 2025.

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

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

SUPPLEMENTARY INFORMATION: 

Background

    The Marine Mammal Protection Act (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 promulgated or, if the taking is limited to 
harassment, an incidental harassment authorization is issued.
    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

[[Page 83656]]

similar significance, and on the availability of such species or stocks 
for taking for certain subsistence uses (referred to here as 
``mitigation measures''). NMFS must also prescribe requirements 
pertaining to monitoring and reporting of such takings. The definition 
of key terms such as ``take,'' ``harassment,'' and ``negligible 
impact'' can be found in the MMPA and the NMFS's implementing 
regulations (see 16 U.S.C. 1362; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year 
renewal of an IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
    <bullet> An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take); and
    <bullet> A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On June 30, 2023, NMFS issued an IHA to COSW to take marine mammals 
incidental to Marine Site Characterization Surveys in the New York 
Bight, specifically within the BOEM Commercial Lease of Submerged Lands 
for Renewable Energy Development on the OCS Lease Area and associated 
ECR Area (88 FR 42322), effective from July 1, 2023, through June 30, 
2024. On June 14, 2024, NMFS received an application for the renewal of 
that initial IHA. COSW has met all the conditions for a renewal. As 
described in the application for renewal IHA, the activities for which 
incidental take is requested consist of activities that are covered by 
the initial authorization but were not completed prior to its 
expiration. As required, the COSW also provided a preliminary 
monitoring report which confirms that the applicant has implemented the 
required mitigation and monitoring, and which also shows that no 
impacts of a scale or nature not previously analyzed or authorized have 
occurred as a result of the activities conducted. NMFS has decided to 
waive the 60 days renewal requirement, recognizing that the renewal 
IHA, if issued, will expire one year from the expiration date of the 
initial IHA, on June 30, 2025, and having ensured that COSW understands 
that there is a lapse in MMPA authorization coverage between the 
expiration of the initial IHA and the issuance of any renewal. The 
notice of the proposed renewal IHA was published for public comment on 
August 21, 2024 (89 FR 67592). There are no changes from the proposed 
authorization in this final authorization.

Description of the Specified Activities and Anticipated Impacts

    COSW's 2023 IHA authorized take of marine mammals incidental to 
marine site characterization surveys, including high-resolution 
geophysical (HRG) surveys, offshore from New Jersey and New York in the 
New York Bight, which is within the BOEM Lease Area OCS-A 0539 and 
associated ECR Area. Hereafter, both the areas are referred to as the 
Survey Area. The purpose of these surveys is to provide sufficient data 
to meet BOEM guidelines and support the development of offshore wind 
facilities in the survey area. Specifically, data collected would 
support site characterization, siting, and engineering design of 
offshore wind facilities including turbine generators, offshore 
substations, submarine cables and data necessary for project review 
requirements. COSW's 2023 survey plan included 30,467 kilometers (km) 
of trackline. Of note, the trackline was broken down by Lease Area 
survey and ECR survey area. Approximately 28,290 km was planned for the 
Lease Area and 2,177 km for the ECR Area. The effort for bottlenose 
dolphins was differentiated to account for the two stocks present in 
the Survey Area. In the ECR Area trackline, 400 km is in waters <20 
meters (m) deep where the Western North Atlantic Migratory Coastal 
Stock (Coastal Stock) of bottlenose dolphins may be present, whereas 
the remaining 1,777 km is in waters >20 m deep where the Western North 
Atlantic Offshore Stock (Offshore Stock) of bottlenose dolphins may be 
present. In the Lease Area, all 28,290 km of trackline are in waters 
>20 m deep. COSW actually only completed 11,775 km (120 km of trackline 
in waters <20 m deep) of trackline prior to the request for the 
renewal, representing approximately 63 percent. As noted above, the 
effort for bottlenose dolphins was differentiated to account for the 
two stocks present in the Survey Area. Tracklines in the Survey Area in 
waters <20 m and >20 m deep were differentiated to account for 
differences in density between the two stocks of bottlenose dolphins, 
and the appropriate percentages of tracklines (70 and 62, 
respectively).
    Under the renewal IHA, COSW plans to continue to conduct survey 
activities over the remaining approximately 19,092 km of trackline that 
was not completed in 2023. As a result of a miscommunication, COSW's 
initial IHA authorized 400 km less trackline than they intended (i.e., 
30,467 km versus 30,867 km) and, therefore, COSW asked that the renewal 
IHA include the 400 km (19,092 km vs. 18,692) of trackline

[[Page 83657]]

that was inadvertently omitted from the initial IHA. NMFS has 
determined that this correction to the remaining trackline is a minor 
change that does not affect the previous analyses, mitigation or 
monitoring requirements, or take estimates (except, of course, for the 
reduction in the take estimates). The percent of trackline left to 
survey and estimated take that may occur has been updated accordingly. 
COSW will have a maximum of three vessels surveying concurrently.
    The potential impacts of COSW's planned activities on marine 
mammals involve acoustic stressors and are unchanged from the impacts 
described in the Federal Register notice for the initial Proposed IHA 
(88 FR 24574, April 21, 2023). Underwater sound, resulting from 
particular components of COSW's HRG survey activities, has the 
potential to result in incidental take of marine mammals, in the form 
of Level B harassment only, in the specified geographic region.
    This renewal IHA is for the remainder of work that was not 
completed by the expiration date of the 2023 IHA. The renewal IHA 
authorizes incidental take, by Level B harassment, only of 15 species 
(16 stocks) of marine mammals for a subset of marine site 
characterization survey activities to be completed, in the same area, 
using survey methods identical to those conducted under the 2023 IHA. 
Neither COSW nor NMFS expect serious injury or mortality to result from 
this activity and, therefore, an IHA is appropriate. Take by Level A 
harassment (injury) is unlikely, even absent mitigation, based on the 
characteristics of the signals produced by the acoustic sources planned 
for use. Therefore, the anticipated effects on marine mammals and the 
affected stocks also remain the same. All mitigation, monitoring, and 
reporting measures would remain exactly as described in the Federal 
Register notice for the issued 2023 IHA (88 FR 42322, June 30, 2023).

Detailed Description of the Activity

    A detailed description of the surveys for which incidental take is 
proposed here may be found in the Federal Register Notices of the 
initial Proposed IHA (88 FR 24574, April 21, 2023). The specific 
geographic region and specified activities, including the types of 
survey equipment and number of survey vessels planned for use, are 
identical to those described in the previous notice, with the exception 
of the reduction in the size of the survey area since a small subset of 
the survey work planned under the 2023 IHA was completed. This renewal 
IHA is effective from [insert date of issuance] through June 30, 2025.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to COSW was 
published in the Federal Register on August 21, 2024 (89 FR 67592). 
That notice described, in detail, or referenced descriptions of COSW'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. NMFS received a total of two public 
comment letters. One public comment letter was from a non-governmental 
organization (Clean Ocean Action (COA)). The other was from the 
Wampanoag Tribe of Gay Head (Aquinnah) (Tribe).
    We reiterate 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. Some comments 
requested that NMFS fully study the implications of the Vineyard Wind 
blade failure on marine mammals before moving forward with offshore 
wind development, oppose take from offshore wind until the U.S. Coast 
Guard has finished establishing shipping safety fairways to balance 
offshore wind development with navigational safety, criticize NMFS and 
BOEM for improperly segmenting offshore wind activities in the Atlantic 
Ocean, and criticize BOEM's underdeveloped understanding of marine 
mammal species' current status such that the agency cannot accurately 
plan for future protections and mitigation of potential impacts. We do 
not specifically address these comments because they are out of scope 
of the proposed Renewal IHA (89 FR 67592, August 21, 2024). 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: A commenter has suggested that a Letter of Authorization 
(LOA) would be more appropriate than an IHA for the proposed survey 
activities, as the survey activities have spanned more than one year 
and NMFS has not indicated if the additional year will be sufficient to 
complete the remaining work. The commenter further stated that it is 
unclear whether there will be another renewal IHA proposed and 
authorized at the end of the current IHA, should it be granted.
    Response: NMFS disagrees with the commenter that an LOA would be 
more appropriate than an IHA for the planned survey activities simply 
because the survey activity has extended for more than a year. The MMPA 
allows, upon request, the incidental take of small numbers of marine 
mammals by U.S. citizens, engaged in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made. Two types of authorizations may be issued under 
Sections 101(a)(5)(A) and (D) of the MMPA. An LOA and accompanying 
incidental take regulation (ITR) may be issued to authorize U.S. 
citizens, engaged in a specified activity (other than commercial 
fishing), to take small numbers of marine mammals for up to 5 years, 
whereas an IHA may be issued to authorize U.S. citizens, engaged in a 
specified activity (other than commercial fishing), to take small 
numbers of marine mammals by harassment for a period of 1 year. Neither 
the MMPA, nor its legislative history specifically require U.S. 
citizens to seek an LOA/ITR pursuant to section 101(a)(5)(A) of the 
MMPA simply because an activity continues for more than one year. A 
determination of which option to pursue is not solely dependent on 
whether an activity continues for more than one year.
    While the NMFS website recommends that applicants seek an LOA if 
specified activity has the potential to result in harassment only and 
is planned for multiple years, it is not dispositive. On our website 
and in various Federal Register notices, NMFS explains that a renewal 
IHA is available to address those circumstances in which an action 
under the initial IHA could not be completed within the effective 
period of the authorization. COSW's request for the initial IHA 
indicated a project duration of 1 year. As delays may be encountered, 
the Federal Register notices for the Proposed IHA and the Proposed 
Renewal IHA further establish that NMFS may issue ``a one-time, one-
year renewal IHA'' on a case-by-case basis if certain conditions are 
met (88 FR 24574, Apr. 21, 2023; 89 FR 67592, Aug. 21, 2024). In order 
to qualify for a renewal IHA, the proposed renewal must consist of no 
more than one additional year of identical, or nearly identical, 
activities as were covered by the initial IHA or a subset of the 
activities covered by the initial IHA.

[[Page 83658]]

Additionally, the request for a renewal IHA must be accompanied by a 
preliminary monitoring report and explanation that the results do not 
indicate impacts of a scale or nature not previously analyzed or 
authorized. NMFS must also find there are no more than minor changes in 
the activities, the mitigation and monitoring measures remain the same 
and are appropriate, and the findings in the initial IHA remain valid.
    Upon review of the COSW's request for renewal, the status of the 
affected species or stocks, the preliminary monitoring report, and 
other pertinent information, NMFS finds: (1) COSW's renewal request is 
a subset of the activities covered by the initial IHA; (2) there are no 
more than minor changes in the survey activities (i.e., COSW's 
correction of the remaining survey tracklines); (3) COSW's preliminary 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized under the initial IHA; (4) mitigation 
and monitoring requirements are identical to those established in the 
initial IHA; and (5) the findings in the initial IHA (including the 
take estimates and small numbers determinations (except, of course, for 
reductions in each resulting from the change in the survey effort) and 
negligible impact determinations) remained valid. Therefore, COSW meets 
the conditions for a renewal IHA.
    Comment 2: A commenter states there is considerable uncertainty 
regarding the effect of preconstruction surveying on marine mammals.
    Response: NMFS disagrees. NMFS has issued IHAs for marine site 
characterization surveys and HRG surveys since 2014 and marine mammal 
behavioral responses, or lack thereof, from these activities are well 
documented. Marine mammal monitoring reports from authorized surveys 
and the best available science indicate that only Level B harassment 
(i.e., temporary disruption of behavioral patterns) may occur. No 
mortality or serious injury, or Level A harassment, is expected to 
occur as a result of COSW's planned surveys, and there is no scientific 
evidence indicating that any marine mammal could experience mortality 
or serious injury as a direct result of noise from HRG survey activity.
    Comment 3: A commenter stated that Protected Species Observers 
(PSO) reports are rarely published publicly in any consistent way 
unless and until a developer applies for an IHA renewal.
    Response: NMFS disagrees with the commenter's assertion that PSO 
reports are rarely published unless a developer applies for an IHA 
renewal. All applicants are required to submit a PSO report within 90 
days after completion of survey activities that fully documents the 
methods and monitoring protocols, summarizes the data recorded during 
monitoring. All PSO reports are made publicly available on NMFS's 
website after receipt. The preliminary PSO report submitted by the 
applicant and noted in the Federal Register notice (89 FR 67592, August 
21, 2024) proposing this action was a requirement under the BOEM 
Project Design Criteria (PDC) and Best Management Practices (PDC 8). 
COSW's preliminary PSO report is publicly available on NMFS's website. 
To view the preliminary PSO information, please visit: https://www.fisheries.noaa.gov/action/incidental-take-authorization-community-offshore-wind-llc-marine-site-characterization. NMFS agrees with the 
need for reporting and indeed, the MMPA calls for IHAs to incorporate 
reporting requirements and a final marine mammal PSO report is required 
for the 2023 IHA. As included in the proposed IHA, the final IHA 
includes requirements for reporting that supports COA's recommendations 
for consistent reporting, as well as timeframes for when reports will 
be considered complete and subsequently made publicly available. COSW 
is required to submit a PSO report to NMFS within 90 days after 
completion of survey activities that fully documents the methods and 
monitoring protocols, summarizes the data recorded during monitoring. 
All final reports and associated data submitted to NMFS are posted on 
NMFS' website.
    Comment 4: Commenters state they do not agree with the use of a 
Categorical Exclusion (CE) under National Environmental Policy Act 
(NEPA) and further analysis should be conducted while considering 
cumulative effects of the proposed IHA relative to other authorized 
takes in the area, including the activities conducted under the 2023 
IHA and other projects in the New York Bight.
    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 may be used to address 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

[[Page 83659]]

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 COSW'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 COSW 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 COSW'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 COSW's activities fall within the 
scope of activities analyzed in GARFO's programmatic consultation 
regarding geophysical surveys along the U.S. Atlantic coast in the 
three Atlantic Renewable Energy Regions (completed June 29, 2021; 
revised September 2021), which concluded surveys such as those planned 
by COSW are not likely to adversely affect ESA-listed species or 
adversely modify or destroy critical habitat. Accordingly, NMFS has 
determined that the issuance of this IHA will result in no more than 
negligible (as that term is defined by the Companion Manual for NAO 
216-6A) adverse effects on species protected by the ESA and the MMPA.
    Further, the issuance of this IHA will not result in highly 
controversial environmental effects or result in environmental effects 
that are uncertain, unique, or unknown because numerous entities have 
been engaged in site characterization surveys that result in Level B 
harassment of marine mammals in the United States. This type of 
activity is well documented; prior authorizations and analysis 
demonstrates issuance of an IHA for this type of action only affects 
the marine mammals that are the subject of the specific authorization 
and, thus, no potential for significant cumulative impacts are 
expected, regardless of past, present, or reasonably foreseeable 
actions, even though the impacts of the action may not be significant 
by itself. Based on this evaluation, we concluded that the issuance of 
the IHA qualifies to be categorically excluded from further NEPA 
review.
    Comment 5: Commenters object to allowing any takes to North 
Atlantic right whales (NARW) due to the species' fragile status and 
believe that preserving the existence of NARW warrants pausing offshore 
development off the Atlantic coast. Commenters state that NMFS needs to 
study the cumulative harassment of marine mammals and other listed 
species, particularly the NARW whose existence are an integral part of 
traditional lifeways and cultural practices. Commenters urge NMFS to 
assess cumulative impacts to this most endangered species, including 
the total number, speed, and distance of vessel trips required for 
marine site characterization survey activities, for all concurrent 
projects in the region. Commenter's also reference Thorne and Wiley's 
(2024) paper stating that the conclusion highlights the need for 
further study on marine mammal strandings and the cumulative impacts of 
offshore wind.
    Response: NMFS disagrees with the commenter's statement. NMFS 
authorizes take of marine mammals incidental to marine site 
characterization surveys but the renewal IHA issued to COSW does not 
authorize the surveys themselves and does not authorize offshore wind 
development. The purpose of the marine site characterization surveys is 
to obtain sufficient data to meet BOEm guidelines for geophysical, 
geotechnical, and geohazard information to support site 
characterization, sight, and engineering design of future offshore wind 
project facilities. While NMFS has the authority to modify, suspend, or 
revoke an IHA if the IHA holder fails to abide by the conditions 
prescribed therein (including, but not limited to, failure to comply 
with monitoring or reporting requirements), or if NMFS determines that 
(1) the authorized taking is having or is likely to have more than a 
negligible impact on the species or stocks of affected marine mammals, 
or (2) the prescribed measures are likely not or are not effecting the 
least practicable adverse impact on the affected species or stocks and 
their habitat, it is not within NMFS' jurisdiction to impose a blanket 
moratorium on offshore wind development or to require cessation of the 
marine site characterization on the basis of unsupported speculation.
    NMFS recognizes and appreciates the importance of the NARW as an 
integral part of traditional lifeways and cultural practices. But, 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. NMFS notes there 
have never been reports of any serious injuries or mortalities of any 
marine mammal associated with any marine site characterization surveys. 
And, the commenter did not provide any compelling scientific evidence 
to support their claim that the proposed IHA and specific activities 
would lead to mortality or serious injury of NARWs.
    The best available science indicates that Level B harassment, or 
disruption of behavioral patterns, may occur as a result of COSW's 
specified activities. This point has been well supported by other 
agencies, including the Bureau of Ocean Energy Management and the 
Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 
2023). A recent study by Thorne and Wiley (2024) reviewed spatio-
temporal 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 spatio-
temporal analysis, no evidence was found that offshore wind development 
contributed to the increased number of strandings, serious injuries or 
mortalities; for example, spatio-temporal 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 COSW 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. NMFS is not suggesting the study by Thorne and Wiley 
(2024) presents any final resolution of the issue and generically 
agrees with the need for continued investigation on offshore wind 
effects on marine mammals. However, that does not impact our findings 
here for this IHA, or our determination that the specified activities 
will have a negligible impact on marine mammals.
    There is an ongoing unusual mortality event (UME) for humpback 
whales along the Atlantic coast from Maine to Florida, which includes 
animals stranded since 2016. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Necropsies were not 
conducted on other

[[Page 83660]]

carcasses because they were too decomposed, not brought to land, or 
stranded on protected lands (e.g., national and state parks) where 
responders had limited or no access to the carcasses. Of the roughly 90 
whales examined, about 40 percent had evidence of human interaction 
(i.e., vessel strike or entanglement). The remaining 50 necropsied 
whales either had an undetermined cause of death due to a limited 
examination or decomposition of the carcass, or had other causes of 
death (e.g., parasite-caused organ damage and starvation). Ongoing UMEs 
are also occurring for NARW and minke whales, both since 2017. NMFS 
will continue to gather data to help us determine the cause of death 
for these stranded whales. Vessel strikes and entanglement in fishing 
gear continue to be the greatest human threats to large whales.
    We also refer to the GARFO 2021 Programmatic Consultation, which 
finds that these survey activities are in general not likely to 
adversely affect marine mammal species listed under the ESA (i.e., 
GARFO's analysis conducted pursuant to the ESA finds that marine 
mammals are not likely to be taken at all (as that term is defined 
under the ESA), much less be taken by serious injury or mortality). 
That document is found at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation. The impacts of 
Level B harassment authorized here (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.
    NMFS also notes the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
for Bureau of Ocean Energy Management Lease and Site Assessment Rhode 
Island, Massachusetts, New York, and New Jersey Wind Energy Areas 
(https://repository.library.noaa.gov/view/noaa/29291). Analyzed 
activities include those for which NMFS issued previous IHAs (82 FR 
31562, July 7, 2017; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 
2021), which are similar to those planned by COSW under this current 
IHA request.
    For NMFS' response on cumulative impacts, please see our response 
to Comment 4.
    Comment 6: The Wampanoag Tribe of Gay Head (Aquinnah) (Tribe) 
stated that NMFS continues to administer Section 7 consultations and 
take permits without complying with Executive Order 13175 that requires 
meaningful government-to-government consultation with Tribes on matters 
that have implications for tribes, and requested that no IHAs are 
renewed in the New York Bight until the issue is addressed.
    Response: Executive Order 13175 directs Federal agencies to 
establish procedures for meaningful consultation and coordination with 
Tribal officials in the development of Federal policies that have 
Tribal implications. 65 FR 67249 (Nov. 9, 2000). ``Policies that have 
tribal implications'' refers to regulations, legislative comments or 
proposed legislation, and other policy statements or actions that have 
substantial direct effects on one or more Indian Tribes, on the 
relationship between the Federal Government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian Tribes. Additionally, the consultation 
requirement set forth in Section 5 of Executive Order 13175 provides 
that ``Each agency shall have an accountable process to ensure 
meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' NMFS is committed 
to carrying out its responsibilities under Executive Order 13175, as 
implemented through NOAA Administrative Order 218-8 (Policy on 
Government-to-Government Consultation with Federally-Recognized Indian 
Tribes and Alaska Native Corporations) and the NOAA Tribal Consultation 
Handbook. However, NMFS disagrees that renewal of the IHA for the take 
of marine mammals incidental to HRG surveys in the New York Bight 
should be suspended. We intend to engage with the Tribe going forward 
to ensure that we satisfy our responsibilities under Executive Order 
13175 and address to the extent possible (in context of the actions we 
are responsible for) the Tribe's concerns regarding wind energy 
development.
    Comment 7: A commenter has requested that NMFS provide 
documentation for its determination to add an additional 400 km of 
trackline that was inadvertently excluded from the 2023 IHA--not 
providing the factual basis for the conclusion would make the finding 
arbitrary and capricious. The commenter further states that ``nearly 
identical'' has not been defined in NOAA protocols and the standard is 
subjective.
    Response: Please see the Detailed description of the Activity in 
the Federal Register notice of proposed IHA (89 FR 67592, August 21, 
2024). The request from COSW to include the additional 400 km of 
trackline is documented in this notice. NMFS has determined that the 
inclusion of the additional 400 km to the remaining survey trackline is 
a minor change that does not affect the analyses, mitigation and 
monitoring requirements remained the same as those identified in the 
initial IHA, NMFS's negligible impact determination on the affected 
species and/or stocks remained the same and, further, the remaining 
survey trackline for this renewal is less than the total trackline 
included in the initial IHA. The maximum percent population for each 
species is small relative to individual stock abundance (less than one 
third) which meets the criteria for NMFS to make a negligible impact 
determination for COSW's specified activities.
    While ``nearly identical'' is not explicitly defined, NMFS believes 
the plain language definition is adequate. The IHA renewal process 
guidance on our website indicates that the applicant must clearly 
describe any minor change in the activity and why the change will have 
either no effect on the impacts to marine mammals, or will decrease the 
type and/or amount of expected take. An example of an applicant that is 
qualified for a renewal is an applicant conducting bird research at 
three sites (resulting in behavioral harassment of pinnipeds) as 
covered by the initial IHA. Sixty days prior to expiration of the 
initial IHA, the applicant requests a renewal to authorize take 
incidental to a second year conducting the same research, at the same 
three sites, for the same duration, in the same seasons--with no other 
known changes. An example of an applicant that is not qualified for 
renewal is an applicant conducting bird research at three sites 
(resulting in behavioral harassment of pinnipeds) as covered by the 
initial IHA. Two months prior to the expiration of the initial IHA, the 
applicant requests a renewal to authorize take incidental to a second 
year conducting the same research, at the same three sites, for the 
same duration, in the same seasons--but wishes to add one new site to 
the research activity, which is associated with the need for additional 
take authorization (i.e., higher numbers than the initial IHA). 
Further, examples

[[Page 83661]]

illustrating activities that do and do not qualify for a renewal are 
included on the website. NMFS has determined that the activities 
planned in the renewal IHA are nearly identical to those identified in 
the initial IHA, using the same survey equipment and number of survey 
vessels planned for use and covering the same geographic region. COSW 
will be using the same sparker systems (applied Acoustics Dura-Spark 
UHD 400+400 Seismic Sound Source (400 tip/300-1,000 joules (J)) and the 
Geo-Source 200-400 Marine Multi-Tip Sparker System (400 tip/300-1,000 
J)) and implementing the same mitigation, monitoring, and reporting. 
Since the addition of 400 km of trackline does not increase the take 
beyond that analyzed or change the negligible impact determination, 
NMFS has determined that this change is minor and does not affect the 
previous analysis. For more information about the details and 
conditions of the IHA renewal process, please visit https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.
    Comment 8: A commenter suggested NMFS should work with other 
agencies to produce or commission an independent study about marine 
mammal mortality on the East Coast, specifically to cross-reference PSO 
data with the coordinates of marine mammal strandings to determine 
whether there is a correlation between wind surveying activities and 
strandings. The commenter states that using PSO data will improve the 
best available science to predict and potentially prevent impacts to 
marine mammals, and NMFS should refrain from issuing IHAs until the 
agency can determine the cause of the marine mammal deaths.
    Response: NMFS disagrees that the renewal IHA should be denied, as 
we have made the necessary findings required by the MMPA for issuance 
and supported them with the necessary analyses and best available 
science. Neither the proposed IHA nor this final IHA allow mortality or 
serious injury of marine mammals to be authorized. NMFS authorizes take 
of marine mammals incidental to marine site characterization surveys 
but does not authorize the surveys themselves. Therefore, while NMFS 
has the authority to modify, suspend, or revoke an IHA if the IHA 
holder fails to abide by the conditions prescribed therein (including, 
but not limited to, failure to comply with monitoring or reporting 
requirements), or if NMFS determines that (1) the authorized taking is 
having or is likely to have more than a negligible impact on the 
species or stocks of affected marine mammals, or (2) the prescribed 
measures are likely not or are not effecting the least practicable 
adverse impact on the affected species or stocks and their habitat, it 
is not within NMFS' jurisdiction to impose a moratorium on offshore 
wind development or to require surveys to cease on the basis of 
unsupported speculation.
    NMFS appreciates the suggestion to commission a study that would 
cross-reference PSO data with coordinates of marine mammal strandings 
to investigate a correlation between the two, but notes that 
correlation is not equivalent to causation, especially if all potential 
factors are not considered. The data collected by PSOs, and subsequent 
analysis, provide the necessary information to inform an estimate of 
the amount of take that occurred during the activity, better understand 
the impacts of the activity on marine mammals, address the 
effectiveness of monitoring and mitigation measures, and to adaptively 
manage activities and mitigation in the future. Data reported includes 
information on marine mammal sightings, activity occurring at time of 
sighting, monitoring conditions, and if mitigation was employed. NMFS 
has considered the best available science regarding the effect of wind 
surveying activities and marine mammal strandings and has determined 
there is no evidence that noise arising from offshore wind development-
related site characterization surveys could potentially cause marine 
mammal stranding, mortality, or serious injury. There is no evidence 
linking recent large whale mortalities to past or ongoing site 
characterization surveys. The commenters offer no such evidence. NMFS 
will continue to gather data to help us determine the cause of death 
for stranded whales on the East Coast of the United States. We further 
note the Marine Mammal Commission's recent statement: ``There continues 
to be no evidence to link these large whale strandings to offshore wind 
energy development, including no evidence to link them to sound emitted 
during wind development-related site characterization surveys, known as 
HRG surveys. Although HRG surveys have been occurring off New England 
and the mid-Atlantic coast, HRG devices have never been implicated or 
causatively-associated with baleen whale strandings.'' (Marine Mammal 
Commission Newsletter, Spring 2023).
    Of the strandings documented to date worldwide, NMFS is not aware 
of any being attributed to the types of HRG equipment proposed for use 
during COSW's surveys. Recently, there has been heightened interest in 
HRG surveys relative to recent marine mammals strandings along the U.S. 
East Coast. HRG surveys involve the use of certain sources to image the 
ocean bottom, which are very different from seismic airguns used in oil 
and gas surveys or tactical military sonar, in that they produce much 
smaller impact zones. Marine mammals may respond to exposure to these 
sources by, for example, avoiding the immediate area, which is why 
offshore wind developers, like COSW, seek authorization for Level B 
(behavioral) harassment. However, because of the combination of lower 
source levels, higher frequency, narrower beam-width (for some 
sources), and other factors, the area within which a marine mammal 
might be expected to be behaviorally disturbed by HRG sources is much 
smaller (by orders of magnitude) than the impact areas for seismic 
airguns or the military sonar with which a small number of marine 
mammal have been causally associated. Specifically, estimated 
harassment zones for HRG surveys are typically less than 200 m (such as 
those associated with the project), while the harassment zones for 
military mid-frequency active sonar or seismic airgun surveys typically 
extend for several kms ranging up to 10s of km. Further, because of 
this much smaller ensonified area, any marine mammal exposure to HRG 
sources is reasonably expected to be at significantly lower levels and 
shorter duration (associated with less severe responses), and there is 
no evidence suggesting that marine mammals exposed to HRG survey noise 
are likely to be injured, much less strand, as a result. Of note, NMFS 
has performed a thorough review of a report submitted by Rand (2023), 
that includes measurements of the Geo-Marine Geo-Source 400 sparker, 
and suggests that NMFS is assuming lower source and received levels 
than is appropriate in its assessments of HRG impacts. NMFS has 
determined that the values in this IHA are appropriate, based on the 
model methodology (i.e., the assumed source level propagated using 
spherical spreading) here predicting a peak level 3 dB louder than the 
maximum measured peak level at the closest measurement range in Rand 
(2023).
    Also of note, in an assessment of monitoring reports for HRG 
surveys received from 2021 and later, as compared to the takes of 
marine mammals authorized, an average of fewer than 15 percent of all 
species with authorized take have been detected within harassment 
zones, with no more than 27 percent for any species

[[Page 83662]]

(common dolphins) and 20 percent or fewer for all other species. The 
most common behavioral reaction to the HRG sound source reported was 
``change direction'' though detections of ``no behavioral change'' 
occurred nearly twice as many times as ``change direction,'' if not 
more.
    Additionally, a recent paper by Thorne and Wiley (2024) reviewed 
spatio-temporal patterns of strandings, mortalities, and serious 
injuries of humpback whales along the U.S. East Coast from 2016-2022. 
Humpback whales were chosen as a case study for this analysis because 
of its ongoing UME and since Humpback whales strand more often than 
other large whale species. Thorne and Wiley (2024) found vessel strikes 
to be a major driver in the increase of humpback whale strandings, 
mortalities, and serious injury along the U.S. East Coast. The 
potential for vessel strike increased during the study period due to 
increased vessel traffic in new foraging areas, the increased presence 
of juvenile humpback whales, and humpback whale foraging in shallow 
areas that overlap with vessel traffic. Based upon the spatio-temporal 
analysis, no evidence was found that offshore wind development 
contributed to the increased number of strandings over time. Future 
studies should focus on gaining a greater understanding of spatial and 
seasonal habitat use patterns of large whales, spatio-temporal changes 
in prey abundance and distribution, and how habitat use and foraging 
behavior affect the risk of vessel strike. Recently, NMFS was made 
aware of a media article wherein a member of the public conducted a 
statistical analysis on the correlation between offshore wind vessel 
use and whale deaths along the U.S. East Coast (Climate Change 
Dispatch, 2024). NMFS has long recognized that marine mammals 
strandings have increased over the years, including increases in 
strandings of three large whale species resulting in the declaration of 
UMEs for minke, humpback, and NARW in 2018, 2017, and 2017 
respectively. Offshore wind development has increased over the same 
time period. However, NMFS does not ascribe much weight to the 
analysis. The analysis presented in the Climate Change Dispatch article 
was not peer-reviewed, and does not appear to separate other vessel 
movement from offshore wind-related survey activities, did not consider 
other known factors that are increasing ship strike risk in general 
(e.g., Thorne and Wiley, 2024) or other factors leading to increased 
strandings (e.g., entanglement, climate change), and the analysis did 
not demonstrate that offshore wind vessel traffic or HRG surveys are 
the cause of strandings. Overall, while NMFS considered this 
information, the Climate Change Dispatch article did not provide new 
information that links whale strandings to offshore wind vessel 
movement or surveys.
    Furthermore, NMFS does not expect that the generally short-term, 
intermittent, and transitory marine site characterization survey 
activities planned by COSW will create conditions of acute or chronic 
acoustic exposure leading to long-term physiological impacts in whales. 
The best available science indicates that Level B harassment (i.e., 
disruption of behavioral patterns) may occur as a result of COSW's 
specified activities. We also refer to the Greater Atlantic Regional 
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds 
that these survey activities are in general not likely to adversely 
affect Endangered Species Act (ESA)-listed marine mammal species. That 
document is found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation.
    NMFS does not use PSO data to `predict and potentially prevent 
impacts to marine mammals', but has reviewed the best available 
scientific information about the occurrence of marine mammals, 
including current density data and other relevant information, to 
understand marine mammal densities in the planned survey area, 
calculate take estimates, and develop mitigation measures. Habitat-
based density models produced by the Duke University Marine Geospatial 
Ecology Laboratory (Roberts et al., 2016, Roberts et al., 2023) 
represent the best available information regarding marine mammal 
densities in the planned survey area. These density data incorporate 
aerial and shipboard line-transect survey data from NMFS and other 
organizations and incorporate data from numerous physiographic and 
dynamic oceanographic and biological covariates, and controls for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. These density models were 
originally developed for all cetacean taxa in the U.S. Atlantic in 2016 
and models for all taxa were updated in 2022 (Roberts et al., 2016, 
Roberts et al., 2023). More information is available online at https://seamap.env.duke.edu/models/Duke/EC/.
    Marine mammal density estimates in the survey area (animals/km\2\) 
were obtained using the most recent model results for all taxa. NMFS 
takes seriously the risk of impact to marine mammals through survey 
activities and has prescribed measures to ensure the least practicable 
adverse impact on species or stocks and their habitat. The full list of 
mitigation measures can be found in Condition 4 of the IHA and in the 
Mitigation section of this notice. The mitigation measures included in 
COSW's IHA are not unique, and data from prior IHAs support the 
effectiveness of these mitigation measures. Level B harassment will be 
reduced through use of mitigation measures described herein.
    Comment 9: A commenter has stated that PSO reports did not address 
uncertainties related to the cumulative impacts of ecological effects 
of surveying activities for OSW including changes in migration, 
breeding, nursing, needing, or sheltering patterns.
    Response: PSO reports are not designed to address the cumulative 
impacts of offshore wind surveying activities on marine mammals, but, 
as required, help increase our understanding of marine mammals in the 
area and the impacts of the activity on marine mammals. For NMFS' 
response on cumulative impacts, please see our response to Comment 4.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized here, including information on abundance, 
status, distribution, and hearing, may be found in the Federal Register 
notice of the proposed IHA (88 FR 24574, April 21, 2023) for the 
initial IHA. NMFS has reviewed the monitoring data from the initial 
IHA, the draft 2023 Stock Assessment Reports (SARs), which included 
updates to certain stock abundances since the initial IHA was issued, 
information on relevant UMEs, and other scientific literature. The 
draft 2023 SAR updated the population estimate (N<INF>best</INF>) of 
NARW from 338 to 340 and annual mortality and serious injury from 31.2 
to 27.2. The updated population estimate in the draft 2023 SAR is based 
upon sighting history through December 2021 (89 FR 5495, January 29, 
2024). 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, however, estimates of 27.2 total mortality and 17.6 
fishery mortality account for undetected mortality and serious injury 
(89 FR 5495, January 29, 2024). In

[[Page 83663]]

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). NMFS conservatively relies in this circumstance on the 
lower SAR abundance estimate.
    The population estimates (N<INF>best</INF>) also increased for the 
North Atlantic stock of sperm whales, the Western North Atlantic 
Offshore stock of common bottlenose dolphins, Western North Atlantic 
stocks of Risso's dolphins, Atlantic spotted dolphins, and gray seals. 
However, abundance estimates slightly decreased for the Western North 
Atlantic stocks of common dolphins and harbor porpoises. NMFS has 
determined there is no new information that affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the initial IHA.

Potential Effects 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 
authorized may be found in the Notices of the Proposed (88 FR 24574, 
April 21, 2023) and Final IHAs (88 FR 42322, June 30, 2023) for the 
initial IHA. NMFS has reviewed the monitoring data from the initial 
IHA, recent draft stock assessment reports, information on relevant 
UMEs and other scientific literature and determined that there is no 
new information that affects our initial analysis of impacts on marine 
mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
Notice of the Final IHA (88 FR 42322, June 30, 2023) for the initial 
IHA. Specifically, the source levels, days of operation, and marine 
mammal density/occurrence data applicable to this authorization remain 
unchanged from the initial IHA. Similarly, the stocks taken, methods of 
take, and types of take remain unchanged from the initial IHA, as do 
the number of takes, which are indicated below in table 1. The number 
of takes authorized are a subset of the initial authorized takes that 
better represent the amount of the remaining activity COSW has left to 
complete. These estimated takes, which reflect the remaining survey 
trackline, are indicated below in table 1.

                     Table 1--Authorized Number of Takes by Level B Harassment by Species and Stock and Percent of Take by Stock \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              2024 renewal IHA
                                                                                                                  --------------------------------------
                                                                                                        2023 IHA    Percentage
               Species                     Scientific name               Stock            Abundance    authorized       of      Estimate of
                                                                                                          take      trackline     take for   Max percent
                                                                                                                    requested    requested    population
                                                                                                                    in renewal   trackline
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale...........  Eubalaena glacialis....  Western Atlantic.......          340           24           63           15      \2\ 4.4
Fin whale............................  Balaenoptera physalus..  Western North Atlantic.        6,802           76           63           48          0.7
Sei whale............................  Balaenoptera borealis..  Nova Scotia............        6,292           24           63           15          0.2
Minke whale..........................  Balaenoptera...........  Canadian East Coastal..       21,968          304           63          192          0.9
                                       acutorostrata..........
Humpback whale.......................  Megaptera novaeangliae.  West Indies DPS........        1,396           46           63           29          2.1
Sperm whale..........................  Physeter macrocephalus.  North Atlantic.........        4,349           10           63            6          0.1
Risso's dolphin......................  Grampus griseus........  Western North Atlantic.       35,215           59           63           37          0.1
Long-finned pilot whale..............  Globicephala melas.....  Western North Atlantic.       39,215           78           63           49          0.1
Atlantic white-sided dolphin.........  Lagenorhynchus acutus..  Western North Atlantic.       93,233          427           63          269          0.3
Common dolphin.......................  Delphinus delphis......  Western North Atlantic.      172,974        5,572           63        3,510          2.0
Atlantic spotted dolphin.............  Stenella frontalis.....  Western North Atlantic.       39,921          320           63          202          0.5
Common bottlenose dolphin, Offshore    Tursiops truncates.....  Western North Atlantic        62,851        1,316           62          816          1.3
 stock.                                                          Offshore (occurs
                                                                 within >20 m deep).
Common bottlenose dolphin, Northern    Tursiops truncates.....  Western North Atlantic         6,639          115           70           81          1.2
 migratory coastal stock.                                        Northern Migratory
                                                                 Coastal (occurs within
                                                                 <20 m deep).
Harbor porpoise......................  Phocoena phocoena......  Gulf of Maine/Bay of          95,543        1,912           63        1,205          1.3
                                                                 Fundy Stock.
Harbor seal..........................  Phoca vitulina.........  Western North Atlantic.       61,336        1,955           63        1,232          2.0
Gray seal \3\........................  Halichoerus grypus.....  Western North Atlantic.       27,300        1,955           63        1,232          4.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ Based on the 2023 draft marine mammal stock assessment reports (SAR).
\3\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,600. The annual mortality/serious injury given is for the total stock.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this IHA are identical to those included in the Federal 
Register notice announcing the issuance of the initial IHA (88 FR 
42322, June 30, 2023) and the discussion of the least practicable 
adverse impact determination included in that document remains 
applicable and accurate.
    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
the Federal Register notice of the proposed IHA remains accurate. NMFS 
will require the following measures for this renewal IHA:

Visual Monitoring and Shutdown Zones

    COSW must employ independent, dedicated, trained PSOs, meaning that 
the PSOs must (1) be employed by a third-party observer provider, (2) 
have no tasks other than to conduct observational effort, collect data, 
and

[[Page 83664]]

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

Pre-Start Clearance and Ramp-Up Procedures

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
sparker sources when technically feasible. Operators should ramp up 
sparker to half power for 5 min and then proceed to full power. A 30 
min pre-start clearance observation period of the shutdown zones must 
occur prior to the start of ramp-up. The intent of the pre-start 
clearance observation period (30 min) is to ensure no marine mammals 
are within the shutdown zones prior to the beginning of ramp-up. The 
intent of the ramp-up is to warn marine mammals of pending operations 
and to allow sufficient time for those animals to leave the immediate 
vicinity. All operators must adhere to the following pre-start 
clearance and ramp-up requirements:
    <bullet> The operator must notify a designated PSO of the planned 
start of ramp-up as agreed upon with the lead PSO; the notification 
time should not be less than 60 min prior to the planned ramp-up in 
order to allow the PSOs time to monitor the shutdown zones for 30 min 
prior to the initiation of ramp-up (pre-start clearance). During this 
30 min pre-start clearance period the entire shutdown zone must be 
visible, except as indicated below;
    <bullet> Ramp-ups shall be scheduled so as to minimize the time 
spent with the source activated;
    <bullet> A visual PSO conducting pre-start clearance observations 
must be notified again immediately prior to initiating ramp-up 
procedures and the operator must receive confirmation from the PSO to 
proceed;
    <bullet> Any PSO on duty has the authority to delay the start of 
survey operations if a marine mammal is detected within the applicable 
pre-start clearance zone; and
    <bullet> The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that mitigation commands are conveyed swiftly 
while allowing PSOs to maintain watch.
    The pre-start clearance requirement is waived for small delphinids 
and pinnipeds. Detection of a small delphinid (individual belonging to 
the following genera of the Family Delphinidae: Steno, Delphinus, 
Lagenorhynchus, Stenella, and Tursiops) or pinniped within the shutdown 
zone does not preclude beginning of ramp-up, unless the PSO confirms 
the individual to be of a genus other than those listed, in which case 
normal pre-clearance requirements apply.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which the pre-clearance requirement is 
waived), PSOs may use best professional judgment in making the decision 
to call for a shutdown.
    <bullet> Ramp-up may not be initiated if any marine mammal to which 
the pre-start clearance requirement applies is within the shutdown 
zone. If a marine mammal is observed within the shutdown zone during 
the 30 min pre-start clearance period, ramp-up may not begin until the 
animal(s) has been observed exiting the zones or until an additional 
time period has elapsed with no further sightings (30 min for all 
baleen whale species and sperm whales, 15 min for all other species).
    <bullet> PSOs must monitor the shutdown zones 30 min before and 
during ramp-up, and ramp-up must cease and the source must be shut down 
upon observation of a marine mammal within the applicable shutdown 
zone.
    <bullet> Ramp-up may occur at times of poor visibility, including 
nighttime, if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 min prior to beginning ramp-up. 
Sparker activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.
    If the acoustic source is shut down for brief periods (i.e., <30 
min) for reasons other than implementation of prescribed mitigation 
(e.g., mechanical difficulty), it may be activated again without ramp-
up if PSOs have maintained constant visual observation and no 
detections of marine mammals have occurred within the applicable 
shutdown zone. For any longer shutdown, pre-start clearance observation 
and ramp-up are required.

Shutdown Procedures

    All operators must adhere to the following shutdown requirements:
    <bullet> Any PSO on duty has the authority to call for shutdown of 
the sparker source if a marine mammal is detected within the applicable 
shutdown zone;
    <bullet> The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
source to ensure that shutdown commands are conveyed swiftly while 
allowing PSOs to maintain watch;
    <bullet> When the sparker source is active and a marine mammal 
appears within or enters the applicable shutdown zone, the source must 
be shut down. When shutdown is instructed by a PSO, the sparker source 
must be immediately deactivated and any dispute resolved only following 
deactivation; and
    <bullet> Two shutdown zones are defined, depending on the species 
and context.

[[Page 83665]]

An extended shutdown zone encompassing the area at and below the sea 
surface out to a radius of 500 m from the sparker source (0-500 m) is 
defined for NARW. For all other marine mammals, the shutdown zone 
encompasses a standard distance of 100 m (0-100 m) during the use of 
the sparker.
    The shutdown requirement is waived for small delphinids and 
pinnipeds. If a small delphinid (individual belonging to the following 
genera of the Family Delphinidae: Steno, Delphinus, Lagenorhynchus, 
Stenella, and Tursiops) or pinniped is visually detected within the 
shutdown zone, no shutdown is required unless the PSO confirms the 
individual to be of a genus other than those listed, in which case a 
shutdown is required.
    If there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived or one of the species 
with a larger shutdown zone), PSOs may use best professional judgment 
in making the decision to call for a shutdown.
    Upon implementation of shutdown, the source may be reactivated 
after the marine mammal has been observed exiting the applicable 
shutdown zone or following a clearance period (30 min for all baleen 
whale species and sperm whales, 15 min for all other species) with no 
further detection of the marine mammal.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (158 m), shutdown must occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel must use an appropriate reference 
guide that includes identifying information on all marine mammals that 
may be encountered. Vessel operators must comply with the below 
measures except under extraordinary circumstances when the safety of 
the vessel or crew is in doubt or the safety of life at sea is in 
question. These requirements do not apply in any case where compliance 
would create an imminent and serious threat to a person or vessel or to 
the extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.
    Vessel operators and crews must maintain a vigilant watch for all 
marine mammals and slow down, stop their vessel(s), or alter course, as 
appropriate and regardless of vessel size, to avoid striking any marine 
mammals. A single marine mammal at the surface may indicate the 
presence of submerged animals in the vicinity of the vessel; therefore, 
precautionary measures should always be exercised. A visual observer 
aboard the vessel must monitor a vessel strike avoidance zone around 
the vessel (species-specific distances are detailed below). Visual 
observers monitoring the vessel strike avoidance zone may be third-
party observers (i.e., PSOs) or crew members, but crew members 
responsible for these duties must be provided sufficient training to 
(1) distinguish marine mammal from other phenomena and (2) broadly to 
identify a marine mammal as a NARW, other whale (defined in this 
context as sperm whales or baleen whales other than NARWs), or other 
marine mammals.
    All survey vessels, regardless of size, must observe a 10-knots 
(kn) (18.52-km/h) speed restriction in specific areas designated by 
NMFS for the protection of NARWs from vessel strikes. These include all 
SMAs established under 50 CFR 224.105 (when in effect), any DMAs (when 
in effect), and Slow Zones. See www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail regarding these areas.
    <bullet> All vessels must reduce speed to 10 kn (18.52 km/h) or 
less when mother/calf pairs, pods, or large assemblages of cetaceans 
are observed near a vessel.
    <bullet> All vessels must maintain a minimum separation distance of 
500 m from NARWs, baleen whales (except humpback and minke), sperm 
whales, and any unidentified large whales. If a NARW, baleen whale 
(except humpback and minke), sperm whale, and any unidentified large 
whale is sighted within the relevant separation distance, the vessel 
must steer a course away at 10 kn (18.52 km/h) or less until the 500-m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species other than a NARW, the vessel operator 
must assume that it is a NARW and take appropriate action.
    <bullet> All vessels must maintain a minimum separation distance of 
100 m from all humpback and minke 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 must take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area, reduce speed and shift 
the engine to neutral). This does not apply to any vessel towing gear 
or any vessel that is navigationally constrained.
    <bullet> Members of the PSO team will consult NMFS NARW reporting 
system and Whale Alert, daily and as able, for the presence of NARWs 
throughout survey operations, and for the establishment of DMAs and/or 
Slow Zones. It is COSW's responsibility to maintain awareness of the 
establishment and location of any such areas and to abide by these 
requirements accordingly.

Seasonal Operating Requirements

    As described above, a section of the survey area partially overlaps 
with a portion of a NARW SMA off the port of New York/New Jersey. This 
SMA is active from November 1 through April 30 of each year. The survey 
vessel, regardless of length, would be required to adhere to vessel 
speed restrictions (<10 kn (18.52 km/h)) when operating within the SMA 
during times when the SMA is active (see table 4 of the initial IHA (88 
FR 42322, June 30, 2023). Based on our evaluation of the applicant's 
planned measures, as well as other measures considered by NMFS, NMFS 
has determined that the planned mitigation measures provide the means 
of effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved

[[Page 83666]]

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 must be performed by qualified, NMFS-approved 
PSOs. COSW must submit PSO resumes for NMFS review and approval prior 
to commencement of the survey. Resumes should include dates of training 
and any prior NMFS approval, as well as dates and description of last 
experience, and must be accompanied by information documenting 
successful completion of an acceptable training course.
    For prospective PSOs not previously approved, or for PSOs whose 
approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, who would coordinate 
duty schedules and roles for the PSO team and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.
    A ``trained lookout'' may be used on a space-limited nearshore 
vessel (generally operating in water less than 20 m depth for no more 
than 12 hours/day) during required breaks for the approved PSO on duty. 
Project-specific training must be conducted for all vessel crew with 
``lookout'' responsibilities prior to the start of a survey and during 
any changes in crew such that all relevant survey personnel are fully 
aware and understand the mitigation, monitoring, and reporting 
requirements. All vessel crew members operating as a trained lookout 
must be briefed in the identification of protected species that may 
occur in the survey area and in relevant mitigation requirements. 
Reference materials must be available aboard all project vessels for 
identification of protected species. Should a mitigation action be 
taken, the Trained Lookout will immediately notify the off-watch PSO to 
ensure that the appropriate response was taken and sightings and 
mitigation measures are properly documented (i.e., if shutdown was 
called for or avoidance measures for large whales/vessel strike 
avoidance taken, the Trained Lookout immediately notifies the off-watch 
PSO). If the survey is operating within a DMA or Slow Zone, the survey 
may only operate with a PSO on-watch.
    At least one PSO aboard each acoustic source vessel must have a 
minimum of 90 days at-sea experience working in the role, with no more 
than 18 months elapsed since the conclusion of the at-sea experience. 
One PSO with such experience must be designated as the lead for the 
entire PSO team and serve as the primary point of contact for the 
vessel operator. (Note that the responsibility of coordinating duty 
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the 
lead PSO must devise the duty schedule such that experienced PSOs are 
on duty with those PSOs with appropriate training but who have not yet 
gained relevant experience.
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or more) 
a written and/or oral examination developed for the training program.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    COSW must work with the selected third-party PSO provider to ensure 
PSOs have all equipment (including backup equipment) needed to 
adequately perform necessary tasks, including accurate determination of 
distance and bearing to observed marine mammals, and to ensure that 
PSOs are capable of calibrating equipment as necessary for accurate 
distance estimates and species identification. Such equipment, at a 
minimum, shall include:
    <bullet> At least one thermal (infrared) imagine device suited for 
the marine environment;
    <bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
    <bullet> Global Positioning Units (GPSs) (at least one plus 
backups);
    <bullet> Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex, also known as 
an SLR (at least one plus backups). The camera or lens should also have 
an image stabilization system;
    <bullet> Equipment necessary for accurate measurement of distances 
to marine mammal;

[[Page 83667]]

    <bullet> Compasses (at least one plus backups);
    <bullet> Means of communication among vessel crew and PSOs; and
    <bullet> Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-party PSO provider, or the operator, but COSW is responsible 
for ensuring PSOs have the proper equipment required to perform the 
duties specified in the IHA.
    The PSOs will be responsible for monitoring the waters surrounding 
the survey vessel to the farthest extent permitted by sighting 
conditions, including Shutdown Zones, during all HRG survey operations. 
PSOs will visually monitor and identify marine mammals, including those 
approaching or entering the established Shutdown Zones during survey 
activities. It will be the responsibility of the PSO(s) on duty to 
communicate the presence of marine mammals as well as to communicate 
the action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Shutdown Zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, appropriate night-vision devices (e.g., 
night-vision goggles with thermal clip-ons and infrared technology) 
would be used. Position data would be recorded using hand-held or 
vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs must also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources and between acquisition periods, to the maximum 
extent practicable. Any observations of marine mammals by crew members 
aboard the vessel associated with the survey would be relayed to the 
PSO team. Data on all PSO observations would be recorded based on 
standard PSO collection requirements (see Reporting Measures). This 
would include dates, times, and locations of survey operations; dates 
and times of observations, location and weather; details of marine 
mammal sightings (e.g., species, numbers, behavior); and details of any 
observed marine mammal behavior that occurs (e.g., noted behavioral 
disturbances). Members of the PSO team shall consult the NMFS NARW 
reporting system and Whale Alert, daily and as able, for the presence 
of NARWs throughout survey operations.

Reporting Measures

    COSW shall submit a draft comprehensive report to NMFS on all 
activities and monitoring results within 90 days of the completion of 
the survey or expiration of the IHA, whichever comes sooner. The report 
must describe all activities conducted and sightings of marine mammals, 
must provide full documentation of methods, results, and interpretation 
pertaining to all monitoring, and must summarize the dates and 
locations of survey operations and all marine mammals sightings (dates, 
times, locations, activities, associated survey activities). The draft 
report shall also include geo-referenced, time-stamped vessel 
tracklines for all time periods during which acoustic sources were 
operating. Tracklines should include points recording any change in 
acoustic source status (e.g., when the sources began operating, when 
they were turned off, or when they changed operational status such as 
from full array to single gun or vice versa). GIS files shall be 
provided in Environmental Systems Research Institute, Inc. shapefile 
format and include the Coordinated Universal Time date and time, 
latitude in decimal degrees, and longitude in decimal degrees. All 
coordinates shall be referenced to the WGS84 geographic coordinate 
system. In addition to the report, all raw observational data shall be 
made available. The report must summarize the information. A final 
report must be submitted within 30 days following resolution of any 
comments on the draft report. All draft and final marine mammal 
monitoring reports must be submitted to 
<a href="/cdn-cgi/l/email-protection#065654284f5256284b69686f7269746f686154637669747275466869676728616970"><span class="__cf_email__" data-cfemail="9acac8b4d3cecab4d7f5f4f3eef5e8f3f4fdc8ffeaf5e8eee9daf4f5fbfbb4fdf5ec">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#bdd3d0dbce93dadccf93d4d3ded4d9d8d3c9dcd190c9dcd6d8fdd3d2dcdc93dad2cb"><span class="__cf_email__" data-cfemail="a7c9cac1d489c0c6d589cec9c4cec3c2c9d3c6cb8ad3c6ccc2e7c9c8c6c689c0c8d1">[email protected]</span></a> 
and <a href="/cdn-cgi/l/email-protection#baf3eeea94d2d3d6cefad4d5dbdb94ddd5cc"><span class="__cf_email__" data-cfemail="eba2bfbbc58382879fab85848a8ac58c849d">[email protected]</span></a>.
    PSOs must use standardized electronic data forms to record data. 
PSOs shall record detailed information about any implementation of 
mitigation requirements, including the distance of marine mammal to the 
acoustic source and description of specific actions that ensued, the 
behavior of the animal(s), any observed changes in behavior before and 
after implementation of mitigation, and if shutdown was implemented, 
the length of time before any subsequent ramp-up of the acoustic 
source. If required mitigation was not implemented, PSOs should record 
a description of the circumstances. At a minimum, the following 
information must be recorded:
    1. Vessel names (source vessel), vessel size and type, maximum 
speed capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. PSO names and affiliations;
    4. Date and participants of PSO briefings;
    5. Visual monitoring equipment used;
    6. PSO location on vessel and height of observation location above 
water surface;
    7. Dates and times (Greenwich Mean Time (GMT)) of survey on/off 
effort and times corresponding with PSO on/off effort;
    8. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    9. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval;
    10. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    11. Water depth (if obtainable from data collection software);
    12. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    13. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions);
    14. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.); and
    15. Upon visual observation of any marine mammal, the following 
information must be recorded:
    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    c. PSO who sighted the animal;
    d. Time of sighting;
    e. Initial detection method;
    f. Sightings cue;

[[Page 83668]]

    g. Vessel location at time of sighting (decimal degrees);
    h. Direction of vessel's travel (compass direction);
    i. Speed of the vessel(s) from which the observation was made;
    j. Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level or unidentified); also note the composition of 
the group if there is a mix of species;
    k. Species reliability (an indicator of confidence in 
identification);
    l. Estimated distance to the animal and method of estimating 
distance;
    m. Estimated number of animals (high/low/best);
    n. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    o. Description (as many distinguishing features as possible of each 
individual seen, including length, shape, color, pattern, scars, or 
markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    p. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    q. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    r. Equipment operating during sighting;
    s. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and,
    t. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a NARW is observed at any time by PSOs or personnel on the 
project vessel, during surveys or during vessel transit, COSW must 
report the sighting information to the NMFS NARW Sighting Advisory 
System (866-755-6622) within 2 hours of occurrence, when practicable, 
or no later than 24 hours after occurrence. NARW sightings in any 
location may also be reported to the U.S. Coast Guard via channel 16 
and through the Whale Alert app (http://www.whalealert.org).
    In the event that personnel involved in the survey activities 
discover an injured or dead marine mammal, the incident must be 
reported to NMFS as soon as feasible by phone (866-755-6622) and by 
email (<a href="/cdn-cgi/l/email-protection#afc1c2c9dc81c8cedd81c6c1ccc6cbcac1dbcec382dbcec4caefc1c0cece81c8c0d9"><span class="__cf_email__" data-cfemail="dab4b7bca9f4bdbba8f4b3b4b9b3bebfb4aebbb6f7aebbb1bf9ab4b5bbbbf4bdb5ac">[email protected]</span></a> and 
<a href="/cdn-cgi/l/email-protection#9dcdcfb3d4c9cdb3d0f2f3f4e9f2eff4f3facff8edf2efe9eeddf3f2fcfcb3faf2eb"><span class="__cf_email__" data-cfemail="87d7d5a9ced3d7a9cae8e9eef3e8f5eee9e0d5e2f7e8f5f3f4c7e9e8e6e6a9e0e8f1">[email protected]</span></a>). The report must include the 
following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the event of a vessel strike of a marine mammal by any vessel 
involved in the activities, COSW must report the incident to NMFS by 
phone (866-755-6622) and by email (<a href="/cdn-cgi/l/email-protection#8fe1e2e9fca1e8eefda1e6e1ece6ebeae1fbeee3a2fbeee4eacfe1e0eeeea1e8e0f9"><span class="__cf_email__" data-cfemail="77191a110459101605591e19141e13121903161b5a03161c12371918161659101801">[email protected]</span></a> 
and <a href="/cdn-cgi/l/email-protection#6a3a3844233e3a44270504031e051803040d380f1a05181e192a04050b0b440d051c"><span class="__cf_email__" data-cfemail="2b7b7905627f7b05664445425f445942454c794e5b44595f586b45444a4a054c445d">[email protected]</span></a>) as soon as feasible. The report 
would include the following information:
    1. Time, date, and location (latitude/longitude) of the incident;
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Vessel's speed during and leading up to the incident;
    4. Vessel's course/heading and what operations were being conducted 
(if applicable);
    5. Status of all sound sources in use;
    6. Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    7. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    8. Estimated size and length of animal that was struck;
    9. Description of the behavior of the marine mammal immediately 
preceding and/or following the strike;
    10. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    11. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    12. To the extent practicable, photographs or video footage of the 
animal(s).

Determinations

    COSW's HRG survey activities are a subset but otherwise unchanged 
from those analyzed in support of the 2023 IHA. The effects of the 
activity, taking into consideration the required mitigation and related 
monitoring measures, remain unchanged from those evaluated in support 
of the 2023 IHA. NMFS expects that all potential takes would be short-
term Level B harassment in the form of temporary avoidance of the area 
or decreased foraging, reactions that are considered to be of low 
severity and with no lasting biological consequences (e.g., Southall et 
al., 2007). In addition to being temporary, the maximum harassment zone 
around a survey vessel is 158 m (rounded up from the 157.7 m Level B 
harassment isopleth) from a three sparker array with 400 tips (either 
Geo-Source 200-400 or Applied Acoustics Dura-Spark UHD). Although this 
distance is assumed for all survey activity evaluated here and in 
estimating authorized take numbers, in reality, much of the survey 
activity would involve use of acoustic sources with a reduced acoustic 
harassment zone producing expected effects of particularly low 
severity. Therefore, the ensonified area surrounding each vessel is 
relatively small compared to the overall distribution of the animals in 
the area and the available habitat.
    NMFS authorizes incidental take of small numbers of marine mammals 
from specified activities that are a subset of, but otherwise identical 
to, those analyzed in the initial IHA and to require mitigation, 
monitoring, and reporting measures that are also identical to those in 
the initial IHA. The number of takes by Level B harassment is less than 
that authorized in the initial IHA. In the initial IHA, NMFS determined 
that COSW's specified activities would have a negligible impact on the 
affected species and/or stocks and the authorized take for each stock 
would be small relative to individual stock abundance (less than one 
third).
    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. This includes consideration of the estimated abundance of 
one stock increasing slightly. Specifically, NMFS is authorizing 15 
takes of NARW by Level B harassment only, and the impacts resulting 
from the project's activities are neither reasonably expected nor 
reasonably likely to adversely affect the stock through effects on 
annual rates of recruitment or survival. 15 takes of NARW equates to 
approximately 4.4 percent of the stock abundance, if each incident of 
take is assumed to accrue to a separate individual whale.
    Based on the information and analysis contained here and in the 
referenced documents, NMFS has determined the following: (1) the 
required mitigation

[[Page 83669]]

measures will effect the least practicable impact on marine mammal 
species or stocks and their habitat; (2) the authorized takes will have 
a negligible impact on the affected marine mammal species or stocks; 
(3) the authorized takes represent small numbers of marine mammals 
relative to the affected stock abundances; (4) COSW's activities will 
not have an unmitigable adverse impact on taking for subsistence 
purposes as no relevant subsistence uses of marine mammals are 
implicated by this action, and; (5) appropriate monitoring and 
reporting requirements are included.

National Environmental Policy Act

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has preliminarily determined that the application of this 
categorical exclusion remains appropriate for this renewal IHA.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act 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 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS' Office of Protected Resources is proposing to authorize take 
of four species of marine mammals that are listed under the ESA (i.e., 
NARW, fin whale, sei whale, and sperm whale) and has determined these 
activities fall within the scope of activities analyzed in the NMFS 
Greater Atlantic Regional Fisheries Office 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).

Renewal

    NMFS has issued a renewal IHA to COSW for the take of marine 
mammals incidental to conducting marine site characterization with HRG 
surveys off the coast of New Jersey and New York in the New York Bight 
from July 1, 2024, through June 30, 2025.

    Dated: October 10, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-23984 Filed 10-16-24; 8:45 am]
BILLING CODE 3510-22-P


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