Federal Register / Vol. 87, No. 78 / Friday, April 22, 2022 / Notices 24103 

and implemented, some of the fields in 

the ITQ ownership form and the ITQ 

transfer form may change as a result. 

Any revisions to this collection will be 

specified in the proposed rule for the 

amendment. 

Affected Public: Individuals and 

Business or other for-profit 

organizations. 

Frequency: Frequency varies from 

collection to collection (e.g., annual, per 

trip, as requested by public). 

Respondent’s Obligation: Obligation 

varies from collection to collection (e.g., 

mandatory, voluntary, required to retain 

benefits). 

Legal Authority: Magnuson-Stevens 

Fishery Conservation and Management 

Act (16 U.S.C. 1801 et seq, Section 303). 

This information collection request 

may be viewed at www.reginfo.gov. 

Follow the instructions to view the 

Department of Commerce collections 

currently under review by OMB. 

Written comments and 

recommendations for the proposed 

information collection should be 

submitted within 30 days of the 

publication of this notice on the 

following website www.reginfo.gov/ 

public/do/PRAMain. Find this 

particular information collection by 

selecting ‘‘Currently under 30-day 

Review—Open for Public Comments’’ or 

by using the search function and 

entering either the title of the collection 

or the OMB Control Number 0648–0240. 

Sheleen Dumas, 

Department PRA Clearance Officer, Office of 

the Chief Information Officer, Commerce 

Department. 

[FR Doc. 2022–08661 Filed 4–21–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB775] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys Off New 

Jersey and New York for Atlantic 

Shores Offshore Wind, LLC 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of an 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 

Atlantic Shores Offshore Wind, LLC to 

incidentally harass marine mammals 

during marine site characterization 

surveys off New Jersey and New York. 

DATES: This Authorization is effective 

from April 20, 2022 through April 19, 

2023. 

FOR FURTHER INFORMATION CONTACT: 

Kelsey Potlock, Office of Protected 

Resources, NMFS, (301) 427–8401. 

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. 

Summary of Request 

On August 16, 2021, NMFS received 

a request from Atlantic Shores for an 

IHA to take marine mammals incidental 

to marine site characterization surveys 

occurring in three locations (Lease Area 

and Export Cable Routes (ECR) North 

and South) off of New Jersey and New 

York in and around the area of 

Commercial Lease of Submerged Lands 

for Renewable Energy Development on 

the Outer Continental Shelf Lease Area 

(OCS)–A 0499. The application was 

deemed adequate and complete on 

December 13, 2021. Atlantic Shores’ 

request is for take of a small number of 

15 species of marine mammals 

(comprised of 16 stocks) by Level B 

harassment only. Neither Atlantic 

Shores nor NMFS expects serious injury 

or mortality to result from this activity; 

therefore, an IHA is appropriate. 

Description of Activities 

Overview 

As part of its overall marine site 

characterization survey operations, 

Atlantic Shores will conduct highresolution geophysical (HRG) surveys in 

and around the Lease Area (OCS)–A 

0499 and along potential submarine 

cable routes (ECRs North and South) to 

a landfall location in either New York 

or New Jersey. 

The purpose of these surveys are to 

support the site characterization, siting, 

and engineering design of offshore wind 

facilities including wind turbine 

generators, offshore substations, and 

submarine cables within the Lease Area 

and along export cable routes (ECRs). As 

many as three survey vessels may 

operate concurrently. 360 days of survey 

days are planned with vessels operating 

for 24-hours as part of the planned 

surveys (Table 1). Underwater sound 

resulting from Atlantic Shores’ planned 

site characterization survey activities, 

specifically certain acoustic sources 

operating at <180 kilohertz (kHz), has 

the potential to result in incidental take 

of marine mammals in the form of 

behavioral harassment (Table 2). 

TABLE 1—NUMBER OF SURVEY DAYS

THAT ATLANTIC SHORES PLANS TO

PERFORM THE DESCRIBED HRG 

SURVEY ACTIVITIES

Survey area 

Number 

of active 

survey days 

expected 1

Lease Area ............................... 120 

ECR North ................................ 180 

ECR South ................................ 60 

Total ................................... 360 

1Surveys in each area may temporally overlap; therefore, actual number of days of activity in a given year would be less than 360. 


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TABLE 2—SUMMARY OF REPRESENTATIVE EQUIPMENT SPECIFICATIONS WITH OPERATING FREQUENCIES BELOW 180 kHz 

HRG survey equipment 

(sub-bottom profiler) Representative equipment type 

Operating 

frequency ranges 

(kHz) 

Operational 

source level 

ranges 

(dBRMS) b

Beamwidth 

ranges 

(degrees) 

Typical pulse 

durations RMS 

(millisecond) 

Pulse 

repetition rate 

(Hz) 

Sparker (impulsive) ..................... Applied Acoustics Dura-Spark 240 a ....... 0.01 to 1.9 ......... 203 180 3.4 2 

Geo Marine Geo-Source ......................... 0.2 to 5 .............. 195 180 7.2 0.41 

CHIRPs (non-impulsive) .............. Edgetech 2000–DSS ............................... 2 to 16 ............... 195 24 6.3 10 

Edgetech 216 .......................................... 2 to 16 ............... 179 17, 20, or 24 10 10 

Edgetech 424 .......................................... 4 to 24 ............... 180 71 4 2 

Edgetech 512i .......................................... 0.7 to 12 ............ 179 80 9 8 

Pangeosubsea Sub-Bottom ImagerTM .... 4 to 12.5 ............ 190 120 4.5 44 

Note—Two sources with potential for use by Atlantic Shores (i.e., the INNOMAR SES–2000 Medium-100 Parametric and the INNOMAR deep-36 Parametric) are 

not expected to result in take due to their higher frequencies and extremely narrow beamwidths. Because of this, these sources were not considered when calculating 

the Level B harassment isopleths and are not discussed further in this notice. Acoustic parameters on these parametric sub-bottom profilers can be found in Atlantic 

Shores’ IHA application on NMFS’ website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable). aAtlantic Shores discussed with NMFS and include information in their application that while the Applied Acoustics Dura-Spark 240 is planned to be used during 

survey activities, the equipment specifications and subsequent analysis are based on the SIG ELC 820 with a power level of 750 joules (J) at a 5 meter depth (Crocker and Fratantonio (2016)). However, Atlantic Shores expects a more reasonable power level to be 500–600 J based on prior experience with HRG surveys; 750 J 

was used as a worst-case scenario to conservatively account for take of marine mammals as these higher electrical outputs would only be used in areas with denser 

substrates (700–800 J). b Root mean square (RMS) = 1 microPa. 

Mitigation, monitoring, and reporting 

measures are described in detail later in 

this document (please see Mitigation 

and Monitoring and Reporting). 

A detailed description of the planned 

surveys by Atlantic Shores are provided 

in the Federal Register notice of the 

proposed IHA (87 FR 4200; January 27, 

2022). Since that time, no changes have 

been made to the survey activities. 

Therefore, a detailed description is not 

provided here. Please refer to that 

Federal Register notice for the 

description of the specified activities. 

Comments and Responses 

A notice of NMFS’ proposal to issue 

an IHA to Atlantic Shores was 

published in the Federal Register on 

January 27, 2022 (87 FR 4200). That 

proposed notice described, in detail, 

Atlantic Shores’ activities, the marine 

mammal species that may be affected by 

the activities, and the anticipated effects 

on marine mammals. In that notice, we 

requested public input on the request 

for authorization described therein, our 

analyses, the proposed authorization, 

and any other aspect of the notice of 

proposed IHA, and requested that 

interested persons submit relevant 

information, suggestions, and 

comments. This proposed notice was 

available for a 30-day public comment 

period. 

NMFS received 11 individual 

comments from private citizens. Eight of 

these expressed general opposition to or 

support for the IHA and the underlying 

associated activities and two 

specifically addressed concerns 

regarding construction of a wind energy 

facility itself, which is outside the scope 

of NMFS’ action considered herein. We 

do not specifically address these 

comments, or non-substantive 

comments expressing general 

opposition or support from private 

citizens, in further detail. Additionally, 

NMFS received two letters from 

environmental non-governmental 

organizations (eNGOs) (Oceana, Inc. and 

Clean Ocean Action (COA)) and one 

letter from a local citizen group (Save 

Long Beach Island (LBI)). All 

substantive comments, and NMFS’ 

responses, are provided below, and the 

letters are available online at: 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-marine-site-0). 

Please review the corresponding public 

comment link for full details regarding 

the comments, letters, and underlying 

justification. 

Comment 1: Oceana made comments 

objecting to NMFS’ renewal process 

regarding the extension of any one-year 

IHA with a truncated 15-day public 

comment period, and suggested an 

additional 30-day public comment 

period is necessary for any renewal 

request. 

NMFS’ response: NMFS’ IHA renewal 

process meets all statutory 

requirements. In prior responses to 

comments about IHA renewals (e.g., 84 

FR 52464; October 2, 2019 and 85 FR 

53342, August 28, 2020), NMFS has 

explained how the renewal process, as 

implemented, is consistent with the 

statutory requirements contained in 

section 101(a)(5)(D) of the MMPA, and, 

further, promotes NMFS’ goals of 

improving conservation of marine 

mammals and increasing efficiency in 

the MMPA compliance process. 

Therefore, we intend to continue 

implementing the renewal process. 

The Notice of the proposed IHA 

published in the Federal Register on 

January 27, 2022 (87 FR 4200) made 

clear that the agency was seeking 

comment on the proposed IHA and the 

potential issuance of a renewal for this 

survey. Because any renewal is limited 

to another year of identical or nearly 

identical activities in the same location 

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 would be additional 

documents submitted with a renewal 

request, for a qualifying renewal these 

would be limited to documentation that 

NMFS would 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 

would also need to confirm, among 

other things, that the activities would 

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 would 

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 


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additional 15 days, the total comment 

period for a renewal is 45 days. 

In addition to the IHA renewal 

process being consistent with all 

requirements under section 101(a)(5)(D), 

it is also consistent with Congress’ 

intent for issuance of IHAs to the extent 

reflected in statements in the legislative 

history of the MMPA. Through the 

provision for renewals in the 

regulations, description of the process 

and express invitation to comment on 

specific potential renewals in the 

Request for Public Comments section of 

each proposed IHA, the description of 

the process on NMFS’ website, further 

elaboration on the process through 

responses to comments such as these, 

posting of substantive documents on the 

agency’s website, and provision of 30 or 

45 days for public review and comment 

on all proposed initial IHAs and 

Renewals respectively, NMFS has 

ensured that the public is ‘‘invited and 

encouraged to participate fully in the 

agency’s decision-making process’’, as 

Congress intended. 

Comment 2: Oceana and COA 

remarked that NMFS must utilize the 

best available science. The commenters 

further suggest that NMFS has not done 

so, specifically, referencing information 

regarding the NARW such as updated 

population estimates and recent habitat 

usage patterns in Atlantic Shores’ 

survey area. The commenters 

specifically asserted that NMFS is not 

using the best available science with 

regards to the North Atlantic right whale 

(NARW) population estimate and state 

that NMFS should be using the 336 

estimate presented in the recent North 

Atlantic Right Whale Report Card 

(https://www.narwc.org/reportcards.html). 

NMFS’ response: While NMFS agrees 

that the best available science should be 

used for assessing NARW abundance 

estimates, we disagree that the North 

Atlantic Right Whale Report Card (i.e., 

Pettis et al. (2022)) study represents the 

most recent and best available estimate 

for NARW abundance. Rather the 

revised abundance estimate (368; 95 

percent with a confidence interval of 

356–378) published by Pace (2021) (and 

subsequently included in the 2021 draft 

Stock Assessment Reports (SARs; 

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

national/marine-mammal-protection/ 

marine-mammal-stock-assessmentreports)), which was used in the 

proposed IHA, provides the most recent 

and best available estimate, and 

introduced improvements to NMFS’ 

right whale abundance model. 

Specifically, Pace (2021) looked at a 

different way of characterizing annual 

estimates of age-specific survival. NMFS 

considered all relevant information 

regarding NARW, including the 

information cited by the commenters. 

However, NMFS relies on the SAR. 

Recently (after publication of the notice 

of proposed IHA), NMFS has updated 

its species web page to recognize the 

population estimate for NARWs is now 

below 350 animals (https://

www.fisheries.noaa.gov/species/northatlantic-right-whale). We anticipate that 

this information will be presented in the 

draft 2022 SAR. We note that this 

change in abundance estimate would 

not change the estimated take of 

NARWs or authorized take numbers, nor 

affect our ability to make the required 

findings under the MMPA for Atlantic 

Shores’ survey activities. 

NMFS further notes that the 

commenters seem to be conflating the 

phrase ‘‘best available data’’ with ‘‘the 

most recent data.’’ The MMPA specifies 

that the ‘‘best available data’’ must be 

used, which does not always mean the 

most recent. As is NMFS’ prerogative, 

we referenced the best available NARW 

abundance estimate of 368 from the 

draft 2021 SARs as NMFS’s 

determination of the best available data 

that we relied on in our analysis. The 

Pace (2021) results strengthened the 

case for a change in mean survival rates 

after 2010–2011, but did not 

significantly change other current 

estimates (population size, number of 

new animals, adult female survival) 

derived from the model. Furthermore, 

NMFS notes that the SARs are peer 

reviewed by other scientific review 

groups prior to being finalized and 

published and that the North Atlantic 

Right Whale Report Card (Pettis et al., 

2022) does not undertake this process. 

The commenters also noted their 

concern regarding NARW habitat usage, 

stating that NMFS was not appropriately 

considering relevant information on this 

topic. While this survey specifically 

intersects migratory habitat for NARWs, 

year-round ‘‘core’’ NARW foraging 

habitat (Oleson et al., 2020) located 

much further north in the southern area 

of Martha’s Vineyard and Nantucket 

Islands where both visual and acoustic 

detections of NARWs indicate a nearly 

year-round presence (Oleson et al., 

2020). NMFS notes that prey for NARWs 

are mobile and broadly distributed 

throughout the survey area; therefore, 

NARW foraging efforts are not likely to 

be disturbed given the location of these 

planned activities in relation to the 

broader area that NARWs migrate 

through and the northern areas where 

NARWs primarily forage. There is 

ample foraging habitat further north of 

this survey area that will not be 

ensonified by the acoustic sources used 

by Atlantic Shores, such as in the Great 

South Channel and Georges Bank Shelf 

Break feeding biologically important 

area (BIA). Furthermore, and as 

discussed in the proposed Notice, the 

spatial acoustic footprint of the survey 

is very small relative to the spatial 

extent of the available foraging habitat. 

Lastly, as we stated in the proposed 

Notice, any impacts to marine mammals 

are expected to be temporary and minor 

and, given the relative size of the survey 

area compared to the overall migratory 

route leading to foraging habitat (which 

is not affected by the specified activity). 

Comparatively, the survey area is 

approximately 5,868 square kilometers 

(km2) and the NARW migratory BIA is 

269,448 km2. Because of this, and in 

context of the minor, low-level nature of 

the impacts expected to result from the 

planned survey, such impacts are not 

expected to result in disruption to 

biologically important behaviors. 

Comment 3: Oceana noted that 

chronic stressors are an emerging 

concern for NARW conservation and 

recovery, and stated that chronic stress 

may result in energetic effects for 

NARWs. Oceana suggested that NMFS 

has not fully considered both the use of 

the area and the effects of both acute 

and chronic stressors on the health and 

fitness of NARWs, as disturbance 

responses in NARWs could lead to 

chronic stress or habitat displacement, 

leading to an overall decline in their 

health and fitness. 

NMFS’ response: NMFS agrees with 

Oceana that both acute and chronic 

stressors are of concern for NARW 

conservation and recovery. We 

recognize that acute stress from acoustic 

exposure is one potential impact of 

these surveys, and that chronic stress 

can have fitness, reproductive, etc. 

impacts at the population-level scale. 

NMFS has carefully reviewed the best 

available scientific information in 

assessing impacts to marine mammals, 

and recognizes that the surveys have the 

potential to impact marine mammals 

through behavioral effects, stress 

responses, and auditory masking. 

However, NMFS does not expect that 

the generally short-term, intermittent, 

and transitory marine site 

characterization survey activities 

planned by Atlantic Shores would 

create conditions of acute or chronic 

acoustic exposure leading to long-term 

physiological stress responses in marine 

mammals. NMFS has also prescribed a 

robust suite of mitigation measures, 

including extended distance shutdowns 

for NARW, that are expected to further 

reduce the duration and intensity of 

acoustic exposure, while limiting the 

potential severity of any possible 


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behavioral disruption. The potential for 

chronic stress was evaluated in making 

the determinations presented in NMFS’s 

negligible impact analyses. Because 

NARWs generally use this location in a 

transitory manner, specifically for 

migration, any potential impacts from 

these surveys are lessened for other 

behaviors due to the brief periods where 

exposure is possible. In context of these 

expected low-level impacts, which are 

not expected to meaningfully affect 

important behavior, we also refer again 

to the large size of the migratory 

corridor (BIA of 269,448 km2) compared 

with the survey area (5,868 km2). Thus, 

the transitory nature of NARWs at this 

location means it is unlikely for any 

exposure to cause chronic effects as 

Atlantic Shores’ planned survey area 

and ensonified zones are much smaller 

than the overall migratory corridor. 

Because of this, NMFS does not expect 

acute or cumulative stress to be a 

detrimental factor to NARWs from 

Atlantic Shores’ described survey 

activities. 

Comment 4: Oceana and COA 

asserted that NMFS must fully consider 

the discrete effects of each activity and 

the cumulative effects of the suite of 

approved, proposed and potential 

activities on marine mammals and 

NARWs in particular and ensure that 

the cumulative effects are not excessive 

before issuing or renewing an IHA. 

NMFS’ 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 final 

rule for the MMPA 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, this IHA, as well as 

other IHAs currently in effect or 

proposed within the specified 

geographic region, are appropriately 

considered an unrelated activity relative 

to the others. The IHAs are unrelated in 

the sense that they are discrete actions 

under section 101(a)(5)(D), issued to 

discrete applicants. 

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

requires NMFS to make a 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, 

Atlantic Shores was the applicant for 

the IHA, and we are responding to the 

specified activity as described in that 

application (and making the necessary 

findings on that basis). 

Through the response to public 

comments in the 1989 implementing 

regulations, NMFS also indicated (1) 

that we 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, as appropriate. 

Accordingly, NMFS has written 

Environmental Assessments (EA) that 

addressed cumulative impacts related to 

substantially similar activities, in 

similar locations, e.g., the 2017 Ocean 

Wind, LLC EA for site characterization 

surveys off New Jersey; the 2018 

Deepwater Wind EA for survey 

activities offshore Delaware, 

Massachusetts, and Rhode Island; the 

2019 Avangrid EA for survey activities 

offshore North Carolina and Virginia; 

and the 2019 Orsted EA for survey 

activities offshore southern New 

England. Cumulative impacts regarding 

issuance of IHAs for site 

characterization survey activities such 

as those planned by Atlantic Shores 

have been adequately addressed under 

NEPA in prior environmental analyses 

that support NMFS’ determination that 

this action is appropriately categorically 

excluded from further NEPA analysis. 

NMFS independently evaluated the use 

of a categorical exclusion for issuance of 

Atlantic Shores’ IHA, which included 

consideration of extraordinary 

circumstances. Please see our response 

to Comment #21 below for more details. 

Separately, the cumulative effects of 

substantially similar activities in the 

same geographic region have been 

analyzed in the past under section 7 of 

the ESA when NMFS has engaged in 

formal intra-agency consultation, such 

as the 2013 programmatic Biological 

Opinion for BOEM Lease and Site 

Assessment Rhode Island, 

Massachusetts, New York, and New 

Jersey Wind Energy Areas (https://

repository.library.noaa.gov/view/noaa/ 

29291). Analyzed activities include 

those for which NMFS issued Atlantic 

Shores’ 2020 IHA and subsequent 2021 

renewal IHA (85 FR 21198; April 16, 

2020 and 86 FR 21289; April 22, 2021), 

which are substantially similar to those 

planned by Atlantic Shores under this 

current IHA request. This Biological 

Opinion determined that NMFS’ 

issuance of IHAs for site 

characterization survey activities 

associated with leasing, individually 

and cumulatively, are not likely to 

adversely affect listed marine mammals. 

NMFS notes, that while issuance of this 

IHA is covered under a different 

consultation, this BiOp remains valid 

and the surveys currently planned by 

Atlantic Shores from 2022 to 2023 could 

have fallen under the scope of those 

analyzed previously. 

Comment 5: LBI has concluded that 

NMFS should include nearby survey 

activities in the analysis of this IHAs, 

specifically activities occurring in the 

Ocean Wind 1 (OCS–A 0498), as 

Atlantic Shores’ survey activities are 

occurring during similar timeframes in 

similar spatial locations to the lease 

owned by Orsted Wind Power North 

America, LLC (Orsted). They noted that 

this was specifically important given the 

large number of offshore wind-related 

activities being considered in the 

northeast region and to appropriately 

assess cumulative impacts between 

projects. 

NMFS’ response: NMFS disagrees 

with LBI’s statement that activities 

occurring by Orsted and Atlantic 

Shores’ should be considered together 

in the MMPA action on that basis that 

they share a similar location 

geographically. We reiterate that under 

the MMPA, we are required to consider 

applications upon request. To date, 

NMFS has not received any joint 

application from Orsted and Atlantic 

Shores regarding their site 

characterization surveys off of New 

Jersey. While an individual company 

owning multiple lease areas may apply 

for a single authorization to conduct site 

characterization surveys across a 

combination of those lease areas, such 

as what was done by Orsted in their 

recent surveys from New York to 

Massachusetts (see 85 FR 63508, 

October 8, 2020; 87 FR 13975, March 11, 

2022), this is not applicable in this case 

to the leases owned by Atlantic Shores 

and Orsted found off New Jersey. In the 


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future, if applicants wish to undertake 

this approach, NMFS is open to the 

receipt of joint applications and 

additional discussions on joint actions. 

Furthermore, NMFS notes that the site 

characterization surveys covered under 

the current IHA (86 FR 26465; May 14, 

2021) in Ocean Wind’s lease are due to 

expire on May 9, 2022. While Ocean 

Wind has requested a renewal IHA and 

NMFS is seeking public comment on 

that request (87 FR 21098; April 11, 

2022), NMFS has not yet made a 

decision to issue a final renewal IHA, 

entailing minimal current temporal 

overlap in activities performed under 

this IHA by Atlantic Shores to Ocean 

Wind’s existing action (approximately 

19 days of overlap). However, NMFS 

again notes that these both of these 

actions (Atlantic Shores’ and Orsted’s 

site characterization surveys) are 

occurring in spatially distinct areas and 

that it is highly unlikely for both entity’s 

survey activities to occur in the same 

location at any one time. NMFS 

continues to reaffirm that any other 

authorization issued to Orsted relating 

to activities in OCS–A 0498 would be 

considered a discrete activity (refer back 

to the discussion in Comment #4) with 

its own separate and independent 

action. 

Comment 6: Oceana states that NMFS 

must make an assessment of which 

activities, technologies and strategies 

are truly necessary to provide 

information to inform development of 

Atlantic Shores and which are not 

critical, asserting that NMFS should 

prescribe the appropriate survey 

techniques. In general, Oceana stated 

that NMFS must require that all IHA 

applicants minimize the impacts of 

underwater noise to the fullest extent 

feasible, including through the use of 

best available technology and methods 

to minimize sound levels from 

geophysical surveys. 

NMFS’ response: The MMPA requires 

that an IHA include measures that will 

effect the least practicable adverse 

impact on the affected species and 

stocks and, in practice, NMFS agrees 

that the IHA should include conditions 

for the survey activities that will first 

avoid adverse effects on NARWs in and 

around the survey site, where 

practicable, and then minimize the 

effects that cannot be avoided. NMFS 

has determined that the IHA meets this 

requirement to effect the least 

practicable adverse impact. Oceana does 

not make any specific recommendations 

of measures to add to the IHA. As part 

of the analysis for all marine site 

characterization survey IHAs, NMFS 

evaluated the effects expected as a result 

of the specified activity, made the 

necessary findings, and prescribed 

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 may be 

appropriate techniques or technologies 

for an operator’s survey objectives. 

Comment 7: Oceana suggests that 

PSOs complement their survey efforts 

using additional technologies, such as 

infrared detection devices when in lowlight conditions. 

NMFS’ response: NMFS agrees with 

Oceana regarding this suggestion and a 

requirement to utilize a thermal 

(infrared) device during low-light 

conditions was included in the 

proposed Federal Register Notice. That 

requirement is included as a 

requirement of the issued IHA. 

Comment 8: Oceana and COA 

recommended that NMFS restrict all 

vessels of all sizes associated with the 

proposed survey activities to speeds less 

than 10 knots (kn) at all times due to the 

risk of vessel strikes to NARWs and 

other large whales. 

NMFS’ response: While NMFS 

acknowledges that vessel strikes can 

result in injury or mortality, we have 

analyzed the potential for ship strike 

resulting from Atlantic Shores’ activity 

and have determined that based on the 

nature of the activity and the required 

mitigation measures specific to vessel 

strike avoidance included in the IHA, 

potential for vessel strike is so low as to 

be discountable. These mitigation 

measures, most of which were included 

in the proposed IHA and all of which 

are required in the final IHA, include: 

A requirement that all vessel operators 

comply with 10 kn (18.5 km/hour) or 

less speed restrictions in any SMA, 

DMA or Slow Zone while underway, 

and check daily for information 

regarding the establishment of 

mandatory or voluntary vessel strike 

avoidance areas (SMAs, DMAs, Slow 

Zones) and information regarding 

NARW sighting locations; a requirement 

that all vessels greater than or equal to 

19.8 m in overall length operating from 

November 1 through April 30 operate at 

speeds of 10 kn (18.5 km/hour) or less; 

a requirement that all vessel operators 

reduce vessel speed to 10 kn (18.5 km/ 

hour) or less when any large whale, any 

mother/calf pairs, pods, or large 

assemblages of non-delphinid cetaceans 

are observed near the vessel; a 

requirement that all survey vessels 

maintain a separation distance of 500 m 

or greater from any ESA-listed whales or 

other unidentified large marine 

mammals visible at the surface while 

underway; a requirement that, if 

underway, vessels must steer a course 

away from any sighted ESA-listed whale 

at 10 kn or less until the 500 m 

minimum separation distance has been 

established; a requirement that, if an 

ESA-listed whale is sighted in a vessel’s 

path, or within 500 m of an underway 

vessel, the underway vessel must reduce 

speed and shift the engine to neutral; a 

requirement that all vessels underway 

must maintain a minimum separation 

distance of 100 m from all non-ESAlisted baleen whales; and a requirement 

that all vessels underway 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 in the IHA 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 surveys which were 

issued IHAs from NMFS during the 

survey activities themselves or while 

transiting to and from survey sites. 

Comment 9: Oceana suggests that 

NMFS require vessels maintain a 

separation distance of at least 500 m 

from NARWs at all times. 

NMFS’ response: NMFS agrees with 

Oceana regarding this suggestion and a 

requirement to maintain a separation 

distance of at least 500 m from NARWs 

at all times was included in the 

proposed Federal Register Notice and 

was included as a requirement in the 

issued IHA. 

Comment 10: Oceana recommended 

that the IHA should require all vessels 

supporting site characterization to be 

equipped with and using Class A 

Automatic Identification System (AIS) 

devices at all times while on the water. 

Oceana suggested this requirement 

should apply to all vessels, regardless of 

size, associated with the survey. 

NMFS’ response: NMFS is generally 

supportive of the idea that vessels 

involved with survey activities be 

equipped with and using Class A 

Automatic Identification System 

(devices) at all times while on the water. 

Indeed, there is a precedent for NMFS 

requiring such a stipulation for 

geophysical surveys in the Atlantic 

Ocean (38 FR 63268, December 7, 2018); 

however, these activities carried the 

potential for much more significant 

impacts than the marine site 

characterization surveys to be carried 

out by Atlantic Shores, with the 

potential for both Level A and Level B 

harassment take. Given the small 


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isopleths and small numbers of take 

authorized by this IHA, NMFS does not 

agree that the benefits of requiring AIS 

on all vessels associated with the survey 

activities outweighs and warrants the 

cost and practicability issues associated 

with this requirement. 

Comment 11: Oceana asserts that the 

IHA must include requirements to hold 

all vessels associated with site 

characterization surveys accountable to 

the IHA requirements, including vessels 

owned by the developer, contractors, 

employees, and others regardless of 

ownership, operator, and contract. They 

state that exceptions and exemptions 

will create enforcement uncertainty and 

incentives to evade regulations through 

reclassification and redesignation. They 

recommend that NMFS simplify this by 

requiring all vessels to abide by the 

same requirements, regardless of size, 

ownership, function, contract or other 

specifics. 

NMFS’ response: NMFS agrees with 

Oceana and required these measures in 

the proposed IHA and final IHA. The 

IHA requires that a copy of the IHA 

must be in the possession of Atlantic 

Shores, the vessel operators, the lead 

PSO, and any other relevant designees 

of Atlantic Shores operating under the 

authority of this IHA. The IHA also 

states that Atlantic Shores must ensure 

that the vessel operator and other 

relevant vessel personnel, including the 

Protected Species Observer (PSO) team, 

are briefed on all responsibilities, 

communication procedures, marine 

mammal monitoring protocols, 

operational procedures, and IHA 

requirements prior to the start of survey 

activity, and when relevant new 

personnel join the survey operations. 

Comment 12: Oceana stated that the 

IHA must include a requirement for all 

phases of the Atlantic Shores site 

characterization to subscribe to the 

highest level of transparency, including 

frequent reporting to federal agencies, 

requirements to report all visual and 

acoustic detections of NARWs and any 

dead, injured, or entangled marine 

mammals to NMFS or the Coast Guard 

as soon as possible and no later than the 

end of the PSO shift. Oceana states that 

to foster stakeholder relationships and 

allow public engagement and oversight 

of the permitting, the IHA should 

require all reports and data to be 

accessible on a publicly available 

website. 

NMFS’ response: NMFS agrees with 

the need for reporting and indeed, the 

MMPA calls for IHAs to incorporate 

reporting requirements. As included in 

the proposed IHA, the final IHA 

includes requirements for reporting that 

supports Oceana’s recommendations. 

Atlantic Shores is required to submit a 

monitoring report to NMFS within 90 

days after completion of survey 

activities that fully documents the 

methods and monitoring protocols, 

summarizes the data recorded during 

monitoring, and describes, assesses and 

compares the effectiveness of 

monitoring and mitigation measures. 

PSO datasheets or raw sightings data 

must also be provided with the draft 

and final monitoring report. Further the 

draft IHA and final IHA stipulate that if 

a NARW is observed at any time by any 

survey vessels, during surveys or during 

vessel transit, Atlantic Shores must 

immediately report sighting information 

to the NMFS North Atlantic Right 

Whale Sighting Advisory System and to 

the U.S. Coast Guard, and that any 

discoveries of injured or dead marine 

mammals be reported by Atlantic 

Shores to the Office of Protected 

Resources, NMFS, and to the New 

England/Mid-Atlantic Regional 

Stranding Coordinator as soon as 

feasible. All reports and associated data 

submitted to NMFS are included on the 

website for public inspection. 

Comment 13: Oceana and LBI 

recommended increasing the Exclusion 

Zone to either 1,000 m or 2,500 m, 

respectively, for NARWs. 

NMFS’ response: NMFS notes that the 

500 m Exclusion Zone for NARWs 

exceeds the modeled distance to the 

largest 160 dB Level B harassment 

isopleth distance (141 m during sparker 

use) by a substantial margin. 

Commenters do not provide a 

compelling rationale for why the 

Exclusion Zone should be even larger. 

Given that these surveys are relatively 

low impact and that, regardless, NMFS 

has prescribed a NARW Exclusion Zone 

that is significantly larger (500 m) than 

the conservatively estimated largest 

harassment zone (141 m), NMFS has 

determined that the Exclusion Zone is 

appropriate. Further, Level A 

harassment is expected to result even in 

the absence of mitigation, given the 

characteristics of the sources planned 

for use. As described in the Mitigation 

section, NMFS has determined that the 

prescribed mitigation requirements are 

sufficient to effect the least practicable 

adverse impact on all affected species or 

stocks. 

Comment 14: Oceana and LBI 

recommended that NMFS should 

require PAM at all times to maximize 

the probability of detection for NARWs. 

Commenters provided 

recommendations that NMFS should 

require Passive Acoustic Monitoring 

(PAM) at all times, both day and night, 

to maximize the probability of detection 

for NARWs, as well as other species and 

stocks. A private citizen also submitted 

a question regarding what other 

mitigation measures and approaches 

could be undertaken if a marine 

mammal is present in the area during 

survey activities but goes unobserved by 

PSOs. 

NMFS’ response: The commenters do 

not explain why they expect that PAM 

would be effective in detecting 

vocalizing mysticetes, nor does NMFS 

agree that this measure is warranted, as 

it is not expected to be effective for use 

in detecting the species of concern. It is 

generally accepted that, even in the 

absence of additional acoustic sources, 

using a towed passive acoustic sensor to 

detect baleen whales (including 

NARWs) 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 


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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 

NARWs 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. NMFS has previously provided 

discussions on why PAM isn’t a 

required monitoring measure during 

HRG survey IHAs in past Federal 

Register notices (see 86 FR 21289, April 

22, 2021 and 87 FR 13975, March 11, 

2022 for examples). 

Regarding monitoring for species that 

may be present yet go unobserved, 

NMFS recognizes that visual detection 

based mitigation approaches are not 100 

percent effective. Animals are missed 

because they are underwater 

(availability bias) or because they are 

available to be seen, but are missed by 

observers (perception and detection 

biases) (e.g., Marsh and Sinclair, 1989). 

However, visual observation remains 

one of the best available methods for 

marine mammal detection. Although it 

is likely that some marine mammals 

may be present yet unobserved within 

the harassment zone, all expected take 

of marine mammals has been 

appropriately authorized. For mysticete 

species in general, it is unlikely that an 

individual would occur within the 

estimated 141 m harassment zone and 

remain undetected. For NARW in 

particular, the required Exclusion Zone 

is 500 m and, therefore, it is even less 

likely that an individual would 

approach the harassment zone 

undetected. 

Comment 15: Oceana recommends a 

shutdown requirement if a NARW or 

other ESA-listed species is detected in 

the clearance zone as well as a 

publically available explanation of any 

exemptions as to why the applicant 

would not be able to shutdown in these 

situations. 

NMFS’ response: There are several 

shutdown requirements described in the 

Federal Register notice of the proposed 

IHA (87 FR 4200, January 27, 2022), and 

which are included in the final IHA, 

including the stipulation that 

geophysical survey equipment must be 

immediately shut down if any marine 

mammal is observed within or entering 

the relevant Exclusion Zone while 

geophysical survey equipment is 

operational. There is no exemption for 

the shutdown requirement. In regards to 

reporting, Atlantic Shores must notify 

NMFS if a NARW is observed at any 

time by any survey vessels during 

surveys or during vessel transit. 

Additionally, Atlantic Shores is 

required to report the relevant survey 

activity information, such as such as the 

type of survey equipment in operation, 

acoustic source power output while in 

operation, and any other notes of 

significance (i.e., pre-clearance survey, 

ramp-up, shutdown, end of operations, 

etc.) as well as the estimated distance to 

an animal and its heading relative to the 

survey vessel at the initial sighting and 

survey activity information. As 

documented in Atlantic Shores’ 

preliminary monitoring report for the 

surveys completed under the previous 

2020–2021 IHA (report available on our 

website at https://www.fisheries.

noaa.gov/action/incidental-takeauthorization-atlantic-shores-offshorewind-llc-marine-site-characterization), 

34 events occurred where a shutdown 

was necessitated. We note that if a right 

whale is detected within the Exclusion 

Zone before a shutdown is 

implemented, the right whale and its 

distance from the sound source, 

including if it is within the Level B 

harassment zone, would be reported in 

Atlantic Shores’ final monitoring report 

and made publicly available on NMFS’ 

website. Atlantic Shores is required to 

immediately notify NMFS of any 

sightings of NARWs and report upon 

survey activity information. NMFS 

believes that these requirements address 

the commenter’s concerns. 

Comment 16: Oceana recommended 

that when HRG surveys are allowed to 

resume after a shutdown event, the 

surveys should be required to use a 

ramp-up procedure to encourage any 

nearby marine life to leave the area. 

NMFS’ response: NMFS agrees with 

this recommendation and included in 

the Federal Register notice of the 

proposed IHA (87 FR 4200, January 27, 

2022) and this final IHA a stipulation 

that when technically feasible, survey 

equipment must be ramped up at the 

start or restart of survey activities. 

Ramp-up must begin with the power of 

the smallest acoustic equipment at its 

lowest practical power output 

appropriate for the survey. When 

technically feasible the power must then 

be gradually turned up and other 

acoustic sources added in a way such 

that the source level would increase 

gradually. NMFS notes that ramp-up 

would not be required for short periods 

where acoustic sources were shut down 

(i.e., less than 30 minutes) if PSOs have 

maintained constant visual observation 

and no detections of marine mammals 

occurred within the applicable 

Exclusion Zones. 

Comment 17: COA and LBI assert that 

Level A harassment may occur, and that 

this was not accounted for in the 

proposed Notice. 

NMFS’ response: NMFS 

acknowledges the concerns brought up 

by the commenters regarding the 

potential for Level A harassment of 

marine mammals. However, no Level A 

harassment is expected to result, even in 

the absence of mitigation, given the 

characteristics of the sources planned 

for use. This is additionally supported 

by the required mitigation and very 

small estimated Level A harassment 

zones described in Atlantic Shores’ 

2020 Federal Register notice (85 FR 

21198, April 16, 2020) and carried 

through to the 2021 renewal IHA (86 FR 

21289, April 22, 2021). Furthermore, the 

commenters do not provide any support 

for the apparent contention that Level A 

harassment is a potential outcome of 

these activities. As discussed in the 

notice of proposed IHA, 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. 

Comment 18: COA is concerned that 

habitat displacement could significantly 

increase the risk of ship-strike to 

NARWs from outside the survey area. 

NMFS’ response: NMFS does not 

anticipate that NARWs would be 

displaced from the area where Atlantic 

Shores’ marine site characterization 


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surveys would occur, and COA does not 

provide evidence that this effect should 

be a reasonably anticipated outcome of 

the specified activity. Similarly, NMFS 

is not aware of any scientific 

information suggesting that the survey 

activity would drive marine mammals 

into shipping lanes, and disagrees that 

this would be a reasonably anticipated 

effect of the specified activities. The 

take by Level B harassment authorized 

by NMFS is precautionary but 

considered unlikely, as NMFS’ take 

estimation process does not account for 

the use of extremely precautionary 

mitigation measures, e.g., the 

requirement for Atlantic Shores to 

implement a Shutdown Zone that is 

more than 3 times as large as the 

estimated harassment zone. These 

requirements are expected to largely 

eliminate the actual occurrence of Level 

B harassment events and, to the extent 

that harassment does occur, would 

minimize the duration and severity of 

any such events. Therefore, even if a 

NARW was in the area of the cable 

corridor surveys, a displacement impact 

is not anticipated. 

Although the primary stressor to 

marine mammals from the specified 

activities is acoustic exposure to the 

sound source, NMFS takes seriously the 

risk of vessel strike and has prescribed 

measures sufficient to avoid the 

potential for ship strike to the extent 

practicable. NMFS has required these 

measures despite a very low likelihood 

of vessel strike; vessels associated with 

the survey activity will add a 

discountable amount of vessel traffic to 

the specific geographic region and, 

furthermore, vessels towing survey gear 

travel at very slow speeds (i.e., roughly 

4–5 kn). 

Comment 19: COA is concerned 

regarding the number of species that 

could be impacted by the activities, as 

well as a lack of baseline data being 

available for species in the area. In 

addition, COA has stated that NMFS did 

not adequately address the potential for 

cumulative impacts to bottlenose 

dolphins from Level B harassment over 

several years of project activities. 

NMFS’ response: We appreciate the 

concern expressed by COA. NMFS 

utilizes the best available science when 

analyzing which species may be 

impacted by an applicant’s proposed 

activities. Based on information found 

in the scientific literature, as well as 

based on density models developed by 

Duke University, all marine mammal 

species included in the proposed 

Federal Register Notice have some 

likelihood of occurring in Atlantic 

Shores’ survey areas. Furthermore, the 

MMPA requires us to evaluate the 

effects of the specified activities in 

consideration of the best scientific 

evidence available and, if the necessary 

findings are made, to issue the 

requested take authorization. The 

MMPA does not allow us to delay 

decision making in hopes that 

additional information may become 

available in the future. Furthermore, 

NMFS notes that it has previously 

addressed discussions on cumulative 

impact analyses in previous comments 

and references COA back to these 

specific responses in this Notice. 

Regarding the lack of baseline 

information cited by COA, with specific 

concern pointed out for harbor seals, 

NMFS points towards two sources of 

information for marine mammal 

baseline information: the Ocean/Wind 

Power Ecological Baseline Studies, 

January 2008–December 2009 

completed by the New Jersey 

Department of Environmental Protection 

in July 2010 (https://dspace.

njstatelib.org/xmlui/handle/10929/ 

68435) and the Atlantic Marine 

Assessment Program for Protected 

Species (AMAPPS; https://

www.fisheries.noaa.gov/new-englandmid-atlantic/population-assessments/ 

atlantic-marine-assessment-programprotected) with annual reports available 

from 2010 to 2020 (https://

www.fisheries.noaa.gov/resource/ 

publication-database/atlantic-marineassessment-program-protected-species) 

that cover the areas across the Atlantic 

Ocean. NMFS has duly considered this 

and all available information. 

Based on the information presented, 

NMFS has determined that no new 

information has become available, nor 

do the commenters present additional 

information, that would change our 

determinations since the publication of 

the proposed notice. 

Comment 20: COA and LBI indicated 

that they believe the survey area to be 

too large for the described proposed 

surveys as the geographical scope of the 

survey does not seem to match up with 

the stated site characterization survey 

area. Commenters justify this by saying 

that the export cable routes were not 

previously described in the Bureau of 

Ocean Energy Management’s (BOEM) 

Construction and Operations Plans 

(COP) and Notice of Intent (NOI) and 

therefore cannot be included in the 

scope of activities requested by Atlantic 

Shores. 

NMFS’ response: It is not in NMFS’ 

jurisdiction to dictate how and where an 

applicant’s activities should be 

performed. Under the MMPA, NMFS 

must analyze and make findings, if 

possible, based on the specified activity 

as described by the applicant. Any 

comments by stakeholders regarding the 

geographical scope and size of survey 

activities, or what information is or is 

not included in BOEM’s COP and NOI 

(i.e., inclusion of the export cable 

routes) are out of scope for the described 

proposed action as BOEM, not NMFS, is 

in charge of leasing and activities 

occurring within a defined area and 

region. 

Comment 21: LBI states its opposition 

to the use of a categorical exclusion 

under NEPA, asserting that, at 

minimum, an Environmental 

Assessment is the appropriate level of 

review. 

NMFS’ response: NMFS does not 

agree with LBI’s comment. A categorical 

exclusion (CE) is a category of actions 

that an agency has determined does not 

individually or cumulatively have a 

significant effect on the quality of the 

human environment, and is 

appropriately applied for such 

categories of actions so long as there are 

no extraordinary circumstances present 

that would indicate that the effects of 

the action may be significant. 

Extraordinary circumstances are 

situations for which NOAA has 

determined further NEPA analysis is 

required because they are circumstances 

in which a normally excluded action 

may have significant effects. A 

determination of whether an action that 

is normally excluded requires 

additional evaluation because of 

extraordinary circumstances focuses on 

the action’s potential effects and 

considers the significance of those 

effects in terms of both context 

(consideration of the affected region, 

interests, and resources) and intensity 

(severity of impacts). Potential 

extraordinary circumstances relevant to 

this action include (1) adverse effects on 

species or habitats protected by the 

MMPA that are not negligible; (2) highly 

controversial environmental effects; (3) 

environmental effects that are uncertain, 

unique, or unknown; and (4) the 

potential for significant cumulative 

impacts when the proposed action is 

combined with other past, present, and 

reasonably foreseeable future actions. 

The relevant NOAA CE associated 

with issuance of incidental take 

authorizations is CE B4, ‘‘Issuance of 

incidental harassment authorizations 

under section 101(a)(5)(A) and (D) of the 

MMPA for the incidental, but not 

intentional, take by harassment of 

marine mammals during specified 

activities and for which no serious 

injury or mortality is anticipated.’’ This 

action falls within CE B4. In 

determining whether a CE is appropriate 

for a given incidental take authorization, 

NMFS considers the applicant’s 


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specified activity and the potential 

extent and magnitude of takes of marine 

mammals associated with that activity 

along with the extraordinary 

circumstances listed in the Companion 

Manual for NAO 216–6A and 

summarized above. The evaluation of 

whether extraordinary circumstances (if 

present) have the potential for 

significant environmental effects is 

limited to the decision NMFS is 

responsible for, which is issuance of the 

incidental take authorization. While 

there may be environmental effects 

associated with the underlying action, 

potential effects of NMFS’ action are 

limited to those that would occur due to 

the authorization of incidental take of 

marine mammals. NMFS prepared 

numerous Environmental Assessments 

(EAs) analyzing the environmental 

impacts of the categories of activities 

encompassed by CE B4 which resulted 

in Findings of No Significant Impacts 

(FONSIs) and, in particular, numerous 

EAs prepared in support of issuance of 

IHAs related to similar survey actions 

are part of NMFS’ administrative record 

supporting CE B4. These EAs 

demonstrate the issuance of a given 

incidental harassment authorization 

does not affect other aspects of the 

human environment because the action 

only affects the marine mammals that 

are the subject of the incidental 

harassment authorization. These EAs 

also addressed factors in 40 CFR 

1508.27 regarding the potential for 

significant impacts and demonstrate the 

issuance of incidental harassment 

authorization for the categories of 

activities encompassed by CE B4 do not 

individually or cumulatively have a 

significant effect on the human 

environment. 

Specifically for this action, NMFS 

independently evaluated the use of the 

CE for issuance of Atlantic Shores’ IHA, 

which included consideration of 

extraordinary circumstances. As part of 

that analysis, NMFS considered 

including whether this IHA issuance 

would result in cumulative impacts that 

could be significant. In particular, the 

issuance of an IHA to Atlantic Shores is 

expected to result in minor, short-term 

behavioral effects on marine mammal 

species due to exposure to underwater 

sound from site characterization survey 

activities. Behavioral disturbance is 

expected to occur intermittently in the 

vicinity of Atlantic Shores’ survey area 

during the one-year timeframe. Level B 

harassment will be reduced through use 

of mitigation measures described herein. 

Additionally, as discussed elsewhere, 

NMFS has determined that Atlantic 

Shores’ activities fall within the scope 

of activities analyzed in GARFO’s 

programmatic consultation regarding 

geophysical surveys along the U.S. 

Atlantic coast in the three Atlantic 

Renewable Energy Regions (completed 

June 29, 2021; revised September 2021), 

which concluded surveys such as those 

planned by Atlantic Shores are not 

likely to adversely affect endangered 

listed species or adversely modify or 

destroy critical habitat. Accordingly, 

NMFS has determined that the issuance 

of this IHA will result in no more than 

negligible (as that term is defined by the 

Companion Manual for NAO 216–6A) 

adverse effects on species protected by 

the ESA and the MMPA. 

Further, the issuance of this IHA will 

not result in highly controversial 

environmental effects or result in 

environmental effects that are uncertain, 

unique, or unknown because numerous 

entities have been engaged in site 

characterization surveys that result in 

Level B harassment of marine mammals 

in the United States. This type of 

activity is well documented; prior 

authorizations and analysis 

demonstrates issuance of an IHA for this 

type of action only affects the marine 

mammals that are the subject of the 

specific authorization and, thus, no 

potential for significant cumulative 

impacts are expected, regardless of past, 

present, or reasonably foreseeable 

actions, even though the impacts of the 

action may not be significant by itself. 

Based on this evaluation, we concluded 

that the issuance of the IHA qualifies to 

be categorically excluded from further 

NEPA review. 

Comment 22: LBI asserts that the 

notice of proposed IHA does not address 

compliance with the ESA, and states 

their assumption that NMFS relies on 

the 2013 Biological Assessment (BA) 

and Biological Opinion (BO), which can 

be found at https://repository.library.

noaa.gov/view/noaa/29291. LBI goes on 

to find fault with the analysis conducted 

in support of the 2013 Opinion and 

states that NMFS cannot rely on the 

analysis for the necessary ESA 

compliance. 

NMFS’ response: LBI is incorrect. 

NMFS did not utilize the 2013 BA and 

BO for Atlantic Shores’ 2022 site 

characterization surveys. As described 

in the notice of proposed IHA (87 FR 

4217, 4225), NMFS determined that its 

proposed action of issuing an IHA in 

relation to the activities described in the 

application fell within the scope of the 

Programmatic Consultation regarding 

geophysical surveys along the U.S. 

Atlantic coast in the three Atlantic 

Renewable Energy Regions, developed 

by the NMFS Greater Atlantic Regional 

Office (GARFO) in 2021. Furthermore, 

the Programmatic Consultation covered 

the region that Atlantic Shores’ survey 

will occur in and also covered the 

equipment Atlantic Shores anticipates 

using during their surveys. The 

Programmatic Consultation further 

prescribed marine mammal-relevant 

specific Project Design Criteria (PDCs). 

Pursuant to section 7 of the ESA, NMFS 

has required compliance with these 

PDCs in the final IHA. This information 

can be found in both the proposed 

Federal Register Notice and the final 

Notice. More information can be found 

on GARFO’s website (https://

www.fisheries.noaa.gov/new-englandmid-atlantic/consultations/section-7- 

take-reporting-programmatics-greateratlantic#offshore-wind-site-assessmentand-site-characterization-activitiesprogrammatic-consultation) as well as 

on the NMFS’ website for Atlantic 

Shores’ specific action (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-marine-site-0). 

Comment 23: LBI asserts that NMFS 

has not been sufficiently clear with 

regard to its use of density data, and 

expresses concern that the density data 

used may not be sufficiently 

conservative. 

NMFS’ response: As discussed in 

greater detail in the notice of proposed 

IHA, NMFS relied upon the best 

available scientific information in 

assessing the likelihood of occurrence 

for all potentially impacted marine 

mammal species, including the NARW. 

Habitat-based density models produced 

by the Duke University Marine 

Geospatial Ecology Laboratory (Roberts 

et al., 2016b, 2017, 2018, 2021) 

represent the best available information 

regarding marine mammal densities in 

the survey area. Density data for all taxa 

are available for 10 km x 10 km grid 

cells over the entire survey area and, for 

most species (including NARW), are 

available for each of 12 months. For the 

exposure analysis, these density data 

were mapped using a geographic 

information system (GIS) for each of the 

survey areas (i.e., Lease Area, ECR 

North, ECR South). Densities of each 

species were then averaged by season; 

thus, a density was calculated for each 

species for spring, summer, fall and 

winter. To be conservative, the greatest 

seasonal density calculated for each 

species was then carried forward in the 

exposure analysis. All density 

information used by NMFS is 

publicly available through Duke 

University’s OBIS–SEAMAP website: 

https://seamap.env.duke.edu/models/ 

Duke/EC/. 

We note that LBI does not discuss 

what it means by stating that the 


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analysis may not be ‘‘conservative,’’ and 

does not connect this concern to the 

relevant requirements of the MMPA. 

However, NMFS believes that its 

approach to use of the density 

information, which was described in 

full in the notice of proposed IHA, 

addresses any such concerns. 

Comment 24: LBI asserts that NMFS’ 

assessment of the potential for, and the 

impacts of, masking (in particular for 

the NARW) is insufficient. 

NMFS’ response: NMFS disagrees that 

the potential impacts of masking were 

not properly considered. NMFS 

acknowledges our understanding of the 

scientific literature that LBI cited but, 

fundamentally, the masking effects to 

any one individual whale from one 

survey are expected to be minimal. 

Masking is referred to as a chronic effect 

because one of the key harmful 

components of masking is its duration— 

the fact that an animal would have 

reduced ability to hear or interpret 

critical cues becomes much more likely 

to cause a problem the longer it is 

occurring. Also, inherent in the concept 

of masking is the fact that the potential 

for the effect is only present during the 

times that the animal and the source are 

in close enough proximity for the effect 

to occur (and further this time period 

would need to coincide with a time that 

the animal was utilizing sounds at the 

masked frequency) and, as our analysis 

(both quantitative and qualitative 

components) indicates, because of the 

relative movement of whales and 

vessels, we do not expect these 

exposures with the potential for 

masking to be of a long duration within 

a given day. Further, because of the 

relatively low density of mysticetes, and 

relatively large area over which the 

vessels travel, we do not expect any 

individual whales to be exposed to 

potentially masking levels from these 

surveys for more than a few days in a 

year. 

As noted above, any masking effects 

of this survey are expected to be limited 

and brief, if present. Given the 

likelihood of significantly reduced 

received levels beyond even short 

distances from the survey vessel, 

combined with the short duration of 

potential masking and the lower 

likelihood of extensive additional 

contributors to background noise 

offshore and within these short 

exposure periods, we believe that the 

incremental addition of the survey 

vessel is unlikely to result in more than 

minor and short-term masking effects, 

likely occurring to some small number 

of the same individuals captured in the 

estimate of behavioral harassment. 

Comment 25: LBI requests that NMFS 

explain why a 20 dB propagation loss 

coefficient was applicable to the 

analysis presented in the proposed 

Notice or to go back and rerun the 

analysis using a 15 dB propagation loss 

coefficient. 

NMFS’ response: LBI states that 

NMFS’ assumption that use of a 20logR 

transmission loss factor (i.e., spherical 

spreading) is inappropriate, and states 

that ‘‘According to a number of 

scientific sources, the use of a noise 

propagation loss coefficient of 20 dB per 

tenfold increase in distance represents 

‘‘spherical spreading’’ and is only 

appropriate in the ‘‘near field’’ where 

the calculated horizontal distance is 

comparable with the water depth.’’ 

However, LBI does not cite any such 

scientific sources, so NMFS must 

evaluate LBI’s recommendations based 

only on its comment. 

A major component of transmission 

loss is spreading loss and, from a point 

source in a uniform medium, sound 

spreads outward as spherical waves 

(‘‘spherical spreading’’) (Richardson et 

al., 1995). In water, these conditions are 

often thought of as being related to deep 

water, where more homogenous 

conditions may be likely. However, the 

theoretical distinction between deep 

and shallow water is related more to the 

wavelength of the sound relative to the 

water depth, versus to water depth 

itself. Therefore, when the sound 

produced is in the kilohertz range, 

where wavelength is relatively short, 

much of the continental shelf may be 

considered ‘‘deep’’ for purposes of 

evaluating likely propagation 

conditions. 

As described in the notice of 

proposed IHA, the area of water 

ensonified at or above the root mean 

square (RMS) 160 dB threshold was 

calculated using a simple model of 

sound propagation loss, which accounts 

for the loss of sound energy over 

increasing range. Our use of the 

spherical spreading model (where 

propagation loss = 20 * log [range]; such 

that there would be a 6-dB reduction in 

sound level for each doubling of 

distance from the source) is a reasonable 

approximation over the relatively short 

ranges involved. Even in conditions 

where cylindrical spreading (where 

propagation loss = 10 * log [range]; such 

that there would be a 3-dB reduction in 

sound level for each doubling of 

distance from the source) may be 

appropriate (e.g., non-homogenous 

conditions where sound may be trapped 

between the surface and bottom), this 

effect does not begin at the source. In 

any case, spreading is usually more or 

less spherical from the source out to 

some distance, and then may transition 

to cylindrical (Richardson et al., 1995). 

For these types of surveys, NMFS has 

determined that spherical spreading is a 

reasonable assumption even in 

relatively shallow waters (in an absolute 

sense) as the reflected energy from the 

seafloor will be much weaker than the 

direct source and the volume influenced 

by the reflected acoustic energy would 

be much smaller over the relatively 

short ranges involved. 

In support of its position, LBI cites 

several examples of use of practical 

spreading (a useful real-world 

approximation of conditions that may 

exist between the theoretical spreading 

modes of spherical and cylindrical; 

15logR) in asserting that this approach 

is also appropriate here. However, these 

examples (U.S. Navy construction at 

Newport, RI, and NOAA construction in 

Ketchikan, AK) are not relevant to the 

activity at hand. First, these actions 

occur in even shallower water (e.g., less 

than 10 m for Navy construction). Of 

greater relevance to the action here, pile 

driving activity produces sound with 

longer wavelengths than the sound 

produced by the acoustic sources 

planned for use here. As noted above, a 

determination of appropriate spreading 

loss is related to the ratio of wavelength 

to water depth more than to a strict 

reading of water depth. NMFS indeed 

uses practical spreading in typical 

coastal construction applications, but 

for reasons described here, uses 

spherical spreading when evaluating the 

effects of HRG surveys on the 

continental shelf. 

In addition, this analysis is likely 

conservative for other reasons, e.g., the 

lowest frequency was used for systems 

that are operated over a range of 

frequencies and other sources of 

propagation loss are neglected. 

NMFS has determined that spherical 

spreading is the most appropriate form 

of propagation loss for these surveys 

and has relied on this approach for past 

IHAs with similar equipment, locations, 

and depths. Please refer back to the 

Garden State HRG IHA (83 FR 14417; 

April 4, 2018) and the 2019 Skipjack 

HRG IHA (84 FR 51118; September 27, 

2019) for examples. Prior to the issuance 

of these IHAs (approximately 2018 and 

older), NMFS typically relied upon 

practical spreading for these types of 

survey activities. However, as additional 

scientific evidence became available, 

including numerous sound source 

verification reports, NMFS determined 

that this approach was inappropriately 

conservative and, since that time, as 

consistently used spherical spreading. 

Furthermore, NMFS’ User Spreadsheet 

tool assumes a ‘‘safe distance’’ 


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methodology for mobile sources where 

propagation loss is spherical spreading 

(20LogR) (https://media.fisheries.

noaa.gov/2020-12/User_Manual%20_

DEC_2020_508.pdf?null), and NMFS 

calculator tool for estimating isopleths 

to Level B harassment thresholds also 

incorporates the use of spherical 

spreading. 

Comment 26: LBI suggests that NMFS 

utilize a source level of 211 dB instead 

of the 203 dB for the Dura-Spark 240, as 

was cited in the proposed Federal 

Register Notice. NMFS notes that as LBI 

did not provide the metric for the source 

levels that they refer to in their letter, 

NMFS will use the one that was 

referenced in the proposed Federal 

Register Notice. 

NMFS’ response: NMFS disagrees 

with LBI’s recommendation, and has 

determined that the 203 dB source level 

is the most appropriate for use herein. 

As discussed in the notice of proposed 

IHA, the Applied Acoustics Dura-Spark 

was included and measured in Crocker 

and Fratantonio (2016), but not with an 

energy setting near 800 J, the energy 

setting which was determined as the 

‘‘worst-case scenario’’ by Atlantic 

Shores for use in the presence of denser 

substrates. The SIG ELC 820 sparker was 

deemed as a similar alternative to the 

Dura-Spark based on information in 

Table 9 of Crocker and Fratantonio 

(2016), and where higher energy setting 

of 750 J (at a 5 m depth) had been 

measured. We also note that using the 

SIG ELC as a surrogate system has been 

previously documented and employed 

in other issued IHAs, such as the 

Mayflower Wind HRG surveys (86 FR 

38033, July 19, 2021). NMFS further 

based this decision on further 

information on the SIG acoustic source, 

Crocker and Fratantonio (2016), and 

other IHA applications (see Mayflower 

Wind’s application at https://

media.fisheries.noaa.gov/2021-02/ 

Mayflower-2021HA_Appl_

OPR1.pdf?null=). The frequency ranges 

provided for the SIG ELC represent a 

broad range (0.01–1.9 kHz), which 

includes the highest bandwidth at the 

750 J reported in Crocker and 

Fratantonio (2016). 

We also note that, based on additional 

discussion with Atlantic Shores, a 

power level of 750 J was likely an 

overestimate and that 500–600 J was 

more likely to be used during the HRG 

surveys and that 750 was a conservative 

overestimate. NMFS included this 

information in the proposed Federal 

Register Notice under Table 2. The use 

of information that appropriately 

addresses the potential for use at the 

higher power level means that the 

analysis herein, including the selection 

of source level, is conservative for most 

typical applications of the acoustic 

sources. 

Comment 27: LBI asserts that NMFS 

has not appropriately considered the 

location of NARW migratory habitat in 

relation to the survey and, in so doing, 

has not correctly evaluated the potential 

for impacts to NARW migratory habitat. 

NMFS’ response: NMFS disagrees in 

LBI’s assertion regarding NARW 

migratory habitat. As we previously 

stated above in response to Comment 

#2, the migratory habitat of the NARW 

is very large in comparison to the 

overall size of Atlantic Shores’ survey 

area but also, importantly, we do not 

expect any meaningful or significant 

impacts to important behavior that may 

occur within the portion of this habitat 

that may be impacted by the specified 

activity. Because of this, we expect that 

any potential exposures NARWs may 

experience when transiting the 

migratory corridor would not result in 

more than behavioral harassment to a 

minor degree. As is necessary for 

authorizations issued under the MMPA, 

we have fully evaluated any potential 

impacts to both the important behaviors 

of marine mammals (including NARWs) 

and to their important habitats to make 

our negligible impact determination. 

Comment 28: LBI suggests that NMFS 

should use more conservative 

information related to the acoustic 

output of the sources planned for use 

(i.e., a higher source level and a lower 

transmission loss coefficient), and 

performed its own analysis of these 

alternative scenarios. LBI notes that 

these changes would increase the size of 

the estimated Level B harassment zone 

and, as a result, increase the expected 

take numbers. LBI also recommends, as 

a result of their analysis, that the 

Exclusion Zone be increased to 2,500 m. 

NMFS’ response: NMFS disagrees that 

the changes suggested by LBI are 

appropriate. We have addressed use of 

the alternate source level and the 

recommendation of lower assumed 

propagation loss in previous responses 

to comments herein. While NMFS 

acknowledges that, if one assumes the 

most conservative values at every 

opportunity, the analysis will produce 

higher estimates of harassment zone size 

and of incidental take. However, the 

assumptions made by LBI are not 

realistic, and LBI does not adequately 

justify the assumptions made in its 

overly conservative analysis. 

Comment 29: LBI asserts that the 

potential for Level A harassment, 

serious injury and/or death impacts 

have been insufficiently addressed in 

NMFS’ analysis. LBI also suggests that 

NMFS must perform a ‘‘cumulative PTS 

analysis’’. 

NMFS’ response: The commenter 

appears to mistakenly reference NMFS’ 

historical Level A harassment threshold 

of 180 dB rms SPL received level in 

addressing this issue. However, in 2018, 

NMFS published Technical Guidance 

for Assessing the Effects of 

Anthropogenic Sound on Marine 

Mammal Hearing, which updated the 

180 dB SPL Level A harassment 

threshold. Since that time, NMFS has 

been applying dual threshold criteria 

based on both peak pressure and 

cumulative sound exposure level 

thresholds. This dual criteria approach 

requires that the more conservative of 

the two hearing group-specific threshold 

criteria be applied in evaluating the 

potential for Level A harassment. 

Therefore, NMFS has considered the 

potential for Level A harassment on the 

basis of cumulative sound exposure 

level (as well as peak pressure) in the 

way suggested by LBI. 

As described in the Estimated Take 

section, NMFS has established a PTS 

(Level A harassment) threshold of 183 

dB cumulative SEL for low frequency 

specialists. In support of a previous IHA 

request (see the proposed 2020 Notice 

(85 FR 7926; February 12, 2020) and the 

final 2020 Notice (85 FR 21198, April 

16, 2020)), Atlantic Shores provided 

estimated Level A harassment zones for 

similar equipment (i.e., the Applied 

Acoustics Dura-Spark 240 sparker). 

Despite assuming a higher source level 

than is used herein, the result of this 

analysis shows that a NARW would 

have to come within 1 m of the sparker 

to potentially incur PTS. NMFS has 

reviewed the analysis found in Atlantic 

Shores’ 2020 HRG IHA application and 

confirmed that it is accurate and 

relevant to this action. This application 

can be found on NMFS’ website at 

https://media.fisheries.noaa.gov/dammigration/atlanticshores_2020_app_

opr1.pdf. 

Not only are NARWs migrating 

through the area, meaning that their 

occurrence in the area is expected to be 

of relatively brief duration and the 

likelihood of exposures of longer 

duration or at closer range minimized, 

Atlantic Shores is also required to not 

approach any NARW within 500 m or 

operate the sparker within 500 m of a 

NARW (see 87 FR 4217 of the proposed 

Notice). As such, there is essentially no 

potential for a NARW to experience PTS 

(i.e., Level A harassment) from the 

described surveys. 

Comment 30: LBI insists that NMFS 

do an in-depth analysis of any potential 

serious injury and/or death to NARWs 

that could occur during Atlantic Shores’ 


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surveys. They further state that any 

serious injury or mortality could occur 

directly from the NARW’s migration 

being impacted by cumulative sound 

exposure leading to PTS, any adverse 

reactions from behavioral disruption, 

and masking. 

NMFS’ response: The best available 

science indicates that Level B 

harassment, or disruption of behavioral 

patterns, may occur. No mortality or 

serious injury is expected to occur as a 

result of the planned surveys, and there 

is no scientific evidence indicating that 

any marine mammal could experience 

these as a direct result of noise from 

geophysical survey activity. 

Authorization of mortality and serious 

injury may not occur via IHAs, only 

within Incidental Take Regulations 

(ITRs), and such authorization was 

neither requested nor proposed. NMFS 

notes that in its history of authorizing 

take of marine mammals, there has 

never been a report of any serious 

injuries or fatalities of a marine mammal 

related to the site characterization 

surveys, including for NARWs. We 

emphasize that an estimate of take 

numbers alone is not sufficient to assess 

impacts to a marine mammal 

population. Take numbers must be 

viewed contextually with other factors, 

as explained in the ‘‘Negligible Impact 

Analyses and Determinations’’ section 

of this Notice. 

Comment 31: LBI states that to 

properly make a negligible impact 

determination, NMFS should develop/ 

provide criteria to avoid jeopardizing 

the existence and survival of the NARW. 

LBI states that this would ideally 

include no instances of fatality or 

serious injury from survey noise and 

meet that strict criterion with high 

statistical confidence. LBI notes that 

they believe the current proposed 

Notice for Atlantic Shores’ surveys does 

not meet this criteria. 

NMFS’ response: LBI’s comment is 

founded on the presumption, absent 

evidence, that serious injury or 

mortality is a reasonably anticipated 

outcome of Atlantic Shores’ specified 

activity. NMFS emphasizes that there is 

no credible scientific evidence available 

suggesting that mortality and/or serious 

injury is a potential outcome of the 

planned survey activity, and LBI 

provides no information to the contrary. 

We also refer LBI to the GARFO 2021 

Programmatic Consultation, which finds 

that these survey activities are in 

general not likely to adversely affect 

ESA-listed marine mammal species, i.e., 

GARFO’s analysis conducted pursuant 

to the ESA finds that marine mammals 

are not likely to be taken at all (as that 

term is defined under the ESA), much 

less be taken by serious injury or 

mortality. That document is found here: 

https://www.fisheries.noaa.gov/newengland-mid-atlantic/consultations/ 

section-7-take-reporting-programmaticsgreater-atlantic#offshore-wind-siteassessment-and-site-characterizationactivities-programmatic-consultation. 

Comment 32: LBI states that it 

believes NMFS’ negligible impact 

finding for NARWs to be insufficient 

given the analysis LBI included in their 

letter, which produced higher take 

numbers for marine mammals, 

including NARWs. LBI also states that, 

based on their assertion that serious 

injury and/or mortality is a potential 

outcome of the specified activity for 

NARWs, a Rulemaking (Incidental Take 

Regulation with subsequent Letters of 

Authorization) would be necessary to 

undertake Atlantic Shores’ site 

characterization surveys due to LBI’s 

premise that take by serious injury and/ 

or mortality may occur. 

NMFS’ response: NMFS 

acknowledges that authorization under 

section 101(a)(5)(A) of the MMPA 

would be required were mortality or 

serious injury an expected outcome of 

the action. However, as noted 

previously, there is no scientific 

evidence suggesting that such outcomes 

are possible and, therefore, an IHA 

issued under section 101(a)(5)(D) is 

appropriate. Similarly, if the analysis 

presented by LBI were considered 

credible, the results would necessitate a 

revision to NMFS’ negligible impact 

determination. However, as detailed in 

previous comment responses, the LBI 

analysis is not based on the best 

scientific evidence available, and NMFS 

does not consider it to be a credible 

analysis. Separately, it appears that LBI 

equates Level A harassment with 

serious injury and mortality in 

suggesting that Incidental Take 

Regulations are required. As discussed 

herein, Level A harassment is not an 

expected outcome of the specified 

activity. However, we clarify that 

section 101(a)(5)(D) of the MMPA, 

which governs the issuance of IHAs, 

indicates that the ‘‘the Secretary shall 

authorize . . . . taking by harassment 

[. . . .]’’ The definition of ‘‘harassment’’ 

in the MMPA clearly includes both 

Level A and Level B harassment. 

LBI further 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 and NMFS reminds LBI that 

the MMPA only allows for the 

development of Incidental Take 

Regulations upon request. LBI states 

that this would be necessary based on 

the potential for serious injury or 

mortality that was assumed in LBI’s 

letter. However, as discussed 

previously, NMFS does not expect any 

serious injury or mortality, even absent 

mitigation efforts, because of the nature 

of the activities described in the 

proposed Federal Register Notice. 

Furthermore, NMFS included a vessel 

strike analysis in the proposed Notice 

under the Potential Effects of Specified 

Activities on Marine Mammals and 

Their Habitat section. We identified that 

at average transit speed for geophysical 

survey vessels, the probability of serious 

injury or mortality resulting from a 

strike is low enough to be discountable. 

However, the likelihood of a strike 

actually happening is again low given 

the smaller size of these vessels and 

generally slower speeds during transit. 

Further, Atlantic Shores is required to 

implement monitoring and mitigation 

measures during transit, including 

observing for marine mammals and 

maintaining defined separation 

distances between the vessel and any 

marine mammal (see the Mitigation and 

Monitoring and Reporting sections). 

Finally, despite several years of marine 

site characterization surveys occurring 

off the U.S. east coast, no vessels 

supporting offshore wind development 

have struck a marine mammal either in 

transit or during surveying. Because 

vessel strikes are not reasonably 

expected to occur, no such take is 

authorized. The mitigation measures in 

the IHA related to vessel strike 

avoidance are not limited to vessels 

operating within the survey area or 

cable corridors and therefore apply to 

transiting vessels. Because of these 

reasons and the addition of mitigation 

efforts, including required vessel 

separation distances to further reduce 

any risk, we do not find that a 

Rulemaking is necessary for Atlantic 

Shores’ HRG surveys. 

Comment 33: LBI suggests that as a 

means of effecting the Least Practicable 

Adverse Impacts, as required under the 

MMPA, survey activities should be 

prohibited from January through April, 

as well as in November. Furthermore, 

LBI suggests that an annual Seasonal 

Management Area (SMA) be established 

in and adjacent to the survey area to 

mitigate against any vessel strike. 

NMFS’ response: NMFS assumes this 

is regarding the NARW and shares 

concern with LBI regarding the status of 

the NARW, 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 


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case, we have determined seasonal 

restrictions are not warranted. We 

reiterate a response from earlier where 

NARW occurrence in this area is 

generally low most of the year. 

Furthermore, NMFS has already stated 

that this area consists only of migratory 

habitat for the NARW, consisting of no 

primary foraging habitat, which would 

further reduce the risks of exposure and 

impacts. Further, NMFS is requiring 

Atlantic Shores to comply with 

restrictions associated with identified 

SMAs and they must comply with 

DMAs, if any DMAs are established near 

the survey area. Finally, significantly 

shortening Atlantic Shores work season 

is impracticable given the number of 

survey days planned for the specified 

activity for this IHA. 

NMFS wishes to clarify that existing 

and permanent SMAs have been 

previously established under a different 

rulemaking (73 FR 60173 and can also 

be found on NMFS’ website at https:// 

www.fisheries.noaa.gov/national/ 

endangered-species-conservation/ 

reducing-vessel-strikes-north-atlanticright-whales#speedlimit), but that 

NMFS appreciates the suggestion 

provided by LBI and will take the 

comment of developing additional 

SMAs under consideration. 

Changes From the Proposed IHA to 

Final IHA 

Since publication of the Notice of 

proposed IHA, NMFS has acknowledged 

that the population estimate of NARWs 

is now under 350 animals (https://

www.fisheries.noaa.gov/species/northatlantic-right-whale). However, as 

discussed in our response to Comment 

#2 above, NMFS has determined that 

this change in abundance estimate 

would not change the estimated take of 

NARWs or authorized take numbers, nor 

affect our ability to make the required 

findings under the MMPA for Atlantic 

Shores’ survey activities. The status and 

trends of the NARW population remain 

unchanged. 

NMFS considered all public 

comments received and determined that 

no changes to the final IHA were 

necessary. 

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’s 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’s 

website (https://www.fisheries.

noaa.gov/find-species). 

Table 3 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, we follow 

Committee on Taxonomy (2021). 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’s 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’s 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’s draft 2021 U.S. Atlantic and 

Gulf of Mexico Marine Mammal Stock 

Assessment. All values presented in 

Table 3 are the most recent available at 

the time of publication and are available 

in the draft 2021 SARs available online 

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

national/marine-mammal-protection/

marine-mammal-stock-assessments. 

TABLE 3—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE SURVEY AREA THAT MAY BE AFFECTED BY ATLANTIC

SHORES’ PLANNED HRG ACTIVITIES

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) 

North Atlantic right whale .......... Eubalaena glacialis ................... Western Atlantic Stock ............. E/D, Y 5 368 (0; 364; 2019) ........ 0.7 7.7 

Humpback whale ....................... Megaptera novaeangliae .......... Gulf of Maine ............................ -/-; Y 1,396 (0; 1,380; 2016) .... 22 12.15 

Fin whale ................................... Balaenoptera physalus ............. Western North Atlantic Stock ... E/D, Y 6,802 (0.24; 5,573; 2016) 11 1.8 

Sei whale ................................... Balaenoptera borealis ............... Nova Scotia Stock .................... E/D, Y 6,292 (1.02; 3,098; 2016) 6.2 0.8 

Minke whale ............................... Balaenoptera acutorostrata ...... Canadian East Coastal Stock ... -/-, N 21,968 (0.31; 17,002; 

2016).

170 10.6 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Sperm whale .............................. Physeter macrocephalus .......... North Atlantic Stock .................. E/D, Y 4,349 (0.28; 3,451; 2016) 3.9 0 

Long-finned pilot whale .............. Globicephala melas .................. Western North Atlantic Stock ... -/-, N 39,215 (0.3; 30,627; 

2016).

306 29 

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

2016).

544 227 

Bottlenose dolphin ..................... Tursiops truncatus .................... Western North Atlantic Northern 

Migratory Coastal Stock.

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

Western North Atlantic Offshore 

Stock.

-/-, N 62,851 (0.23; 51,914; 

2016).

519 28 

Common dolphin ........................ Delphinus delphis ..................... Western North Atlantic Stock ... -/-, N 172,974 (0.21, 145,216, 

2016).

1,452 390 

Atlantic spotted dolphin ............. Stenella frontalis ....................... Western North Atlantic Stock ... -/-, N 39,921 (0.27; 32,032; 

2016).

320 0 


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TABLE 3—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE SURVEY AREA THAT MAY BE AFFECTED BY ATLANTIC

SHORES’ PLANNED HRG ACTIVITIES—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

Risso’s dolphin ........................... Grampus griseus ...................... Western North Atlantic Stock ... -/-, N 35,215 (0.19; 30,051; 

2016).

301 34 

Harbor porpoise ......................... Phocoena phocoena ................. Gulf of Maine/Bay of Fundy 

Stock.

-/-, N 95,543 (0.31; 74,034; 

2016).

851 164 

Order Carnivora—Superfamily Pinnipedia 

Harbor seal ................................ Phoca vitulina ........................... Western North Atlantic Stock ... -/-, N 61,336 (0.08; 57,637; 

2018).

1,729 339 

Gray seal 4 ................................. Halichoerus grypus ................... Western North Atlantic Stock ... -/-, N 27,300 (0.22; 22,785; 

2016).

1,389 4,453 

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 and serious injury (M/SI) 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: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is 

the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3These values, found in NMFS’ SARs, represent annual levels of human-caused M/SI plus serious injury from all sources combined (e.g., commercial fisheries, 

ship strike). 4 NMFS’ stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual mortality and serious injury (M/SI) value given is for the total stock. 5The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now below 

350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). 

A detailed description of the species 

likely to be affected by Atlantic Shores’ 

activities, including information 

regarding population trends and threats, 

and local occurrence, were provided in 

the Federal Register notice for the 

proposed IHA (87 FR 4200; January 27, 

2022). Since that time, we are not aware 

of any changes in the status of these 

species and stocks or other relevant new 

information; therefore, detailed 

descriptions are not provided here. 

Please refer to that Federal Register 

notice for those descriptions. Please also 

refer to NMFS’s website (https://

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

generalized species accounts. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. 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 decibel 

(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 4. 

TABLE 4—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; Reichmuth, 2013). 


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For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018) for a review of 

available information. Fifteen marine 

mammal species (13 cetacean and 2 

pinniped (both phocid) species) have 

the reasonable potential to co-occur 

with the survey activities. Please refer 

back to Table 3. Of the cetacean species 

that may be present, five are classified 

as low-frequency cetaceans (i.e., all 

mysticete species), seven are classified 

as mid-frequency cetaceans (i.e., all 

delphinid species and the sperm whale), 

and one is classified as a high-frequency 

cetacean (i.e., harbor porpoise). 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The effects of underwater noise from 

the deployed acoustic sources have the 

potential to result in behavioral 

harassment of marine mammals in the 

vicinity of the study area. The Federal 

Register notice for the proposed IHA (87 

FR 4200; January 27, 2022) included a 

discussion of the effects of 

anthropogenic noise, ship strike, stress, 

and potential impacts on marine 

mammals and their habitat, therefore 

that information is not repeated here; 

please refer to the Federal Register 

notice (87 FR 4200; January 27, 2022) 

for that information. 

Estimated Take 

This section provides the number of 

incidental takes authorized through this 

IHA, which will inform both NMFS’ 

consideration of ‘‘small numbers’’ and 

the negligible impact determination. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 

MMPA defines ‘‘harassment’’ as any act 

of pursuit, torment, or annoyance, 

which (i) has the potential to injure a 

marine mammal or marine mammal 

stock in the wild (Level A harassment); 

or (ii) has the potential to disturb a 

marine mammal or marine mammal 

stock in the wild by causing disruption 

of behavioral patterns, including, but 

not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

(Level B harassment). 

Authorized takes will be by Level B 

harassment only, in the form of 

disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to noise from certain 

HRG acoustic sources. Based primarily 

on the characteristics of the signals 

produced by the acoustic sources 

planned for use and the required 

mitigation measures, Level A 

harassment is neither anticipated nor 

will be authorized. Take by Level A 

harassment (injury) is considered 

unlikely, even absent mitigation, based 

on the characteristics of the signals 

produced by the acoustic sources 

planned for use, and will not be 

authorized. Implementation of required 

mitigation further reduces this potential. 

Furthermore and as previously 

described, no serious injury or mortality 

is anticipated or will be authorized for 

this activity. Below we describe how the 

take is estimated. 

Generally speaking, we estimate take 

by considering: (1) Acoustic thresholds 

above which NMFS believes the best 

available science indicates marine 

mammals will be behaviorally harassed 

or incur some degree of permanent 

hearing impairment; (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 

density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) and the number of days of 

activities. We note 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, we 

describe the factors considered here in 

more detail and present the authorized 

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). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a factor that is both predictable and 

measurable for most activities, NMFS 

uses a generalized acoustic threshold 

based on received level to estimate the 

onset of behavioral harassment. NMFS 

predicts that marine mammals may 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., sparkers) 

and non-impulsive, intermittent sources 

(e.g., CHIRPs) evaluated here for 

Atlantic Shores’ survey activities. 

Level A harassment—NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0) 

(NMFS, 2018) identifies dual criteria to 

assess auditory injury (Level A 

harassment) to five different marine 

mammal groups (based on hearing 

sensitivity) as a result of exposure to 

noise from two different types of 

sources (impulsive or non-impulsive). 

These thresholds are provided in the 

table below (Table 5). The references, 

analysis, and methodology used in the 

development of the thresholds are 

described in NMFS (2018) Technical 

Guidance, which may be accessed at 

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

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 

TABLE 5—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

Hearing group 

PTS onset acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ......................... Cell 2: LE,LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ........................ Cell 4: LE,MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ........................ Cell 6: LE,HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ....................... Cell 8: LE,PW,24h: 201 dB. 


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TABLE 5—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT—Continued 

Hearing group 

PTS onset acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ....................... Cell 10: LE,OW,24h: 219 dB. 

* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should 

also be considered. 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 

In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI, 2013). However, ANSI defines peak 

sound pressure as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated 

with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF 

cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level 

thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for 

action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. 

Similar to the past IHAs issued to 

Atlantic Shores and published in the 

Federal Register (see the 2020 notice 

(85 FR 7926; February 12, 2020)), the 

planned activities for 2022 include the 

use of impulsive (i.e., sparkers) and nonimpulsive (e.g., CHIRPs) sources. 

Carrying through the same logic as the 

locations, species, survey durations, 

equipment used, and source levels are 

all of a similar scope previously 

analyzed for Atlantic Shores’ surveys, 

and as discussed previously, NMFS has 

concluded that Level A harassment is 

not a reasonably likely outcome for 

marine mammals exposed to noise 

through use of the sources planned for 

use here due to the mitigation measures 

Atlantic Shores will implement, and the 

potential for Level A harassment is not 

evaluated further in this document. 

Atlantic Shores did not request 

authorization of take by Level A 

harassment, and no take by Level A 

harassment will be authorized by 

NMFS. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that will feed into identifying the area 

ensonified above the acoustic 

thresholds, which include source levels 

and transmission loss coefficient. 

NMFS has developed a user-friendly 

methodology for estimating the extent of 

the Level B harassment isopleths 

associated with relevant HRG survey 

equipment (NMFS, 2020). This 

methodology incorporates frequency 

and directionality 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 (see 

Table 6). 

NMFS considers the data provided by 

Crocker and Fratantonio (2016) to 

represent the best available information 

on source levels associated with HRG 

survey equipment and, therefore, 

recommends that source levels provided 

by Crocker and Fratantonio (2016) be 

incorporated in the method described 

above to estimate isopleth distances to 

harassment thresholds. In cases when 

the source level for a specific type of 

HRG equipment is not provided in 

Crocker and Fratantonio (2016), NMFS 

recommends that either the source 

levels provided by the manufacturer be 

used, or, in instances where source 

levels provided by the manufacturer are 

unavailable or unreliable, a proxy from 

Crocker and Fratantonio (2016) be used 

instead. Table 2 shows the HRG 

equipment types that may be used 

during the planned surveys and the 

source levels associated with those HRG 

equipment types. The computations and 

results from the Level B ensonified area 

analysis are displayed in Tables 6 and 

7 below. 

TABLE 6—INPUTS INTO THE LEVEL B HARASSMENT SPREADSHEET FOR HIGH RESOLUTION GEOPHYSICAL SOURCES USING

A TRANSMISSION LOSS COEFFICIENT OF 20 

Source name 

Input values in spreadsheet Computed values 

(meters) 

Threshold 

level 

Source level 

(dBrms) 

Frequency 

(kH) 

Beamwidth 

(degrees) 

Water depth 

(m) 

Slant 

distance of 

threshold 

Horizontal 

threshold 

range 

(m) 

SIG ELC 820 Sparker at 750J * ............... 160 203 0.01 180 5 141 141 

Geo Marine Survey System 2D SUHRS 

at 400J .................................................. 160 195 0.2 180 5 56 56 

Edgetech 2000–DSS ............................... 160 195 2 24 5 56 1 

Edgetech 216 ........................................... 160 179 2 24 5 9 1 

Edgetech 424 ........................................... 160 180 4 71 10 10 6 

Edgetech 512i .......................................... 160 179 0.7 80 10 9 6 

Pangeosubsea Sub-Bottom Imager TM .... 160 190 4 120 5 32 9 

* Used as a proxy for the Applied Acoustics Dura-Spark 240 because the specific energy setting is not described in Crocker and Franantonio 

(2016). 


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TABLE 7—MAXIMUM DISTANCES TO LEVEL B 160 DBRMS THRESHOLD BY EQUIPMENT TYPE OPERATING BELOW 180 KHZ

HRG survey equipment 

(sub-bottom profiler) Representative equipment type 

Distances to 

level B 

threshold 

(m) 

Sparker ..................................................... Applied Acoustics Dura-Spark 240 .............................................................................. 141 

Geo Marine Survey System 2D SUHRS ..................................................................... 56 

CHIRP ....................................................... Edgetech 2000–DSS .................................................................................................... 56 

Edgetech 216 ............................................................................................................... 9 

Edgetech 424 ............................................................................................................... 10 

Edgetech 512i .............................................................................................................. 9 

Pangeosubsea Sub-Bottom Imager TM ........................................................................ 32 

Results of modeling using the 

methodology described and shown 

above indicated that, of the HRG survey 

equipment planned for use by Atlantic 

Shores that has the potential to result in 

Level B harassment of marine mammals, 

the Applied Acoustics Dura-Spark 240 

would produce the largest Level B 

harassment isopleth (141 m; please refer 

back to Table 7 above, as well as Table 

6–1 in Atlantic Shores’ IHA 

application). Estimated Level B 

harassment isopleths associated with 

the CHIRP equipment planned for use 

are also found in Table 7. All CHIRPs 

equipment produced Level B 

harassment isopleths much smaller than 

the Applied Acoustics Dura-Spark 240 

sparker did. 

Although Atlantic Shores does not 

expect to use sparker sources on all 

planned survey days and during the 

entire duration that surveys are likely to 

occur, Atlantic Shores assumed, for 

purposes of analysis, that the sparker 

would be used on all survey days and 

across all hours. This is a conservative 

approach, as the actual sources used on 

individual survey days will likely 

produce smaller harassment distances. 

Marine Mammal Occurrence 

In this section, we provide the 

information about 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 

and the Marine-life Data and Analysis 

Team, based on the best available 

marine mammal data from 1992–201 

obtained in a collaboration between 

Duke University, the Northeast Regional 

Planning Body, the University of North 

Carolina Wilmington, the Virginia 

Aquarium and Marine Science Center, 

and NOAA (Roberts et al., 2016a; 

Curtice et al., 2018), represent the best 

available information regarding marine 

mammal densities in the survey area. 

More recently, these data have been 

updated with new modeling results and 

include density estimates for pinnipeds 

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

The density data presented by Roberts 

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

incorporates aerial and shipboard linetransect survey data from NMFS and 

other organizations and incorporates 

data from eight 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., 2016a). In 

subsequent years, certain models have 

been updated based on additional data 

as well as certain methodological 

improvements. More information is 

available online at https://seamap.env.

duke.edu/models/Duke/EC/. Marine 

mammal density estimates in the survey 

area (animals/km2) were obtained using 

the most recent model results for all 

taxa (Roberts et al., 2016b, 2017, 2018, 

2020). The updated models incorporate 

additional sighting data, including 

sightings from NOAA’s Atlantic Marine 

Assessment Program for Protected 

Species (AMAPPS) surveys. 

For the exposure analysis, density 

data from Roberts et al. (2016b, 2017, 

2018, 2021) were mapped using a 

geographic information system (GIS). 

For each of the survey areas (i.e., Lease 

Area, ECR North, ECR South), the 

densities of each species as reported by 

Roberts et al. (2016b, 2017, 2018, 2021) 

were averaged by season; thus, a density 

was calculated for each species for 

spring, summer, fall and winter. To be 

conservative, the greatest seasonal 

density calculated for each species was 

then carried forward in the exposure 

analysis. Estimated seasonal densities 

(animals per km2) of all marine mammal 

species that may be taken during the 

planned survey activities, for all survey 

areas are shown in Tables C–1, C–2 and 

C–3 in Appendix C of Atlantic Shores’ 

IHA application. The maximum 

seasonal density values used to estimate 

take numbers are shown in Table 8 

below. Below, we discuss how densities 

were assumed to apply to specific 

species for which the Roberts et al. 

(2016b, 2017, 2018, 2021) models 

provide results at the genus or guild 

level. 

TABLE 8—MAXIMUM SEASONAL MARINE MAMMAL DENSITIES (NUMBER OF ANIMALS PER 100 KM2) IN THE SURVEY AREAS

[Appendix C of Atlantic Shores’ IHA application] 

Species groups Species 

Maximum seasonal densities 

Lease 

area 

ECR 

north 

ECR 

south 

Cetaceans ........ North Atlantic right whale ..................................................................................................... 0.499 0.182 0.179 

Humpback whale .................................................................................................................. 0.076 0.082 0.103 

Fin whale .............................................................................................................................. 0.100 0.080 0.057 

Sei whale .............................................................................................................................. 0.004 0.004 0.002 

Minke whale .......................................................................................................................... 0.055 0.017 0.019 

Sperm whale ......................................................................................................................... 0.013 0.005 0.003 

Long-finned pilot whale ......................................................................................................... 0.036 0.012 0.009 

Bottlenose dolphin (Western North Atlantic coastal—migratory) ......................................... ................ 21.675 58.524 


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TABLE 8—MAXIMUM SEASONAL MARINE MAMMAL DENSITIES (NUMBER OF ANIMALS PER 100 KM2) IN THE SURVEY

AREAS—Continued 

[Appendix C of Atlantic Shores’ IHA application] 

Species groups Species 

Maximum seasonal densities 

Lease 

area 

ECR 

north 

ECR 

south 

Bottlenose dolphin (Western North Atlantic—offshore) ........................................................ 21.752 21.675 58.524 

Common dolphin ................................................................................................................... 3.120 1.644 1.114 

Atlantic white-sided dolphin .................................................................................................. 0.487 0.213 0.152 

Atlantic spotted dolphin ........................................................................................................ 0.076 0.059 0.021 

Risso’s dolphin ...................................................................................................................... 0.010 0.001 0.002 

Harbor porpoise .................................................................................................................... 2.904 7.357 2.209 

Pinnipeds .......... Gray seal .............................................................................................................................. 4.918 9.737 6.539 

Harbor seal ........................................................................................................................... 4.918 9.737 6.539 

Note: Many of the densities provided in this table have been previously used and applied during the 2020 IHA to Atlantic Shores and its subsequent renewal and remain applicable. 

For bottlenose dolphin densities, 

Roberts et al. (2016b, 2017, 2018) does 

not differentiate by stock. The Western 

North Atlantic northern migratory 

coastal stock is generally expected to 

occur only in coastal waters from the 

shoreline to approximately the 20 m (65 

ft) isobath (Hayes et al., 2018). As the 

Lease Area is located within depths 

exceeding 20 m, where the offshore 

stock would generally be expected to 

occur, all calculated bottlenose dolphin 

exposures within the Lease Area were 

assigned to the offshore stock. However, 

both stocks have the potential to occur 

in the ECR North and ECR South survey 

areas. To account for the potential for 

mixed stocks within ECR North and 

South, the survey areas ECR North and 

South were divided approximately 

along the 20 m depth isobath, which 

roughly corresponds to the 10-fathom 

contour on NOAA navigation charts. As 

approximately 33 percent of ECR North 

and ECR South are 20 m or less in 

depth, 33 percent of the estimated take 

calculation for bottlenose dolphins was 

applied to the Western North Atlantic 

northern migratory coastal stock and the 

remaining 67 percent was applied to the 

offshore stock. 

For these surveys, Atlantic Shores 

used the same pilot whale densities that 

were previously used in the 2020 and 

subsequent 2021 (renewal) IHAs. To 

better estimate the number of pilot 

whales that could potentially be 

impacted by the planned surveys, 

although exposure is noted as unlikely 

to occur in the IHA application, Atlantic 

Shores adjusted the take estimate by 

average group size. 

Because the seasonality, feeding 

preferences, and habitat use by gray 

seals often overlaps with that of harbor 

seals in the survey areas, it was assumed 

that modeled takes of seals could occur 

to either of the respective species. 

Furthermore, as the density models 

produced by Roberts et al. (2016b, 2017, 

2018) do not differentiate between the 

different pinniped species, the same 

density estimates were applied to both 

seal species. Because of this, pinniped 

density values reported in Atlantic 

Shores’ IHA application are described as 

‘‘seals’’ and not species-specific. 

Since Atlantic Shores’ 2020 and 2021 

(renewal) IHAs for HRG surveys were 

completed, the NARW density data has 

been updated. This is due to the 

inclusion of three new datasets: 2011– 

2015 Northeast Large Pelagic Survey 

Cooperative, 2017–2018 Marine 

Mammal Surveys of the Wind Energy 

Areas conducted by the New England 

Aquarium, and 2017–2018 New York 

Bight Whale Monitoring Program 

surveys conducted by the New York 

State Department of Environmental 

conservation (NYSDEC). This new 

density data shows distribution changes 

that are likely influenced by 

oceanographic and prey covariates in 

the whale density model (Roberts et al., 

2021). 

Take Calculation and Estimation 

Here we describe 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 the Applied Acoustics 

Dura-Spark 240) to the Level B 

harassment criterion and the estimated 

distance traveled per day by a given 

survey vessel (i.e., 55 km (34.2 mi)) are 

then used to calculate the daily 

ensonified area, or zone of influence 

(ZOI) around the survey vessel. 

Atlantic Shores estimates that surveys 

will achieve a maximum daily track line 

distance of 55 km per day (24-hour 

period) during the IHA effective period. 

This distance accounts for the vessel 

traveling at approximately 3.5 knots and 

accounts for non-active survey periods. 

Based on the maximum estimated 

distance to the Level B harassment 

threshold of 141 m (Table 7) and the 

maximum estimated daily track line 

distance of 55 km across all survey sites, 

an area of 15.57 km2 would be 

ensonified to the Level B harassment 

threshold per day across all survey sites 

during Atlantic Shores’ HRG surveys 

(Table 9) based on the following 

formula: 

Mobile Source ZOI = (Distance/day × 2r) 

+ pr2

Where: 

Distance/day = the maximum distance a 

survey vessel could travel in a 24-hour 

period; and 

r = the maximum radial distance from a given 

sound source to the NOAA Level A or 

Level B harassment thresholds. 


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TABLE 9—MAXIMUM HRG SURVEY AREA DISTANCES FOR ATLANTIC SHORES’ SURVEYS

Survey area 

Number of 

active survey 

days 

Survey 

distances per 

day in km (mi) 

Maximum 

radial distance 

(r) in m (ft) 

Calculated ZOI 

per day 

(km2) 

Total annual 

ensonified 

area 

(km2) 

Lease Area ........................................................................... 120 55 (34.2) 141 (463) 15.57 1,868.4 

ECR North ............................................................................ 180 ........................ ........................ ........................ 2,802.6 

ECR South ........................................................................... 60 ........................ ........................ ........................ 934.2 

As described above, this is a 

conservative estimate as it assumes the 

HRG source that results in the greatest 

isopleth distance to the Level B 

harassment threshold would be 

operated at all times during the entire 

survey, which may not ultimately occur. 

The number of marine mammals 

expected to be incidentally taken per 

day is then calculated by estimating the 

number of each species predicted to 

occur within the daily ensonified area 

(animals/km2), incorporating the 

maximum seasonal estimated marine 

mammal densities as described above. 

Estimated numbers of each species 

taken per day across all survey sites are 

then multiplied by the total number of 

survey days (i.e., 360). The product is 

then rounded, to generate an estimate of 

the total number of instances of 

harassment expected for each species 

over the duration of the survey. A 

summary of this method is illustrated in 

the following formula with the resulting 

take of marine mammals is shown 

below in Table 10: 

Estimated Take = D × ZOI × # of days 

Where: 

D = average species density (per km2); and 

ZOI = maximum daily ensonified area to 

relevant thresholds. 

TABLE 10—NUMBERS OF INCIDENTAL TAKES OF MARINE MAMMALS AUTHORIZED AND AUTHORIZED TAKES AS A

PERCENTAGE OF POPULATION

Species 

Calculated 

takes by 

Level B 

harassment e

Takes 

proposed for 

Level B 

harassment to 

be authorized f

Total 

Authorized 

takes 

(Level B 

harassment) g

Authorized 

takes 

(Level B 

harassment) 

as a 

percentage 

of population/ 

stock a g

North Atlantic right whale ................................................................................ 17 17 17 4.62 

Humpback whale ............................................................................................. 4 c 8 8 0.57 

Fin whale ......................................................................................................... 5 5 5 0.07 

Sei whale ......................................................................................................... 2 2 2 0.03 

Minke whale ..................................................................................................... 2 2 2 0.01 

Sperm whale .................................................................................................... 1 1 1 0.03 

Long-finned pilot whale .................................................................................... 20 20 20 0.05 

Bottlenose dolphin (W.N. Atlantic Coastal Migratory) ..................................... 385 385 385 5.80 

Bottlenose dolphin (W.N. Atlantic Offshore) .................................................... 1,175 1,175 1,175 1.87 

Common dolphin (short-beaked) ..................................................................... 406 b 560 560 0.32 

Atlantic white-sided dolphin ............................................................................. 17 17 17 0.02 

Atlantic spotted dolphin ................................................................................... 50 d 100 100 0.25 

Risso’s dolphin ................................................................................................. 30 30 30 0.08 

Harbor porpoise ............................................................................................... 282 282 282 0.30 

Harbor seal ...................................................................................................... 426 426 426 0.56 

Gray seal ......................................................................................................... 426 426 426 1.56 

a Calculated percentages of population/stock were based on the population estimates (Nest) found in the NMFS’s draft 2021 U.S. Atlantic and 

Gulf of Mexico Marine Mammal Stock Assessment on NMFS’s website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). bBased on information obtained from the monitoring report provided to NMFS after the completion of the 2020 survey, as well as information 

provided by Atlantic Shores (P. Phifer, personal communication, October 29, 2021), NMFS had proposed to increase the number of authorized 

takes (by Level B harassment only) for common dolphins. cBased on recent data from King et al. (2021) where humpback whales were the most commonly sighted species in the New York Bight, 

NMFS had proposed to increase the take of humpback whales by assuming that Atlantic Shores’ four modeled exposures would be of groups 

rather than individuals, and therefore multiplied by an average group size of two to yield eight. dBased on information obtained from the monitoring report provided to NMFS after the completion of the 2020 survey, as well as information 

provided by Atlantic Shores (P. Phifer, personal communication, October 29, 2021), NMFS had proposed to increase the number of authorized 

takes (by Level B harassment only) for Atlantic spotted dolphins. eThese values were originally proposed by Atlantic Shores. 

fThese values were proposed by NMFS. 

gThese values have been authorized by NMFS. 

The original take numbers calculated 

and requested by Atlantic Shores, the 

proposed take numbers from NMFS, and 

the authorized take numbers are shown 

in Table 10. As noted within Atlantic 

Shores’ IHA application and discussed 

within the renewal IHA application (see 

Atlantic Shores Offshore Wind, 2021), 

Atlantic Shores made an adjustment for 

Risso’s dolphins, common dolphins, 

and long-finned pilot whales based on 

typical pod and group sizes, which 


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yielded the values described above. 

NMFS agrees with this approach for 

these three species, as described in the 

IHA applications. 

In the proposed notice (87 FR 4200; 

January 27, 2022), NMFS proposed an 

adjustment for three cetacean species: 

Humpback whales, common dolphins, 

and Atlantic spotted dolphins. Below 

we describe our authorized take 

numbers based on these adjustments. 

Estimated takes of common dolphins 

were increased from the density-based 

estimate based on information provided 

by Atlantic Shores (P. Phifer, personal 

communication, October 29, 2021) and 

sightings described in the 2020 

monitoring report. Based on these 

previous observations, exposures of 

common dolphins above the 160-dB 

harassment threshold were estimated at 

1.55 per day. Assuming that this same 

exposure rate continues for the 

presently planned activity yields the 

estimate provided in Table 10. 

Based on recent information from 

King et al. (2021) that demonstrated that 

the humpback whale is commonly 

sighted along the New York Bight area, 

NMFS determined that the humpback 

whale take request may be too low given 

the occurrence of animals near the 

survey area. Because of this, NMFS 

proposes to double the requested take to 

account for underestimates to the actual 

occurrence of this species within the 

density data. 

Previously, 100 takes of Atlantic 

spotted dolphins, by Level B 

harassment, were authorized to Atlantic 

Shores during their 2020 IHA. Based on 

a lack of sightings in the 2020 field 

season per the submitted monitoring 

report, Atlantic Shores had requested 

and been authorized half of these takes 

(50 Level B harassment) during their 

2021 field season for their renewal IHA. 

However, based on information 

provided by Atlantic Shores (P. Phifer, 

personal communication, October 29, 

2021) as the monitoring report for the 

2021 field season is not yet available, 

NMFS has increased the take previously 

requested by Atlantic Shores from 50 to 

100 to account for the numerous 

sightings of Atlantic spotted dolphins 

that had already occurred early into 

Atlantic Shores’ 2021 field season (17 

takes out of 50 authorized for the 

renewal IHA). 

As described above, Roberts et al. 

(2018) produced density models for all 

seals and did not differentiate by seal 

species. The take calculation 

methodology as described above 

resulted in an estimate of 852 total seal 

takes for both species. Based on this 

estimate, Atlantic Shores has requested 

852 takes total for pinnipeds (426 each 

species), based on the use of the same 

density for both species as they are 

known to overlap in habitat use, 

foraging, and spatial scale. Furthermore, 

as the density estimates were not split 

by species in Roberts et al. (2016b, 2017, 

2018) this approach assumes that the 

likelihood of either species occurring 

during the survey is equal. We think 

this is a reasonable approach and 

therefore propose to authorize the 

requested amount of take, as shown in 

Table 10. 

Worth noting is the authorized take of 

NARWs, which stems from an increase 

in the density of NARWs at the survey 

site. Atlantic Shores used information 

from Roberts et al. (2020) that 

demonstrated that the density of 

NARWs has increased by approximately 

40 percent in some portions of the 

survey area compared to the 2020 IHA 

(see Table 11), which justifies the total 

take number presented above in Table 

10. While past monitoring reports (see 

the 2020 report on NMFS’ website) have 

reported no observations of NARWs 

during the 2020 surveys, NMFS agrees 

with the approach taken by Atlantic 

Shores as using the best available 

science to be conservative and 

authorizes 17 takes by Level B 

harassment only of NARWs during the 

surveys. 

TABLE 11—CHANGES IN NORTH ATLANTIC RIGHT WHALE DENSITIES IN THE SURVEY SITES FROM THE 2020 IHA TO THE

2022 IHA PER DATA FROM ROBERTS ET AL. (2020) 

Winter Spring Summer Fall 

2020 IHA 2022 IHA 2020 IHA 2022 IHA 2020 IHA 2022 IHA 2020 IHA 2022 IHA 

Lease Area ....................... 0.087 0.499 0.060 0.426 0.008 0.002 0.006 0.009 

Northern ECR .................. 0.068 0.182 0.056 0.149 0.008 0.001 0.006 0.011 

Southern ECR .................. 0.073 0.179 0.055 0.097 0.007 0.000 0.006 0.005 

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, we carefully consider 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, and, in the case 

of a military readiness activity, 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. 

Mitigation Measures 

NMFS requires the following 

mitigation measures be implemented 

during Atlantic Shores’ marine site 

characterization surveys. Additionally, 

Atlantic Shores must abide by all the 

marine mammal relevant conditions in 


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the NOAA Fisheries Greater Atlantic 

Regional Office (GARFO) programmatic 

consultation (specifically Project Design 

Criteria (PDC) 4, 5, and 7) regarding 

geophysical surveys along the U.S. 

Atlantic coast in the three Atlantic 

Renewable Energy Regions (NOAA 

GARFO, 2021; https://www.fisheries.

noaa.gov/new-england-mid-atlantic/ 

consultations/section-7-take-reportingprogrammatics-greateratlantic#offshore-wind-site-assessmentand-site-characterization-activitiesprogrammatic-consultation), pursuant 

to Section 7 of the Endangered Species 

Act. 

Marine Mammal Exclusion Zones and 

Level B Harassment Zones 

Marine mammal Exclusion Zones will 

be established around the HRG survey 

equipment and monitored by PSOs. 

These PSOs will be NMFS-approved 

visual PSOs. Based upon the acoustic 

source in use (impulsive: Sparkers; nonimpulsive: Non-parametric sub-bottom 

profilers), a minimum of one PSO must 

be on duty, per source vessel, during 

daylight hours and two PSOs must be 

on duty, per source vessel, during 

nighttime hours. These PSO will 

monitor Exclusion Zones based upon 

the radial distance from the acoustic 

source rather than being based around 

the vessel itself. The Exclusion Zone 

distances are as follows: 

• A 500 m Exclusion Zone for 

NARWs during use of specified acoustic 

sources (impulsive: Sparkers; nonimpulsive: Non-parametric sub-bottom 

profilers). 

• A 100 m Exclusion Zone for all 

other marine mammals (excluding 

NARWs) during use of specified 

acoustic sources (except as specified 

below). All visual monitoring must 

begin no less than 30 minutes prior to 

the initiation of the specified acoustic 

source and must continue until 30 

minutes after use of specified acoustic 

sources ceases. 

If a marine mammal were detected 

approaching or entering the Exclusion 

Zones during the HRG survey, the vessel 

operator will 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. 

Ramp-Up of Survey Equipment and PreClearance of the Exclusion Zones 

When technically feasible, a ramp-up 

procedure will be used for HRG survey 

equipment capable of adjusting energy 

levels at the start or restart of survey 

activities. A ramp-up will begin with 

the powering up of the smallest acoustic 

HRG equipment at its lowest practical 

power output appropriate for the 

survey. The ramp-up procedure will be 

used 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. When technically feasible, the 

power will then be gradually turned up 

and other acoustic sources would be 

added. All ramp-ups shall be scheduled 

so as to minimize the time spent with 

the source being activated. 

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; 30 minutes for all 

other species). 

Atlantic Shores will implement a 30 

minute pre-clearance period of the 

Exclusion Zones prior to the initiation 

of ramp-up of HRG equipment. The 

operator must notify a designated PSO 

of the planned start of ramp-up where 

the notification time should not be less 

than 60 minutes prior to the planned 

ramp-up. This will allow the PSOs to 

monitor the Exclusion Zones for 30 

minutes prior to the initiation of rampup. Prior to ramp-up beginning, Atlantic 

Shores must receive confirmation from 

the PSO that the Exclusion Zone is clear 

prior to proceeding. During this 30 

minute pre-start clearance period, the 

entire applicable Exclusion Zones must 

be visible. The exception to this would 

be in situations where ramp-up may 

occur during periods of poor visibility 

(inclusive of nighttime) as long as 

appropriate visual monitoring has 

occurred with no detections of marine 

mammals in 30 minutes prior to the 

beginning of ramp-up. Acoustic source 

activation may only occur at night 

where operational planning cannot 

reasonably avoid such circumstances. 

During this period, the Exclusion 

Zone 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 Exclusion Zone. If a marine 

mammal is observed within an 

Exclusion Zone during the pre-clearance 

period, ramp-up may not begin until the 

animal(s) has been observed exiting its 

respective Exclusion Zone or until an 

additional time period has elapsed with 

no further sighting (i.e., 15 minutes for 

small odontocetes and pinnipeds; 30 

minutes for all other species). If a 

marine mammal enters the Exclusion 

Zone during ramp-up, ramp-up 

activities must cease and the source 

must be shut down. Any PSO on duty 

has the authority to delay the start of 

survey operations if a marine mammal 

is detected within the applicable prestart clearance zones. 

The pre-clearance zones will be: 

• 500 m for all ESA-listed species 

(North Atlantic right, sei, fin, sperm 

whales); and 

• 100 m for all other marine 

mammals. 

If any marine mammal species that are 

listed under the ESA are observed 

within the clearance zones, the 30 

minute clock must be paused. If the PSO 

confirms the animal has exited the zone 

and headed away from the survey 

vessel, the 30 minute clock that was 

paused may resume. The pre-clearance 

clock will reset to 30 minutes if the 

animal dives or visual contact is 

otherwise lost. 

If the acoustic source is shut down for 

brief periods (i.e., less than 30 minutes) 

for reasons other than implementation 

of prescribed mitigation (e.g., 

mechanical difficulty), it may be 

activated again without ramp-up if PSOs 

have maintained constant visual 

observation and no detections of marine 

mammals have occurred within the 

applicable Exclusion Zone. For any 

longer shutdown, pre-start clearance 

observation and ramp-up are required. 

Activation of survey equipment 

through ramp-up procedures may not 

occur when visual detection of marine 

mammals within the pre-clearance zone 

is not expected to be effective (e.g., 

during inclement conditions such as 

heavy rain or fog). 

The acoustic source(s) must be 

deactivated when not acquiring data or 

preparing to acquire data, except as 

necessary for testing. Unnecessary use 

of the acoustic source shall be avoided. 

Shutdown Procedures 

An immediate shutdown of the 

impulsive HRG survey equipment 

(Table 7) will be required if a marine 

mammal is sighted entering or within its 

respective Exclusion Zone(s). Any PSO 

on duty has the authority to call for a 

shutdown of the acoustic source if a 

marine mammal is detected within the 

applicable Exclusion Zones. Any 

disagreement between the PSO and 

vessel operator should be discussed 

only after shutdown has occurred. The 

vessel operator would establish and 

maintain clear lines of communication 

directly between PSOs on duty and 

crew controlling the HRG source(s) to 

ensure that shutdown commands are 

conveyed swiftly while allowing PSOs 

to maintain watch. 


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The shutdown requirement is waived 

for small delphinids (belonging to the 

genera of the Family Delpinidae: 

Delphinus, Lagenorhynchus, Stenella, or 

Tursiops) and pinnipeds if they are 

visually detected within the applicable 

Exclusion Zones. 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 applicable Level 

B harassment zone, shutdown will 

occur. In the event of uncertainty 

regarding the identification of a marine 

mammal species (i.e., such as whether 

the observed marine mammal belongs to 

Delphinus, Lagenorhynchus, Stenella, or 

Tursiops for which shutdown is waived, 

PSOs must use their best professional 

judgement in making the decision to 

call for a shutdown. 

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. 

Upon implementation of a shutdown, 

the source may be reactivated after the 

marine mammal has been observed 

exiting the applicable Exclusion Zone or 

following a clearance period of 15 

minutes for harbor porpoises and 30 

minutes for all other species where 

there are no further detections of the 

marine mammal. 

Shutdown, pre-start clearance, and 

ramp-up procedures are not required 

during HRG survey operations using 

only non-impulsive sources (e.g., 

parametric sub-bottom profilers) other 

than non-parametric sub-bottom 

profilers (e.g., CHIRPs). Pre-clearance 

and ramp-up, but not shutdown, are 

required when using non-impulsive, 

non-parametric sub-bottom profilers. 

Seasonal Operating Requirements 

As described in the proposed Notice, 

a section of the survey area partially 

overlaps with a portion of a North 

Atlantic right whale SMA off the port of 

New York/New Jersey. This SMA is 

active from November 1 through April 

30 of each year. All survey vessels, 

regardless of length, would be required 

to adhere to vessel speed restrictions 

(<10 knots) when operating within the 

SMA during times when the SMA is 

active. In addition, between watch 

shifts, members of the monitoring team 

would consult NMFS’ NARW reporting 

systems for the presence of NARWs 

throughout survey operations. Members 

of the monitoring team would also 

monitor the NMFS NARW reporting 

systems for the establishment of 

Dynamic Management Areas (DMA). 

NMFS may also establish voluntary 

right whale Slow Zones any time a right 

whale (or whales) is acoustically 

detected. Atlantic Shores should be 

aware of this possibility and remain 

attentive in the event a Slow Zone is 

established nearby or overlapping the 

survey area (Table 12). 

TABLE 12—NORTH ATLANTIC RIGHT WHALE DYNAMIC MANAGEMENT AREA (DMA) AND SEASONAL MANAGEMENT AREA

(SMA) RESTRICTIONS WITHIN THE SURVEY AREAS

Survey area Species DMA restrictions Slow zones SMA restrictions 

Lease Area ...................... North Atlantic right whale 

(Eubalaena glacialis).

If established by NMFS, all of Atlantic Shores’ vessels will abide by 

the described restrictions. 

N/A. 

ECR North ....................... November 1 through July 31 

(Raritan Bay). 

ECR South ....................... N/A. 

Note: More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS’ website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales. 

There are no known marine mammal 

rookeries or mating or calving grounds 

in the survey area that would otherwise 

potentially warrant increased mitigation 

measures for marine mammals or their 

habitat (or both). The survey activities 

would occur in an area that has been 

identified as a biologically important 

area for migration for NARWs. However, 

given the small spatial extent of the 

survey area relative to the substantially 

larger spatial extent of the right whale 

migratory area and the relatively low 

amount of noise generated by the 

survey, the survey is not expected to 

appreciably reduce the quality of 

migratory habitat nor to negatively 

impact the migration of NARWs, thus 

mitigation to address the survey’s 

occurrence in NARW migratory habitat 

is not warranted. 

Vessel Strike Avoidance 

Vessel operators must comply with 

the below measures except under 

extraordinary circumstances when the 

safety of the vessel or crew is in doubt 

or the safety of life at sea is in question. 

These requirements do not apply in any 

case where compliance would create an 

imminent and serious threat to a person 

or vessel or to the extent that a vessel 

is restricted in its ability to maneuver 

and, because of the restriction, cannot 

comply. 

Survey vessel crewmembers 

responsible for navigation duties will 

receive site-specific training on marine 

mammals sighting/reporting and vessel 

strike avoidance measures. Vessel strike 

avoidance measures would include the 

following, except under circumstances 

when complying with these 

requirements would put the safety of the 

vessel or crew at risk: 

• Atlantic Shores will ensure that 

vessel operators and crew maintain a 

vigilant watch for cetaceans and 

pinnipeds and slow down, stop their 

vessels, or alter course, as appropriate 

and regardless of vessel size, to avoid 

striking any marine mammal. A single 

marine mammal at the surface may 

indicate the presence of additional 

submerged animals in the vicinity of the 

vessel; therefore, precautionary 

measures should always be exercised. A 

visual observer aboard the vessel must 

monitor a vessel strike avoidance zone 

around the vessel (species-specific 

distances detailed below). Visual 

observers monitoring the vessel strike 

avoidance zone may be third-party 

observers (i.e., PSOs) or crew members, 

but crew members responsible for these 

duties must be provided sufficient 

training to (1) distinguish marine 

mammal from other phenomena, and (2) 

broadly to identify a marine mammal as 

a right whale, other whale (defined in 

this context as sperm whales or baleen 

whales other than right whales), or other 

marine mammals. All vessels, regardless 

of size, must observe a 10-knot speed 

restriction in specific areas designated 

by NMFS for the protection of NARWs 

from vessel strikes, including seasonal 

management areas (SMAs) and dynamic 

management areas (DMAs) when in 

effect. See www.fisheries.noaa.gov/ 

national/endangered-speciesconservation/reducing-ship-strikesnorth-atlantic-right-whales for specific 

detail regarding these areas. 

• 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 


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(1,640 ft) from right whales and other 

ESA-listed species. If an ESA-listed 

species is sighted within the relevant 

separation distance, the vessel must 

steer a course away at 10-knots or less 

until the 500 m separation distance has 

been established. If a whale is observed 

but cannot be confirmed as a species 

that is not ESA-listed, the vessel 

operator must assume that it is an ESAlisted species and take appropriate 

action. 

• All vessels must maintain a 

minimum separation distance of 100 m 

(328 ft) from non-ESA-listed baleen 

whales. 

• All vessels must, to the maximum 

extent practicable, attempt to maintain a 

minimum separation distance of 50 m 

(164 ft) from all other marine mammals, 

with an understanding that, at times, 

this may not be possible (e.g., for 

animals that approach the vessel, bowriding species). 

• When marine mammal 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, reduce 

speed and shift the engine to neutral). 

This does not apply to any vessel 

towing gear or any vessel that is 

navigationally constrained. 

Members of the monitoring team will 

consult NMFS NARW reporting system 

and Whale Alert, daily and as able, for 

the presence of NARWs throughout 

survey operations, and for the 

establishment of a DMA. If NMFS 

should establish a DMA in the survey 

area during the survey, the vessels will 

abide by speed restrictions in the DMA. 

Training 

All PSOs must have completed a PSO 

training program and received NMFS 

approval to act as a PSO for geophysical 

surveys. Documentation of NMFS 

approval and most recent training 

certificates of individual PSOs’ 

successful completion of a commercial 

PSO training course must be provided 

upon request. Further information can 

be found at www.fisheries.noaa.gov/ 

national/endangered-speciesconservation/protected-speciesobservers. In the event where third-party 

PSOs are not required, crew members 

serving as lookouts must receive 

training on protected species 

identification, vessel strike 

minimization procedures, how and 

when to communicate with the vessel 

captain, and reporting requirements. 

Atlantic Shores shall instruct relevant 

vessel personnel with regard to the 

authority of the marine mammal 

monitoring team, and shall ensure that 

relevant vessel personnel and the 

marine mammal monitoring team 

participate in a joint onboard briefing 

(hereafter PSO briefing), led by the 

vessel operator and lead PSO, prior to 

beginning survey activities to ensure 

that responsibilities, communication 

procedures, marine mammal monitoring 

protocols, safety and operational 

procedures, and IHA requirements are 

clearly understood. This PSO briefing 

must be repeated when relevant new 

personnel (e.g., PSOs, acoustic source 

operator) join the survey operations 

before their responsibilities and work 

commences. 

Survey-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. All vessel 

crew members must be briefed in the 

identification of protected species that 

may occur in the survey area and in 

regulations and best practices for 

avoiding vessel collisions. Reference 

materials must be available aboard all 

survey vessels for identification of listed 

species. The expectation and process for 

reporting of protected species sighted 

during surveys must be clearly 

communicated and posted in highly 

visible locations aboard all survey 

vessels, so that there is an expectation 

for reporting to the designated vessel 

contact (such as the lookout or the 

vessel captain), as well as a 

communication channel and process for 

crew members to do so. 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 Atlantic 

Shores’ measures, as well as other 

measures considered by NMFS, NMFS 

has determined that the required 

mitigation measures provide the means 

effecting the least practicable impact on 

the affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance. 

Monitoring and Reporting 

In order to issue an IHA for an 

activity, section 101(a)(5)(D) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the action area. Effective 

reporting is critical to both 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). 

• Mitigation and monitoring 

effectiveness. 

Monitoring Measures 

Atlantic Shores must use 

independent, dedicated, trained PSOs, 

meaning that the PSOs must be 

employed by a third-party observer 

provider, must 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 mammal and 

mitigation requirements (including brief 

alerts regarding maritime hazards), and 


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must have successfully completed an 

approved PSO training course for 

geophysical surveys. Visual monitoring 

must be performed by qualified, NMFSapproved PSOs. PSO resumes must be 

provided to NMFS for review and 

approval prior to the start of survey 

activities. 

PSO names must be provided to 

NMFS by the operator for review and 

confirmation of their approval for 

specific roles prior to commencement of 

the survey. For prospective PSOs not 

previously approved, or for PSOs whose 

approval is not current, NMFS must 

review and approve PSO qualifications. 

Resumes should include information 

related to relevant education, 

experience, and training, including 

dates, duration, location, and 

description of prior PSO experience. 

Resumes must be accompanied by 

relevant documentation of successful 

completion of necessary training. 

NMFS may approve PSOs as 

conditional or unconditional. A 

conditionally-approved PSO may be one 

who is trained but has not yet attained 

the requisite experience. An 

unconditionally-approved PSO is one 

who has attained the necessary 

experience. For unconditional approval, 

the PSO must have a minimum of 90 

days at sea performing the role during 

a geophysical survey, with the 

conclusion of the most recent relevant 

experience not more than 18 months 

previous. 

At least one of the visual PSOs aboard 

the vessel must be unconditionallyapproved. One unconditionallyapproved visual PSO shall be 

designated as the lead for the entire PSO 

team. This lead should typically be the 

PSO with the most experience, would 

coordinate duty schedules and roles for 

the PSO team, and serve as primary 

point of contact for the vessel operator. 

To the maximum extent practicable, the 

duty schedule shall be planned such 

that unconditionally-approved PSOs are 

on duty with conditionally-approved 

PSOs. 

PSOs must have successfully attained 

a bachelor’s degree from an accredited 

college or university with a major in one 

of the natural sciences, a minimum of 

30 semester hours or equivalent in the 

biological sciences, and at least one 

undergraduate course in math or 

statistics. The educational requirements 

may be waived if the PSO has acquired 

the relevant skills through alternate 

experience. Requests for such a waiver 

shall be submitted to NMFS and must 

include written justification. Alternate 

experience that may be considered 

includes, but is not limited to (1) 

secondary education and/or experience 

comparable to PSO duties; (2) previous 

work experience conducting academic, 

commercial, or government-sponsored 

marine mammal surveys; and (3) 

previous work experience as a PSO 

(PSO must be in good standing and 

demonstrate good performance of PSO 

duties). 

PSOs must successfully complete 

relevant training, including completion 

of all required coursework and passing 

(80 percent or greater) a written and/or 

oral examination developed for the 

training program. 

PSOs must coordinate to ensure 360° 

visual coverage around the vessel from 

the most appropriate observation posts 

and shall conduct visual observations 

using binoculars or night-vision 

equipment and the naked eye while free 

from distractions and in a consistent, 

systematic, and diligent manner. 

PSOs may be on watch for a 

maximum of four consecutive hours 

followed by a break of at least two hours 

between watches and may conduct a 

maximum of 12 hours of observation per 

24-hour period. 

Any observations of marine mammal 

by crew members aboard any vessel 

associated with the survey shall be 

relayed to the PSO team. 

Atlantic Shores must work with the 

selected third-party PSO provider to 

ensure PSOs have all equipment 

(including backup equipment) needed 

to adequately perform necessary tasks, 

including accurate determination of 

distance and bearing to observed marine 

mammals, and to ensure that PSOs are 

capable of calibrating equipment as 

necessary for accurate distance 

estimates and species identification. 

Such equipment, at a minimum, shall 

include: 

• At least one thermal (infrared) 

imagine device suited for the marine 

environment; 

• Reticle binoculars (e.g., 7 x 50) of 

appropriate quality (at least one per 

PSO, plus backups); 

• Global Positioning Units (GPS) (at 

least one plus backups); 

• Digital cameras with a telephoto 

lens that is at least 300 millimeter (mm) 

or equivalent on a full-frame single lens 

reflex (SLR) (at least one plus backups). 

The camera or lens should also have an 

image stabilization system; 

• Equipment necessary for accurate 

measurement of distances to marine 

mammal; 

• Compasses (at least one plus 

backups); 

• Means of communication among 

vessel crew and PSOs; and 

• Any other tools deemed necessary 

to adequately and effectively perform 

PSO tasks. 

The equipment specified above may 

be provided by an individual PSO, the 

third-part PSO provider, or the operator, 

but Atlantic Shores is responsible for 

ensuring PSOs have the proper 

equipment required to perform the 

duties specified in the IHA. 

During good conditions (e.g., daylight 

hours; Beaufort sea state 3 or less), PSOs 

shall conduct observations when the 

specified acoustic sources are not 

operating for comparison of sighting 

rates and behavior with and without use 

of the specified acoustic sources and 

between acquisition periods, to the 

maximum extent practicable. 

The PSOs will be responsible for 

monitoring the waters surrounding each 

survey vessel to the farthest extent 

permitted by sighting conditions, 

including Exclusion Zones, during all 

HRG survey operations. PSOs will 

visually monitor and identify marine 

mammals, including those approaching 

or entering the established Exclusion 

Zones during survey activities. It will be 

the responsibility of the PSO(s) on duty 

to communicate the presence of marine 

mammals as well as to communicate the 

action(s) that are necessary to ensure 

mitigation and monitoring requirements 

are implemented as appropriate. 

Atlantic Shores plans to utilize six 

PSOs across each vessel to account for 

shift changes, with a total of 18 during 

these surveys (six PSOs per vessel × 

three vessels). At a minimum, during all 

HRG survey operations (e.g., any day on 

which use of an HRG source is planned 

to occur), 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) 

and 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 four 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-hr 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 


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marine mammals, particularly in 

proximity to Exclusion Zones. 

Reticulated binoculars must also be 

available to PSOs for use as appropriate 

based on conditions and visibility to 

support the sighting and monitoring of 

marine mammals. During nighttime 

operations, night-vision goggles with 

thermal clip-ons and infrared 

technology would be used. Position data 

would be recorded using hand-held or 

vessel GPS units for each sighting. 

During good conditions (e.g., daylight 

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

to the maximum extent practicable, 

PSOs would also conduct observations 

when the acoustic source is not 

operating for comparison of sighting 

rates and behavior with and without use 

of the active acoustic sources. Any 

observations of marine mammals by 

crew members aboard any vessel 

associated with the survey would be 

relayed to the PSO team. Data on all 

PSO observations would be recorded 

based on standard PSO collection 

requirements (see Reporting Measures). 

This would include dates, times, and 

locations of survey operations; dates 

and times of observations, location and 

weather; details of marine mammal 

sightings (e.g., species, numbers, 

behavior); and details of any observed 

marine mammal behavior that occurs 

(e.g., noted behavioral disturbances). 

Reporting Measures 

Atlantic Shores shall submit a draft 

comprehensive report on all activities 

and monitoring results within 90 days 

of the completion of the survey or 

expiration of the IHA, whichever comes 

sooner. The report must describe all 

activities conducted and sightings of 

marine mammals, must provide full 

documentation of methods, results, and 

interpretation pertaining to all 

monitoring, and must summarize the 

dates and locations of survey operations 

and all marine mammals sightings 

(dates, times, locations, activities, 

associated survey activities). The draft 

report shall also include geo-referenced, 

time-stamped vessel tracklines for all 

time periods during which acoustic 

sources were operating. Tracklines 

should include points recording any 

change in acoustic source status (e.g., 

when the sources began operating, when 

they were turned off, or when they 

changed operational status such as from 

full array to single gun or vice versa). 

GIS files shall be provided in ESRI 

shapefile format and include the UTC 

date and time, latitude in decimal 

degrees, and longitude in decimal 

degrees. All coordinates shall be 

referenced to the WGS84 geographic 

coordinate system. In addition to the 

report, all raw observational data shall 

be made available. The report must 

summarize the information submitted in 

interim monthly reports (if required) as 

well as additional data collected. A final 

report must be submitted within 30 days 

following resolution of any comments 

on the draft report. All draft and final 

marine mammal and acoustic 

monitoring reports must be submitted to 

PR.ITP.MonitoringReports@noaa.gov 

and ITP.Potlock@noaa.gov. 

PSOs must use standardized 

electronic data forms to record data. 

PSOs shall record detailed information 

about any implementation of mitigation 

requirements, including the distance of 

marine mammal to the acoustic source 

and description of specific actions that 

ensued, the behavior of the animal(s), 

any observed changes in behavior before 

and after implementation of mitigation, 

and if shutdown was implemented, the 

length of time before any subsequent 

ramp-up of the acoustic source. If 

required mitigation was not 

implemented, PSOs should record a 

description of the circumstances. At a 

minimum, the following information 

must be recorded: 

1. Vessel names (source vessel and 

other vessels associated with survey), 

vessel size and type, maximum speed 

capability of vessel; 

2. Dates of departures and returns to 

port with port name; 

3. The lease number; 

4. PSO names and affiliations; 

5. Date and participants of PSO 

briefings; 

6. Visual monitoring equipment used; 

7. PSO location on vessel and height 

of observation location above water 

surface; 

8. Dates and times (Greenwich Mean 

Time) of survey on/off effort and times 

corresponding with PSO on/off effort; 

9. Vessel location (decimal degrees) 

when survey effort begins and ends and 

vessel location at beginning and end of 

visual PSO duty shifts; 

10. Vessel location at 30-second 

intervals if obtainable from data 

collection software, otherwise at 

practical regular interval; 

11. Vessel heading and speed at 

beginning and end of visual PSO duty 

shifts and upon any change; 

12. Water depth (if obtainable from 

data collection software); 

13. Environmental conditions while 

on visual survey (at beginning and end 

of PSO shift and whenever conditions 

change significantly), including BSS 

and any other relevant weather 

conditions including cloud cover, fog, 

sun glare, and overall visibility to the 

horizon; 

14. Factors that may contribute to 

impaired observations during each PSO 

shift change or as needed as 

environmental conditions change (e.g., 

vessel traffic, equipment malfunctions); 

and 

15. Survey activity information (and 

changes thereof), such as acoustic 

source power output while in operation, 

number and volume of airguns 

operating in an array, tow depth of an 

acoustic source, and any other notes of 

significance (i.e., pre-start clearance, 

ramp-up, shutdown, testing, shooting, 

ramp-up completion, end of operations, 

streamers, etc.). 

Upon visual observation of any 

marine mammal, the following 

information must be recorded: 

1. Watch status (sighting made by 

PSO on/off effort, opportunistic, crew, 

alternate vessel/platform); 

2. Vessel/survey activity at time of 

sighting (e.g., deploying, recovering, 

testing, shooting, data acquisition, 

other); 

3. PSO who sighted the animal; 

4. Time of sighting; 

5. Initial detection method; 

6. Sightings cue; 

7. Vessel location at time of sighting 

(decimal degrees); 

8. Direction of vessel’s travel 

(compass direction); 

9. Speed of the vessel(s) from which 

the observation was made; 

10. 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; 

11. Species reliability (an indicator of 

confidence in identification); 

12. Estimated distance to the animal 

and method of estimating distance; 

13. Estimated number of animals 

(high/low/best); 

14. Estimated number of animals by 

cohort (adults, yearlings, juveniles, 

calves, group composition, etc.); 

15. 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); 

16. Detailed behavior observations 

(e.g., number of blows/breaths, number 

of surfaces, breaching, spyhopping, 

diving, feeding, traveling; as explicit 

and detailed as possible; note any 

observed changes in behavior before and 

after point of closest approach); 

17. Mitigation actions; description of 

any actions implemented in response to 

the sighting (e.g., delays, shutdowns, 

ramp-up, speed or course alteration, 

etc.) and time and location of the action; 

18. Equipment operating during 

sighting; 


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19. Animal’s closest point of approach 

and/or closest distance from the center 

point of the acoustic source; and 

20. Description of any actions 

implemented in response to the sighting 

(e.g., delays, shutdown, ramp-up) and 

time and location of the action. 

If a NARW is observed at any time by 

PSOs or personnel on any survey 

vessels, during surveys or during vessel 

transit, Atlantic Shores must report the 

sighting information to the NMFS North 

Atlantic Right Whale Sighting Advisory 

System (866–755–6622) within two 

hours of occurrence, when practicable, 

or no later than 24 hours after 

occurrence. NARW sightings in any 

location may also be reported to the U.S. 

Coast Guard via channel 16 and through 

the WhaleAlert app (https://

www.whalealert.org). 

In the event that Atlantic Shores 

personnel discover an injured or dead 

marine mammal, regardless of the cause 

of injury or death. In the event that 

personnel involved in the survey 

activities discover an injured or dead 

marine mammal, Atlantic Shores must 

report the incident to NMFS as soon as 

feasible by phone (866–755–6622) and 

by email (nmfs.gar.stranding@noaa.gov 

and PR.ITP.MonitoringReports@

noaa.gov) as soon as feasible. The report 

must include the following information: 

1. Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

2. Species identification (if known) or 

description of the animal(s) involved; 

3. Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

4. Observed behaviors of the 

animal(s), if alive; 

5. If available, photographs or video 

footage of the animal(s); and 

6. General circumstances under which 

the animal was discovered. 

In the unanticipated event of a ship 

strike of a marine mammal by any vessel 

involved in the activities covered by the 

IHA, Atlantic Shores must report the 

incident to NMFS by phone (866–755– 

6622) and by email 

(nmfs.gar.stranding@noaa.gov and 

PR.ITP.MonitoringReports@noaa.gov) as 

soon as feasible. The report would 

include the following information: 

1. Time, date, and location (latitude/ 

longitude) of the incident; 

2. Species identification (if known) or 

description of the animal(s) involved; 

3. Vessel’s speed during and leading 

up to the incident; 

4. Vessel’s course/heading and what 

operations were being conducted (if 

applicable); 

5. Status of all sound sources in use; 

6. Description of avoidance measures/ 

requirements that were in place at the 

time of the strike and what additional 

measures were taken, if any, to avoid 

strike; 

7. Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, visibility) 

immediately preceding the strike; 

8. Estimated size and length of animal 

that was struck; 

9. Description of the behavior of the 

marine mammal immediately preceding 

and/or following the strike; 

10. If available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; 

11. Estimated fate of the animal (e.g., 

dead, injured but alive, injured and 

moving, blood or tissue observed in the 

water, status unknown, disappeared); 

and 

12. To the extent practicable, 

photographs or video footage of the 

animal(s). 

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. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’s 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 

3, given that NMFS expects the 

anticipated effects of the survey 

activities to be similar in nature. Where 

there are meaningful differences 

between species or stocks—as is the 

case of the NARW—they are included as 

separate subsections below. NMFS does 

not anticipate that serious injury or 

mortality would occur as a result from 

HRG surveys, even in the absence of 

mitigation, and no serious injury or 

mortality will be authorized. 

As discussed in the Potential Effects 

section of the proposed Federal Register 

Notice, 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, 

the estimated size of the Level A 

harassment zones, and the required 

Exclusion Zone for certain activities. 

Because of this, no Level A harassment 

has been authorized. 

In addition to being temporary, the 

maximum expected harassment zone 

around a survey vessel is 141 m. 

Although this distance is assumed for 

all survey activity in estimating take 

numbers authorized and evaluated here, 

in reality, the Applied Acoustics DuraSpark 240 would likely not be used 

across the entire 24-hour period and 

across all 360 days. As noted in Table 

7, the other acoustic sources Atlantic 

Shores has included in their application 

produce Level B harassment zones 

below 60 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 


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disturbance and the availability of 

similar habitat and resources in the 

surrounding area, the impacts to marine 

mammals and the food sources that they 

utilize are not expected to cause 

significant or long-term consequences 

for individual marine mammals or their 

populations. 

There are no rookeries, mating or 

calving grounds known to be 

biologically important to marine 

mammals within the survey area and 

there are no feeding areas known to be 

biologically important to marine 

mammals within the survey area. There 

is no designated critical habitat for any 

ESA-listed marine mammals in the 

survey area. 

North Atlantic Right Whales 

The status of the NARW population is 

of heightened concern and, therefore, 

merits additional analysis. As noted 

previously, elevated NARW mortalities 

began in June 2017 and there is an 

active UME. Overall, preliminary 

findings support human interactions, 

specifically vessel strikes and 

entanglements, as the cause of death for 

the majority of right whales. As noted 

previously, Atlantic Shores’ survey area 

overlaps a migratory corridor BIA for 

NARWs. We note that the survey area is 

relatively small compared with the 

migratory BIA area (approximately 

5,868 km2 and the NARW migratory BIA 

is 269,448 km2) and, importantly, that 

the effects of the activity are sufficiently 

low-level as to not meaningfully impact 

important behavior, including migratory 

behavior. Due to the fact that the 

described 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 

described activities. Further, given the 

relatively small size of the ensonified 

area (141 m), it is unlikely that prey 

availability would be adversely affected 

by HRG survey operations. Required 

vessel strike avoidance measures will 

also decrease risk of ship strike during 

migration; no ship strike is expected to 

occur during Atlantic Shores’ survey 

activities. The 500 m Exclusion Zone for 

right whales is conservative, 

considering the Level B harassment 

isopleth for the most impactful acoustic 

source (i.e., 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 PTS zones associated with HRG 

equipment types planned for use. The 

authorized levels of Level B harassment 

takes of NARW are not expected to 

exacerbate or compound upon the 

ongoing UME. The limited NARW Level 

B harassment takes to be authorized are 

expected to be of a short duration, and 

given the number of estimated takes, 

repeated exposures of the same 

individual are not expected. Further, 

given the relatively small size of the 

ensonified area during Atlantic Shores’ 

survey activities, it is unlikely that 

NARW prey availability would be 

adversely affected. Accordingly, NMFS 

does not anticipate NARWs takes that 

would result from Atlantic Shores’ 

survey activities would impact annual 

rates of recruitment or survival. Thus, 

any takes that occur would not result in 

population level impacts. 

Other Marine Mammal Species With 

Active UMEs 

As noted previously, there are several 

active UMEs occurring in the vicinity of 

Atlantic Shores’ survey area. Elevated 

humpback whale mortalities have 

occurred along the Atlantic coast from 

Maine through Florida since January 

2016. Of the cases examined, 

approximately half had evidence of 

human interaction (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 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 as well 

as in Canada (Hayes et al., 2020). 

The required mitigation measures are 

expected to reduce the number and/or 

severity of authorized takes for all 

species listed in Tables 3 and 10, 

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. As discussed previously, 

take by Level A harassment (injury) is 

considered unlikely, even absent 

mitigation, based on the characteristics 

of the signals produced by the acoustic 

sources planned for use. 

Implementation of required mitigation 

would further reduce this potential. 

Therefore, NMFS is not authorizing any 

Level A harassment. 

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. 

Biologically Important Areas for Other 

Species 

As previously discussed, impacts 

from the survey are expected to be 

localized to the specific area of activity 

and only during periods of time where 

Atlantic Shores’ acoustic sources are 

active. While areas of biological 

importance to fin whales, humpback 

whales, and harbor seals can be found 

off the coast of New Jersey and New 

York, NMFS does not expect these 

activities to affect these areas. This is 

due to the combination of the mitigation 

and monitoring measures being required 

of Atlantic Shores as well as the 

location of these biologically important 

areas. All of these important areas are 

found outside of the range of this survey 

area, as is the case with fin whales and 


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humpback whales (BIAs found further 

north), and, therefore, not expected to 

be impacted by Atlantic Shores’ survey 

activities. 

Three major haul-out sites exist for 

harbor seals within ECR North along 

New Jersey, including at Great Bay, 

Sand Hook, and Barnegat Inlet (CWFNJ, 

2015). As hauled out seals would be out 

of the water, no in-water effects are 

expected. 

Determinations 

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 nor will be authorized; 

• No Level A harassment (PTS) is 

anticipated, even in the absence of 

mitigation measures, or will be 

authorized; 

• Foraging success is not likely to be 

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 by Level 

B behavioral harassment only 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 

NARWs, the activities would occur in 

such a comparatively small area such 

that any avoidance of the survey area 

due to activities would not affect 

migration; and 

• The described mitigation measures, 

including effective 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 described survey 

activities 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 fewer than one third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

NMFS authorizes incidental take (by 

Level B harassment only) of 15 marine 

mammal species (with 16 managed 

stocks). The total amount of takes 

authorized relative to the best available 

population abundance is less than 6 

percent for all stocks (Table 10). 

Therefore, NMFS finds that small 

numbers of marine mammals may be 

taken relative to the estimated overall 

population abundances for those stocks. 

Based on the analysis contained 

herein of the described activities 

(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 (ESA: 16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

IHAs, NMFS Office of Protected 

Resources (OPR) consults internally 

whenever we propose to authorize take 

for endangered or threatened species. 

NMFS is authorizing the incidental 

take of four species of marine mammals 

which are listed under the ESA, 

including the North Atlantic right, fin, 

sei, and sperm whale, and has 

determined that these activities fall 

within the scope of activities analyzed 

in GARFO’s programmatic consultation 

regarding geophysical surveys along the 

U.S. Atlantic coast in the three Atlantic 

Renewable Energy Regions (completed 

June 29, 2021; revised September 2021). 

The consultation concluded that NMFS’ 

issuance of incidental take authorization 

related to these activities are not likely 

to adversely affect ESA-listed marine 

mammals. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

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

NOAA Administrative Order (NAO) 

216–6A, NMFS must review our action 

(i.e., the issuance of an IHA) with 

respect to potential impacts on the 

human environment. This action is 

consistent with categories of activities 

identified in Categorical Exclusion B4 

(IHAs with no anticipated serious injury 

or mortality) of the Companion Manual 

for NOAA Administrative Order 216– 

6A, which do not individually or 

cumulatively have the potential for 

significant impacts on the quality of the 

human environment and for which we 

have not identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. Accordingly, 

NMFS has determined that the issuance 

of the final IHA qualifies to be 

categorically excluded from further 

NEPA review. 

Authorization 

As a result of these determinations, 

NMFS has issued an IHA to Atlantic 

Shores for conducting site 

characterization surveys off New York 

and New Jersey from April 20, 2022 

through April 19, 2023, provided the 

previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. The final IHA and 

Atlantic Shores’ IHA application can be 

found on NMFS’ website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-atlanticshores-offshore-wind-llc-marine-site-0. 

Dated: April 18, 2022. 

Catherine Marzin, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2022–08653 Filed 4–21–22; 8:45 am] 

BILLING CODE 3510–22–P 


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