[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Notices]
[Pages 30453-30474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10759]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB896]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Ocean Wind II Marine Site 
Characterization Surveys, New Jersey

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an IHA to Ocean Wind II, LLC (Ocean Wind II), an 
affiliate of Orsted Wind Power North America LLC (Orsted), to 
incidentally harass, by Level B harassment, marine mammals during 
marine site characterization surveys off New Jersey in and around the 
area of Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf Lease Area (OCS)-A 0532. We 
note that the Federal Register notice of proposed IHA (87 FR 14823; 
March 16, 2022) refers to the applicant as ``Ocean Wind, LLC.'' This 
was an error on NMFS' part and the correct name (``Ocean Wind II, 
LLC'') is used herein.

DATES: The Authorization is effective from May 10, 2022 through May 9, 
2023.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 427-8401. An electronic copy of the IHA and 
supporting documents may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
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

[[Page 30454]]

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 October 1, 2021, NMFS received a request from Ocean Wind II for 
an IHA to take marine mammals incidental to marine site 
characterization surveys off of New Jersey in the area of Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Area OCS-A 0532 (Lease Area) and potential 
export cable routes (ECRs) to landfall locations in New Jersey. 
Following NMFS review of the draft application, a revised version was 
submitted on November 24, 2021 and again on January 24, 2022. The 
January 2022 revised version was deemed adequate and complete on 
February 8, 2022. Ocean Wind II's request is for take of 16 species of 
marine mammals, by Level B harassment only. Neither Ocean Wind II nor 
NMFS expects serious injury or mortality to result from this activity 
and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to Ocean Wind, LLC (Ocean Wind) for 
similar work in the same general geographic area on June 8, 2017 (82 FR 
31562; July 7, 2017) with effective dates from June 8, 2017, through 
June 7, 2018 and on May 10, 2021 (86 FR 26465, May 14, 2021) with 
effective dates from May 10, 2021 through May 9, 2022. Ocean Wind 
complied with all the requirements (e.g., mitigation, monitoring, and 
reporting) of the 2017-2018 IHA. Because Ocean Wind's current IHA is 
still effective, we have not yet received the associated monitoring 
report. Please note that Ocean Wind and Ocean Wind II are both 
affiliates of Orsted Wind Power North America LLC, with operations 
occurring in the same general area.
    This IHA for Ocean Wind II is effective May 10, 2022 through May 9, 
2023. There are no changes from the proposed IHA to the final IHA.

Description of Proposed Activity

Overview

    As part of its overall marine site characterization survey 
operations, Ocean Wind II proposes to conduct high-resolution 
geophysical (HRG) surveys in the Lease Area and along potential ECRs to 
landfall locations in New Jersey.
    The purpose of the marine site characterization surveys are to 
obtain an assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of a planned offshore wind facility development area. Surveys 
are also conducted to support engineering design and to map unexploded 
ordnance. Underwater sound resulting from Ocean Wind II's proposed site 
characterization survey activities, specifically HRG surveys, has the 
potential to result in incidental take of marine mammals in the form of 
Level B behavioral harassment.

Dates and Duration

    Site characterization surveys considered under this application are 
expected to occur between May 10, 2022 and May 9, 2023 with a total of 
275 survey days. A survey day is defined here as a 24-hour activity 
period. The number of anticipated survey days was calculated as the 
number of days needed to reach the overall level of effort required to 
meet survey objectives assuming any single vessel covers, on average, 
70 line km per 24 hours of operations.

Specific Geographic Region

    The proposed survey activities will occur within the Project Area 
which includes the Lease Area and potential ECRs, as shown in Figure 1. 
The Lease Area is approximately 343.8 square kilometers (km\2\) and is 
within the New Jersey wind energy area (WEA) of the Bureau of Ocean 
Energy Management's Mid-Atlantic planning area. Water depths in the 
Lease Area range from 15 meters (m) to 35 m, and the potential ECRs 
extend from the shoreline to approximately 40 m depth.
BILLING CODE 3510-22-P

[[Page 30455]]

[GRAPHIC] [TIFF OMITTED] TN19MY22.001

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Ocean Wind II plans to conduct HRG survey operations, including 
multibeam depth sounding, seafloor imaging, and shallow and medium 
penetration sub-bottom profiling. The HRG surveys may be conducted 
using any or all of the following equipment types: Side scan sonar, 
multibeam echosounder, magnetometers and gradiometers, parametric sub-
bottom profiler (SBP), compressed high intensity radar pulse (CHIRP) 
SBP, boomers, or sparkers.

[[Page 30456]]

Ocean Wind II assumes that HRG survey operations would be conducted 24 
hours per day, with an assumed daily survey distance of 70 km. Vessels 
would generally conduct survey effort at a transit speed of 
approximately 4 knots (kn), which equates to 110 km per 24-hr period. 
However, based on past survey experience (i.e., knowledge of typical 
daily downtime due to weather, system malfunctions, etc.) Ocean Wind II 
assumes 70 km as the average daily distance. On this basis, a total of 
275 survey days are expected. In certain shallow-water areas, vessels 
may conduct survey effort during daylight hours only, with a 
corresponding assumption that the daily survey distance would be halved 
(35 km). However, for purposes of analysis all survey days are assumed 
to cover the maximum 70 km. A maximum of two vessels would operate 
concurrently in areas where 24-hr operations would be conducted, with 
an additional third vessel potentially conducting daylight-only survey 
effort in shallow-water areas.
    Acoustic sources planned for use during HRG survey activities 
proposed by Ocean Wind II include the following:
    <bullet> Shallow penetration, non-impulsive, non-parametric SBPs 
(i.e., CHIRP SBPs) are used to map the near-surface stratigraphy (top 0 
to 10 m) of sediment below seabed. A CHIRP system emits signals 
covering a frequency sweep from approximately 2 to 20 kilohertz (kHz) 
over time. The frequency range can be adjusted to meet project 
variables. These sources are typically mounted on a pole rather than 
towed, reducing the likelihood that an animal would be exposed to the 
signal.
    <bullet> Medium penetration, impulsive sources (i.e., boomers and 
sparkers) are used to map deeper subsurface stratigraphy. A boomer is a 
broadband source operating in the 3.5 Hertz (Hz) to 10 kHz frequency 
range. Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 
kHz. These sources are typically towed behind the vessel.
    Operation of the following survey equipment types is not expected 
to present reasonable risk of marine mammal take, and will not be 
discussed further beyond the brief summaries provided below.
    <bullet> Non-impulsive, parametric SBPs are used for providing high 
data density in sub-bottom profiles that are typically required for 
cable routes, very shallow water, and archaeological surveys. These 
sources generate short, very narrow-beam (1[deg] to 3.5[deg]) signals 
at high frequencies (generally around 85-100 kHz). The narrow beamwidth 
significantly reduces the potential that a marine mammal could be 
exposed to the signal, while the high frequency of operation means that 
the signal is rapidly attenuated in seawater. These sources are 
typically deployed on a pole rather than towed behind the vessel.
    <bullet> Acoustic corers are seabed-mounted sources with three 
distinct sound sources: A high-frequency parametric sonar, a high-
frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beamwidth 
is narrow (3.5[deg] to 8[deg]) and the source is operated roughly 3.5 
meter (m) above the seabed with the transducer pointed directly 
downward.
    <bullet> Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by the vessel transceiver and a transponder 
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several 
transponders mounted on other survey equipment. USBLs are expected to 
produce extremely small acoustic propagation distances in their typical 
operating configuration.
    <bullet> Multibeam echosounders (MBESs) are used to determine water 
depths and general bottom topography. The proposed MBESs all have 
operating frequencies >180 kHz and are therefore outside the general 
hearing range of marine mammals.
    <bullet> Side scan sonars (SSS) are used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The proposed SSSs all have operating 
frequencies >180 kHz and are therefore outside the general hearing 
range of marine mammals.
    Table 1 identifies representative survey equipment with the 
expected potential to result in exposure of marine mammals and 
potentially result in take. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending upon the final survey design, 
vessel availability, and survey contractor selection.

                                                    Table 1--Summary of Representative HRG Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              SLrms  (dB   SL0-pk (dB      Pulse
                                      Operating  frequency       re 1         re 1        Duration     Repetition   Beamwidth       CF = Crocker  and
             Equipment                        (kHz)           [micro]Pa    [micro]Pa      (width)      rate (Hz)    (degrees)   Fratantonio  (2016), MAN
                                                                  m)           m)      (millisecond)                                 =  manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Non-parametric shallow penetration SBPs (non-impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top unit)...  2-16, 2-8.............          195            -            20             6           24  MAN
ET 424 3200-X......................  4-24..................          176            -           3.4             2           71  CF
ET 512i............................  0.7-12................          179            -             9             8           80  CF
GeoPulse 5430A.....................  2-17..................          196            -            50            10           55  MAN
Teledyne Benthos Chirp III--TTV 170  2-7...................          197            -            60            15          100  MAN
Pangeo SBI.........................  4.5-12.5..............          188            -           4.5            45          120  MAN
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Medium penetration SBPs (impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AA, Dura-spark UHD (400 tips, 500    0.3-1.2...............          203          211           1.1             4         Omni  CF
 J) \1\.
AA, Dura-spark UHD Sparker Model     0.3-1.2...............          203          211           1.1             4         Omni  CF
 400 x 400 \1\.
GeoMarine, Dual 400 Sparker, Model   0.4-5.................          203          211           1.1             4         Omni  CF
 Geo-Source 800 \1\.
GeoMarine Sparker, Model Geo-Source  0.3-1.2...............          203          211           1.1             4         Omni  CF
 200-400 \1\.
GeoMarine Sparker, Model Geo-Source  0.3-1.2...............          203          211           1.1             4         Omni  CF
 200 Lightweight \1\.
AA, triple plate S-Boom (700-1,000   0.1-5.................          205          211           0.6             4           80  CF
 J) \2\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; [mu]Pa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; J = joule; Omni = omnidirectional source; re = referenced
  to; PK = zero-to-peak sound pressure level; SL = source level; SPL = root-mean-square sound pressure level; UHD = ultra-high definition.
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  These include variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in
  Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when
  manufacturer or other reliable measurements are not available.

[[Page 30457]]

 
\2\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
  used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
  in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

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

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Ocean Wind II was 
published in the Federal Register on March 16, 2022 (87 FR 14823). That 
proposed notice described, in detail, Ocean Wind II's 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 8 comment letters on the proposed IHA; 2 from 
environmental non-governmental organizations (eNGOs) (Oceana, Inc. and 
Clean Ocean Action (COA)) and 6 letters from students at the University 
of New England School of Marine and Environmental Programs. The letters 
from the students expressed general support for wind farm construction; 
however, the IHA pertains to site assessment surveys. Hence, 
construction of the wind farm, and the associated comments, is outside 
the scope of NMFS' action considered herein. We do not specifically 
address comments related to impacts on marine mammals or their prey 
from potential future wind farm construction. Some student letters also 
suggested changes to the MMPA itself, which is also outside the scope 
of NMFS' proposed action here. All substantive comments related to the 
proposed action (i.e., issuance of take associated with Ocean Wind II's 
site assessment surveys), and NMFS' responses, are provided below, and 
the letters are available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0). Please review the letters for full details regarding the 
comments 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.
    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 
March 16, 2022 (87 FR 14823) 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 
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 North 
Atlantic right whale (NARW) such as updated population estimates and 
recent habitat usage patterns in Ocean Wind II's survey area. The 
commenters specifically asserted that NMFS is not using the best 
available science with regards to the NARW population estimate and 
state that NMFS should be using the 336 estimate presented in the 
recent NARW Report Card (https://www.narwc.org/report-cards.html).
    Response: While NMFS agrees that the best available science should 
be used for assessing NARW abundance estimates, we disagree that the 
NARW Report Card (Pettis et al., 2022) represents the 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-assessment-reports)), 
which was used in the

[[Page 30458]]

proposed IHA, provides the most recent and best available estimate, and 
introduced improvements to NMFS' NARW 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/north-atlantic-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 Ocean Wind II's 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 Ocean Wind II, 
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 IHA Federal Register notice 
(87 FR 14823, March 16, 2022) 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 extremely small (the lease area is 
338 km\2\) compared to the size of the NARW migratory BIA (269,448 
km\2\). 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.
    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 Ocean Wind II 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 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 km\2\) compared 
with the survey area (5,868 km\2\). Thus, the transitory nature of 
NARWs at this location means it is unlikely for any exposure to cause 
chronic effects as Ocean Wind II's 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 Ocean Wind II 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.
    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

[[Page 30459]]

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, Ocean Wind II 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 Ocean Wind II 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 Ocean Wind II's IHA, which included 
consideration of extraordinary circumstances.
    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 
Ocean Wind's 2017 and 2021 IHAs (82 FR 31562; July 7, 2017 and 86 FR 
26465; May 10, 2021), which are substantially similar to those planned 
by Ocean Wind II 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 Ocean Wind II from 2022 to 2023 could have 
fallen under the scope of those analyzed previously..
    Comment 5: Oceana states that NMFS must make an assessment of which 
activities, technologies and strategies are truly necessary to provide 
Ocean Wind II the necessary information and identify 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.
    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 6: Oceana suggests that PSOs complement their survey 
efforts using additional technologies, such as infrared detection 
devices when in low-light conditions.
    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 7: 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.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for ship strike 
resulting from Ocean Wind II' 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

[[Page 30460]]

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-ESA-listed 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 8: Oceana suggests that NMFS require vessels maintain a 
separation distance of at least 500 m from NARWs at all times.
    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 9: 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.
    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 Ocean Wind II, with the potential for both 
Level A and Level B harassment take. Given the small 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 10: 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.
    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 Ocean Wind II, the vessel operators, the 
lead PSO, and any other relevant designees of Ocean Wind II operating 
under the authority of this IHA. The IHA also states that Ocean Wind II 
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 11: Oceana stated that the IHA must include a requirement 
for all phases of the Ocean Wind II 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.
    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. Ocean Wind II 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, Ocean Wind 
II must immediately report sighting information to the NMFS NARW 
Sighting Advisory System and to the U.S. Coast Guard, and that any 
discoveries of injured or dead marine mammals be reported by Ocean Wind 
II 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 12: Oceana recommended increasing the Exclusion Zone to 
1,000 m for NARWs.
    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. 
Oceana does 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 not 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 13: Oceana recommended that NMFS should require PAM at all 
times to maximize the probability of detection for NARWs.
    Response: Oceana does 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

[[Page 30461]]

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 [mu]Pa (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 low-
frequency and typically masks signals in the same range. Experienced 
PAM operators participating in a recent workshop (Thode et al., 2017) 
emphasized that a PAM operation could easily report no acoustic 
encounters, depending on species present, simply because background 
noise levels rendered any acoustic detection impossible. The same 
workshop report stated that a typical eight-element array towed 500 m 
behind a vessel could be expected to detect delphinids, sperm whales, 
and beaked whales at the required range, but not baleen whales, due to 
expected background noise levels (including seismic noise, vessel 
noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (a maximum of 141 m); this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low. Together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for NARWs and other low frequency cetaceans, species for 
which PAM has limited efficacy), and the cost and impracticability of 
implementing a full-time 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 is not 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).
    Comment 14: 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 shut down in these situations.
    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, 
Ocean Wind II must notify NMFS if a NARW is observed at any time by any 
survey vessels during surveys or during vessel transit. Additionally, 
Ocean Wind II 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. We note that if a NARW is detected within 
the Exclusion Zone before a shutdown is implemented, the NARW and its 
distance from the sound source, including if it is within the Level B 
harassment zone, would be reported in Ocean Wind II's final monitoring 
report and made publicly available on NMFS' website. Ocean Wind II 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 15: 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.
    Response: NMFS agrees with this recommendation and included in the 
Federal Register notice of the proposed IHA (March 16, 2022, 87 FR 
14823) 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 16: COA asserted that Level A harassment may occur, and 
that this was not accounted for in the proposed Notice.
    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. 
Furthermore, the commenters do not provide any persuasive support for 
the apparent

[[Page 30462]]

contention that Level A harassment is a potential outcome of these 
activities.
    NMFS acknowledges that sufficient disruption of behavioral patterns 
could theoretically, likely in connection with other stressors, result 
in a reduction in fitness and ultimately injury or mortality. However, 
such an outcome could likely result only from repeated disruption of 
important behaviors at critical junctures, or sustained displacement 
from important habitat with no associated compensatory ability. NMFS 
has thoroughly analyzed the potential effects of noise exposure 
resulting from the specified activity and, as discussed in the notice 
of proposed IHA (see Potential Effects of Specified Activities on 
Marine Mammals and Their Habitat) and in this notice (see Negligible 
Impact Analysis and Determination), no such effects are reasonably 
anticipated to occur as a result of this activity. Therefore, no such 
outcome is expected as a result of these surveys. 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. Please refer 
also to NMFS' responses to comments 3, 4, and 8.
    Comment 17: COA is concerned that habitat displacement could 
significantly increase the risk of ship-strike to NARWs from outside 
the survey area.
    Response: NMFS does not anticipate that NARWs would be displaced 
from the area where Ocean Wind II's marine site characterization 
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 Ocean Wind 
II 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 18: 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 harbor seals 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.
    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 Ocean Wind 
II's 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.
    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. The amount of take 
authorized in the IHA meets the MMPA's small numbers requirement for 
dolphins (see Small Numbers section).
    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-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-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 19: One commenter suggested that the amount of authorized 
NARWs takes should be limited to 0.7 instead of the 11 takes proposed 
for authorization.
    Response: The commenter cites Ocean Wind II's application when 
stating that only 0.7 are allowed to be ``taken from the environment.'' 
NMFS believes the commenter is referring to the potential biological 
removal (PBR) value in the draft 2021 SAR for NARWs. The commenter 
appears mistaken in equating the PBR value to the maximum amount of 
take that NMFS may authorize. 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. That is, PBR represents 
the amount of mortality and/or serious injury a population can 
withstand while allowing that stock to reach or maintain the maximum 
productivity of the population. Ocean Wind II did not request, nor is 
NMFS authorizing any mortality or serious injury of NARWs. The take 
authorized is limited to Level B (behavioral) harassment. NMFS has 
authorized 11 takes of NARWs by Level B harassment and has found that 
the taking will result in no greater than a negligible impact to the 
NARW stock (i.e., the specified activity will not adversely affect the 
species through effects on annual rates of recruitment and/or 
survival).
    Comment 20: One commenter suggested the IHA should not be issued at 
this time because they believe there is a lack of research on NARW 
prey.
    Response: While much of this commenter's letter focused on wind 
farm construction, NMFS addresses this comment as though applicable to 
the site assessment surveys considered here.

[[Page 30463]]

We note first that the region where this survey is located is not a 
significant feeding area for NARW. Primary feeding areas for the 
species are located further to the north, with the most important use 
of this area for NARW being as a migratory pathway. However, we further 
address this comment in general, as other mysticete species occur in 
the region and in order to thoroughly address the commenter's concern.
    NMFS disagrees with the suggestion that we did not adequately 
consider the potential for effects to prey species. In fact, we 
considered relevant literature in finding that the most likely impact 
of survey activity to prey species such as fish and invertebrates would 
be temporary avoidance of an area, with a rapid return to pre-survey 
distribution and behavior, and minimal impacts to recruitment or 
survival anticipated. While there is a lack of specific scientific 
information to allow an assessment of the duration, intensity, or 
distribution of effects to prey in specific locations at specific times 
and in response to specific surveys, the MMPA specifies that the ``best 
available data'' must be used and NMFS' review of the available 
information does not indicate that such effects could be significant 
enough to impact marine mammal prey to the extent that marine mammal 
fitness would be affected. We addressed the potential for effects to 
prey, as well as the potential for those effects to impact marine 
mammal populations, in our notice of proposed IHA (87 FR 14823, March 
16, 2022). As stated in that notice, our review of the available 
information and the specific nature of the activities considered herein 
suggest that the activities are not likely to have more than short-term 
adverse effects (if any) on any prey habitat or populations of prey 
species. Further, any impacts to prey species are not expected to 
result in significant or long-term consequences for individual marine 
mammals, or to contribute to adverse impacts on their populations. 
Additional information relevant to the commenter's specific concern 
related to NARW prey is summarized below.
    With regard to potential impacts on zooplankton (i.e., NARW prey), 
McCauley et al. (2017) found that exposure to noise from airguns (a 
sound source with significantly more intense sound output than the 
sources considered herein, with correspondingly greater potential for 
impacts to marine mammal prey) resulted in significant depletion for 
more than half the taxa present and that there were two to three times 
more dead zooplankton after airgun exposure compared with controls for 
all taxa, within 1 km of the airguns. However, the authors also stated 
that in order to have significant impacts on r-selected species (i.e., 
those with high growth rates and that produce many offspring) such as 
plankton, the spatial or temporal scale of impact must be large in 
comparison with the ecosystem concerned, and it is possible that the 
findings reflect avoidance by zooplankton rather than mortality 
(McCauley et al., 2017). In addition, the results of this study are 
inconsistent with a large body of research that generally finds limited 
spatial and temporal impacts to zooplankton as a result of exposure to 
airgun noise (e.g., Dalen and Knutsen, 1987; Payne, 2004; Stanley et 
al., 2011). Most prior research on this topic, which has focused on 
relatively small spatial scales, has showed minimal effects (e.g., 
Kostyuchenko, 1973; Booman et al., 1996; S[aelig]tre and Ona, 1996; 
Pearson et al., 1994; Bolle et al., 2012).
    A modeling exercise was conducted as a follow-up to the McCauley et 
al. (2017) study (as recommended by McCauley et al.), in order to 
assess the potential for impacts on ocean ecosystem dynamics and 
zooplankton population dynamics (Richardson et al., 2017). Richardson 
et al. (2017) found that a full-scale airgun survey would impact 
copepod abundance within the survey area, but that effects at a 
regional scale were minimal (2 percent decline in abundance within 150 
km of the survey area and effects not discernible over the full 
region). The authors also found that recovery within the survey area 
would be relatively quick (3 days following survey completion), and 
suggest that the quick recovery was due to the fast growth rates of 
zooplankton, and the dispersal and mixing of zooplankton from both 
inside and outside of the impacted region.
    Notably, a more recent study produced results inconsistent with 
those of McCauley et al. (2017). Researchers conducted a field and 
laboratory study to assess if exposure to airgun noise affects 
mortality, predator escape response, or gene expression of the copepod 
Calanus finmarchicus (Fields et al., 2019). Immediate mortality of 
copepods was significantly higher, relative to controls, at distances 
of 5 m or less from the airguns. Mortality one week after the airgun 
blast was significantly higher in the copepods placed 10 m from the 
airgun but was not significantly different from the controls at a 
distance of 20 m from the airgun. The increase in mortality, relative 
to controls, did not exceed 30 percent at any distance from the airgun. 
Moreover, the authors caution that even this higher mortality in the 
immediate vicinity of the airguns may be more pronounced than what 
would be observed in free-swimming animals due to increased flow speed 
of fluid inside bags containing the experimental animals. There were no 
sublethal effects on the escape performance or the sensory threshold 
needed to initiate an escape response at any of the distances from the 
airgun that were tested. Whereas McCauley et al. (2017) reported an SEL 
of 156 dB at a range of 509-658 m, with zooplankton mortality observed 
at that range, Fields et al. (2019) reported an SEL of 186 dB at a 
range of 25 m, with no reported mortality at that distance.
    Note that the sound sources planned for use in Ocean Wind II's 
survey activities would result in significantly lesser potential for 
impacts to zooplankton than was observed in the studies described 
above. Further, given the typically wide dispersal of survey vessels 
and brief time to regeneration of the potentially affected zooplankton 
populations, we do not expect any meaningful follow-on effects to the 
prey base from Ocean Wind II's survey activities. Nevertheless, we 
provided the additional information above to clarify NMFS's evaluation 
of all potentially relevant information in our analysis of potential 
impacts to prey, including NARW prey.
    Comment 21: One commenter suggested the IHA does not contain 
adequate mitigation measures with respect to vessel strike avoidance 
measures and there should be assurances to the public these measures 
are being implemented.
    Response: We understand the commenter to be concerned that if Ocean 
Wind II does not comply with the vessel strike avoidance measures in 
the IHA, there may be no mechanisms by which to be aware of such 
violations. NMFS reiterates that (1) no vessel strike is anticipated to 
occur as a result of this survey activity; (2) the issued IHA contains 
appropriate reporting mechanisms in reflection of the potential for an 
unanticipated strike to occur; and (3) any unauthorized take that 
occurs is in violation of the MMPA. We refer the reader to our 
responses to comments 8 and 12 above.
    Comment 22: One commenter suggested that the proposed exclusion 
zone (i.e., shutdown zone) is inconsistent with BOEM's ``standard'' 
marine mammal exclusion zone of 200 m.
    Response: The commenter referenced a BOEM website for oil and gas 
exploration when suggesting that the standard EZ is 200 m. The 
referenced web page also appears outdated as it

[[Page 30464]]

references a decision document issued by BOEM in July 2014. Hence the 
website cited by the commenter is not applicable to Ocean Wind II's 
survey activities. Regardless, NMFS prescribes mitigation appropriate 
to achieve the least practicable adverse impact on the affected species 
or stocks of marine mammals, as required by the MMPA, and has 
conditioned the IHA in a manner identical to several previously issued 
offshore wind HRG IHAs and in accordance with the ESA informal 
consultation relevant to this action (NMFS, 2021 (revised September 
2021)).
    Comment 23: One commenter questioned why manatees were discussed in 
Ocean Wind II's application and why there were no takes of manatees 
estimated.
    Response: The manatee is managed by the U.S. Fish and Wildlife 
Service. Hence, NMFS has no jurisdiction over the manatee and cannot 
authorize take for that species.

Changes From the Proposed IHA to Final IHA

    There were no changes from proposed IHA to final IHA. NMFS notes 
that the draft IHA that was posted to our website for review during the 
30-day public comment period contained an erroneous amount of take for 
some species; however, the take for all species was correctly 
identified in the Federal Register notice of proposed IHA (87 FR 14823, 
March 16). No comments received were related to the take amounts 
identified in the draft IHA.
    As discussed in the Summary section, NMFS erroneously referred to 
the applicant as ``Ocean Wind, LLC'' in the notice of proposed IHA. 
Here, we correct that reference to ``Ocean Wind II, LLC.''
    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/north-atlantic-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 the Ocean Wind 
II survey activities. The status and trends of the NARW population 
remain unchanged.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS' Stock Assessment Reports (SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website 
(www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, NMFS follows 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' SARs). While no 
mortality is anticipated or would be authorized here, PBR and annual 
serious injury and mortality from anthropogenic sources are included as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
Table 2 are the most recent available at the time of publication and 
are available in the Draft 2021 SARs (Hayes et al., 2021), available 
at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

                  Table 2--Marine Mammal Species Likely To Occur Near the Project Area That May Be Affected by Ocean Wind II's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    NARW............................  Eubalaena glacialis....  Western North Atlantic   E/D; Y              368 \5\ (0; 364; 2019)        0.7        7.7
                                                                (WNA).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0.15; 1,375;            22         58
                                                                                                             2016).
    Fin whale.......................  Balaenoptera physalus..  WNA....................  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.02; 3,098;           6.2        1.2
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -/-; N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.                                                        2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E/D; Y              4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  WNA....................  -/-; N              39,215 (0.30; 30,627;         306         29
                                                                                                             2016).
    Short finned pilot whale........  Globicephala             WNA....................  -/-; N              28,924 (0.24; 23,637;         236        136
    Bottlenose dolphin..............   macrorhynchus.          WNA Offshore...........  -/-; N               2016).                       519         28
                                      Tursiops truncatus.....                                               62,851 (0.23; 51,914;
                                                                                                             2016).
                                                               WNA Northern Migratory   -/D;Y               6,639 (0.41, 4,759,            48  12.2-21.5
                                                                Coastal.                                     2016).
    Common dolphin..................  Delphinus delphis......  WNA....................  -/-; N              172,974 (0.21;              1,452        390
                                                                                                             145,216; 2016).

[[Page 30465]]

 
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  WNA....................  -/-; N              93,233 (0.71; 54,443;         544         27
                                                                                                             2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  WNA....................  -/-; N              39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  WNA....................  -/-; N              35,215 (0.19; 30,051;         303       54.3
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \4\...................  Halichoerus grypus.....  WNA....................  -/-; N              27,300 (0.22; 22,785,       1,458      4,453
                                                                                                             2029).
    Harbor seal.....................  Phoca vitulina.........  WNA....................  -/-; N              61,336 (0.08; 57,637,       1,729        339
                                                                                                             2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ NMFS' gray seal stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in
  Canada) is approximately 451,600. The annual M/SI value given is for the total stock.
\5\ The 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 
Ocean Wind II's activities, including information regarding population 
trends and threats, and local occurrence, were provided in the Federal 
Register notice for the proposed IHA (87 FR 14823, March 16). 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 low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

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


[[Page 30466]]

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid) 
species) have the reasonable potential to co-occur with the proposed 
survey activities. Please refer to Table 2. Of the cetacean species 
that may be present, five are classified as low-frequency cetaceans 
(i.e., all mysticete species), eight are classified as mid-frequency 
cetaceans (i.e., all delphinid species and the sperm whale), and one is 
classified as a 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 14823; March 16, 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 for 
that information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    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 would 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, Level A harassment is neither 
anticipated (even absent mitigation), nor has any been authorized. 
Consideration of the anticipated effectiveness of the mitigation 
measures (i.e., exclusion zones and shutdown measures), discussed in 
detail below in the Mitigation section, further strengthens the 
conclusion that Level A harassment is not a reasonably anticipated 
outcome of the survey activity. As described previously, no serious 
injury or mortality is anticipated or proposed to 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 take estimates.

Acoustic Thresholds

    NMFS uses acoustic thresholds that identify the received level of 
underwater sound above which exposed marine mammals would be reasonably 
expected to be behaviorally harassed (equated to Level B harassment) or 
to incur PTS of some degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007; Ellison et al., 2012). NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals may 
be behaviorally harassed (i.e., Level B harassment) when exposed to 
underwater anthropogenic noise above received levels of 160 dB re 1 
[mu]Pa (rms) for the impulsive sources (i.e., boomers, sparkers) and 
non-impulsive, intermittent sources (e.g., CHIRP SBPs) evaluated here 
for Ocean Wind II's activity.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). For more 
information, see NMFS' 2018 Technical Guidance, which may be accessed 
at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Ocean Wind II's activity includes the use of impulsive (i.e., 
sparkers and boomers) and non-impulsive (e.g., CHIRP SBP) sources. 
However, as discussed above, NMFS has concluded that Level A harassment 
is not a reasonably likely outcome for marine mammals exposed to noise 
through use of the sources proposed for use here, and the potential for 
Level A harassment is not evaluated further in this document. Please 
see Ocean Wind II's application for details of a quantitative exposure 
analysis exercise, i.e., calculated Level A harassment isopleths and 
estimated Level A harassment exposures. Maximum estimated Level A 
harassment isopleths were less than 5 m for all sources and hearing 
groups with the exception of an estimated 18 m and 21 m zone calculated 
for high-frequency cetaceans during use of the TB Chirp III and 
GeoPulse 5430 CHIRP SBP, respectively (see Table 1 for source 
characteristics). Ocean Wind II did not request authorization of take 
by Level A harassment, and no take by Level A harassment is authorized 
by NMFS.

Ensonified Area

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and

[[Page 30467]]

the lowest frequency of the source was used when calculating the 
frequency-dependent absorption coefficient (Table 1).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
types that may be used during the surveys and the source levels 
associated with those HRG equipment types.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Ocean Wind II that 
has the potential to result in Level B harassment of marine mammals, 
the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-Source sparkers 
would produce the largest Level B harassment isopleth (141 m). 
Estimated Level B harassment isopleths for all sources evaluated here, 
including the sparkers, are provided in Table 4. Although Ocean Wind II 
does not expect to use sparker sources on all planned survey days, it 
assumes for purposes of analysis that the sparker would be used on all 
survey days. This is a conservative approach, as the actual sources 
used on individual survey days may produce smaller harassment 
distances.

           Table 4--Distances to Level B Harassment Threshold
                              [160 dB rms]
------------------------------------------------------------------------
                                                            Distance to
                                                              Level B
                        Equipment                           harassment
                                                          threshold  (m)
------------------------------------------------------------------------
ET 216 CHIRP............................................               9
ET 424 CHIRP............................................               4
ET 512i CHIRP...........................................               6
GeoPulse 5430A..........................................              21
TB CHIRP III............................................              48
Pangeo SBI..............................................              22
AA Triple plate S-Boom (700/1,000 J)....................              34
AA, Dura-spark UHD Sparkers.............................             141
GeoMarine Sparkers......................................             141
------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section, NMFS provides information about the presence, 
density, or group dynamics of marine mammals that informs the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) 
represent the best available information regarding marine mammal 
densities in the survey area. The density data presented by Roberts et 
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates 
data from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at seamap.env.duke .edu/models/Duke-EC/. Marine 
mammal density estimates in the survey area (animals/km\2\) were 
obtained using the most recent model results for all taxa (Roberts et 
al., 2016, 2017, 2018, 2020). The updated models incorporate additional 
sighting data, including sightings from NOAA's Atlantic Marine 
Assessment Program for Protected Species (AMAPPS) surveys.
    For the exposure analysis, density data from Roberts et al. (2016, 
2017, 2018, 2020) were mapped using a geographic information system 
(GIS). Density grid cells that included any portion of the survey area 
were selected for all survey months (see Figure 3 in Ocean Wind II's 
application).
    Densities from each of the selected density blocks were averaged 
for each month available to provide monthly density estimates for each 
species (when available based on the temporal resolution of the model 
products), along with the average annual density. Please see Tables 7 
of Ocean Wind II's application for density values used in the exposure 
estimation process. Additional data regarding average group sizes from 
survey effort in the region was considered to ensure adequate take 
estimates are evaluated.

Take Calculation and Estimation

    Here NMFS describes how the information provided above is brought 
together to produce a quantitative take estimate. In order to estimate 
the number of marine mammals predicted to be exposed to sound levels 
that would result in harassment, radial distances to predicted 
isopleths corresponding to Level B harassment thresholds are 
calculated, as described above. The maximum distance (i.e., 141 m 
distance associated with sparkers) to the Level B harassment criterion 
and the estimated trackline distance traveled per day by a given survey 
vessel (i.e., 70 km) are then used to calculate the daily ensonified 
area, or zone of influence (ZOI) around the survey vessel.
    The ZOI is a representation of the maximum extent of the ensonified 
area around a sound source over a 24-hr period. The ZOI for each piece 
of equipment operating below 200 kHz was calculated per the following 
formula:

ZOI = (Distance/day x 2r) + [pi]r\2\
    Where r is the linear distance from the source to the harassment 
isopleth.
    ZOIs associated with all sources with the expected potential to 
cause take of marine mammals are provided in Table 6 of Ocean Wind II's 
application. The largest daily ZOI (19.8 km\2\), associated with the 
various sparkers planned for use, was applied to all planned survey 
days.
    Potential Level B harassment exposures are estimated by multiplying 
the average annual density of each species within either the Lease Area 
or potential ECR area by the daily ZOI. That product is then multiplied 
by the number of operating days expected for the survey in each area 
assessed, and the product is rounded to the nearest whole number. These 
results are shown in Table 5.

[[Page 30468]]



                                        Table 5--Summary of Take Numbers
----------------------------------------------------------------------------------------------------------------
                                                                                      Level B
                             Species                                 Abundance      harassment      Max percent
                                                                                     takes \1\      population
----------------------------------------------------------------------------------------------------------------
NARW............................................................             368              11            2.98
Fin whale.......................................................           6,802               4              <1
Sei whale.......................................................           6,292           0 (1)              <1
Minke whale.....................................................          21,968               1              <1
Humpback whale..................................................           1,393               2              <1
Sperm whale \3\.................................................           4,349           0 (3)              <1
Atlantic white-sided dolphin....................................          93,233          6 (50)              <1
Atlantic spotted dolphin........................................          39,921          2 (15)              <1
Common bottlenose dolphin: \2\
    Offshore Stock..............................................          62,851                             2.9
    Migratory Stock.............................................           6,639           1,842           27.75
Pilot Whales: \3\
    Short-finned pilot whale....................................          28,924          1 (20)              <1
    Long-finned pilot whale.....................................          39,215          1 (20)              <1
Risso's dolphin.................................................          35,215          0 (30)              <1
Common dolphin..................................................         172,974        54 (400)              <1
Harbor porpoise.................................................          95,543              90              <1
Seals: \4\
    Gray seal...................................................         451,600              25              <1
    Harbor seal.................................................          61,336              25              <1
----------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote take authorization where different from calculated take estimates. Increases from
  calculated values are based on assumed average group size for the species; sei whale, Kenney and Vigness-
  Raposa, 2010; sperm whale and Risso's dolphin, Barkaszi and Kelly, 2018.
\2\ At this time, Orsted is not able to identify how much work would occur inshore and offshore of the 20 m
  isobaths, a common delineation between offshore and coastal bottlenose dolphin stocks. Because Roberts et al.
  does not provide density estimates for individual stocks of common bottlenose dolphins, the take presented
  here is the total estimated take for both stocks. Although unlikely, for our analysis, we assume all takes
  could be allocated to either stock.
\3\ Roberts (2018) only provides density estimates for pilot whales as a guild. The pilot whale density values
  were applied to both species of pilot whale; therefore, the total take number proposed for authorization for
  pilot whales (4) is double the estimated take number for the guild.
\4\ Roberts (2018) only provides density estimates for seals without differentiating by species. Harbor seals
  and gray seals are assumed to occur equally; therefore, density values were split evenly between the two
  species, i.e., total estimated take for ``seals'' is 22.

    The take numbers shown in Table 5 are those requested by Ocean Wind 
II. NMFS concurs with the requested take numbers and has authorized 
them. Previous monitoring data compiled by Ocean Wind II (available 
online at: www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-marine-site-characterization-surveys-offshore-new) suggests 
that the take numbers are sufficient.

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 and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS has prescribed the following mitigation measures be 
implemented during Ocean Wind II's marine site characterization 
surveys. Pursuant to section 7 of the ESA, Ocean Wind II would also be 
required to adhere to relevant Project Design Criteria (PDC) of the 
NMFS' Greater Atlantic Regional Fisheries Office (GARFO) programmatic 
consultation (specifically PDCs 4, 5, and 7) regarding geophysical 
surveys along the U.S. Atlantic coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Marine Mammal Exclusion Zones and Harassment Zones

    Marine mammal exclusion zones (EZ) will be established around the 
HRG survey equipment and monitored by protected species observers 
(PSOs):
    <bullet> 500 m EZ for NARWs during use of specified acoustic 
sources (sparkers, boomers, and non-parametric sub-bottom profilers).
    <bullet> 100 m EZ for all other marine mammals, with certain 
exceptions specified below, during operation of impulsive acoustic 
sources (boomer and/or sparker).
    If a marine mammal is detected approaching or entering the EZs 
during

[[Page 30469]]

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. We note that in their 
application, Ocean Wind II requested an EZ of 50 m for all dolphins, 
seals, and porpoises and also requested that the shutdown requirements 
be waived for all dolphin, seal, and porpoise species for which take is 
authorized. NMFS has determined that the standard 100 m EZ for these 
species is appropriate, with only limited waiver of shutdown 
requirements as described in the Shutdown Procedures section below.

Pre-Start Clearance

    Marine mammal clearance zones will be established around the HRG 
survey equipment and monitored by protected species observers (PSOs):
    <bullet> 500 m for all ESA-listed marine mammals; and
    <bullet> 100 m for non all other marine mammals.
    Ocean Wind II will implement a 30-minute pre-start clearance period 
prior to the initiation of ramp-up of specified HRG equipment (see 
exception to this requirement in the Shutdown Procedures section below) 
During this period, clearance zones 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 clearance zone. If a 
marine mammal is observed within an clearance zone during the pre-start 
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals, and 30 minutes for all other species).

Ramp-Up of Survey Equipment

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
acoustic source when technically feasible. The ramp-up procedure will 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the survey area by 
allowing them to vacate the area prior to the commencement of survey 
equipment operation at full power. Operators should ramp up sources to 
half power for 5 minutes and then proceed to full power.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective exclusion zone. Ramp-up will continue if the animal has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals and 30 minutes for all other species).
    Ramp-up may occur at times of poor visibility, including nighttime, 
if appropriate visual monitoring has occurred with no detections of 
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic 
source activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment will be 
required if a marine mammal is sighted entering or within its 
respective exclusion zone. The vessel operator must comply immediately 
with any call for shutdown by the Lead PSO. Any disagreement between 
the Lead PSO and vessel operator should be discussed only after 
shutdown has occurred. Subsequent restart of the survey equipment can 
be initiated if the animal has been observed exiting its respective 
exclusion zone or until an additional time period has elapsed (i.e. 15 
minutes for harbor porpoise, 30 minutes for all other species).
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (Table 4), shutdown would occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective exclusion zones. If the acoustic source is shut down for 
a period longer than 30 minutes, then pre-clearance and ramp-up 
procedures will be initiated as described in the previous section.
    The shutdown requirement is waived for pinnipeds and for small 
delphinids of the following genera: Delphinus, Lagenorhynchus, 
Stenella, and Tursiops. Specifically, if a delphinid from the specified 
genera or a pinniped is visually detected approaching the vessel (i.e., 
to bow ride) or towed equipment, shutdown is not required. Furthermore, 
if there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived), PSOs must use best 
professional judgement in making the decision to call for a shutdown. 
Additionally, shutdown is required if a delphinid or pinniped detected 
in the exclusion zone and belongs to a genus other than those 
specified.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., echosounders) other than non-parametric sub-bottom profilers 
(e.g., CHIRPs).

Vessel Strike Avoidance

    Ocean Wind II must adhere to the following measures except in the 
case where compliance would create an imminent and serious threat to a 
person or vessel or to the extent that a vessel is restricted in its 
ability to maneuver and, because of the restriction, cannot comply.
    <bullet> Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated below). Visual observers 
monitoring the vessel strike avoidance zone may be third-party 
observers (i.e., PSOs) or crew members, but crew members responsible 
for these duties must be provided sufficient training to (1) 
distinguish protected species from other phenomena and (2) broadly to 
identify a marine mammal as a NARW, other whale (defined in this 
context as sperm whales or baleen whales other than NARWs), or other 
marine mammal.
    <bullet> Members of the monitoring team will consult NMFS NARW 
reporting system and Whale Alert, 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.
    <bullet> All survey 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;
    <bullet> All vessels greater than or equal to 19.8 m in overall 
length operating from November 1 through April 30 will operate at 
speeds of 10 knots or less at all times;

[[Page 30470]]

    <bullet> 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;
    <bullet> All vessels must maintain a minimum separation distance of 
500 m from NARWs and other ESA-listed large whales;
    <bullet> If a whale is observed but cannot be confirmed as a 
species other than a NARW or other ESA-listed large whale, the vessel 
operator must assume that it is a NARW and take appropriate action;
    <bullet> All vessels must maintain a minimum separation distance of 
100 m from non-ESA listed whales;
    <bullet> All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel).
    <bullet> When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. 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 these measures, NMFS has determined that 
the mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

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

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Ocean Wind II will 
employ independent, dedicated, trained PSOs, meaning that the PSOs must 
(1) be employed by a third-party observer provider, (2) have no tasks 
other than to conduct observational effort, collect data, and 
communicate with and instruct relevant vessel crew with regard to the 
presence of marine mammals and mitigation requirements (including brief 
alerts regarding maritime hazards), and (3) have successfully completed 
an approved PSO training course appropriate for their designated task. 
On a case-by-case basis, non-independent observers may be approved by 
NMFS for limited, specific duties in support of approved, independent 
PSOs on smaller vessels with limited crew capacity operating in 
nearshore waters. Section 5 of the draft IHA contains further details 
regarding PSO approval.
    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 Lead PSO 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) must ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and will conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least 2 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 will be communicated to PSOs on all 
nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to

[[Page 30471]]

estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology will be used. Position data will 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 will 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 will be relayed to 
the PSO team.
    Data on all PSO observations will be recorded based on standard PSO 
collection requirements. This will include dates, times, and locations 
of survey operations; dates and times of observations, location and 
weather; details of marine mammal sightings (e.g., species, numbers, 
behavior); and details of any observed marine mammal behavior that 
occurs (e.g., noted behavioral disturbances).

Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a final technical report will be 
provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys (including what type of mitigation and the species and number 
of animals that prompted the mitigation action, when known), and 
provides an interpretation of the results and effectiveness of all 
mitigation and monitoring. 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 <a href="/cdn-cgi/l/email-protection#5202007c1b06027c1f3d3c3b263d203b3c350037223d202621123c3d33337c353d24"><span class="__cf_email__" data-cfemail="f3a3a1ddbaa7a3ddbe9c9d9a879c819a9d94a196839c818780b39d9c9292dd949c85">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#d69f8286f892b7baaf96b8b9b7b7f8b1b9a0"><span class="__cf_email__" data-cfemail="d8918c88f69cb9b4a198b6b7b9b9f6bfb7ae">[email protected]</span></a>. 
The report must contain at minimum, the following:
    <bullet> PSO names and affiliations;
    <bullet> Dates of departures and returns to port with port name;
    <bullet> Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
    <bullet> Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
    <bullet> Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
    <bullet> Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
    <bullet> Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
    <bullet> Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-start 
clearance survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
    <bullet> Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
    <bullet> PSO who sighted the animal;
    <bullet> Time of sighting;
    <bullet> Vessel location at time of sighting;
    <bullet> Water depth;
    <bullet> Direction of vessel's travel (compass direction);
    <bullet> Direction of animal's travel relative to the vessel;
    <bullet> Pace of the animal;
    <bullet> Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
    <bullet> Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
    <bullet> Estimated number of animals (high/low/best);
    <bullet> Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    <bullet> Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    <bullet> Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
    <bullet> Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
    <bullet> Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
    <bullet> Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a NARW is observed at any time by PSOs or personnel on any 
project vessels, during surveys or during vessel transit, Ocean Wind II 
must immediately report sighting information to the NMFS NARW Sighting 
Advisory System: (866) 755-6622. NARW sightings in any location may 
also be reported to the U.S. Coast Guard via channel 16.
    In the event that Ocean Wind II personnel discover an injured or 
dead marine mammal, Ocean Wind II will report the incident to the NMFS 
Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report must 
include the following information:
    <bullet> Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Condition of the animal(s) (including carcass condition if 
the animal is dead);
    <bullet> Observed behaviors of the animal(s), if alive;
    <bullet> If available, photographs or video footage of the 
animal(s); and
    <bullet> 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, Ocean Wind II 
will report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report must 
include the following information:
    <bullet> Time, date, and location (latitude/longitude) of the 
incident;
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Vessel's speed during and leading up to the incident;
    <bullet> Vessel's course/heading and what operations were being 
conducted (if applicable);
    <bullet> Status of all sound sources in use;
    <bullet> Description of avoidance measures/requirements that were 
in place at the

[[Page 30472]]

time of the strike and what additional measures were taken, if any, to 
avoid strike;
    <bullet> Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    <bullet> Estimated size and length of animal that was struck;
    <bullet> Description of the behavior of the marine mammal 
immediately preceding and following the strike;
    <bullet> If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
    <bullet> 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
    <bullet> To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. NMFS also assesses the number, intensity, and 
context of estimated takes by evaluating this information relative to 
population status. Consistent with the 1989 preamble for NMFS'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 5 given that NMFS expects the anticipated effects of the 
survey 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 
is authorized. As discussed in the Potential Effects section, non-
auditory physical effects and vessel strike are not expected to occur. 
NMFS expects that all potential takes would be in the form of 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 shutdown zones 
for certain activities.
    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 proposed for 
authorization and evaluated here, in reality much of the survey 
activity would involve use of non-impulsive acoustic sources with a 
reduced acoustic harassment zone of 48 m, producing expected effects of 
particularly low severity. Therefore, the ensonified area surrounding 
each vessel is relatively small compared to the overall distribution of 
the animals in the area and their use of the habitat. Feeding behavior 
is not likely to be significantly impacted as prey species are mobile 
and are broadly distributed throughout the survey area; therefore, 
marine mammals that may be temporarily displaced during survey 
activities are expected to be able to resume foraging once they have 
moved away from areas with disturbing levels of underwater noise. 
Because of the temporary nature of the disturbance and the availability 
of similar habitat and resources in the surrounding area, the impacts 
to marine mammals and the food sources that they utilize are not 
expected to cause significant or long-term consequences for individual 
marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the proposed 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.

NARWs

    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 NARWs. As noted previously, the survey area overlaps a 
migratory corridor BIA for NARWs. Due to the fact that the survey 
activities are temporary and the spatial extent of sound produced by 
the survey would be very small relative to the spatial extent of the 
available migratory habitat in the BIA, NARW migration is not expected 
to be impacted by the survey. Given the relatively small size of the 
ensonified area, it is unlikely that prey availability would be 
adversely affected by HRG survey operations. Required vessel strike 
avoidance measures will also decrease risk of ship strike during 
migration; no ship strike is expected to occur during Ocean Wind II's 
planned activities. Additionally, only very limited take by Level B 
harassment of NARWs has been requested and has been authorized by NMFS 
as HRG survey operations are required to maintain a 500 m EZ and 
shutdown if a NARW is sighted at or within the EZ. The 500 m shutdown 
zone for NARWs 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 proposed for use. NMFS does not anticipate NARWs 
takes that would result from Ocean Wind II's activities would impact 
annual rates of recruitment or survival. Thus, any takes that occur 
would not result in population level impacts.

[[Page 30473]]

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Ocean Wind II's survey area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 5, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular they would provide animals the opportunity to 
move away from the sound source throughout the survey area before HRG 
survey equipment reaches full energy, thus preventing them from being 
exposed to sound levels that have the potential to cause injury (Level 
A harassment) or more severe Level B harassment. No Level A harassment 
is anticipated, even in the absence of mitigation measures, or 
authorized.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
    <bullet> No mortality or serious injury is anticipated or proposed 
for authorization;
    <bullet> No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
    <bullet> Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
    <bullet> The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
    <bullet> Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
    <bullet> 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. In addition, mitigation measures to shutdown at 
500 m to minimize potential for Level B behavioral harassment would 
limit any take of the species; and
    <bullet> The mitigation measures, including visual monitoring and 
shutdowns, are expected to minimize potential impacts to marine 
mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is 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 has authorized incidental take of 16 marine mammal species 
(with 17 managed stocks). The total amount of takes relative to the 
best available population abundance is less than 22 percent for one 
stock (bottlenose dolphin northern coastal migratory stock), less than 
3 percent for the NARW, and less than 1 percent for all other species 
and stocks, which NMFS finds are small numbers of marine mammals 
relative to the estimated overall population abundances for those 
stocks. See Table 5.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS 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 OPR consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with NMFS Greater 
Atlantic Regional Fisheries Office (GARFO).
    NMFS OPR is authorizing the incidental take of four species of 
marine mammals which are listed under the ESA: North Atlantic right, 
fin, sei, and sperm whales. On June 29, 2021 (revised September 2021), 
GARFO completed an informal programmatic consultation on the effects of 
certain site assessment and site characterization activities to be 
carried out to support the

[[Page 30474]]

siting of offshore wind energy development projects off the U.S. 
Atlantic coast. Part of the activities considered in the consultation 
are geophysical surveys such as those proposed by Ocean Wind II for 
which we have authorized take. GARFO concluded site assessment surveys 
(and issuance of associated IHAs) are not likely to adversely affect 
endangered species or adversely modify or destroy critical habitat. 
NMFS has determined that issuance of the IHA is covered under the 
programmatic consultation.

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 
Ocean Wind II for conducting marine site characterization surveys off 
the coast of New Jersey, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. The IHA is 
effective from May 10, 2022 through May 9, 2023 and can be found at 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-0.

Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-10759 Filed 5-18-22; 8:45 am]
BILLING CODE 3510-22-P


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