33664 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

widespread adoption of new techniques 

and technologies (such as remotely 

operated vehicles (ROVs), microwave 

water level (MWWL) radar sensors, etc.) 

to more efficiently perform surveying, 

mapping, charting and related data 

gathering. Specific examples of adaptive 

methods and equipment that NOS 

programs are likely to adopt under 

Alternative B in the next 6 years 

include: 

Æ Greater use of ROVs with echo 

sounder technologies; 

Æ Greater use of autonomous 

underwater vehicles (AUVs) and 

autonomous surface vehicles (ASVs) 

with echo sounder technologies; 

Æ Conversion of one or more existing 

10-m (33 feet) crewed survey boats into 

ASVs; 

Æ Greater use of more efficient, widebeam sonar systems (phase-differencing 

bathymetric systems) for nearshore 

hydrographic surveys; 

Æ Increased field operations in the 

National Marine Sanctuary system with 

associated requirements for 

hydroacoustic charting, surveying, 

mapping and associated activities; and 

Æ Installation, operation, and 

maintenance of additional water level 

stations including transitioning to 

mostly MWWL radar sensors and 

upgraded storm strengthening to make 

stations more climate resilient. 

Under Alternative B, all of the 

activities and equipment operation 

described in Alternative A would 

continue, many at a higher level of 

effort. The nature of these actions would 

not change, but the overall level of 

activity would be increased. 

• Alternative C: Like Alternative B, 

Alternative C adopts new techniques 

and technologies to encourage greater 

program efficiencies regarding 

surveying, mapping, charting, and 

related data gathering activities. In 

addition, Alternative C would consist of 

NOS program implementation with an 

overall funding increase of 20 percent 

relative to Alternative B. Under 

Alternative C, all of the activities and 

equipment operation described in 

Alternative B would continue, many at 

a higher level of effort. The nature of 

these actions would not change, but the 

overall level of activity would be 

augmented. 

NOS will initiate consultations under 

the Endangered Species Act (ESA), the 

Marine Mammal Protection Act 

(MMPA), the Magnuson–Stevens 

Fishery Conservation and Management 

Act, and the National Marine 

Sanctuaries Act following publication of 

the Draft PEIS. NOS will also complete 

the required analysis and 

documentation to comply with Section 

106 of the National Historic 

Preservation Act and Section 307 of the 

Coastal Zone Management Act. 

The purpose of this NOA is to invite 

affected government agencies, nongovernmental organizations, tribes and 

tribal organizations, and interested 

members of the public to participate in 

the Draft PEIS process and provide 

comments on the structure, contents, 

and analysis in the Draft PEIS. The 

official public review and comment 

period ends on August 24, 2021. Please 

visit the project web page for additional 

information regarding the program: 

https://oceanservice.noaa.gov/about/ 

environmental-compliance/surveyingmapping.html. 

Authority: The preparation of the Draft 

PEIS was conducted in accordance with the 

requirements of NEPA, the Council on 

Environmental Quality’s Regulations (40 CFR 

1500 et seq. (1978)), other applicable 

regulations, and NOAA’s policies and 

procedures for compliance with those 

regulations. While the CEQ regulations 

implementing NEPA were revised as of 

September 14, 2020 (85 FR 43304, Jul. 16, 

2020), NOS prepared this Draft PEIS using 

the 1978 CEQ regulations because this 

environmental review began on December 19, 

2016, when NOS published a Notice of Intent 

to conduct scoping and prepare a Draft 

Programmatic Environmental Assessment. 

Written comments must be received on or 

before August 24, 2021. 

Paul M. Scholz, 

Acting Deputy Assistant Administrator for 

Ocean Services and Coastal Zone 

Management, National Ocean Service. 

[FR Doc. 2021–13361 Filed 6–24–21; 8:45 am] 

BILLING CODE 3510–JE–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB162] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys Off of 

Delaware and New Jersey 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of incidental 

harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an IHA to Garden 

State Offshore Energy, LLC (Garden 

State) to incidentally harass, by Level B 

harassment, marine mammals incidental 

to marine site characterization surveys 

offshore of Delaware and New Jersey in 

the area of the Commercial Lease of 

Submerged Lands for Renewable Energy 

Development on the Outer Continental 

Shelf (OCS–A 0482) and along potential 

export cable routes to landfall locations 

in Delaware and New Jersey. 

DATES: This authorization is effective 

from June 11, 2021 through June 10, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Carter Esch, Office of Protected 

Resources, NMFS, (301) 427–8421. 

Electronic copies of the application and 

supporting documents, as well as a list 

of the references cited in this document, 

may be obtained online at: https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. In case 

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

incidental take authorization may be 

provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of the takings are set forth. 

The definitions of all applicable 

MMPA statutory terms cited above are 

included in the relevant sections below. 


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Summary of Request 

On November 2, 2020, NMFS received 

a request from Garden State for an IHA 

to take marine mammals incidental to 

marine site characterization surveys 

offshore of Delaware and New Jersey in 

the area of the Commercial Lease of 

Submerged Lands for Renewable Energy 

Development on the Outer Continental 

Shelf (OCS–A 0482) and along potential 

export cable routes (ECRs) to a landfall 

location in Delaware and New Jersey. 

Following NMFS’ review of the draft 

application, a revised version was 

submitted on March 30, 2021. The 

application was deemed adequate and 

complete on April 5, 2021. Garden 

State’s request is for take of a small 

number of 16 species of marine 

mammals (with 17 managed stocks) by 

Level B harassment only. Neither 

Garden State nor NMFS expects serious 

injury or mortality to result from this 

activity and, therefore, an IHA is 

appropriate. 

Description of Specified Activity 

Overview 

As part of its overall marine site 

characterization survey operations, 

Garden State plans to conduct highresolution geophysical (HRG) surveys in 

the Lease Area and along potential ECRs 

to landfall locations in Delaware and 

New Jersey. 

The purpose of the marine site 

characterization surveys is to obtain a 

baseline assessment of seabed 

(geophysical, geotechnical, and 

geohazard), ecological, and 

archeological conditions within the 

footprint of offshore wind facility 

development. Surveys are also 

conducted to support engineering 

design and to map unexploded 

ordnance. Underwater sound resulting 

from Garden State’s site characterization 

survey activities, specifically HRG 

surveys, has the potential to result in 

incidental take of marine mammals in 

the form of Level B harassment. Table 

1 identifies representative survey 

equipment with the expected potential 

to result in exposure of marine 

mammals and potentially result in take. 

The survey activities planned by Garden 

State are described in detail in the 

notice of the proposed IHA (86 FB 

22160; April 27, 2021). 

Dates and Duration 

The estimated duration of HRG survey 

activity is expected to be up to 350 

survey days over the course of a single 

year (‘‘survey day’’ defined as a 24-hour 

(hr) activity period), with 200 vessel 

survey days expected in the Lease Area 

and 150 vessel survey days expected in 

the ECR area. This schedule is based on 

24-hour operations and includes 

potential down time due to inclement 

weather. Although some shallow-water 

locations may be surveyed by a smaller 

vessel during daylight hours only, the 

estimated number of survey days 

assumes uniform 24-hr operations. 

Specific Geographic Region 

The survey activities will occur 

within the Project Area which includes 

the Lease Area and potential ECRs to 

landfall locations, as shown in Figure 1 

of the notice of the proposed IHA. The 

Lease Area is approximately 284 square 

kilometers (km2) and is within the 

Delaware Wind Energy Area (WEA) of 

the Bureau of Ocean Energy 

Management (BOEM) Mid-Atlantic 

planning area. Water depths in the 

Lease Area range from 15 meters (m) to 

30 m. Water depths in the ECR area 

extend from the shoreline to 

approximately 30 m. 

TABLE 1—SUMMARY OF REPRESENTATIVE HRG SURVEY EQUIPMENT

Equipment Acoustic source type 

Operating 

frequency 

(kHz) 

SLrms

(dB re 1 

μPa m) 

SL0-pk

(dB re 1 

μPa m) 

Pulse 

duration 

(width) 

(millisecond) 

Repetition 

rate 

(Hz) 

Beamwidth 

(degrees) 

CF = Crocker 

and Fratantonio 

(2016) 

MAN = 

Manufacturer 

Non-Impulsive, Non-Parametric, Shallow Sub-Bottom Profilers (CHIRP Sonars) 

ET 216 (2000DS or 3200 

top unit).

Non-impulsive, mobile, 

intermittent.

2–16; 2–8 195 .................... 20 6 24 MAN. 

ET 424 ........................... Non-impulsive, mobile, 

intermittent.

4–24 176 .................... 3.4 2 71 CF. 

ET 512 ........................... Non-impulsive, mobile, 

intermittent.

0.7–12 179 .................... 9 8 80 CF. 

GeoPulse 5430A ............ Non-impulsive, mobile, 

intermittent.

2–17 196 .................... 50 10 55 MAN. 

Teledyne Benthos Chirp 

III—TTV 170.

Non-impulsive, mobile, 

intermittent.

2–7 197 .................... 60 15 100 MAN. 

Impulsive, Medium Sub-Bottom Profilers (Sparkers & Boomers) 

AA, Dura-spark UHD 

(400 tips, 500 J) 1.

Impulsive, mobile .......... 0.3–1.2 203 211 1.1 4 Omni CF. 

AA, Dura-spark UHD 

(400+400) 1.

Impulsive, mobile .......... 0.3–1.2 203 211 1.1 4 Omni CF (AA Duraspark UHD 

Proxy). 

GeoMarine, Geo-Source 

dual 400 tip sparker 

(800 J) 1.

Impulsive, mobile .......... 0.4–5 203 211 1.1 2 Omni CF (AA Duraspark UHD 

Proxy). 

GeoMarine Geo-Source 

200 tip sparker (400 

J) 1.

Impulsive, mobile .......... 0.3–1.2 203 211 1.1 4 Omni CF (AA Duraspark UHD 

Proxy). 

GeoMarine Geo-Source 

200–400 tip light 

weight sparker (400 

J) 1.

Impulsive, mobile .......... 0.3–1.2 203 211 1.1 4 Omni CF (AA Duraspark UHD 

Proxy). 

GeoMarine Geo-Source 

200–400 tip freshwater 

sparker (400 J) 1.

Impulsive, mobile .......... 0.3–1.2 203 211 1.1 4 Omni CF (AA Duraspark UHD 

Proxy). 


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TABLE 1—SUMMARY OF REPRESENTATIVE HRG SURVEY EQUIPMENT—Continued 

Equipment Acoustic source type 

Operating 

frequency 

(kHz) 

SLrms

(dB re 1 

μPa m) 

SL0-pk

(dB re 1 

μPa m) 

Pulse 

duration 

(width) 

(millisecond) 

Repetition 

rate 

(Hz) 

Beamwidth 

(degrees) 

CF = Crocker 

and Fratantonio 

(2016) 

MAN = 

Manufacturer 

AA, triple plate S-Boom

(700–1,000 J) 2 ..............

Impulsive, mobile .......... 0.1–5 205 211 0.6 4 80 CF 

– = not applicable; NR = not reported; μPa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; HF = high-frequency; J = joule; LF = low-frequency; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; SL = source level; SPLrms = root-mean-square sound pressure 

level; UHD = ultra-high definition; WFA = weighting factor adjustments. 1The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey. The 

data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings 

when manufacturer or other reliable measurements are not available. 2 Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP–D700 and CSP–N). The CSP–D700 power source was 

used in the 700 J measurements but not in the 1,000 J measurements. The CSP–N source was measured for both 700 J and 1,000 J operations but resulted in a 

lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boo. 

As noted above, a detailed description 

of Garden State’s planned surveys is 

provided in the Federal Register notice 

for the proposed IHA (86 FR 22160; 

April 27, 2021). Since that time, no 

changes have been made to the planned 

survey activities; therefore, a detailed 

description if not provided here. Please 

refer to that Federal Register notice for 

the more thorough description of the 

specified activity. Required mitigation, 

monitoring, and reporting measures are 

described in detail later in this 

document (please see Mitigation and 

Monitoring and Reporting). 

Comments and Responses 

A notice of NMFS’ proposal to issue 

an IHA to Garden State was published 

in the Federal Register on April 27, 

2021 (86 FR 22160). During the 30-day 

comment period, NMFS received 

comments from: (1) A group of 

environmental non-governmental 

organizations (ENGOs) including the 

Natural Resources Defense Council, 

Conservation Law Foundation, National 

Wildlife Federation, Defenders of 

Wildlife, Southern Environmental Law 

Center, Wildlife Conservation Society, 

Surfrider Foundation, Mass Audubon, 

Friends of the Earth, International Fund 

for Animal Welfare, NY4WHALES, 

WDC Whale and Dolphin Conservation, 

Marine Mammal Alliance Nantucket, 

Gotham Whale, All Our Energy, Seatuck 

Environmental Association, Inland 

Ocean Coalition, Nassau Hiking & 

Outdoor Club, and Connecticut 

Audubon Society; and (2) the Delaware 

Department of Resources and 

Environmental Control (DNREC). 

NMFS has posted the comments 

online at: www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable. Please see 

the letters for full detail and rationale 

for the comments. 

Comment 1: The ENGOs 

recommended that NMFS incorporate 

additional data sources into calculations 

of marine mammal density and take and 

that NMFS must ensure all available 

data are used to ensure that any 

potential shifts in North Atlantic right 

whale habitat usage are reflected in 

estimations of marine mammal density 

and take. The ENGOs asserted in general 

that the density models used by NMFS 

do not fully reflect the abundance, 

distribution, and density of marine 

mammals for the U.S. East Coast and 

therefore result in an underestimate of 

take. 

Response: At the outset of their letter, 

the ENGOs note that the comments 

reflect overarching concerns regarding 

NMFS’ IHAs for marine site 

characterization survey (including HRG 

survey) activities required for offshore 

wind energy development, as well as 

their intention that the comments be 

considered in relation to all 

authorizations associated with marine 

site characterization activities for 

offshore wind energy off the U.S. East 

Coast. The comments provided in the 

letter apparently focus concern on 

available data regarding the 

Massachusetts and Rhode Island and 

Massachusetts Wind Energy Areas, and 

on North Atlantic right whale habitat 

usage within those areas. As such, the 

specific comments pertaining to those 

data and right whale habitat usage 

within those areas are not germane to 

this specific action, i.e., issuance of an 

IHA associated with HRG survey 

activity off of Delaware and New Jersey. 

We address the general comments 

regarding sufficiency of the available 

data on marine mammal occurrence 

below. 

Habitat-based density models 

produced by the Duke University 

Marine Geospatial Ecology Lab (MGEL) 

(Roberts et al. 2016, 2017, 2018, 2020) 

represent the best available scientific 

information concerning marine mammal 

occurrence within the U.S. Atlantic 

Ocean. Density models were originally 

developed for all cetacean taxa in the 

U.S. Atlantic (Roberts et al., 2016); more 

information, including the model results 

and supplementary information for each 

of those models, is available at https:// 

seamap.env.duke.edu/models/Duke/EC/ 

. These models provided key 

improvements over previously available 

information, by incorporating additional 

aerial and shipboard survey data from 

NMFS and from other organizations 

collected over the period 1992–2014, 

incorporating 60 percent more 

shipboard and 500 percent more aerial 

survey hours than did previously 

available models; controlling for the 

influence of sea state, group size, 

availability bias, and perception bias on 

the probability of making a sighting; and 

modeling density from an expanded set 

of eight physiographic and 16 dynamic 

oceanographic and biological covariates. 

In subsequent years, certain models 

have been updated on the basis of 

additional data as well as 

methodological improvements. In 

addition, a new density model for seals 

was produced as part of the 2017–18 

round of model updates. 

Of particular note, Roberts et al. 

(2020) further updated density model 

results for North Atlantic right whales 

by incorporating additional sighting 

data and implementing three major 

changes: increasing spatial resolution, 

generating monthly estimates on three 

time periods of survey data, and 

dividing the study area into five discrete 

regions. This most recent update— 

model version 9 for North Atlantic right 

whales—was undertaken with the 

following objectives (Roberts et al., 

2020): 

• To account for recent changes to 

right whale distributions, the model 

should be based on survey data that 

extend through 2018, or later if possible. 

In addition to updates from existing 

collaborators, data should be solicited 

from two survey programs not used in 

prior model versions: 

Æ Aerial surveys of the Massachusetts 

and Rhode Island Wind Energy Areas 

led by New England Aquarium (Kraus et 


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Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 33667 

al., 2016), spanning 2011–2015 and 

2017–2018. 

Æ Recent surveys of New York waters, 

either traditional aerial surveys initiated 

by the New York State Department of 

Environmental Conservation in 2017, or 

digital aerial surveys initiated by the 

New York State Energy Research and 

Development Authority in 2016, or 

both. 

• To reflect a view in the right whale 

research community that spatiotemporal 

patterns in right whale density changed 

around the time the species entered a 

decline in approximately 2010, consider 

basing the new model only on recent 

years, including contrasting ‘‘before’’ 

and ‘‘after’’ models that might illustrate 

shifts in density, as well as a model 

spanning both periods, and specifically 

consider which model would best 

represent right whale density in the near 

future. 

• To facilitate better application of 

the model to near-shore management 

questions, extend the spatial extent of 

the model farther in-shore, particularly 

north of New York. 

• Increase the resolution of the model 

beyond 10 kilometers (km), if possible. 

All of these objectives were met in 

developing the most recent update to 

the North Atlantic right whale density 

model. The commenters do not cite this 

most recent report, and the comments 

suggest that the aforementioned data 

collected by the New England Aquarium 

is not reflected in the model. Therefore, 

it is unclear whether the commenters 

are aware of the most recently available 

data, which is used herein. 

As noted above, NMFS has 

determined that the Roberts et al. suite 

of density models represent the best 

available scientific information, and we 

specifically note that the 2020 version of 

the North Atlantic right whale model 

may address some of the specific 

concerns provided by the commenters. 

(Note that there has been an additional 

minor model update affecting 

predictions for Cape Cod Bay in the 

month of December, which is not 

relevant to the location of this survey off 

of Delaware and New Jersey.) However, 

NMFS acknowledges that there will 

always be additional data that is not 

reflected in the models and that may 

inform our analyses, whether because 

the data were not made available to the 

model authors or because the data is 

more recent than the latest model 

version for a specific taxon. NMFS will 

review any recommended data sources 

to evaluate their applicability in a 

quantitative sense (e.g., to an estimate of 

take numbers) and, separately, to ensure 

that relevant information is considered 

qualitatively when assessing the 

impacts of the specified activity on the 

affected species or stocks and their 

habitat. NMFS will continue to use the 

best available scientific information, 

and we welcome future input from 

interested parties on data sources that 

may be of use in analyzing the potential 

presence and movement patterns of 

marine mammals, including North 

Atlantic right whales, in U.S. Atlantic 

waters. 

The ENGOs cited several additional 

sources of information that are not 

reflected in currently available density 

models, including sightings databases 

and passive acoustic monitoring (PAM) 

efforts. However, no specific 

recommendations were made with 

regard to use of this information in 

informing the take estimates. Rather, the 

commenters reference a disparate array 

of data sources (some which are indeed 

reflected in the most recent models) and 

suggest that NMFS should ‘‘collate and 

integrate these and more recent data sets 

to more accurately reflect marine 

mammal presence for future IHAs and 

other work.’’ NMFS would welcome in 

the future constructive suggestions as to 

how these objectives might be more 

effectively accomplished. NMFS used 

the best scientific information available 

at the time the analyses for the proposed 

IHA were conducted, and has 

considered all available data, including 

sources referenced by the commenters, 

in reaching its determinations in 

support of issuance of the IHA 

requested by Garden State. 

Comment 2: The ENGOs noted that 

the Roberts et al. model does not 

differentiate between species of pilot 

whale or seal or between stocks of 

bottlenose dolphin. The ENGOs express 

concern that, as a result, NMFS may not 

conduct the appropriate species-or 

stock-specific negligible impact 

analysis. The ENGOs also imply that use 

of these models may produce inaccurate 

take numbers by stating that 

‘‘[m]iscalculation of take levels based on 

incomplete data could have serious 

implications for the future conservation 

of these species and stocks.’’ 

Response: The MMPA requires that 

species- or stock-specific negligible 

impact determinations be made, and 

NMFS has done so. In this case, NMFS 

has authorized take numbers specific to 

each affected species or stock. As a 

general matter, NMFS is unaware of any 

available density data which 

differentiates between species of pilot 

whales or seals, or stocks of bottlenose 

dolphins. However, lack of such data 

does not preclude the requisite speciesor stock-specific findings. In the event 

that an amount of take is authorized at 

the guild or species level only, e.g., for 

pilot whales or bottlenose dolphins, 

respectively, NMFS may adequately 

evaluate the effects of the activity by 

conservatively assuming (for example) 

that all takes authorized for the guild or 

species would accrue to each potentially 

affected species or stock. In this case, 

NMFS has apportioned the overall take 

number for bottlenose dolphins 

according to stock, as described in the 

Estimated Take section and, for pilot 

whales, has assigned take on the basis 

of an assumed group size of 10 for each 

potentially affected species. NMFS does 

not agree that use of these models is 

likely to result in miscalculation of take 

levels, and the commenters do not 

provide support for this statement. 

Comment 3: The ENGOs assert that 

NMFS has not acknowledged the use of 

areas south of Nantucket and Martha’s 

Vineyard as important habitat for 

foraging and social behavior for North 

Atlantic right whales, but rather that 

NMFS believes the areas are important 

solely as a migratory pathway. The 

commenters also asserted that NMFS is 

overly reliant on the description of 

biologically important areas (BIA) 

provided in LaBrecque et al. (2015), 

stating that ‘‘NMFS should not rely on 

the North Atlantic right whale migratory 

corridor BIA as the sole indicator of 

habitat importance for the species.’’ 

Response: The specified activity 

associated with the IHA addressed 

herein is located off of Delaware and 

New Jersey. Therefore, this comment is 

not relevant to issuance of this IHA. 

However, as a general matter, NMFS 

disagrees with the commenters’ 

assertion. Although NMFS has in other 

notices discussed at length the use of 

the referenced area as a migratory 

pathway (and recognition of such use 

through the area’s description as a BIA 

for right whales), we have also 

acknowledged the more recent data and 

its implications for the use of the 

referenced area (85 FR 63508; December 

7, 2018; 86 FR 11930; March 1, 2021). 

Similarly, NMFS does not agree with 

the assertion that our understanding of 

important habitat for marine mammals 

stems solely from existing, described 

BIAs. NMFS concurs with the statement 

that BIAs are not comprehensive and are 

intended to be periodically reviewed 

and updated and we routinely review 

newly available information to inform 

our understanding of important marine 

mammal habitat. In this case, the 

specified geographical region does not 

include important habitat other than 

that described as being the migratory 

pathway for right whales. 

Comment 4: The ENGOs commented 

that the waters off Cape Hatteras, North 

Carolina, have high marine mammal 


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biodiversity and that marine mammals 

occur at unusually high densities off 

Cape Hatteras compared to other areas 

along the East Coast. The ENGOs 

asserted that this area demands special 

attention from NMFS. 

Response: NMFS concurs with the 

commenters regarding the importance of 

deepwater areas off of Cape Hatteras. 

However, the specific activity associated 

with the IHA addressed herein does not 

occur off of Cape Hatteras and, in 

general, the site characterization surveys 

conducted in support of wind energy 

development that are the subject of the 

ENGO comment letter occur in shallow 

water (not the area of high biodiversity 

and density referenced by commenters). 

When appropriate, NMFS has accorded 

special attention to the development of 

additional mitigation for activities 

conducted in that location (83 FR 

63268; December 7, 2018). NMFS uses 

the best available scientific information 

when analyzing potential impacts to 

marine mammals and in developing 

prescribed mitigation sufficient to meet 

the MMPA’s ‘‘least practicable adverse 

impact’’ standard, and has done so in 

this case. 

Comment 5: The ENGOs asserted that 

NMFS must analyze cumulative impacts 

to North Atlantic right whales and other 

marine mammal species and stocks and 

ensure appropriate mitigation of these 

cumulative impacts. The ENGOs 

express particular concern about the 

cumulative impacts of survey activities 

off Rhode Island and Massachusetts on 

North Atlantic right whales. They 

further recommended that NMFS 

develop programmatic incidental take 

regulations applicable to site 

characterization activities. DNREC 

noted that an IHA was recently issued 

to Skipjack for take of marine mammals 

incidental to marine site 

characterization surveys offshore of 

Delaware (86 FR 18943; April 12, 2021) 

and recommended that NMFS consider 

the potential cumulative impacts of 

Skipjack and Garden State surveys prior 

to issuing an IHA to Garden State. 

Response: Neither the MMPA nor 

NMFS’ codified implementing 

regulations call for consideration of 

other unrelated activities and their 

impacts on populations. The preamble 

for NMFS’ implementing regulations (54 

FR 40338; September 29, 1989) states in 

response to comments that the impacts 

from other past and ongoing 

anthropogenic activities are to be 

incorporated into the negligible impact 

analysis via their impacts on the 

baseline. Consistent with that direction, 

NMFS has factored into its negligible 

impact analysis the impacts of other 

past and ongoing anthropogenic 

activities via their impacts on the 

baseline, e.g., as reflected in the density/ 

distribution and status of the species, 

population size and growth rate, and 

other relevant stressors. The 1989 

implementing regulations also 

addressed public comments regarding 

cumulative effects from future, 

unrelated activities. There NMFS stated 

that such effects are not considered in 

making findings under section 101(a)(5) 

concerning negligible impact. In this 

case, both this IHA, as well as other 

IHAs currently in effect or proposed 

within the specified geographic region, 

are appropriately considered an 

unrelated activity relative to the others. 

The IHAs are unrelated in the sense that 

they are discrete actions under section 

101(a)(5)(D), issued to discrete 

applicants. Therefore, the IHA issued to 

Skipjack for take associated with marine 

site characterization surveys is 

considered discrete from and unrelated 

to Garden State’s IHA. 

Section 101(a)(5)(D) of the MMPA 

requires NMFS to make a determination 

that the take incidental to a ‘‘specified 

activity’’ will have a negligible impact 

on the affected species or stocks of 

marine mammals. NMFS’ implementing 

regulations require applicants to include 

in their request a detailed description of 

the specified activity or class of 

activities that can be expected to result 

in incidental taking of marine mammals. 

50 CFR 216.104(a)(1). Thus, the 

‘‘specified activity’’ for which incidental 

take coverage is being sought under 

section 101(a)(5)(D) is generally defined 

and described by the applicant. Here, 

Garden State was the applicant for the 

IHA, and we are responding to the 

specified activity as described in that 

application (and making the necessary 

findings on that basis). 

Through the response to public 

comments in the 1989 implementing 

regulations, we also indicated (1) that 

NMFS would consider cumulative 

effects that are reasonably foreseeable 

when preparing a NEPA analysis, and 

(2) that reasonably foreseeable 

cumulative effects would also be 

considered under section 7 of the ESA 

for ESA-listed species. In this case, 

cumulative impacts have been 

adequately addressed under NEPA in 

prior environmental analyses that form 

the basis for NMFS’ determination that 

this action is appropriately categorically 

excluded from further NEPA analysis. 

Regarding activities in the Mid- and 

South Atlantic region, in 2018 NMFS 

signed a Record of Decision that (1) 

adopted the Bureau of Ocean Energy 

Management’s 2014 Final Programmatic 

Environmental Impact Statement that 

evaluated the direct, indirect, and 

cumulative impacts of geological and 

geophysical survey activities on the 

Mid- and South Atlantic Outer 

Continental Shelf to support NMFS’ 

analysis associated with issuance of 

incidental take authorizations pursuant 

to sections 101(a)(5)(A) or (D) of the 

MMPA and the regulations governing 

the taking and importing of marine 

mammals (50 CFR part 216), and (2) in 

accordance with 40 CFR 1505.2, 

announced and explained the basis for 

our decision to review and potentially 

issue incidental take authorizations 

under the MMPA on a case-by-case 

basis, if appropriate. Separately, NMFS 

has previously written Environmental 

Assessments (EA) that addressed 

cumulative impacts related to 

substantially similar activities, in 

similar locations, e.g., 2019 ;rsted EA 

for survey activities offshore southern 

New England; 2019 Avangrid EA for 

survey activities offshore North Carolina 

and Virginia; 2018 Deepwater Wind EA 

for survey activities offshore Delaware, 

Massachusetts, and Rhode Island. 

Separately, cumulative effects were 

analyzed as required through NMFS’ 

required intra-agency consultation 

under section 7 of the ESA, which 

determined that NMFS’ action of issuing 

the IHA is not likely to adversely affect 

listed marine mammals or their critical 

habitat. 

Finally, the ENGOs suggested that 

NMFS should promulgate programmatic 

incidental take regulations for site 

characterization activities. Although 

NMFS is open to this approach, we have 

not received a request for such 

regulations. The ENGOs do not explain 

their apparent position that NMFS may 

advance regulations absent a requester. 

Comment 6: The ENGOs state that 

NMFS should not adjust estimated take 

numbers for large whales on the basis of 

assumed efficacy of mitigation 

requirements, and assert that NMFS’ 

assumptions regarding effectiveness of 

mitigation requirements are unfounded. 

Response: In this case, NMFS did not 

propose to adjust downward any 

estimated take number based on 

proposed mitigation measures, and has 

not done so in the issued IHA. 

Therefore, the comment is not relevant 

to this specific action. Generally, NMFS 

does not agree with the apparent 

contention that it is never appropriate to 

reduce estimated take numbers based on 

anticipated implementation and 

effectiveness of mitigation measures, 

and will continue to evaluate the 

appropriateness of doing so on a casespecific basis. 

While we acknowledge the 

commenters’ concerns regarding 

unfounded assumptions concerning the 


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effectiveness of mitigation requirements 

in reducing actual take, it is important 

to also acknowledge the circumstances 

of a particular action. In most cases, the 

maximum estimated Level B harassment 

zone associated with commonly-used 

acoustic sources is approximately 150 

meters (m), whereas the typicallyrequired shutdown zone for North 

Atlantic right whales is 500 m. For 

North Atlantic right whales, NMFS 

expects that this requirement will 

indeed be effective in reducing actual 

take below the estimated amount, which 

typically does not account for the 

beneficial effects of mitigation. 

Comment 7: The ENGOs state that 

NMFS must require mitigation measures 

that meet the least practicable adverse 

impact standard, imply that the 

requirements prescribed by NMFS have 

not met that standard, and recommend 

various measures that the commenters 

state NMFS should require. 

The ENGOs first state that NMFS 

should prohibit site assessment and 

characterization activities involving 

equipment with noise levels that the 

commenters assert could cause injury or 

harassment to North Atlantic right 

whales during periods of highest risk, 

which the commenters define as times 

of highest relative density of animals 

during their migration, and times when 

mother-calf pairs, pregnant females, 

surface active groups, or aggregations of 

three or more whales are, or are 

expected to be, present. The 

commenters additionally state that 

NMFS should require that work 

commence only during daylight hours 

and good visibility conditions to 

maximize the probability that marine 

mammals are detected and confirmed 

clear of the exclusion zone before 

activities begin. If the activity is halted 

or delayed because of documented or 

suspected North Atlantic right whale 

presence in the area, the commenters 

state that NMFS should require 

operators to wait until daylight hours 

and good visibility conditions to 

recommence. 

Response: NMFS acknowledges the 

limitations inherent in detection of 

marine mammals at night. However, no 

injury is expected to result even in the 

absence of mitigation, given the 

characteristics of the sources planned 

for use (supported by the very small 

estimated Level A harassment zones). 

The ENGOs do not provide any support 

for the apparent contention that injury 

is a potential outcome of these 

activities. Regarding Level B 

harassment, any potential impacts 

would be limited to short-term 

behavioral responses, as described in 

greater detail herein. The commenters 

establish that the status of North 

Atlantic right whales in particular is 

precarious. NMFS agrees in general with 

the discussion of this status provided by 

the commenters. NMFS also agrees with 

the commenters that certain 

recommended mitigation requirements, 

e.g., avoiding impacts in places and 

times of greatest importance to marine 

mammals, limiting operations to times 

of greatest visibility, would be effective 

in reducing impacts. However, the 

commenters fail entirely to establish 

that Garden State’s specified site 

assessment and characterization survey 

activities—or site assessment and 

characterization survey activities in 

general—would have impacts on North 

Atlantic right whales (or any other 

species) such that operational 

limitations would be warranted. In fact, 

NMFS considers this category of survey 

operations to be near de minimis, with 

the potential for Level A harassment for 

any species to be discountable and the 

severity of Level B harassment (and, 

therefore, the impacts of the take event 

on the affected individual), if any, to be 

low. In that context, there is no need for 

more restrictive mitigation 

requirements, and the commenters offer 

no justification to the contrary. 

Restricting surveys in the manner 

suggested by the commenters may 

reduce marine mammal exposures by 

some degree in the short term, but 

would not result in any significant 

reduction in either intensity or duration 

of noise exposure. Vessels would also 

potentially be on the water for an 

extended time introducing noise into 

the marine environment. The 

restrictions recommended by the 

commenters could result in the surveys 

spending increased time on the water, 

which may result in greater overall 

exposure to sound for marine mammals; 

thus the commenters have not 

demonstrated that such a requirement 

would result in a net benefit. 

Furthermore, restricting the applicant to 

begin operations only during daylight 

hours would have the potential to result 

in lengthy shutdowns of the survey 

equipment, which could result in the 

applicant failing to collect the data they 

have determined is necessary and, 

subsequently, the need to conduct 

additional surveys the following year. 

This would result in significantly 

increased costs incurred by the 

applicant. Thus, the restriction 

suggested by the commenters would not 

be practicable for the applicant to 

implement. Finally, NMFS is requiring 

the use of night vision equipment (night 

vision goggles with thermal clip-ons and 

infrared/thermal imaging technology) to 

facilitate detection of marine mammals 

approaching and within the exclusion 

zones during pre-start clearance and 

active survey operations during 

nighttime operations, In consideration 

of the likely effects of the activity on 

marine mammals absent mitigation, 

potential unintended consequences of 

the measures as proposed by the 

commenters, practicability of the 

recommended measures for the 

applicant, and required use of night 

vision equipment, NMFS has 

determined that restricting operations as 

recommended is not warranted or 

practicable in this case. 

Comment 8: The ENGOs 

recommended that NMFS establish an 

exclusion zone (EZ) of 1,000-m around 

each vessel conducting activities with 

noise levels that they assert could result 

in injury or harassment to North 

Atlantic right whales, and a minimum 

EZ of 500 m for all other large whale 

species and strategic stocks of small 

cetaceans. 

Response: NMFS disagrees with this 

recommendation, and has determined 

that the EZs included here are 

sufficiently protective. We note that the 

500-m EZ for North Atlantic right 

whales exceeds the modeled distance to 

the largest Level B harassment isopleth 

distance (141 m) by a factor of more 

than three. The commenters do not 

provide any justification for the 

contention that the existing EZs are 

insufficient, and do not provide any 

rationale for their recommended 

alternatives (other than that they are 

larger). 

Comment 9: The ENGOs stated that 

NMFS’ requirements related to visual 

monitoring are inadequate. The 

commenters specifically noted their 

belief that a requirement for one 

Protected Species Observer (PSO) to be 

on duty during daylight hours is 

insufficient, and recommended that 

NMFS require the use of infrared 

equipment to support visual monitoring 

by PSOs during periods of darkness. 

DNREC also recommended that infrared 

equipment be used to support visual 

monitoring by PSOs during periods of 

darkness. 

Response: NMFS typically requires 

that a single PSO must be stationed at 

the highest vantage point and engaged 

in general 360-degree scanning during 

daylight hours only. Although NMFS 

acknowledges that the single PSO 

cannot reasonably maintain observation 

of the entire 360-degree area around the 

vessel, it is reasonable to assume that 

the single PSO engaged in continual 

scanning of such a small area (i.e., 500- 

m EZ, which is greater than the 

maximum 141-m harassment zone) will 


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be successful in detecting marine 

mammals that are available for detection 

at the surface. The monitoring reports 

submitted to NMFS have demonstrated 

that PSOs active only during daylight 

operations are able to detect marine 

mammals and implement appropriate 

mitigation measures. As far as visual 

monitoring at night, we have not 

historically required visual monitoring 

at night because available information 

demonstrated that such monitoring 

should not be considered effective. 

However, as night vision technology has 

continued to improve, NMFS has 

adapted its practice, and two PSOs are 

required to be on duty at night. 

Moreover, as previously noted, NMFS 

has included a requirement in the final 

IHA that night-vision equipment (i.e., 

night-vision goggles with thermal clipons and infrared/thermal imaging 

technology) must be available for use. 

Regarding specific technology cited 

by the ENGOs, NMFS appreciates the 

suggestion and agrees that relatively 

new detection platforms have shown 

promising results. Following review of 

the ENGO’s letter, we considered these 

and other supplemental platforms as 

suggested. However, to our knowledge, 

there is no clear guidance available for 

operators regarding characteristics of 

effective systems, and the detection 

systems cited by the commenters are 

typically extremely expensive, and are 

therefore considered impracticable for 

use in most surveys. The commenters 

do not provide specific suggestions with 

regard to recommended systems or 

characteristics of systems. NMFS does 

not generally consider requirements to 

use systems such as those cited by the 

commenters to currently be practicable. 

Comment 10: The ENGOs 

recommended that NMFS should 

require PAM at all times, both day and 

night, to maximize the probability of 

detection for North Atlantic right 

whales, and other species and stocks. 

DNREC also recommended the 

combined use of visual monitoring and 

PAM, especially during nighttime 

operations, to minimize impacts on 

protected species. 

Response: The foremost concern 

expressed by the ENGOs in making the 

recommendation to require use of PAM 

is with regard to North Atlantic right 

whales. However, the commenters do 

not explain why they expect that PAM 

would be effective in detecting 

vocalizing mysticetes. It is generally 

well-accepted fact that, even in the 

absence of additional acoustic sources, 

using a towed passive acoustic sensor to 

detect baleen whales (including right 

whales) is not typically effective 

because the noise from the vessel, the 

flow noise, and the cable noise are in 

the same frequency band and will mask 

the vast majority of baleen whale calls. 

Vessels produce low-frequency noise, 

primarily through propeller cavitation, 

with main energy in the 5–300 Hertz 

(Hz) frequency range. Source levels 

range from about 140 to 195 decibel (dB) 

re 1 mPa (micropascal) at 1 m (NRC, 

2003; Hildebrand, 2009), depending on 

factors such as ship type, load, and 

speed, and ship hull and propeller 

design. Studies of vessel noise show 

that it appears to increase background 

noise levels in the 71–224 Hz range by 

10–13 dB (Hatch et al., 2012; McKenna 

et al., 2012; Rolland et al., 2012). PAM 

systems employ hydrophones towed in 

streamer cables approximately 500 m 

behind a vessel. Noise from water flow 

around the cables and from strumming 

of the cables themselves is also lowfrequency and typically masks signals in 

the same range. Experienced PAM 

operators participating in a recent 

workshop (Thode et al., 2017) 

emphasized that a PAM operation could 

easily report no acoustic encounters, 

depending on species present, simply 

because background noise levels 

rendered any acoustic detection 

impossible. The same workshop report 

stated that a typical eight-element array 

towed 500 m behind a vessel could be 

expected to detect delphinids, sperm 

whales, and beaked whales at the 

required range, but not baleen whales, 

due to expected background noise levels 

(including seismic noise, vessel noise, 

and flow noise). 

There are several additional reasons 

why we do not agree that use of PAM 

is warranted for 24-hour HRG surveys. 

While NMFS agrees that PAM can be an 

important tool for augmenting detection 

capabilities in certain circumstances, its 

utility in further reducing impact during 

HRG survey activities is limited. First, 

for this activity, the area expected to be 

ensonified above the Level B 

harassment threshold is relatively small 

(a maximum of 141 m)—this reflects the 

fact that, to start with, the source level 

is comparatively low and the intensity 

of any resulting impacts would be lower 

level and, further, it means that 

inasmuch as PAM will only detect a 

portion of any animals exposed within 

a zone, the overall probability of PAM 

detecting an animal in the harassment 

zone is low—together these factors 

support the limited value of PAM for 

use in reducing take with smaller zones. 

PAM is only capable of detecting 

animals that are actively vocalizing, 

while many marine mammal species 

vocalize infrequently or during certain 

activities, which means that only a 

subset of the animals within the range 

of the PAM would be detected (and 

potentially have reduced impacts). 

Additionally, localization and range 

detection can be challenging under 

certain scenarios. For example, 

odontocetes are fast moving and often 

travel in large or dispersed groups 

which makes localization difficult. 

Given that the effects to marine 

mammals from the types of surveys 

authorized in this IHA are expected to 

be limited to low level behavioral 

harassment even in the absence of 

mitigation, the limited additional 

benefit anticipated by adding this 

detection method (especially for right 

whales and other low frequency 

cetaceans, species for which PAM has 

limited efficacy), and the cost and 

impracticability of implementing a fulltime PAM program, we have determined 

the current requirements for visual 

monitoring are sufficient to ensure the 

least practicable adverse impact on the 

affected species or stocks and their 

habitat. 

Comment 11: The ENGOs 

recommended that NMFS require 

applicants to use the lowest practicable 

source level. 

Response: Wind energy developers 

selected the equipment necessary 

during HRG surveys to achieve their 

objectives. As part of the analysis for all 

HRG IHAs, NMFS evaluated the effects 

expected as a result of use of this 

equipment, made the necessary 

findings, and imposed mitigation 

requirements sufficient to achieve the 

least practicable adverse impact on the 

affected species and stocks of marine 

mammals. It is not within NMFS’ 

purview to make judgments regarding 

what constitutes the ‘‘lowest practicable 

source level’’ for an operator’s survey 

objectives. 

Comment 12: The ENGOs 

recommended that NMFS require all 

offshore wind energy related project 

vessels operating within or transiting to/ 

from survey areas, regardless of size, to 

observe a 10-knot speed restriction 

during the entire survey period. 

Response: NMFS does not concur 

with these measures. NMFS has 

analyzed the potential for ship strike 

resulting from various HRG activities 

and has determined that the mitigation 

measures specific to ship strike 

avoidance are sufficient to avoid the 

potential for ship strike. These include: 

A requirement that all vessel operators 

comply with 10 knot (18.5 km/hour) or 

less speed restrictions in any 

established dynamic management area 

(DMA) or seasonal management area 

(SMA); a requirement that all vessel 

operators reduce vessel speed to 10 


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knots (18.5 km/hour) or less when any 

large whale, mother/calf pairs, pods, or 

large assemblages of non-delphinid 

cetaceans are observed within 100 m of 

an underway vessel; a requirement that 

all survey vessels maintain a separation 

distance of 500 m or greater from any 

sighted North Atlantic right whale; a 

requirement that, if underway, vessels 

must steer a course away from any 

sighted North Atlantic right whale at 10 

knots or less until the 500 m minimum 

separation distance has been 

established; a requirement that all 

vessels must maintain a minimum 

separation distance of 100 m from 

sperm whales and all other baleen 

whales; and a requirement that 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). We have 

determined that the ship strike 

avoidance measures are sufficient to 

ensure the least practicable adverse 

impact on species or stocks and their 

habitat. Furthermore, no documented 

vessel strikes have occurred for any 

marine site characterization survey 

activities which were issued IHAs from 

NMFS. 

Comment 13: The ENGOs recommend 

that NMFS work with relevant experts 

and stakeholders towards developing a 

robust and effective near real-time 

monitoring and mitigation system for 

North Atlantic right whales and other 

endangered and protected species (e.g., 

fin, sei, minke, and humpback whales) 

during offshore wind energy 

development. 

Response: NMFS is generally 

supportive of this concept. A network of 

near real-time baleen whale monitoring 

devices are active or have been tested in 

portions of New England and Canadian 

waters. These systems employ various 

digital acoustic monitoring instruments 

which have been placed on autonomous 

platforms including slocum gliders, 

wave gliders, profiling floats and 

moored buoys. Systems that have 

proven to be successful will likely see 

increased use as operational tools for 

many whale monitoring and mitigation 

applications. The ENGOs cited the 

NMFS publication ‘‘Technical 

Memorandum NMFS-OPR-64: North 

Atlantic Right Whale Monitoring and 

Surveillance: Report and 

Recommendations of the National 

Marine Fisheries Service’s Expert 

Working Group’’ which is available at: 

https://www.fisheries.noaa.gov/ 

resource/document/north-atlantic-rightwhale-monitoring-and-surveillancereport-and-recommendations. This 

report summarizes a workshop NMFS 

convened to address objectives related 

to monitoring North Atlantic right 

whales and presents the Expert Working 

Group’s recommendations for a 

comprehensive monitoring strategy to 

guide future analyses and data 

collection. Among the numerous 

recommendations found in the report, 

the Expert Working Group encouraged 

the widespread deployment of autobuoys to provide near real-time 

detections of North Atlantic right whale 

calls that visual survey teams can then 

respond to for collection of 

identification photographs or biological 

samples. 

Comment 14: The ENGOs state that 

NMFS must not issue renewal IHAs, 

and assert that the process is contrary to 

statutory requirements. 

Response: NMFS’ IHA renewal 

process meets all statutory 

requirements. All IHAs issued, whether 

an initial IHA or a renewal IHA, are 

valid for a period of not more than one 

year. And the public has at least 30 days 

to comment on all proposed IHAs, with 

a cumulative total of 45 days for IHA 

renewals. The notice of the proposed 

IHA published in the Federal Register 

on April 27, 2021 (86 FR 22160) made 

clear that the agency was seeking 

comment on both the initial proposed 

IHA and the potential issuance of a 

renewal for this project. Because any 

renewal (as explained in the Comments 

and Responses section) is limited to 

another year of identical or nearly 

identical activities in the same location 

(as described in the Description of 

Specified Activity section) or the same 

activities that were not completed 

within the 1-year period of the initial 

IHA, reviewers have the information 

needed to effectively comment on both 

the immediate proposed IHA and a 

possible 1-year renewal, should the IHA 

holder choose to request one in the 

coming months. 

While there will be additional 

documents submitted with a renewal 

request, for a qualifying renewal these 

will be limited to documentation that 

NMFS will make available and use to 

verify that the activities are identical to 

those in the initial IHA, are nearly 

identical such that the changes would 

have either no effect on impacts to 

marine mammals or decrease those 

impacts, or are a subset of activities 

already analyzed and authorized but not 

completed under the initial IHA. NMFS 

will also confirm, among other things, 

that the activities will occur in the same 

location; involve the same species and 

stocks; provide for continuation of the 

same mitigation, monitoring, and 

reporting requirements; and that no new 

information has been received that 

would alter the prior analysis. The 

renewal request will also contain a 

preliminary monitoring report, in order 

to verify that effects from the activities 

do not indicate impacts of a scale or 

nature not previously analyzed. The 

additional 15-day public comment 

period provides the public an 

opportunity to review these few 

documents, provide any additional 

pertinent information and comment on 

whether they think the criteria for a 

renewal have been met. Between the 

initial 30-day comment period on these 

same activities and the additional 15 

days, the total comment period for a 

renewal is 45 days. 

Comment 15: The ENGOs expressed 

concern about past instances where 

NMFS has modified issued IHAs in 

response to preliminary monitoring data 

indicating that certain species of marine 

mammal were being encountered more 

frequently than anticipated. 

Response: No modifications are 

included as part of this action and, 

therefore, this comment is not relevant 

to this IHA. 

Comment 16: DNREC recommended 

that NMFS require the implementation 

of seasonal restrictions on site 

characterization activities that have the 

potential to injure or harass the North 

Atlantic right whale from November 1 

through April 30. 

Response: NMFS is concerned about 

the status of the North Atlantic right 

whale, given that a UME has been in 

effect for this species since June of 2017 

and that there have been a number of 

recent mortalities. NMFS appreciates 

the value of seasonal restrictions under 

some circumstances. However, in this 

case, we have determined seasonal 

restrictions are not warranted. NMFS is 

requiring Garden State to comply with 

restrictions associated with identified 

SMAs and they must comply with 

DMAs, if any DMAs are established near 

the project area. Furthermore, we have 

established a 500-m shutdown zone for 

North Atlantic right whales, which is 

more than three times as large as the 

greatest Level B harassment isopleth 

calculated for the specified activities for 

this IHA. The largest behavioral isopleth 

is 141 m associated with the Applied 

Acoustics Dura-Spark UHD and 

GeoMarine Geo-Source sparkers. Take 

estimation conservatively assumes that 

these acoustic sources will operate on 

all survey days although it is probable 

that Garden State will only use sparkers 

on a subset of survey days, and on the 

remaining days utilize HRG equipment 

with considerably smaller Level B 

harassment isopleths. Therefore, the 


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number of Level B harassment takes is 

likely an overestimate. Finally, 

significantly shortening Garden State’s 

work season is impracticable given the 

number of survey days planned for the 

specified activity for this IHA. 

Comment 17: DNREC noted that 

NMFS published an extension of 

emergency measures to address fishery 

observer coverage during the COVID–19 

coronavirus pandemic, providing NMFS 

with continued authority under the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA) to waiver observer coverage 

requirements when such action is 

necessary due to the COVID–19 public 

health emergency (85 FR 17285; March 

27, 2020). DNREC’s understanding is 

that this emergency action is not related 

to the PSO requirement under the 

MMPA, and that NMFS does not have 

any intention of waiving the PSO 

requirement for Garden State’s marine 

site characterization surveys. 

Response: DNREC is correct in its 

understanding that the extension of 

emergency measures providing NMFS 

with the authority to waive fishery 

observer coverage under the MSA does 

not apply to required PSO coverage 

under an issued MMPA IHA. 

Changes From the Proposed IHA to 

Final IHA 

NMFS has clarified that night vision 

equipment PSOs will be required to use 

during nighttime survey operations will 

include night vision goggles with 

thermal clip-ons and infrared/thermal 

imagery. 

Description of Marine Mammals in the 

Area of Specified Activities 

Sections 3 and 4 of the application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history, of the potentially 

affected species. Additional information 

regarding population trends and threats 

may be found in NMFS’ Stock 

Assessment Reports (SARs; https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments) and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’ 

website (https://

www.fisheries.noaa.gov/find-species). 

Table 2 lists all species or stocks for 

which take is authorized for this action, 

and summarizes information related to 

the population or stock, including 

regulatory status under the MMPA and 

Endangered Species Act (ESA) and 

potential biological removal (PBR), 

where known. For taxonomy, NMFS 

follows the Committee on Taxonomy 

(2020). PBR is defined by the MMPA as 

the maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population (as described in NMFS’ 

SARs). While no mortality is anticipated 

or authorized here, PBR and annual 

serious injury and mortality from 

anthropogenic sources are included here 

as gross indicators of the status of the 

species and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’ U.S. Atlantic and Gulf of Mexico 

SARs. All values presented in Table 2 

are the most recent available at the time 

of publication and are available in the 

2019 SARs (Hayes et al., 2020) and draft 

2020 SARS available (except as 

otherwise noted) at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessment-reports. 

TABLE 2—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE AFFECTED BY GARDEN

STATE’S ACTIVITY

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

Strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Balaenidae: 

North Atlantic right whale 4 Eubalaena glacialis ................ Western North Atlantic ........... E/D; Y 368 (0; 356; 2020) ................. 0.8 18.6 

Family Balaenopteridae 

(rorquals): 

Humpback whale .............. Megaptera novaeangliae ........ Gulf of Maine .......................... -/-; Y 1,393 (0; 1,375; 2016) ........... 22 58 

Fin whale .......................... Balaenoptera physalus ........... Western North Atlantic ........... E/D; Y 6,802 (0.24; 5,573; 2016) ...... 11 2.35 

Sei whale ......................... Balaenoptera borealis ............ Nova Scotia ............................ E/D; Y 6,292 (1.015; 3,098) ............... 6.2 1.2 

Minke whale ..................... Balaenoptera acutorostrata .... Canadian East Coast ............. -/-; N 21,968 (0.31; 17,002; 2016) .. 170 10.6 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale .................... Physeter macrocephalus ........ NA .......................................... E; Y 4,349 (0.28;3,451) .................. 3.9 0 

Family Delphinidae: 

Long-finned pilot whale .... Globicephala melas ................ Western North Atlantic ........... -/-; N 39,215 (0.30; 30,627) ............. 306 21 

Short finned pilot whale ... Globicephala macrorhynchus Western North Atlantic ........... -/-;Y 28,924 (0.24; 23,637) ............. 236 160 

Bottlenose dolphin ........... Tursiops truncatus .................. Western North Atlantic Offshore.-/-; N 62,851 (0.23; 51,914) ............. 519 28 

W.N.A. Northern Migratory 

Coastal.

-/-;Y 6,639 (0.41,4 ,759, 2016) ...... 48 12.2–21.5 

Common dolphin .............. Delphinus delphis ................... Western North Atlantic ........... -/-; N 172,947 (0.21; 145,216; 2016) 1,452 399 

Atlantic white-sided dolphin.Lagenorhynchus acutus ......... Western North Atlantic ........... -/-; N 93,233 (0.71; 54,443) ............. 544 26 

Atlantic spotted dolphin .... Stenella frontalis ..................... Western North Atlantic ........... -/-; N 39,921 (0.27; 32,032; 2012) .. 320 0 

Risso’s dolphin ................. Grampus griseus .................... Western North Atlantic ........... -/-; N 35,493 (0.19; 30,289) ............. 303 54.3 

Family Phocoenidae (porpoises): 


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TABLE 2—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE AFFECTED BY GARDEN

STATE’S ACTIVITY—Continued 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

Strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Harbor porpoise ............... Phocoena phocoena .............. Gulf of Maine/Bay of Fundy ... -/-; N 95,543 (0.31; 74,034) ............. 851 217 

Order Carnivora—Superfamily Pinnipedia 

Family Phocidae (earless 

seals): 

Gray seal 5 ........................ Halichoerus grypus ................ Western North Atlantic ........... -/-; N 27,131 (0.19; 23,158, 2016) .. 1,389 4,729 

Harbor seal ....................... Phoca vitulina ......................... Western North Atlantic ........... -/-; N 75,834 (0.15; 66,884, 2018) .. 2,006 350 

1ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be 

declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA 

as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated 

mortality due to commercial fisheries is presented in some cases. 4Abundance source is Pace (2021). PBR and Annual M/SI source is draft 2020 SAR (Hayes et al. 2020). Because PBR is based on the minimum population estimate, we anticipate it will be slightly lower than what is presented here given the Pace (2021) abundance; however, the 2020 SARs are not yet finalized. Regardless 

of final numbers, NMFS recognizes the NARW stock is critically endangered with a low PRB and high annual M/SI rate due primarily to ship strikes and entanglement. 5The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 451,431.

As indicated above, all 16 species 

(with 17 managed stocks) in Table 2 

temporally and spatially co-occur with 

the activity to the degree that take is 

reasonably likely to occur and has been 

authorized by NMFS. In addition to 

what is included in Sections 3 and 4 of 

the application, the SARs, and NMFS’ 

website, further detail informing the 

baseline for select species (i.e., 

information regarding current Unusual 

Mortality Events (UME) and important 

habitat areas) was provided in the notice 

of the proposed IHA (86 FR 22160; April 

27, 2021) and is not repeated here. 

Except for the updated North Atlantic 

right whale abundance (Pace 2021), no 

additional new relevant information is 

available since publication of that 

notice. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 

recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 

behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 dB 

threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 3. 

TABLE 3—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ..................................................................................................................... 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ........................................... 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................................... 50 Hz to 86 kHz. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .............................................................................................. 60 Hz to 39 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation). 

The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009). 

For more detail concerning these 

groups and associated frequency ranges, 


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please see NMFS (2018) for a review of 

available information. Sixteen marine 

mammal species (14 cetacean and 2 

pinniped (both phocid) species) have 

the reasonable potential to co-occur 

with the planned survey activities. 

Please refer to Table 2. Of the cetacean 

species that may be present, five are 

classified as low-frequency cetaceans 

(i.e., all mysticete species), eight are 

classified as mid-frequency cetaceans 

(i.e., all delphinid species and the sperm 

whale), and one is classified as a highfrequency cetacean (i.e., harbor 

porpoise). 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The notice of proposed IHA included 

a summary of the ways that Garden 

State’s specified activity may impact 

marine mammals and their habitat (86 

FR 22160; April 27, 2021). Detailed 

descriptions of the potential effects of 

similar specified activities have been 

provided in other recent Federal 

Register notices, including for survey 

activities using the same methodology, 

over a similar amount of time, and 

occurring within the same specified 

geographical region (e.g., 82 FR 20563, 

May 3, 2017; 85 FR 36537, June 17, 

2020; 85 FR 37848, June 24, 2020; 85 FR 

48179, August 10, 2020; 86 FR 26465; 

May 14, 2021). No significant new 

information is available, and NMFS 

refers the reader to the notice of 

proposed IHA and to these documents 

rather than repeating the details here. 

The Estimated Take section includes a 

quantitative analysis of the number of 

individuals that are expected to be taken 

by Garden State’s activity. The 

Negligible Impact Analysis and 

Determination section considers the 

potential effects of the specified activity, 

the Estimated Take section, and the 

Mitigation section, to draw conclusions 

regarding the likely impacts of these 

activities on the reproductive success or 

survivorship of individuals and how 

those impacts on individuals are likely 

to impact marine mammal species or 

stocks. The notice of proposed IHA also 

provided background information 

regarding active acoustic sound sources 

and acoustic terminology, which is not 

repeated here. 

The potential effects of Ocean Wind’s 

specified survey activity are expected to 

be limited to Level B behavioral 

harassment. No permanent or temporary 

auditory effects, or significant impacts 

to marine mammal habitat, including 

prey, are expected. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through this IHA, which will 

inform both NMFS’ consideration of 

‘‘small numbers’’ and the negligible 

impact determination. 

Level B behavioral harassment is the 

only type of take expected to result from 

these activities. Except with respect to 

certain activities not pertinent here, 

section 3(18) of the MMPA defines 

‘‘harassment’’ as any act of pursuit, 

torment, or annoyance, which (i) has the 

potential to injure a marine mammal or 

marine mammal stock in the wild (Level 

A harassment); or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, 

including, but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

sheltering (Level B behavioral 

harassment). 

Authorized takes are by Level B 

harassment only, in the form of 

disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to noise from certain 

HRG acoustic sources. Based on the 

characteristics of the signals produced 

by the acoustic sources planned for use, 

Level A harassment is neither 

anticipated, even absent mitigation, nor 

authorized. Consideration of the 

anticipated effectiveness of the 

mitigation measures (i.e., exclusion 

zones and shutdown measures), 

discussed in detail below in the 

Mitigation section, further strengthens 

the conclusion that Level A harassment 

is not a reasonably anticipated outcome 

of the survey activity. As described 

previously, no serious injury or 

mortality is anticipated, even absent 

mitigation, or authorized for this 

activity. 

Generally speaking, NMFS estimates 

take by considering: (1) Acoustic 

thresholds above which NMFS believes 

the best available science indicates 

marine mammals will be behaviorally 

harassed or incur some degree of 

permanent hearing impairment; (2) the 

area or volume of water that will be 

ensonified above these levels in a day; 

(3) the density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) and the number of days of 

activities. NMFS notes that while these 

basic factors can contribute to a basic 

calculation to provide an initial 

prediction of takes, additional 

information that can qualitatively 

inform take estimates is also sometimes 

available (e.g., previous monitoring 

results or average group size). Below, 

NMFS describes the factors considered 

here in more detail and present the take 

estimate. 

Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Level B Harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source (e.g., 

frequency, predictability, duty cycle), 

the environment (e.g., bathymetry), and 

the receiving animals (hearing, 

motivation, experience, demography, 

behavioral context) and can be difficult 

to predict (Southall et al., 2007, Ellison 

et al., 2012). NMFS uses a generalized 

acoustic threshold based on received 

level to estimate the onset of behavioral 

harassment. NMFS predicts that marine 

mammals are likely to be behaviorally 

harassed (i.e., Level B harassment) when 

exposed to underwater anthropogenic 

noise above received levels of 160 dB re 

1 mPa (rms) for the impulsive sources 

(i.e., boomers, sparkers) and nonimpulsive, intermittent sources (e.g., 

CHIRP SBPs) evaluated here for Garden 

State’s survey activities. 

Level A harassment—NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0) 

(Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

(Level A harassment) to five different 

marine mammal groups (based on 

hearing sensitivity) as a result of 

exposure to noise from two different 

types of sources (impulsive or nonimpulsive). For more information, see 

NMFS’ 2018 Technical Guidance, which 

may be accessed at 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

Garden State’s activity includes the 

use of impulsive (i.e., sparkers and 

boomers) and non-impulsive (e.g., 

CHIRP SBP) sources. However, as 

discussed above, NMFS has concluded 

that Level A harassment is not a 

reasonably likely outcome for marine 

mammals exposed to noise through use 

of the sources Garden State plans to use, 

and the potential for Level A 

harassment is not evaluated further in 

this document. Please see Garden State’s 

application for details of a quantitative 

exposure analysis exercise (i.e., 

calculated Level A harassment isopleths 

and estimated Level A harassment 

exposures). Maximum estimated Level 


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A harassment isopleths were less than 3 

m for all sources and hearing groups 

with the exception of an estimated 37 m 

zone and 17 m zone calculated for highfrequency cetaceans during use of the 

GeoPulse 5430 CHIRP SBP and the TB 

CHIRP III, respectively (see Table 1 for 

source characteristics). Garden State did 

not request authorization of take by 

Level A harassment, and no take by 

Level A harassment is authorized by 

NMFS. 

Ensonified Area 

NMFS has developed a user-friendly 

methodology for estimating the extent of 

the Level B harassment isopleths 

associated with relevant HRG survey 

equipment (NMFS, 2020). This 

methodology incorporates frequency 

and directionality to refine estimated 

ensonified zones. For acoustic sources 

that operate with different beamwidths, 

the maximum beamwidth was used, and 

the lowest frequency of the source was 

used when calculating the frequencydependent absorption coefficient (Table 

1). 

NMFS considers the data provided by 

Crocker and Fratantonio (2016) to 

represent the best available information 

on source levels associated with HRG 

equipment and, therefore, recommends 

that source levels provided by Crocker 

and Fratantonio (2016) be incorporated 

in the method described above to 

estimate isopleth distances to 

harassment thresholds. In cases when 

the source level for a specific type of 

HRG equipment is not provided in 

Crocker and Fratantonio (2016), NMFS 

recommends that either the source 

levels provided by the manufacturer be 

used, or, in instances where source 

levels provided by the manufacturer are 

unavailable or unreliable, a proxy from 

Crocker and Fratantonio (2016) be used 

instead. Table 1 shows the HRG 

equipment types that may be used 

during the planned surveys and the 

sound levels associated with those HRG 

equipment types. 

Results of modeling using the 

methodology described above indicated 

that, of the HRG survey equipment 

planned for use by Garden State that has 

the potential to result in Level B 

harassment of marine mammals, the 

Applied Acoustics Dura-Spark UHD and 

GeoMarine Geo-Source sparkers would 

produce the largest Level B harassment 

isopleth (141 m; please see Table 4 of 

Garden State’s application). Estimated 

Level B harassment isopleths associated 

with the boomer and CHIRP SBP 

systems planned for use are estimated as 

25 and 36 m, respectively. Although 

Garden State does not expect to use 

sparker sources on all planned survey 

days, it assumed for purposes of 

analysis that the sparker would be used 

on all survey days. This is a 

conservative approach, as the actual 

sources used on individual survey days 

may produce smaller harassment 

distances. 

Marine Mammal Occurrence 

In this section, NMFS provides 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

Habitat-based density models 

produced by the Duke University 

Marine Geospatial Ecology Laboratory 

(Roberts et al., 2016, 2017, 2018, 2020) 

represent the best available information 

regarding marine mammal densities in 

the planned survey area. The density 

data presented by Roberts et al. (2016, 

2017, 2018, 2020) incorporates aerial 

and shipboard line-transect survey data 

from NMFS and other organizations and 

incorporates data from 8 physiographic 

and 16 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 (Roberts et al., 2016). In 

subsequent years, certain models have 

been updated based on additional data 

as well as certain methodological 

improvements. More information is 

available online at 

seamap.env.duke.edu/models/Duke-ECGOM-2015/. Marine mammal density 

estimates in the survey area (animals/ 

km2) were obtained using the most 

recent model results for all taxa (Roberts 

et al., 2016, 2017, 2018, 2020). The 

updated models incorporate additional 

sighting data, including sightings from 

the NOAA Atlantic Marine Assessment 

Program for Protected Species 

(AMAPPS) surveys. 

For the exposure analysis, density 

data from Roberts et al. (2016, 2017, 

2018, 2020) were mapped using a 

geographic information system (GIS). 

Density grid cells that included any 

portion of the planned survey area were 

selected for all survey months (see 

Figure 3 in Garden State’s application). 

Densities from each of the selected 

density blocks were averaged for each 

month available to provide monthly 

density estimates for each species (when 

available based on the temporal 

resolution of the model products), along 

with the average annual density. Please 

see Tables 7 and 8 of Garden State’s 

application for density values used in 

the exposure estimation process for the 

Lease Area and the potential ECRs, 

respectively. Note that no density 

estimates are available for the portion of 

the ECR area in Delaware Bay, so the 

marine mammal densities from the 

density models of Roberts et al. (2016, 

2017, 2018, 2020) were assumed to 

apply to this area. Additional data 

regarding average group sizes from 

survey effort in the region was 

considered to ensure adequate take 

estimates are evaluated. 

Take Calculation and Estimation 

Here NMFS describes how the 

information provided above is brought 

together to produce a quantitative take 

estimate. In order to estimate the 

number of marine mammals predicted 

to be exposed to sound levels that 

would result in harassment, radial 

distances to predicted isopleths 

corresponding to Level B harassment 

thresholds are calculated, as described 

above. The maximum distance (i.e., 141 

m distance associated with sparkers) to 

the Level B harassment criterion and the 

estimated trackline distance traveled per 

day by a given survey vessel (i.e., 70 km) 

are then used to calculate the daily 

ensonified area, or zone of influence 

(ZOI) around the survey vessel. 

The ZOI is a representation of the 

maximum extent of the ensonified area 

around a sound source over a 24-hr 

period. The ZOI for each piece of 

equipment operating below 200 kHz 

was calculated per the following 

formula: 

ZOI = (Distance/day × 2r) + pr2

Where r is the linear distance from the source 

to the harassment isopleth. 

ZOIs associated with all sources with 

the expected potential to cause take of 

marine mammals are provided in Table 

6 of Garden State’s application. The 

largest daily ZOI (19.8 km2), associated 

with the various sparkers planned for 

use, was applied to all planned survey 

days. 

Potential Level B harassment 

exposures are estimated by multiplying 

the average annual density of each 

species within either the Lease Area or 

potential ECR area by the daily ZOI. 

That product is then multiplied by the 

number of operating days expected for 

the survey in each area assessed, and 

the product is rounded to the nearest 

whole number. These results are shown 

in Table 4. 


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TABLE 4—SUMMARY OF AUTHORIZED TAKE NUMBERS

Species Abundance Level B takes 1 Max percent 

population 

Low-Frequency Cetaceans 

Fin whale ..................................................................................................................................... 6,802 9 0.13 

Sei whale ..................................................................................................................................... 6,292 0 (1) 0.02 

Minke whale ................................................................................................................................. 21,968 3 0.01 

Humpback whale ......................................................................................................................... 1,393 4 0.29 

North Atlantic right whale ............................................................................................................ 412 14 3.40 

Mid-Frequency Cetaceans 

Sperm whale 3 .............................................................................................................................. 4,349 0 (3) 0.07 

Atlantic white-sided dolphin ......................................................................................................... 93,233 15 0.00 

Atlantic spotted dolphin ............................................................................................................... 39,921 9 0.00 

Common bottlenose dolphin: 2

Offshore Stock ...................................................................................................................... 62,851 437 0.21 

Migratory Stock ..................................................................................................................... 6,639 1,192 7.77 

Pilot Whales 3

Short-finned pilot whale ........................................................................................................ 28,924 3 (10) 0.03 

Long-finned pilot whale ........................................................................................................ 39,215 3 (10) 0.03 

Risso’s dolphin ............................................................................................................................. 35,493 0 (30) 0.08 

Common dolphin .......................................................................................................................... 172,974 112 0.06 

High-Frequency Cetaceans 

Harbor porpoise ........................................................................................................................... 95,543 98 0.03 

Pinnipeds 

Seals: 4

Gray seal .............................................................................................................................. 451,431 9 0.00 

Harbor seal ........................................................................................................................... 75,834 9 0.01 

1Parenthesis denote changes from calculated take estimates. Increases from calculated values are based on assumed average group size for 

the species; sei whale, Kenney and Vigness-Raposa, 2010; sperm whale and Risso’s dolphin, Barkaszi and Kelly, 2018. 2 Roberts et al. (2016) does not provide density estimates for individual stocks of common bottlenose dolphins; therefore, stock densities were 

delineated using the 20-m isobath. 3 Roberts (2018) only provides density estimates for ‘‘generic’’ pilot whales; therefore, an equal potential for takes has been assumed either for 

each species. 4 Roberts (2018) only provides density estimates for ‘‘generic’’ seals; therefore, densities were split evenly between the two species. 

The take numbers shown in Table 4 

are those requested by Garden State, 

with the exception of the two pilot 

whale species. Garden State requested 3 

takes by Level B harassment for each 

pilot whale species (i.e., short-finned 

and long-finned pilot whales). However, 

the requested number of takes is below 

the mean group size for each of these 

species; therefore, NMFS increased to 

10 (from 3, proposed by Garden State) 

the number of takes by Level B 

harassment for each of these species, 

based on published mean group sizes 

(Kenney and Vigness-Raposa, 2010). For 

all other species, NMFS concurs with 

the take numbers requested by Garden 

State and has authorized them. 

Mitigation 

In order to issue an IHA under section 

101(a)(5)(D) of the MMPA, NMFS must 

set forth the permissible methods of 

taking pursuant to the activity, and 

other means of effecting the least 

practicable impact on the species or 

stock and its habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance, and on 

the availability of the species or stock 

for taking for certain subsistence uses 

(latter not applicable for this action). 

NMFS regulations require applicants for 

incidental take authorizations to include 

information about the availability and 

feasibility (economic and technological) 

of equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, NMFS carefully considers 

two primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned), 

and; 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations. 

Mitigation for Marine Mammals and 

Their Habitat 

NMFS has prescribed the following 

mitigation measures to be implemented 

during Garden State’s marine site 

characterization surveys. 

Marine Mammal Exclusion Zones 

Marine mammal EZs must be 

established around the HRG survey 

equipment and monitored by PSOs: 

• 500 m EZ for North Atlantic right 

whales during use of all acoustic 

sources; and 


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• 100 m EZ for all marine mammals, 

with certain exceptions specified below, 

during operation of impulsive acoustic 

sources (boomer and/or sparker). 

If a marine mammal is detected 

approaching or entering the EZs during 

the HRG survey, the vessel operator 

must adhere to the shutdown 

procedures described below to 

minimize noise impacts on the animals. 

These stated requirements will be 

included in the site-specific training to 

be provided to the survey team. 

Pre-Start Clearance of the Exclusion 

Zones 

Garden State must implement a 30- 

minute pre-start clearance period of the 

EZs prior to the initiation of ramp-up of 

HRG equipment. During this period, the 

EZ will be monitored by the PSOs, using 

the appropriate visual technology. 

Ramp-up may not be initiated if any 

marine mammal(s) is within its 

respective EZ. If a marine mammal is 

observed within an EZ during the prestart clearance period, ramp-up may not 

begin until the animal(s) has been 

observed exiting its respective EZ or 

until an additional time period has 

elapsed with no further sighting (i.e., 15 

minutes for small odontocetes and seals, 

and 30 minutes for all other species). 

Ramp-Up of Survey Equipment 

When technically feasible, a ramp-up 

procedure must be used for HRG survey 

equipment capable of adjusting energy 

levels at the start or restart of survey 

activities. The ramp-up procedure must 

be used at the beginning of HRG survey 

activities in order to provide additional 

protection to marine mammals near the 

survey area by allowing them to vacate 

the area prior to the commencement of 

survey equipment operation at full 

power. 

A ramp-up must begin with the 

powering up of the smallest acoustic 

HRG equipment at its lowest practical 

power output appropriate for the 

survey. When technically feasible, the 

power will then be gradually turned up 

and other acoustic sources would be 

added. 

Ramp-up activities will be delayed if 

a marine mammal(s) enters its 

respective exclusion zone. Ramp-up 

will continue if the animal has been 

observed exiting its respective exclusion 

zone or until an additional time period 

has elapsed with no further sighting 

(i.e., 15 minutes for small odontocetes 

and seals and 30 minutes for all other 

species). 

Activation of survey equipment 

through ramp-up procedures may not 

occur when visual observation of the 

pre-start clearance zone is not expected 

to be effective (i.e., during inclement 

conditions such as heavy rain or fog). 

Shutdown Procedures 

An immediate shutdown of the 

impulsive HRG survey equipment will 

be required if a marine mammal is 

sighted entering or within its respective 

exclusion zone. The vessel operator 

must comply immediately with any call 

for shutdown by the Lead PSO. Any 

disagreement between the Lead PSO 

and vessel operator should be discussed 

only after shutdown has occurred. 

Subsequent restart of the survey 

equipment can be initiated if the animal 

has been observed exiting its respective 

exclusion zone or until an additional 

time period has elapsed (i.e., 30 minutes 

for all other species). 

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 (36 

m, non-impulsive; 141 m impulsive), 

shutdown must occur. 

If the acoustic source is shut down for 

reasons other than mitigation (e.g., 

mechanical difficulty) for less than 30 

minutes, it may be activated again 

without ramp-up if PSOs have 

maintained constant observation and no 

detections of any marine mammal have 

occurred within the respective EZs. If 

the acoustic source is shut down for a 

period longer than 30 minutes and PSOs 

have maintained constant observation, 

then pre-start clearance and ramp-up 

procedures will be initiated as described 

in the previous section. 

The shutdown requirement will be 

waived for small delphinids of the 

following genera: Delphinus, 

Lagenorhynchus, Stenella, and Tursiops 

and seals. Specifically, if a delphinid 

from the specified genera or a pinniped 

is visually detected approaching the 

vessel (i.e., to bow ride) or towed 

equipment, shutdown is not required. 

Furthermore, if there is uncertainty 

regarding identification of a marine 

mammal species (i.e., whether the 

observed marine mammal(s) belongs to 

one of the delphinid genera for which 

shutdown is waived), PSOs must use 

best professional judgement in making 

the decision to call for a shutdown. 

Additionally, shutdown is required if a 

delphinid or pinniped detected in the 

exclusion zone and belongs to a genus 

other than those specified. 

Vessel Strike Avoidance 

Garden State will ensure that vessel 

operators and crew maintain a vigilant 

watch for cetaceans and pinnipeds and 

slow down or stop their vessels to avoid 

striking these species. Survey vessel 

crew members responsible for 

navigation duties will receive sitespecific training on marine mammals 

sighting/reporting and vessel strike 

avoidance measures. Vessel strike 

avoidance measures must include the 

following, except under circumstances 

when complying with these 

requirements would put the safety of the 

vessel or crew at risk: 

• Vessel operators and crews must 

maintain a vigilant watch for all 

protected species and slow down, stop 

their vessel, or alter course, as 

appropriate and regardless of vessel 

size, to avoid striking any protected 

species. A visual observer aboard the 

vessel must monitor a vessel strike 

avoidance zone based on the 

appropriate separation distance around 

the vessel (distances stated below). 

Visual observers monitoring the vessel 

strike avoidance zone may be thirdparty observers (i.e., PSOs) or crew 

members, but crew members 

responsible for these duties must be 

provided sufficient training to (1) 

distinguish protected species from other 

phenomena and (2) broadly to identify 

a marine mammal as a right whale, 

other whale (defined in this context as 

sperm whales or baleen whales other 

than right whales), or other marine 

mammal; 

• All vessels, regardless of size, must 

observe a 10-knot speed restriction in 

specific areas designated by NMFS for 

the protection of North Atlantic right 

whales from vessel strikes including 

SMAs and DMAs when in effect; 

• All vessels greater than or equal to 

19.8 m in overall length operating from 

November 1 through April 30 will 

operate at speeds of 10 knots or less 

while transiting to and from Project 

Area; 

• All vessels must reduce their speed 

to 10 knots or less when mother/calf 

pairs, pods, or large assemblages of 

cetaceans are observed near a vessel; 

• All vessels must maintain a 

minimum separation distance of 500 m 

from right whales. If a whale is observed 

but cannot be confirmed as a species 

other than a right whale, the vessel 

operator must assume that it is a right 

whale and take appropriate action; 

• All vessels must maintain a 

minimum separation distance of 100 m 

from sperm whales and all other baleen 

whales; 

• All vessels must, to the maximum 

extent practicable, attempt to maintain a 

minimum separation distance of 50 m 

from all other marine mammals, with an 

understanding that at times this may not 

be possible (e.g., for animals that 

approach the vessel); 


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• When marine mammals are sighted 

while a vessel is underway, the vessel 

shall take action as necessary to avoid 

violating the relevant separation 

distance (e.g., attempt to remain parallel 

to the animal’s course, avoid excessive 

speed or abrupt changes in direction 

until the animal has left the area). If 

marine mammals are sighted within the 

relevant separation distance, the vessel 

must reduce speed and shift the engine 

to neutral, not engaging the engines 

until animals are clear of the area. This 

does not apply to any vessel towing gear 

or any vessel that is navigationally 

constrained; 

• 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. 

Members of the monitoring team will 

consult NMFS North Atlantic right 

whale reporting system and Whale 

Alert, as able, for the presence of North 

Atlantic right whales throughout survey 

operations, and for the establishment of 

a DMA. If NMFS should establish a 

DMA in the Project Area during the 

survey, the vessels will abide by speed 

restrictions in the DMA. 

Project-specific training will be 

conducted for all vessel crew prior to 

the start of a survey and during any 

changes in crew such that all survey 

personnel are fully aware and 

understand the mitigation, monitoring, 

and reporting requirements. Prior to 

implementation with vessel crews, the 

training program will be provided to 

NMFS for review and approval. 

Confirmation of the training and 

understanding of the requirements will 

be documented on a training course log 

sheet. Signing the log sheet will certify 

that the crew member understands and 

will comply with the necessary 

requirements throughout the survey 

activities. 

Based on our evaluation of the 

applicant’s proposed measures, as well 

as other measures considered by NMFS, 

NMFS has determined that the required 

mitigation measures provide the means 

of effecting the least practicable impact 

on marine mammal 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 in the planned action area. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) Action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and 

• Mitigation and monitoring 

effectiveness. 

Monitoring Measures 

Visual monitoring will be performed 

by qualified, NMFS-approved PSOs, the 

resumes of whom will be provided to 

NMFS for review and approval prior to 

the start of survey activities. Garden 

State would employ independent, 

dedicated, trained PSOs, meaning that 

the PSOs must (1) be employed by a 

third-party observer provider, (2) have 

no tasks other than to conduct 

observational effort, collect data, and 

communicate with and instruct relevant 

vessel crew with regard to the presence 

of marine mammals and mitigation 

requirements (including brief alerts 

regarding maritime hazards), and (3) 

have successfully completed an 

approved PSO training course 

appropriate for their designated task 

and/or have demonstrated experience in 

the role of an independent PSO during 

an HRG survey. At least one PSO aboard 

each acoustic source vessel must have a 

minimum of 90 days at-sea experience 

working as a PSO during a geophysical 

survey, with no more than 18 months 

elapsed since the conclusion of the atsea experience. On a case-by-case basis, 

non-independent observers may be 

approved by NMFS for limited, specific 

duties in support of approved, 

independent PSOs on smaller vessels 

with limited crew capacity operating in 

nearshore waters. 

The PSOs will be responsible for 

monitoring the waters surrounding each 

survey vessel to the farthest extent 

permitted by sighting conditions, 

including EZs, during all HRG survey 

operations. PSOs will visually monitor 

and identify marine mammals, 

including those approaching or entering 

the established EZs during survey 

activities. It will be the responsibility of 

the Lead PSO on duty to communicate 

the presence of marine mammals as well 

as to communicate the action(s) that are 

necessary to ensure mitigation and 

monitoring requirements are 

implemented as appropriate. 

During all HRG survey operations 

(e.g., any day on which use of an HRG 

source is planned to occur), a minimum 

of one PSO must be on duty during 

daylight operations on each survey 

vessel, conducting visual observations 

at all times on all active survey vessels 

during daylight hours (i.e., from 30 

minutes prior to sunrise through 30 

minutes following sunset). Two PSOs 

will be on watch during nighttime 

operations. The PSO(s) would ensure 

360° visual coverage around the vessel 

from the most appropriate observation 

posts and would conduct visual 

observations using binoculars and/or 

night vision goggles and the naked eye 

while free from distractions and in a 

consistent, systematic, and diligent 

manner. PSOs may be on watch for a 

maximum of 4 consecutive hours 

followed by a break of at least two hours 

between watches and may conduct a 

maximum of 12 hours of observation per 

24-hour period. In cases where multiple 

vessels are surveying concurrently, any 

observations of marine mammals would 

be communicated to PSOs on all nearby 

survey vessels. 

PSOs must be equipped with 

binoculars and have the ability to 

estimate distance and bearing to detect 

marine mammals, particularly in 


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proximity to EZs. Reticulated binoculars 

must also be available to PSOs for use 

as appropriate based on conditions and 

visibility to support the sighting and 

monitoring of marine mammals. During 

nighttime operations, night-vision 

goggles with thermal clip-ons and 

infrared/thermal imaging technology 

would be used to facilitate detection of 

marine mammals approaching and 

within the EZs during pre-start 

clearance and active survey operations. 

Position data would be recorded using 

hand-held or vessel GPS units for each 

sighting. 

During good conditions (e.g., daylight 

hours; Beaufort sea state (BSS) 3 or less), 

to the maximum extent practicable, 

PSOs would also conduct observations 

when the acoustic source is not 

operating for comparison of sighting 

rates and behavior with and without use 

of the active acoustic sources. Any 

observations of marine mammals by 

crew members aboard any vessel 

associated with the survey would be 

relayed to the PSO team. Data on all 

PSO observations would be recorded 

based on standard PSO collection 

requirements. This would include dates, 

times, and locations of survey 

operations; dates and times of 

observations, location and weather; 

details of marine mammal sightings 

(e.g., species, numbers, behavior); and 

details of any observed marine mammal 

behavior that occurs (e.g., noted 

behavioral disturbances). 

Reporting Measures 

Within 90 days after completion of 

survey activities or expiration of this 

IHA, whichever comes sooner, a final 

technical report will be provided to 

NMFS that fully documents the 

methods and monitoring protocols, 

summarizes the data recorded during 

monitoring, summarizes the number of 

marine mammals observed during 

survey activities (by species, when 

known), summarizes the mitigation 

actions taken during surveys (including 

what type of mitigation and the species 

and number of animals that prompted 

the mitigation action, when known), 

and provides an interpretation of the 

results and effectiveness of all 

mitigation and monitoring. Any 

recommendations made by NMFS must 

be addressed in the final report prior to 

acceptance by NMFS. All draft and final 

marine mammal and acoustic 

monitoring reports must be submitted to 

PR.ITP.MonitoringReports@noaa.gov 

and ITP.Esch@noaa.gov. The report 

must contain at minimum, the 

following: 

• PSO names and affiliations; 

• Dates of departures and returns to 

port with port name; 

• Dates and times (Greenwich Mean 

Time) of survey effort and times 

corresponding with PSO effort; 

• Vessel location (latitude/longitude) 

when survey effort begins and ends, 

vessel location at beginning and end of 

visual PSO duty shifts; 

• Vessel heading and speed at 

beginning and end of visual PSO duty 

shifts and upon any line change; 

• Environmental conditions while on 

visual survey (at beginning and end of 

PSO shift and whenever conditions 

change significantly), including wind 

speed and direction, Beaufort sea state, 

Beaufort wind force, swell height, 

weather conditions, cloud cover, sun 

glare, and overall visibility to the 

horizon; 

• Factors that may be contributing to 

impaired observations during each PSO 

shift change or as needed as 

environmental conditions change (e.g., 

vessel traffic, equipment malfunctions); 

and 

• Survey activity information, such as 

type of survey equipment in operation, 

acoustic source power output while in 

operation, and any other notes of 

significance (i.e., pre-start clearance 

survey, ramp-up, shutdown, end of 

operations, etc.). 

If a marine mammal is sighted, the 

following information should be 

recorded: 

• Watch status (sighting made by PSO 

on/off effort, opportunistic, crew, 

alternate vessel/platform); 

• PSO who sighted the animal; 

• Time of sighting; 

• Vessel location at time of sighting; 

• Water depth; 

• Direction of vessel’s travel (compass 

direction); 

• Direction of animal’s travel relative 

to the vessel; 

• Pace of the animal; 

• Estimated distance to the animal 

and its heading relative to vessel at 

initial sighting; 

• Identification of the animal (e.g., 

genus/species, lowest possible 

taxonomic level, or unidentified); also 

note the composition of the group if 

there is a mix of species; 

• Estimated number of animals (high/ 

low/best); 

• Estimated number of animals by 

cohort (adults, yearlings, juveniles, 

calves, group composition, etc.); 

• Description (as many distinguishing 

features as possible of each individual 

seen, including length, shape, color, 

pattern, scars or markings, shape and 

size of dorsal fin, shape of head, and 

blow characteristics); 

• Detailed behavior observations (e.g., 

number of blows, number of surfaces, 

breaching, spyhopping, diving, feeding, 

traveling; as explicit and detailed as 

possible; note any observed changes in 

behavior); 

• Animal’s closest point of approach 

and/or closest distance from the center 

point of the acoustic source; 

• Platform activity at time of sighting 

(e.g., deploying, recovering, testing, data 

acquisition, other); and 

• Description of any actions 

implemented in response to the sighting 

(e.g., delays, shutdown, ramp-up, speed 

or course alteration, etc.) and time and 

location of the action. 

If a North Atlantic right whale is 

observed at any time by PSOs or 

personnel on any project vessels, during 

surveys or during vessel transit, Garden 

State must immediately report sighting 

information to the NMFS North Atlantic 

Right Whale Sighting Advisory System: 

(866) 755–6622. North Atlantic right 

whale sightings in any location may also 

be reported to the U.S. Coast Guard via 

channel 16. 

In the event that Garden State 

personnel discover an injured or dead 

marine mammal, Garden State will 

report the incident to the NMFS Office 

of Protected Resources (OPR) and the 

NMFS New England/Mid-Atlantic 

Stranding Coordinator as soon as 

feasible. The report would include the 

following information: 

• Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• General circumstances under which 

the animal was discovered. 

In the unanticipated event of a ship 

strike of a marine mammal by any vessel 

involved in the activities covered by the 

IHA, Garden State must report the 

incident to the NMFS OPR and the 

NMFS New England/Mid-Atlantic 

Stranding Coordinator as soon as 

feasible. The report would include the 

following information: 

• Time, date, and location (latitude/ 

longitude) of the incident; 

• Species identification (if known) or 

description of the animal(s) involved; 

• Vessel’s speed during and leading 

up to the incident; 

• Vessel’s course/heading and what 

operations were being conducted (if 

applicable); 

• Status of all sound sources in use; 


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• 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; 

• Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, visibility) 

immediately preceding the strike; 

• Estimated size and length of animal 

that was struck; 

• Description of the behavior of the 

marine mammal immediately preceding 

and following the strike; 

• If available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; 

• 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 

• To the extent practicable, 

photographs or video footage of the 

animal(s). 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 

of the mitigation. NMFS also assesses 

the number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’ implementing 

regulations (54 FR 40338; September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

To avoid repetition, our analysis 

applies to all the species listed in Table 

4, given that NMFS expects the 

anticipated effects of the planned survey 

to be similar in nature. Where there are 

meaningful differences between species 

or stocks—as is the case of the North 

Atlantic right whale—they are included 

as separate subsections below. NMFS 

does not anticipate that serious injury or 

mortality would occur as a result from 

HRG surveys, even in the absence of 

mitigation, and no serious injury or 

mortality is anticipated or authorized. 

As discussed in the Potential Effects of 

Specified Activities on Marine 

Mammals and their Habitat section of 

the notice of the proposed IHA (86 FR 

22160; April 27, 2021), non-auditory 

physical effects and vessel strike are not 

expected to occur. NMFS expects that 

all potential takes would be in the form 

of short-term Level B behavioral 

harassment in the form of temporary 

avoidance of the area or decreased 

foraging (if such activity was occurring), 

reactions that are considered to be of 

low severity and with no lasting 

biological consequences (e.g., Southall 

et al., 2007). Even repeated Level B 

harassment of some small subset of an 

overall stock is unlikely to result in any 

significant realized decrease in viability 

for the affected individuals, and thus 

would not result in any adverse impact 

to the stock as a whole. As described 

above, Level A harassment is not 

expected to occur given the nature of 

the operations and the estimated small 

size of the Level A harassment zones. 

In addition to being temporary, the 

maximum expected harassment zone 

around a survey vessel is 141 m. 

Therefore, the ensonified area 

surrounding each vessel is relatively 

small compared to the overall 

distribution of the animals in the area 

and their use of the habitat. Feeding 

behavior is not likely to be significantly 

impacted as prey species are mobile and 

are broadly distributed throughout the 

survey area; therefore, marine mammals 

that may be temporarily displaced 

during survey activities are expected to 

be able to resume foraging once they 

have moved away from areas with 

disturbing levels of underwater noise. 

Because of the temporary nature of the 

disturbance and the availability of 

similar habitat and resources in the 

surrounding area, the impacts to marine 

mammals and the food sources that they 

utilize are not expected to cause 

significant or long-term consequences 

for individual marine mammals or their 

populations. 

There are no rookeries, mating or 

calving grounds known to be 

biologically important to marine 

mammals within the survey area and 

there are no feeding areas known to be 

biologically important to marine 

mammals within the survey area. There 

is no designated critical habitat for any 

ESA-listed marine mammals in the 

survey area. 

North Atlantic Right Whales 

The status of the North Atlantic right 

whale population is of heightened 

concern and, therefore, merits 

additional analysis. As discussed in the 

notice of the proposed IHA (86 FR 

22160; April 27, 2021), elevated North 

Atlantic right whale mortalities began in 

June 2017 and there is an active UME. 

Overall, preliminary findings support 

human interactions, specifically vessel 

strikes and entanglements, as the cause 

of death for the majority of right whales. 

As noted previously, the survey area 

overlaps a migratory corridor 

Biologically Important Area (BIA) for 

North Atlantic right whales. Due to the 

fact that that the survey activities are 

temporary and the spatial extent of 

sound produced by the survey would be 

very small relative to the spatial extent 

of the available migratory habitat in the 

BIA, right whale migration is not 

expected to be impacted by the survey. 

Given the relatively small size of the 

ensonified area, it is unlikely that prey 

availability would be adversely affected 

by HRG survey operations. Required 

vessel strike avoidance measures will 

also decrease risk of ship strike during 

migration; no ship strike is expected to 

occur during Garden State’s planned 

activities. Additionally, only very 

limited take by Level B harassment of 

North Atlantic right whales has been 

requested and is being authorized by 

NMFS as HRG survey operations are 

required to maintain a 500 m EZ and 

shutdown if a North Atlantic right 

whale is sighted at or within the EZ. 

The 500 m shutdown zone for right 

whales is conservative, considering the 

Level B harassment isopleth for the 

most impactful acoustic source (i.e., 

GeoMarine Geo-Source 400 tip sparker) 

is estimated to be 141 m, and thereby 

minimizes the potential for behavioral 

harassment of this species. As noted 

previously, Level A harassment is not 

expected due to the small Level A 

harassment zones associated with HRG 

equipment types planned for use. NMFS 

does not anticipate that North Atlantic 

right whales takes resulting from Garden 

State’s activities would impact annual 

rates of recruitment or survival. Thus, 

any takes that occur would not result in 

population level impacts. 


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Other Marine Mammal Species With 

Active UMEs 

As discussed in the notice of the 

proposed IHA (86 FR 22160; April 27, 

2021), there are several active UMEs 

occurring in the vicinity of Garden 

State’s survey area. Elevated humpback 

whale mortalities have occurred along 

the Atlantic coast from Maine through 

Florida since January 2016. Of the cases 

examined, approximately half had 

evidence of human interaction (ship 

strike or entanglement). The UME does 

not yet provide cause for concern 

regarding population-level impacts. 

Despite the UME, the relevant 

population of humpback whales (the 

West Indies breeding population, or 

DPS) remains stable at approximately 

12,000 individuals. 

Beginning in January 2017, elevated 

minke whale strandings have occurred 

along the Atlantic coast from Maine 

through South Carolina, with highest 

numbers in Massachusetts, Maine, and 

New York. This event does not provide 

cause for concern regarding population 

level impacts, as the likely population 

abundance is greater than 20,000 

whales. 

Elevated numbers of harbor seal and 

gray seal mortalities were first observed 

in July 2018 and have occurred across 

Maine, New Hampshire, and 

Massachusetts. Based on tests 

conducted so far, the main pathogen 

found in the seals is phocine distemper 

virus, although additional testing to 

identify other factors that may be 

involved in this UME are underway. 

The UME does not yet provide cause for 

concern regarding population-level 

impacts to any of these stocks. For 

harbor seals, the population abundance 

is over 75,000 and annual mortality/ 

serious injury (M/SI; 350) is well below 

PBR (2,006) (Hayes et al., 2020). The 

population abundance for gray seals in 

the United States is over 27,000, with an 

estimated abundance, including seals in 

Canada, of approximately 450,000. In 

addition, the abundance of gray seals is 

likely increasing in the U.S. Atlantic 

exclusive economic zone as well as in 

Canada (Hayes et al., 2020). 

The required mitigation measures are 

expected to reduce the number and/or 

severity of takes for all species listed in 

Table 4, including those with active 

UMEs to the level of least practicable 

adverse impact. In particular they 

would provide animals the opportunity 

to move away from the sound source 

throughout the survey area before HRG 

survey equipment reaches full energy, 

thus preventing them from being 

exposed to sound levels that have the 

potential to cause injury (Level A 

harassment) or more severe Level B 

harassment. No Level A harassment is 

anticipated, even in the absence of 

mitigation measures, or authorized. 

NMFS expects that takes would be in 

the form of short-term Level B 

behavioral harassment by way of brief 

startling reactions and/or temporary 

vacating of the area, or decreased 

foraging (if such activity was 

occurring)—reactions that (at the scale 

and intensity anticipated here) are 

considered to be of low severity, with 

no lasting biological consequences. 

Since both the sources and marine 

mammals are mobile, animals would 

only be exposed briefly to a small 

ensonified area that might result in take. 

Additionally, required mitigation 

measures would further reduce 

exposure to sound that could result in 

more severe behavioral harassment. 

In summary and as described above, 

the following factors primarily support 

our determination that the impacts 

resulting from this activity are not 

expected to adversely affect the species 

or stock through effects on annual rates 

of recruitment or survival: 

• No mortality or serious injury is 

anticipated or authorized; 

• No Level A harassment (PTS) is 

anticipated, even in the absence of 

mitigation measures, or authorized; 

• Foraging success is not likely to be 

significantly impacted as effects on 

species that serve as prey species for 

marine mammals from the survey are 

expected to be minimal; 

• The availability of alternate areas of 

similar habitat value for marine 

mammals to temporarily vacate the 

survey area during the planned survey 

to avoid exposure to sounds from the 

activity; 

• Take is anticipated to be primarily 

Level B behavioral harassment 

consisting of brief startling reactions 

and/or temporary avoidance of the 

survey area; 

• While the survey area is within 

areas noted as a migratory BIA for North 

Atlantic right whales, the activities will 

occur in such a comparatively small 

area such that any avoidance of the 

survey area due to activities would not 

affect migration. In addition, mitigation 

measures to shutdown at 500 m to 

minimize potential for Level B 

behavioral harassment would limit any 

take of the species; and 

• The required mitigation measures, 

including visual monitoring and 

shutdowns, are expected to minimize 

potential impacts to marine mammals. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

monitoring and mitigation measures, 

NMFS finds that the total marine 

mammal take from the activity will have 

a negligible impact on all affected 

marine mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) and (D) of 

the MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals taken to the 

most appropriate estimation of 

abundance of the relevant species or 

stock in our determination of whether 

an authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is less than one third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

NMFS has authorized incidental take 

of 16 marine mammal species (with 17 

managed stocks.) The total amount of 

takes authorized relative to the best 

available population abundance is less 

than 8 percent for one stock (bottlenose 

dolphin northern coastal migratory 

stock) and less than 4 percent of all 

other species and stocks, which NMFS 

finds are small numbers of marine 

mammals relative to the estimated 

overall population abundances for those 

stocks (see Table 4). 

Based on the analysis contained 

herein of the planned activity (including 

the mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals will 

be taken relative to the population size 

of the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.) requires that each Federal agency 

insure that any action it authorizes, 


lotter on DSK11XQN23PROD with NOTICES1
33682 Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Notices 

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 NMFS proposes to 

authorize take for endangered or 

threatened species, in this case with 

NMFS Greater Atlantic Regional 

Fisheries Office (GARFO). 

The NMFS OPR is authorizing the 

incidental take of four species of marine 

mammals which are listed under the 

ESA: North Atlantic right, fin, sei, and 

sperm whales. The OPR requested 

initiation of Section 7 consultation with 

NMFS GARFO on April 19, 2021, for the 

issuance of the IHA. On June 1, 2021, 

NMFS GARFO determined that issuance 

of the IHA to Garden State is not likely 

to adversely affect the North Atlantic, 

fin, sei, or sperm whale or result in take 

of any marine mammals that would 

violate the ESA. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must review our 

proposed action (i.e., the issuance of an 

IHA) with respect to potential impacts 

on the human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 (IHAs with no 

anticipated serious injury or mortality) 

of the Companion Manual for NOAA 

Administrative Order 216–6A, which do 

not individually or cumulatively have 

the potential for significant impacts on 

the quality of the human environment 

and for which NMFS have not identified 

any extraordinary circumstances that 

would preclude this categorical 

exclusion. Accordingly, NMFS has 

determined that the issuance of the IHA 

qualifies to be categorically excluded 

from further NEPA review. 

Authorization 

NMFS has issued an IHA to Garden 

State for the potential harassment of 

small numbers of 16 marine mammal 

species (with 17 managed stocks) 

incidental to conducting marine site 

characterization surveys offshore of 

Delaware and New Jersey in the area of 

the Commercial Lease of Submerged 

Lands for Renewable Energy 

Development on the Outer Continental 

Shelf (OCS–A 0482) and along potential 

export cable routes to landfall locations 

in Delaware and New Jersey, provided 

the previously mentioned mitigation, 

monitoring, and reporting requirements 

are followed. 

Dated: June 14, 2021. 

Catherine Marzin, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–13530 Filed 6–24–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB168] 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to U.S. Navy Marine 

Structure Maintenance and Pile 

Replacement in Washington 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of issuance of letters of 

authorization. 

SUMMARY: In accordance with the 

Marine Mammal Protection Act 

(MMPA), as amended, and 

implementing regulations, notification 

is hereby given that two Letters of 

Authorization (LOA) have been issued 

to the U.S. Navy (Navy) for the take of 

marine mammals incidental to 

maintenance construction activities at 

facilities in Washington. 

DATES: The LOAs are effective from July 

16, 2021, through January 15, 2022, and 

from July 16, 2021, through February 15, 

2022. 

ADDRESSES: The LOAs and supporting 

documentation are available online at: 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-us-navymarine-structure-maintenance-and-pilereplacement-wa. In case of problems 

accessing these documents, please call 

the contact listed below (see FOR

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: Ben 

Laws, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

An authorization for incidental 

takings shall be granted if NMFS finds 

that the taking will have a negligible 

impact on the species or stock(s), will 

not have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses (where 

relevant), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth. NMFS has defined ‘‘negligible 

impact’’ in 50 CFR 216.103 as an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival. 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: Any act of 

pursuit, torment, or annoyance which (i) 

has the potential to injure a marine 

mammal or marine mammal stock in the 

wild (Level A harassment); or (ii) has 

the potential to disturb a marine 

mammal or marine mammal stock in the 

wild by causing disruption of behavioral 

patterns, including, but not limited to, 

migration, breathing, nursing, breeding, 

feeding, or sheltering (Level B 

harassment). 

Summary of Request 

On April 17, 2019, we issued a final 

rule upon request from the Navy for 

authorization to take marine mammals 

incidental to maintenance construction 

activities at six facilities in Washington 

(84 FR 15963). The Navy plans to 

conduct construction necessary for 

maintenance of existing in-water 

structures at the following facilities: 

Naval Base Kitsap (NBK) Bangor, NBK 

Bremerton, NBK Keyport, NBK 

Manchester, Zelatched Point, and Naval 

Station Everett (NS Everett). These 

repairs include use of impact and 

vibratory pile driving, including 

installation and removal of steel, 

concrete, plastic, and timber piles. The 

use of both vibratory and impact pile 

driving is expected to produce 

underwater sound at levels that have the 

potential to result in harassment of 

marine mammals. 

For the 2021–22 in-water work 

season, the Navy requested issuance of 

LOAs for work planned at NBK 

Manchester and NBK Bangor. The Navy 

submitted site-specific monitoring 

plans. Following NMFS review and 

approval of the required plans, we have 

issued the requested LOAs. The 

approved plans are available online at: 


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