40796 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Notices 

additional detail regarding the LOA and 

the survey activity. 

W&T initially anticipated that the 

activity would occur at some point 

between December 1, 2022, and July 1, 

2022. W&T subsequently conveyed to 

NMFS that as of June 24, 2022, the 

survey had not commenced but would 

be starting very soon. W&T has 

requested modification to the 

effectiveness end date of the LOA (from 

July 1 to August 1, 2022) to allow for 

additional time for complete their 

survey. There are no other changes to 

W&T’s planned activity. Since issuance 

of the LOA, no survey work has 

occurred. 

Authorization 

NMFS has changed the effectiveness 

end date of the LOA from July 1 to 

August 1, 2022. There are no other 

changes to the LOA as described in the 

November 11, 2021, Federal Register 

notice of issuance (86 FR 67449): the 

specified activity; estimated take by 

incidental harassment; and small 

numbers analysis and determination 

remain unchanged and are herein 

incorporated by reference. 

Dated: July 1, 2022. 

Kimberly Damon-Randall, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2022–14508 Filed 7–7–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XC057] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys off New 

Jersey by NextEra Energy 

Transmission MidAtlantic Holdings, 

LLC 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of an Incidental 

Harassment Authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an Incidental 

Harassment Authorization to NextEra 

Energy Transmission MidAtlantic 

Holdings, LLC (NEETMA) to 

incidentally harass marine mammals 

during site characterization surveys off 

New Jersey. 

DATES: This Authorization is effective 

from July 1, 2022 through June 30, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Kelsey Potlock, Office of Protected 

Resources, NMFS, (301) 427–8401. 

Electronic copies of the application and 

supporting documents, as well as a list 

of the references cited in this document, 

may be obtained online at: https://

www.fisheries.noaa.gov/permit/ 

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

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

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

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

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

proposed or, if the taking is limited to 

harassment, a notice of a proposed 

incidental harassment authorization 

(IHA) is provided to the public for 

review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the 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 February 4, 2022, NMFS received 

a request from NEETMA for an IHA to 

take marine mammals incidental to 

marine site characterization surveys 

occurring in two locations (Northern 

and Southern survey areas) off the coast 

of New Jersey in the New Jersey 

Offshore Transmission Facilities Project 

(NJOTF or Project). The application was 

deemed adequate and complete on April 

1, 2022. NEETMA’s request was for take 

of a small number of 15 marine mammal 

species (consisting of 16 stocks) by 

Level B harassment only. Neither 

NEETMA nor NMFS expects serious 

injury or mortality to result from this 

activity and, therefore, an IHA is 

appropriate. 

NMFS considered all public 

comments received and determined that 

no changes to the final IHA were 

necessary. 

Description of Survey Activities 

Overview 

NEETMA proposes to conduct HRG 

and geotechnical surveys as part of the 

NJOTF off the coast of New Jersey. The 

surveys will take place along proposed 

submarine export cable routes and at 

locations for potential offshore 

platforms. Geotechnical survey 

activities will include the use of 

vibracores and/or cone penetration tests 

(CPTs), to identify and characterize the 

seabed conditions vertically for project 

planning and design, and to collect data 

to identify paleolandscapes. 

The purpose of these surveys are to 

support the siting and design of offshore 

facilities, including offshore platforms 

for converter stations and offshore 

submarine transmission cables. Up to 

320 days are planned for survey 

activities (Table 1). As many as three 

survey vessels may operate concurrently 

as part of the site characterization 

surveys. Underwater sound resulting 

from NEETMA’s survey activities, 

specifically HRG surveys, has the 

potential to result in incidental take of 

marine mammals in the form of 

behavioral harassment. 

TABLE 1—NUMBER OF SURVEY DAYS

THAT NEETMA PLANS TO PERFORM THE DESCRIBED HRG SURVEY

ACTIVITIES

Survey area 

Number of 

active 

survey days 

expected 1

Northern ................................ 248 

Southern ............................... 72 

Total: .............................. 320 

1 Up to three total survey vessels may be 

operating within the survey areas concurrently. 

Table 2 identifies the representative 

survey equipment with the expected 

potential to cause the take of marine 

mammals that may be used in support 


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of planned geophysical survey 

activities. The make and model of the 

listed 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. 

Geophysical surveys are expected to use 

several equipment types concurrently in 

order to collect multiple aspects of 

geophysical data along one transect. 

Selection of equipment combinations is 

based on specific survey objectives. 

TABLE 2—SUMMARY OF REPRESENTATIVE EQUIPMENT SPECIFICATIONS

Equipment category 

HRG survey 

equipment 

type 

Operating 

frequency 

ranges 

(kHz) 

Operational 

source level 

ranges 

(dB re 1 

μPa m) 

Source 

level0-peak

(dB re 1 

μPa m) 

Beamwidth 

ranges 

(degrees) 

Typical pulse 

durations 

(millisecond) 

Pulse 

repetition 

rate 

(Hz) 

Non-parametric shallow penetration SBPs (non-impulsive) 

CHIRPs ........................ ET 216 

(2000DS or 

3200 top 

unit).

2–16 

2–8 

195 ........................ 24 ................... 20 6 

ET 424 ........... 4–24 176 ........................ 71 ................... 3.4 2 

ET 512 ........... 0.7–12 179 ........................ 80 ................... 9 8 

GeoPulse 

5430A.

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

Teledyne 

Benthose 

Chirp III— 

TTV 170.

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

Medium penetration SBPs (impulsive) 

Sparker ........................ AA, Duraspark UHD 

(400 tips, 

500 J) 1.

0.3–1.2 203 211 Omnidirectional.1.1 4 

GeoMarine 

Geo Spark 

2000 (400 

tip) 1.

0.05–3 203 213 Omnidirectional.3.4 1 

Boomer ........................ AA, triple plate 

S-Boom 

(700–1,000 

J) 2.

0.1–5 205 211 80 ................... 0.6 4 

Note: = not applicable; μPa = microPascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; J = joule; Omni = omnidirectional source; 

re = referenced to; SL = source level; 0–PK = zero-to-peak; RMS = root mean squared; UHD = ultra-high definition. 1The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems planned for 

NEETMA’s 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. 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. 

A detailed description of the surveys 

planned by NEETMA was provided in 

the Federal Register notice of the 

proposed IHA (87 FR 27575; May 9, 

2022). Since that time, no changes have 

been made to the planned survey 

activities. Therefore, a detailed 

description is not provided here. Please 

refer to that Federal Register notice for 

additional description of the specified 

activities. 

Mitigation, monitoring, and reporting 

measures are described in detail later in 

this document (please see the Mitigation 

and Monitoring and Reporting sections). 

Comments and Responses 

A notice of NMFS’ proposal to issue 

an IHA to NEETMA was published in 

the Federal Register on May 9, 2022 (87 

FR 27575), initiating a 30-day public 

comment period. That notice described, 

in detail, NEETMA’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. 

NMFS received letters from two 

environmental non-governmental 

organizations (eNGOs) (Oceana, Inc. and 

Clean Ocean Action (COA)) and from a 

local citizen group (Save Long Beach 

Island (LBI)). All substantive comments, 

and NMFS’ responses, are provided 

below, and the letters are available 

online at: https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-nexteraenergy-transmission-midatlanticholdings-llc-marine). Please review the 

letters for full details regarding the 

comments and underlying justification. 

Comment 1: Oceana, COA, and LBI 

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 

North Atlantic right whales in particular 

and ensure that the cumulative effects 

are not excessive before issuing or 

renewing an IHA. The commenters 

additionally state that NMFS should 


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include nearby survey activities in the 

analysis performed in support of this 

IHA, specifically related to surveys and 

activities occurring in the Ocean Wind 

1 (OCS–A–0498) and Atlantic Shores 

(OCS–A–0499) leases, as the activities 

are occurring during similar timeframes 

and in similar spatial locations. 

NMFS response: Neither the MMPA 

nor NMFS’ codified implementing 

regulations call for consideration of 

other unrelated activities and their 

impacts on populations. The preamble 

for NMFS’ implementing regulations (54 

FR 40338; September 29, 1989) states in 

response to comments that the impacts 

from other past and ongoing 

anthropogenic activities are to be 

incorporated into the negligible impact 

analysis via their impacts on the 

baseline. Consistent with that direction, 

NMFS has factored into its negligible 

impact analysis the impacts of other 

past and ongoing anthropogenic 

activities via their impacts on the 

baseline, e.g., as reflected in the species’ 

density/distribution and status, 

population size and growth rate, and 

other relevant factors (see Negligible 

Impact Analysis and Determination 

section). The 1989 final rule for the 

MMPA implementing regulations also 

addressed public comments regarding 

cumulative effects from future, 

unrelated activities. There NMFS stated 

that such effects are not considered in 

making findings under section 101(a)(5) 

concerning negligible impact. In this 

case, this IHA, as well as other IHAs 

currently in effect or proposed within 

the specified geographic region, are 

appropriately considered an unrelated 

activity relative to the others. The IHAs 

are unrelated in the sense that they are 

discrete actions under section 

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

applicants. 

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

requires NMFS to make a determination 

that the take incidental to a ‘‘specified 

activity’’ will have a negligible impact 

on the affected species or stocks of 

marine mammals. NMFS’ implementing 

regulations require applicants to include 

in their request a detailed description of 

the specified activity or class of 

activities that can be expected to result 

in incidental taking of marine mammals. 

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

‘‘specified activity’’ for which incidental 

take coverage is being sought under 

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

and described by the applicant. Here, 

NEETMA 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 NEETMA 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 

NEETMA’s IHA, which included 

consideration of extraordinary 

circumstances. 

For ESA-listed species, 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 

included those for which NMFS issued 

Atlantic Shores’ 2020 IHA and 

subsequent 2021 renewal IHA (85 FR 

21198; April 16, 2020 and 86 FR 21289; 

April 22, 2021), which are substantially 

similar to those planned by NEETMA 

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 Biological Opinion 

(BiOp) remains valid. 

In addition, NMFS disagrees with 

LBI’s assertion that separate specified 

activities should be considered together 

in each MMPA analysis on the basis that 

they share a similar regional location. 

Under the MMPA, NMFS is required to 

consider applications upon request. To 

date, NMFS has not received any joint 

application from Orsted, Atlantic 

Shores, and NEETMA regarding their 

site characterization surveys off of New 

Jersey. While an individual company 

owning multiple lease areas may apply 

for a single authorization to conduct site 

characterization surveys across a 

combination of those lease areas, such 

as what was done by Orsted in their 

recent surveys from New York to 

Massachusetts (see 85 FR 63508, 

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

2022), this is not applicable in this case 

to the surveys being performed by 

Atlantic Shores, Orsted, and NEETMA 

off New Jersey. In the future, if 

applicants wish to undertake this 

approach, NMFS is open to the receipt 

of joint applications and additional 

discussions on joint actions. 

NMFS notes that these actions 

(Atlantic Shores’, Orsted’s, and 

NEETMA’s site characterization 

surveys) are occurring in spatially 

distinct areas and not within 

overlapping areas. The entities’ survey 

activities will not occur in the same 

location at any one time. Any other 

authorization issued to Orsted or 

Atlantic Shores, relating to activities in 

or around OCS–A–0498 or OCS–A– 

0499, respectively, would be considered 

a discrete activity with its own separate 

and independent action. 

Comment 2: LBI asserts that it is not 

clear where the source level information 

for the GeoMarine Geo Spark 2000 

acoustic unit came from. 

NMFS response: NEETMA states in 

their IHA application (https://

media.fisheries.noaa.gov/2022-05/ 

NEETMA_2022IHA_App_OPR1.pdf) 

that the information and source level for 

the GeoMarine Geo Spark 2000 unit, 

with the same tips (400) and source 

level (203 dB re 1 mPa m), was 

previously used in the analysis 

supporting issuance of the Vineyard 

Wind 1 Marine Site Characterization 

Survey (86 FR 40469; June 7, 2021), 

which can be found on NMFS’ website: 

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

incidental-take-authorization-vineyardwind-1-marine-site-characterizationsurveys. Within the Vineyard Wind 1 

IHA application, the same approach as 

recently used in the Atlantic Shores 

HRG survey (87 FR 24103; April 22, 

2022) is described where the SIG ELC 

820 sparker was used as a proxy for the 

GeoMarine Geo Spark 2000 unit 


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(Atlantic Shores used the SIG ELC 820 

as a proxy for the Applied Acoustics 

Dura-Spark 240), given the same source 

level, peak source level, energy source 

level, and pulse duration were present 

for all three acoustic sources. 

Please refer to Table 5 of the proposed 

Federal Register notice for NEETMA (87 

FR 27575; May 9, 2022) where all the 

distances to the Level B harassment 

threshold are 141 m for the Applied 

Acoustics Dura-Spark UHG (500 J/400 

tip), the Applied Acoustics Dura-Spark 

UHD (440 + 400), and the GeoMarine 

Geo Spark 2000 (400 tips). 

Comment 3: LBI states that NMFS’ 

assumption that use of a 20logR 

transmission loss factor (i.e., spherical 

spreading) is inappropriate, and 

suggests that NMFS must use a 15 dB 

propagation loss factor. LBI goes on to 

comment that the use of the higher 

propagation loss coefficient is not 

consistent with what NMFS’ analyses 

for previous actions and underestimates 

the distance to the Level B harassment 

threshold, which would cause an 

underestimation of marine mammal 

takes. 

NMFS response: A major component 

of transmission loss is spreading loss 

and, from a point source in a uniform 

medium, sound spreads outward as 

spherical waves (‘‘spherical spreading’’) 

(Richardson et al., 1995). In water, these 

conditions are often thought of as being 

related to deep water, where more 

homogenous conditions may be likely. 

However, the theoretical distinction 

between deep and shallow water is 

related more to the wavelength of the 

sound relative to the water depth, 

versus the water depth itself. Therefore, 

when the sound produced is in the 

kilohertz range, where wavelength is 

relatively short, much of the continental 

shelf may be considered ‘‘deep’’ for 

purposes of evaluating likely 

propagation conditions. 

As described in the notice of 

proposed IHA, the area of water 

ensonified at or above the root mean 

square (RMS) 160 dB threshold was 

calculated using a simple model of 

sound propagation loss, which accounts 

for the loss of sound energy over 

increasing range. Our use of the 

spherical spreading model (where 

transmission loss = 20 * log [range]; 

such that there would be a 6-dB 

reduction in sound level for each 

doubling of distance from the source) is 

a reasonable approximation over the 

relatively short distances involved. Even 

in conditions where cylindrical 

spreading (where transmission loss = 10 

* log [range]; such that there would be 

a 3-dB reduction in sound level for each 

doubling of distance from the source) 

may be appropriate (e.g., nonhomogenous conditions where sound 

may be trapped between the surface and 

bottom), this effect does not begin at the 

source. In any case, spreading is usually 

more or less spherical from the source 

out to some distance, and then may 

transition to cylindrical (Richardson et 

al., 1995). For these types of surveys, 

NMFS has determined that spherical 

spreading is a reasonable assumption 

even in relatively shallow waters (in an 

absolute sense) as the reflected energy 

from the seafloor will be much weaker 

than the direct source and the volume 

of water influenced by the reflected 

acoustic energy would be much smaller 

over the relatively short distances 

involved. 

The assumption of a 20-dB 

transmission loss coefficient is also 

supported by more recent data on sound 

transmission by sparker sources 

collected by the U.S. Geological Survey 

(USGS) in waters offshore California in 

spring 2021 (Pers. Comm., C. Ruppel, 

2022). Unpublished data from these 

recent sound source verification 

experiments indicate that, at the 

frequencies of many HRG instruments, 

spherical, not cylindrical, spreading 

applies even in waters only tens of 

meters deep. For a sparker source, even 

at 25-m water depth, the signal 

spreading was almost completely 

spherical. As noted previously, at the 

higher frequency of most HRG sources, 

the spreading is expected to be spherical 

because the wavelength of the signal is 

very small compared to the water depth. 

That is the criterion for spherical 

spreading, which is why spherical 

spreading applies to most HRG sources, 

regardless of water depth. This would 

not be the case for lower frequency (i.e., 

larger wavelength) sources, such as 

airguns. 

In support of its position, LBI cites 

several examples of use of practical 

spreading (a useful real-world 

approximation of conditions that may 

exist between the theoretical spreading 

modes of spherical and cylindrical; 

15logR) in asserting that this approach 

is also appropriate here. However, these 

examples (U.S. Navy construction at 

Newport, RI, and NOAA construction in 

Ketchikan, AK) are not relevant to the 

activity at hand. First, these actions 

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

than 10 m for Navy construction). Of 

greater relevance to the action here, pile 

driving activity produces sound with 

longer wavelengths than the sound 

produced by the acoustic sources 

planned for use here. As noted 

previously, a determination of 

appropriate spreading loss is related to 

the ratio of wavelength to water depth 

more than to a strict reading of water 

depth. NMFS indeed uses practical 

spreading in typical coastal construction 

applications, but for reasons described 

here, uses spherical spreading when 

evaluating the effects of HRG surveys on 

the continental shelf. 

In addition, this analysis is likely 

conservative for other reasons, e.g., the 

lowest frequency was used for systems 

that are operated over a range of 

frequencies and other sources of 

propagation loss (e.g., interference 

effects) are neglected. 

NMFS has determined that spherical 

spreading is the most appropriate form 

of propagation loss for these surveys 

and has relied on this approach for past 

IHAs with similar equipment, locations, 

and depths. Please refer back to the 

Garden State HRG IHA (83 FR 14417; 

April 4, 2018) and the 2019 Skipjack 

HRG IHA (84 FR 51118; September 27, 

2019) for examples. Prior to the issuance 

of these IHAs (approximately 2018 and 

older), NMFS typically relied upon 

practical spreading for these types of 

survey activities. However, as additional 

scientific evidence became available, 

including numerous sound source 

verification reports, NMFS determined 

that this approach was inappropriately 

conservative and, since that time, as 

consistently used spherical spreading. 

Furthermore, NMFS’ User Spreadsheet 

tool assumes a ‘‘safe distance’’ 

methodology for mobile sources where 

propagation loss is spherical spreading 

(20LogR) (https://

media.fisheries.noaa.gov/2020-12/User_

Manual%20_DEC_2020_508.pdf?null), 

and NMFS calculator tool for estimating 

isopleths to Level B harassment 

thresholds also incorporates the use of 

spherical spreading. 

Comment 4: LBI asserts that NMFS 

has not appropriately considered the 

location of North Atlantic Right Whales 

(NARW) migratory habitat in relation to 

the survey and, in so doing, has not 

correctly evaluated the potential for 

impacts to NARW migratory habitat. 

NMFS response: NMFS disagrees with 

LBI’s assertion that the close proximity 

of the NARW migratory corridor is not 

discussed or accounted for in the 

proposed Federal Register notice. Page 

27581 (https://www.federalregister.gov/ 

d/2022-09917/p-42) includes an 

overview of the NARW and its habitat, 

including text noting that any NARWs 

in the ‘‘survey areas are expected to be 

transient, most likely migrating through 

the area’’ due to the overlap of the 

Project area with the migratory corridor. 

More information is presented on Page 

27582 (https://www.federalregister.gov/ 

d/2022-09917/p-44) and NMFS 

reiterates it here: ‘‘The proposed survey 


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area is part of a migratory corridor 

Biologically Important Area (BIA) for 

North Atlantic right whales (effective 

March–April and November–December) 

that extends from Massachusetts to 

Florida (LeBrecque et al., 2015). Off the 

coast of New Jersey, the migratory BIA 

extends from the coast to beyond the 

shelf break. This important migratory 

area is approximately 269,488 square 

kilometers (km2) in size (compared with 

the approximately 5,183.97 km2 of total 

estimated Level B harassment 

ensonified area associated with the 320 

planned survey days) and is comprised 

of the waters of the continental shelf 

offshore the East Coast of the United 

States, extending from Florida through 

Massachusetts. NMFS’ regulations at 50 

CFR part 224.105 designated nearshore 

waters of the Mid-Atlantic Bight as MidAtlantic U.S. Seasonal Management 

Areas (SMA) for right whales in 2008. 

SMAs were developed to reduce the 

threat of collisions between ships and 

right whales around their migratory 

route and calving grounds. A portion of 

one SMA, which occurs off the mouth 

of Delaware Bay, overlaps spatially with 

a section of the proposed survey area. 

The SMA, which occurs off the mouth 

of Delaware Bay, is active from 

November 1 through April 30 of each 

year. Within SMAs, the regulations 

require a mandatory vessel speed (less 

than 10 kn) for all vessels greater than 

65 ft. A portion of one SMA overlaps 

spatially with the northern section of 

the proposed survey area.’’ 

NMFS also reiterates the language 

found on Page 27596 within the 

Negligible Impact Analysis and 

Determination section, which has not 

changed since the initial publication of 

the proposed Federal Register notice 

and is carried forward into this final 

notice: ‘‘The status of the North Atlantic 

right whale population is of heightened 

concern and, therefore, merits 

additional analysis. As noted 

previously, elevated North Atlantic right 

whale mortalities began in June 2017 

and there is an active UME. Overall, 

preliminary findings support human 

interactions, specifically vessel strikes 

and entanglements, as the cause of 

death for the majority of right whales. 

As noted previously, the proposed 

survey area overlaps a migratory 

corridor BIA for North Atlantic right 

whales. Due to the fact that the 

proposed survey activities are 

temporary and the spatial extent of 

sound produced by the survey would be 

very small relative to the spatial extent 

of the available migratory habitat in the 

BIA, right whale migration is not 

expected to be impacted by the 

proposed survey.’’ 

Comment 5: LBI and COA assert that 

Level A harassment may occur during 

site characterization surveys and that it 

was not accounted for in the proposed 

Federal Register notice. LBI asserts 

specifically that Level A harassment 

will result from cumulative noise 

exposure, contradicting NMFS’ analysis. 

NMFS response: NMFS acknowledges 

the concerns brought up by LBI 

regarding the potential for Level A 

harassment of marine mammals. 

However, no Level A harassment is 

expected to result, even in the absence 

of mitigation, given the characteristics 

of the sources planned for use. This is 

additionally supported by the required 

mitigation and very small estimated 

Level A harassment zones described in 

NEETMA’s IHA application in Table 1– 

4 (https://media.fisheries.noaa.gov/ 

2022-05/NEETMA_2022IHA_App_

OPR1.pdf). Furthermore, the 

commenters do not provide any support 

for the apparent contention that Level A 

harassment is a potential outcome of 

these activities. As discussed in the 

notice of proposed IHA, NMFS 

considers this category of survey 

operations to be near de minimis, with 

the potential for Level A harassment for 

any species to be discountable. 

As described in the Estimated Take 

section of the proposed Federal Register 

notice (87 FR 27575; May 9, 2022), 

NMFS has established a PTS (Level A 

harassment) threshold of 183 dB 

cumulative SEL for low frequency 

cetaceans (which include North Atlantic 

right whales). Estimated Level A 

harassment zones for similar equipment 

(i.e., the Applied Acoustics Dura-Spark 

240 sparker, GeoMarine Geo Spark 2000 

(400 tip)) were provided in Table 1–4 in 

NEETMA’s IHA application (https://

media.fisheries.noaa.gov/2022-05/ 

NEETMA_2022IHA_App_OPR1.pdf), 

showing that a NARW would have to 

come within 1 m of the sparker source 

to potentially incur PTS. Due to the 

mitigation measures being 

implemented, including the required 

vessel strike reduction measures, NMFS 

considers it impossible that a NARW 

will reasonably be in sufficiently close 

proximity to the active acoustic source 

(i.e., the sparker) to incur PTS. NMFS 

has reviewed the analysis and 

confirmed that it is accurate and 

relevant to this action. 

Not only are any NARWs in the area 

migrating, meaning that their 

occurrence in the area is expected to be 

of relatively brief duration and the 

likelihood of exposures of longer 

duration or at closer range minimized, 

NEETMA is also required to not 

approach any NARW within 500 m or 

operate the sparker within 500 m of a 

NARW. As such, there is essentially no 

potential for a NARW to experience PTS 

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

described surveys. 

Comment 6: LBI discusses their belief 

that all pathways to the Level B 

harassment threshold and/or masking of 

cetacean communication that could lead 

to the serious injury and/or mortality of 

the animal have not been fully analyzed 

by NMFS. 

NMFS response: NMFS disagrees that 

the potential impacts of masking were 

not properly considered and expects 

that the masking effects to any one 

individual whale from one survey are 

expected to be minimal. Masking is 

referred to as a chronic effect because 

one of the key harmful components of 

masking is its duration—the fact that an 

animal would have reduced ability to 

hear or interpret critical cues becomes 

much more likely to cause a problem 

the longer it is occurring. Also, inherent 

in the concept of masking is the fact that 

the potential for the effect is only 

present during the times that the animal 

and the source are in close enough 

proximity for the effect to occur (and 

further this time period would need to 

coincide with a time that the animal 

was utilizing sounds at the masked 

frequency) and, as our analysis (both 

quantitative and qualitative 

components) indicates, because of the 

relative movement of whales and 

vessels, we do not expect these 

exposures with the potential for 

masking to be of a long duration within 

a given day. Further, because of the 

relatively low density of mysticetes, and 

relatively large area over which the 

vessels travel, we do not expect any 

individual whales to be exposed to 

potentially masking levels from these 

surveys for more than a few days in a 

year. 

As noted previously, any masking 

effects of this survey are expected to be 

limited and brief, if present. Given the 

likelihood of significantly reduced 

received levels beyond even short 

distances from the survey vessel, 

combined with the short duration of 

potential masking and the lower 

likelihood of extensive additional 

contributors to background noise 

offshore and within these short 

exposure periods, we believe that the 

incremental addition of the survey 

vessel is unlikely to result in more than 

minor and short-term masking effects, 

likely occurring to some small number 

of the same individuals captured in the 

estimate of behavioral harassment. 

NMFS recognizes that acute stress 

from acoustic exposure is one potential 


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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 NEETMA will 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 NARWs, which 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 

km2) compared with the survey area 

(5,184 km2). Thus, the transitory nature 

of NARWs at this location means it is 

unlikely for any exposure to cause 

chronic effects as NEETMA’s planned 

survey area and ensonified zones are 

much smaller than the overall migratory 

corridor. Because of this, NMFS does 

not expect any acute or cumulative 

stress, including any masking, to be a 

detrimental factor to the health, fitness, 

or survival of NARWs from NEETMA’s 

described survey activities. 

NMFS continues to maintain that the 

best available science indicates that 

only Level B harassment, or minor 

disruptions of behavioral patterns, may 

occur from the planned site 

characterization surveys. No mortality 

or serious injury is expected to occur as 

a result of the planned surveys, and 

there is no scientific evidence indicating 

that any marine mammal could 

experience these as a direct result of 

noise from geophysical survey activity. 

Authorization of mortality and serious 

injury may not occur via IHAs, only 

within Incidental Take Regulations 

(ITRs), and such authorization was 

neither requested nor proposed. NMFS 

notes that in its history of authorizing 

take of marine mammals, there has 

never been a report of any serious 

injuries or fatalities of a marine mammal 

related to the site characterization 

surveys, including for NARW. We 

emphasize that an estimate of take 

numbers alone is not sufficient to assess 

impacts to a marine mammal 

population. Take numbers must be 

viewed contextually with other factors, 

as explained in the Negligible Impact 

Analysis and Determination section of 

this notice. 

Comment 7: LBI asserts that the 

criteria for determining ‘‘negligible 

impact’’ to the NARW have not been 

clearly or well defined. 

NMFS response: NMFS disagrees with 

LBI’s position regarding the negligible 

impact analysis, and the commenters do 

not provide a reasoned basis for finding 

that the effects of the specified activity 

will be greater than negligible on any 

species or stock. The Negligible Impact 

Analysis and Determination section of 

the proposed IHA (87 FR 27575; May 9, 

2022) provides a detailed qualitative 

discussion supporting NMFS’ 

determination that any anticipated 

impacts from this action will be 

negligible. The section contains a 

number of factors that were considered 

by NMFS based on the best available 

scientific data and why we concluded 

that impacts resulting from the specified 

activity are not reasonably expected to, 

or reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival. 

With specific regard to NARW, we 

note that take is authorized for only a 

very small percentage of the right whale 

population (see Table 11). Furthermore, 

NMFS notes that while a species may be 

taken during activities, this is not 

always the case. For example, we note 

that Ocean Wind’s (Orsted) previous 

monitoring report (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-oceanwind-llc-marine-site-characterizationsurveys-new-jersey) indicates that no 

right whales experienced harassment 

during the previous activity, although 

take of the species (Level B harassment 

only) was authorized. However, the 

numbers of potential incidents of take or 

animals taken are only part of an 

assessment and are not, alone, 

decisively indicative of the degree of 

impact. In order to adequately evaluate 

the effects of noise exposure at the 

population level, the total number of 

take incidents must be further 

interpreted in context of relevant 

biological and population parameters 

and other biological, environmental, 

and anthropogenic factors and in a 

spatially and temporally explicit 

manner. The effects to individuals of a 

‘‘take’’ are not necessarily equal. Some 

take events represent exposures that 

only just exceed a Level B harassment 

threshold, which would be expected to 

result in lower-level impacts, while 

other exposures occur at higher received 

levels and would typically be expected 

to have comparatively greater potential 

impacts on an individual. Further, 

responses to similar received levels may 

result in significantly different impacts 

on an individual dependent upon the 

context of the exposure or the status of 

the individuals (e.g., if it occurred in an 

area and time where concentrated 

feeding was occurring, or to individuals 

weakened by other effects). In this case, 

NMFS reiterates that no such higher 

level takes are expected to occur. The 

maximum anticipated Level B 

harassment zone is 141 m, a distance 

smaller than the precautionary 

shutdown zone of 500 m. To the extent 

that any exposure of NARW does occur, 

it would be expected to result in lowerlevel impacts that are unlikely to result 

in significant or long-lasting impacts to 

the exposed individual and, given the 

relatively small amount of exposures 

expected to occur, it is unlikely that 

these exposures would result in 

population-level impacts. NMFS 

acknowledges that impacts of a similar 

degree on a proportion of the 

individuals in a stock may have 

differing impacts to the stock based on 

its status, i.e., smaller stocks may be less 

able to absorb deaths or reproductive 

suppression and maintain similar 

growth rates as larger stocks. However, 

even given the precarious status of the 

NARW, the low-level nature of the 

impacts expected to occur for only a few 

individuals means that the population 

status does not weigh meaningfully in 

NMFS’ consideration of populationlevel impacts. The commenters provide 

no substantive reasoning to contradict 

this finding, and do not support their 

assertions of effects greater than NMFS 

has assumed may occur. 

Additionally, NMFS evaluated the 

impacts of HRG surveys on ESA-listed 

species under ESA section 7, with 

NMFS Greater Atlantic Regional 

Fisheries Office (GARFO) as the 

consulting agency. NMFS GARFO 

determined that issuance of the IHA to 

NEETMA was not likely to adversely 

affect listed species or the critical 

habitat of any ESA-listed species or 

result in the take of any marine 

mammals in violation of the ESA. 


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Comment 8: LBI asserts that the 

criteria for ‘‘small numbers’’ is not 

scientifically supported, nor consistent 

with a prior judicial decision. 

NMFS response: NMFS disagrees with 

LBI’s arguments on the topic of small 

numbers. Although there is limited 

legislative history available to guide 

NMFS and an apparent lack of 

biological underpinning to the concept, 

we have worked to develop a reasoned 

approach to small numbers. NMFS 

explains the concept of ‘‘small 

numbers’’ in recognition that there 

could also be quantities of individuals 

taken that would correspond with 

‘‘medium’’ and ‘‘large’’ numbers. As 

such, NMFS considers that one-third of 

the most appropriate population 

abundance number—as compared with 

the assumed number of individuals 

taken—is an appropriate limit with 

regard to ‘‘small numbers.’’ This relative 

approach is consistent with the 

statement from the legislative history 

that ‘‘[small numbers] is not capable of 

being expressed in absolute numerical 

limits’’ (H.R. Rep. No. 97–228, at 19 

(September 16, 1981)), and relevant case 

law (Center for Biological Diversity v. 

Salazar, 695 F.3d 893, 907 (9th Cir. 

2012) (holding that the U.S. Fish and 

Wildlife Service reasonably interpreted 

‘‘small numbers’’ by analyzing take in 

relative or proportional terms)). In 

regards to LBI’s suggestion that the onethird number is inconsistent with prior 

case law, we note that LBI cited the 

NRDC v. Evans decision of October 31, 

2002 (232 F. Supp. 2d 1003, N.D. Cal. 

2002), which was related to the 

plaintiffs’ motion for a preliminary 

injunction. Ultimately, after parties’ 

cross-motions for summary judgment, 

the Evans court held that NMFS’ 

regulatory definition of small numbers 

(which NMFS did not apply here) 

improperly conflated the small numbers 

and negligible impact issues. NRDC v. 

Evans, 279 F. Supp. 2d at 1129. 

Contrary to LBI’s suggestion, the Evans 

court expressly stated that it was not 

setting any numerical limit for small 

numbers. NRDC v. Evans, 279 F. Supp. 

2d at 1153. As for LBI’s suggestion to 

reconsider small numbers specifically 

for NARW, the argument to establish a 

small numbers threshold on the basis of 

stock-specific context is unnecessarily 

duplicative of the required negligible 

impact finding, in which relevant 

biological and contextual factors are 

considered in conjunction with the 

amount of take. 

Comment 9: LBI asserts that NMFS’ 

160 dB harassment criterion for 

intermittent sound sources is too high, 

and that the 120 dB criterion for 

continuous noise sources should be 

used instead. 

NMFS response: NMFS disagrees with 

LBI’s comment, which references a 

Marine Mammal Commission 

recommendation made in reference to 

the proposed authorization of take 

incidental to use of scientific sonars 

(such as echosounders). We refer the 

reader to the original response (84 FR 

46788; October 7, 2019) for full detail 

and provide a summary here. 

First, we provide some necessary 

background on implementation of 

acoustic thresholds. NMFS has 

historically used generalized acoustic 

thresholds based on received levels to 

predict the occurrence of behavioral 

harassment, given the practical need to 

use a relatively simple threshold based 

on information that is available for most 

activities. Thresholds were selected in 

consideration largely of measured 

avoidance responses of mysticete 

whales to airgun signals and to 

industrial noise sources, such as 

drilling. The selected thresholds of 160 

dB rms SPL and 120 dB rms SPL, 

respectively, have been extended for use 

since then for estimation of behavioral 

harassment associated with noise 

exposure from sources associated with 

other common activities as well. 

Sound sources can be divided into 

broad categories based on various 

criteria or for various purposes. As 

discussed by Richardson et al. (1995), 

source characteristics include strength 

of signal amplitude, distribution of 

sound frequency and, importantly in 

context of these thresholds, variability 

over time. With regard to temporal 

properties, sounds are generally 

considered to be either continuous or 

transient (i.e., intermittent). Continuous 

sounds, which are produced by the 

industrial noise sources for which the 

120-dB behavioral harassment threshold 

was selected, are simply those whose 

sound pressure level remains above 

ambient sound during the observation 

period (ANSI, 2005). Intermittent 

sounds are defined as sounds with 

interrupted levels of low or no sound 

(NIOSH, 1998). Simply put, a 

continuous noise source produces a 

signal that continues over time, while 

an intermittent source produces signals 

of relatively short duration having an 

obvious start and end with predictable 

patterns of bursts of sound and silent 

periods (i.e., duty cycle) (Richardson 

and Malme, 1993). It is this fundamental 

temporal distinction that is most 

important for categorizing sound types 

in terms of their potential to cause a 

behavioral response. For example, 

Gomez et al. (2016) found a significant 

relationship between source type and 

marine mammal behavioral response 

when sources were split into continuous 

(e.g., shipping, icebreaking, drilling) 

versus intermittent (e.g., sonar, seismic, 

explosives) types. In addition, there 

have been various studies noting 

differences in responses to intermittent 

and continuous sound sources for other 

species (e.g., Neo et al., 2014; Radford 

et al., 2016; Nichols et al., 2015). 

Sound sources may also be 

categorized based on their potential to 

cause physical damage to auditory 

structures and/or result in threshold 

shifts. In contrast to the temporal 

distinction discussed previously, the 

most important factor for understanding 

the differing potential for these 

outcomes across source types is simply 

whether the sound is impulsive or not. 

Impulsive sounds, such as those 

produced by airguns, are defined as 

sounds which are typically transient, 

brief (< 1 sec), broadband, and consist 

of a high peak pressure with rapid rise 

time and rapid decay (ANSI, 1986; 

NIOSH, 1998). These sounds are 

generally considered to have greater 

potential to cause auditory injury and/ 

or result in threshold shifts. Nonimpulsive sounds can be broadband, 

narrowband or tonal, brief or prolonged, 

continuous or intermittent, and 

typically do not have the high peak 

pressure with rapid rise/decay time that 

impulsive sounds do (ANSI, 1995; 

NIOSH, 1998). Because the selection of 

the 160-dB behavioral threshold was 

focused largely on airgun signals, it has 

historically been commonly referred to 

as the ‘‘impulse noise’’ threshold 

(including by NMFS). However, this 

longstanding confusion in 

terminology—i.e., the erroneous 

impulsive/continuous dichotomy— 

presents a narrow view of the sound 

sources to which the thresholds apply, 

and inappropriately implies a limitation 

in scope of applicability for the 160-dB 

behavioral threshold in particular. 

Following the background discussion 

provided previously, we note that LBI 

apparently misunderstands the crux of 

the Marine Mammal Commission 

argument that it references, i.e., that 

because scientific sonars are not 

impulsive sound sources, they must be 

assessed using the 120-dB behavioral 

threshold appropriate for continuous 

noise sources. The sparker source at 

issue here is in fact an impulsive source. 

Therefore, the historical confusion 

regarding terminology associated with 

the 160 dB threshold (i.e., impulsive 

versus intermittent) is not relevant, and 

there is no reasonable argument to be 

made in support of using the 120 dB 

threshold versus the 160 dB threshold. 


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Comment 10: LBI states that, based on 

their contention that serious injury and/ 

or mortality is a potential outcome of 

the specified activity for NARWs, 

authorization under section 101(a)(5)(A) 

of the MMPA (Incidental Take 

Regulation (ITR) with subsequent 

Letters of Authorization (LOA)) is 

required. 

NMFS response: NMFS acknowledges 

that authorization under section 

101(a)(5)(A) of the MMPA would be 

required were mortality or serious 

injury an expected outcome of the 

action. However, as noted previously, 

there is no scientific evidence 

suggesting that such outcomes are 

possible and, therefore, an IHA issued 

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

appropriate. Similarly, if the analysis 

presented by LBI were considered 

credible, the results would necessitate a 

revision to NMFS’ negligible impact 

determination. However, as detailed in 

previous comment responses and 

Federal Register notices, the LBI 

analysis is not based on the best 

scientific evidence available, and NMFS 

does not consider it to be a credible 

analysis. Separately, it appears that LBI 

equates Level A harassment with 

serious injury and mortality in 

suggesting that Incidental Take 

Regulations are required. As discussed 

herein, Level A harassment is not an 

expected outcome of the specified 

activity. However, we clarify that 

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

which governs the issuance of IHAs, 

indicates that the ‘‘the Secretary shall 

authorize . . . . taking by harassment 

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

in the MMPA clearly includes both 

Level A and Level B harassment. 

To reiterate, NMFS does not expect 

any serious injury or mortality, even 

absent mitigation efforts, because of the 

nature of the activities described in the 

proposed Federal Register notice. 

Furthermore, NMFS included a vessel 

strike analysis in the proposed notice 

under the Potential Effects of Specified 

Activities on Marine Mammals and 

Their Habitat section. We identified that 

at average transit speed for geophysical 

survey vessels, the probability of serious 

injury or mortality resulting from a 

strike is low enough to be discountable. 

However, the likelihood of a strike 

actually happening is again low given 

the smaller size of these vessels and 

generally slower speeds during transit. 

Further, NEETMA is required to 

implement monitoring and mitigation 

measures during transit, including 

observing for marine mammals and 

maintaining defined separation 

distances between the vessel and any 

marine mammal (see the Mitigation and 

Monitoring and Reporting sections). 

Finally, despite several years of marine 

site characterization surveys occurring 

off the U.S. east coast, no vessels 

supporting offshore wind development 

have struck a marine mammal either in 

transit or during surveying. Because 

vessel strikes are not reasonably 

expected to occur, no such take is 

authorized. The mitigation measures in 

the IHA related to vessel strike 

avoidance are not limited to vessels 

operating within the survey area or 

cable corridors and therefore apply to 

transiting vessels. Because of these 

reasons and the addition of mitigation 

efforts, including required vessel 

separation distances to further reduce 

any risk, we do not find that a 

Rulemaking is necessary for NEETMA’s 

HRG surveys. 

Comment 11: LBI recommends that 

NMFS should require Passive Acoustic 

Monitoring (PAM) at all times to 

maximize the probability of detection 

for NARW. LBI provided 

recommendations that NMFS should 

require PAM at all times, both day and 

night, to maximize the probability of 

detection for NARW, as well as other 

species and stocks. 

NMFS response: LBI does not explain 

why it expects that PAM would be 

effective in detecting vocalizing 

mysticetes, nor does NMFS agree that 

this measure is warranted, as it is not 

expected to be effective for use in 

detecting the species of concern. It is 

generally accepted that, even in the 

absence of additional acoustic sources, 

using a towed passive acoustic sensor to 

detect baleen whales (including 

NARWs) is not typically effective 

because the noise from the vessel, the 

flow noise, and the cable noise are in 

the same frequency band and will mask 

the vast majority of baleen whale calls. 

Vessels produce low-frequency noise, 

primarily through propeller cavitation, 

with main energy in the 5–300 Hertz 

(Hz) frequency range. Source levels 

range from about 140 to 195 decibel (dB) 

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

2003; Hildebrand, 2009), depending on 

factors such as ship type, load, and 

speed, and ship hull and propeller 

design. Studies of vessel noise show 

that it appears to increase background 

noise levels in the 71–224 Hz range by 

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

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

systems employ hydrophones towed in 

streamer cables approximately 500 m 

behind a vessel. Noise from water flow 

around the cables and from strumming 

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

the same range. Experienced PAM 

operators participating in a recent 

workshop (Thode et al., 2017) 

emphasized that a PAM operation could 

easily report no acoustic encounters, 

depending on species present, simply 

because background noise levels 

rendered any acoustic detection 

impossible. The same workshop report 

stated that a typical eight-element array 

towed 500 m behind a vessel could be 

expected to detect delphinids, sperm 

whales, and beaked whales at the 

required range, but not baleen whales, 

due to expected background noise levels 

(including seismic noise, vessel noise, 

and flow noise). 

There are several additional reasons 

why we do not agree that use of PAM 

is warranted for 24-hour HRG surveys. 

While NMFS agrees that PAM can be an 

important tool for augmenting detection 

capabilities in certain circumstances, its 

utility in further reducing impact during 

HRG survey activities is limited. First, 

for this activity, the area expected to be 

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 NARW 

and other low frequency cetaceans, 

species for which PAM has limited 

efficacy), and the cost and 

impracticability of implementing a fulltime PAM program, we have determined 

the current requirements for visual 

monitoring are sufficient to ensure the 

least practicable adverse impact on the 

affected species or stocks and their 


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habitat. NMFS has previously provided 

discussions on why PAM isn’t a 

required monitoring measure during 

HRG survey IHAs in past Federal 

Register notices (see 86 FR 21289, April 

22, 2021; 87 FR 13975, March 11, 2022; 

87 FR 24103; April 22, 2022 for 

examples). 

Comment 12: LBI, Oceana, and COA 

all express concern regarding the 

potential for vessel strike and 

recommendations to reduce the 

potential for vessel strike. 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)(5.14 meters per 

second) at all times due to the risk of 

vessel strikes to NARWs and other large 

whales. Oceana and LBI both provide 

recommendations for additional 

mitigation measures, including a larger 

exclusion zone (from 500 m for NARWs 

and 100 m for all other species to 736 

m from LBI and a suggestion of a 1,000 

m Exclusion Zone for NARWs from 

Oceana); a prohibition of site 

characterization surveys at night unless 

a PAM system is employed; a 736 m 

buffer on the NARW’s migratory 

corridor during primary migration 

months (January, February, March, 

April, and November), and the 

development of additional Seasonal 

Management Areas (SMAs) adjacent to 

the survey area to reduce against ship 

strike. 

NMFS response: NMFS notes that the 

500 m Exclusion Zone for NARWs 

exceeds the modeled distance to the 

largest 160 dB Level B harassment 

isopleth distance (141 m during sparker 

use) by a substantial margin. LBI 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. 

Regarding the recommendation for 

PAM usage, NMFS refers to the 

response provided for Comment #11. 

LBI’s recommendation to implement a 

736 m buffer zone on the NARW 

migratory corridor is based on its own 

analysis using the a 15LogR 

transmission loss coefficient. Regarding 

assumptions related to transmission 

loss, we refer the reader to the response 

to Comment #3, which invalidates the 

premise that a larger zone is appropriate 

(as discussed previously). In addition, 

as previously stated, given the large size 

of the migratory corridor (BIA of 

269,448 km2) compared with the survey 

area (5,184 km2), an additional buffer is 

unnecessary. This would unnecessarily 

slow down NEETMA’s site 

characterization surveys, prolonging the 

duration of the survey effort to make up 

for the lost survey days. 

While NMFS acknowledges that 

vessel strikes can result in injury or 

mortality, we have analyzed the 

potential for ship strike resulting from 

NEETMA’s activities and have 

determined that based on the nature of 

the activity and the required mitigation 

measures specific to vessel strike 

avoidance included in the IHA, 

potential for vessel strike is so low as to 

be discountable. These mitigation 

measures, most of which were included 

in the proposed IHA and all of which 

are required in the final IHA, include: 

A requirement that all vessel operators 

comply with 10 kn (18.5 km/hour) or 

less speed restrictions in any SMA, 

DMA or Slow Zone while underway, 

and check daily for information 

regarding the establishment of 

mandatory or voluntary vessel strike 

avoidance areas (SMAs, DMAs, Slow 

Zones) and information regarding 

NARW sighting locations; a requirement 

that all vessels greater than or equal to 

19.8 m in overall length operating from 

November 1 through April 30 operate at 

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

a requirement that all vessel operators 

reduce vessel speed to 10 kn (18.5 km/ 

hour) or less when any large whale, any 

mother/calf pairs, pods, or large 

assemblages of non-delphinid cetaceans 

are observed near the vessel; a 

requirement that all survey vessels 

maintain a separation distance of 500 m 

or greater from any ESA-listed whales or 

other unidentified large marine 

mammals visible at the surface while 

underway; a requirement that, if 

underway, vessels must steer a course 

away from any sighted ESA-listed whale 

at 10 kn(5.14 m/s) 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. 

Existing and permanent SMAs have 

been previously established under a 

different rulemaking (73 FR 60173; 

October 10, 2008) and can also be found 

on NMFS’ website at https://

www.fisheries.noaa.gov/national/ 

endangered-species-conservation/ 

reducing-vessel-strikes-north-atlanticright-whales#speedlimit). 

Comment 13: LBI asserts that NMFS 

has not complied with the Endangered 

Species Act (ESA) through the use of the 

NMFS Greater Atlantic Regional Office 

(GARFO) Programmatic Consultation 

regarding geophysical surveys along the 

U.S. Atlantic coast in the three Atlantic 

Renewable Energy Regions (https://

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

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

NMFS response: NMFS disagrees with 

LBI’s assertion that NMFS has not 

complied with ESA section 7. LBI 

suggests that a BiOp is required, and 

that because GARFO’s programmatic 

consultation is not a BiOp, NMFS is not 

compliant with the requirements of 

Section 7. LBI misunderstands the 

relevant legal requirements, as an 

informal consultation concluding that 

the effects of an action are not likely to 

adversely affect ESA-listed species (as 

GARFO’s consultation document does) 

is a sufficient endpoint of consultation 

under section 7. LBI’s additional 

complaints regarding GARFO’s analysis 

are misdirected. 

Comment 14: LBI has stated its 

opposition to the use of a categorical 

exclusion under NEPA, asserting that, at 

minimum, an EA is the appropriate 

level of review. 

NMFS response: NMFS does not agree 

with LBI’s comment. A categorical 

exclusion (CE) is a category of actions 

that an agency has determined does not 


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individually or cumulatively have a 

significant effect on the quality of the 

human environment, and is 

appropriately applied for such 

categories of actions so long as there are 

no extraordinary circumstances present 

that would indicate that the effects of 

the action may be significant. 

Extraordinary circumstances are 

situations for which NOAA has 

determined further NEPA analysis is 

required because they are circumstances 

in which a normally excluded action 

may have significant effects. A 

determination of whether an action that 

is normally excluded requires 

additional evaluation because of 

extraordinary circumstances focuses on 

the action’s potential effects and 

considers the significance of those 

effects in terms of both context 

(consideration of the affected region, 

interests, and resources) and intensity 

(severity of impacts). Potential 

extraordinary circumstances relevant to 

this action include (1) adverse effects on 

species or habitats protected by the 

MMPA that are not negligible; (2) highly 

controversial environmental effects; (3) 

environmental effects that are uncertain, 

unique, or unknown; and (4) the 

potential for significant cumulative 

impacts when the proposed action is 

combined with other past, present, and 

reasonably foreseeable future actions. 

The relevant NOAA CE associated 

with issuance of incidental take 

authorizations is CE B4, ‘‘Issuance of 

incidental harassment authorizations 

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

MMPA for the incidental, but not 

intentional, take by harassment of 

marine mammals during specified 

activities and for which no serious 

injury or mortality is anticipated.’’ This 

action falls within CE B4. In 

determining whether a CE is appropriate 

for a given incidental take authorization, 

NMFS considers the applicant’s 

specified activity and the potential 

extent and magnitude of takes of marine 

mammals associated with that activity 

along with the extraordinary 

circumstances listed in the Companion 

Manual for NAO 216–6A and 

summarized previously. The evaluation 

of whether extraordinary circumstances 

(if present) have the potential for 

significant environmental effects is 

limited to the decision NMFS is 

responsible for, which is issuance of the 

incidental take authorization. While 

there may be environmental effects 

associated with the underlying action, 

potential effects of NMFS’ action are 

limited to those that would occur due to 

the authorization of incidental take of 

marine mammals. NMFS prepared 

numerous EA) analyzing the 

environmental impacts of the categories 

of activities encompassed by CE B4 

which resulted in Findings of No 

Significant Impacts (FONSIs) and, in 

particular, numerous EAs prepared in 

support of issuance of IHAs related to 

similar survey actions are part of NMFS’ 

administrative record supporting CE B4. 

These EAs demonstrate the issuance of 

a given incidental harassment 

authorization does not affect other 

aspects of the human environment 

because the action only affects the 

marine mammals that are the subject of 

the incidental harassment authorization. 

These EAs also addressed factors in 40 

CFR 1508.27 regarding the potential for 

significant impacts and demonstrate the 

issuance of incidental harassment 

authorization for the categories of 

activities encompassed by CE B4 do not 

individually or cumulatively have a 

significant effect on the human 

environment. 

Specifically for this action, NMFS 

independently evaluated the use of the 

CE for issuance of NEETMA’s IHA, 

which included consideration of 

extraordinary circumstances. As part of 

that analysis, NMFS considered 

including whether this IHA issuance 

would result in cumulative impacts that 

could be significant. In particular, the 

issuance of an IHA to NEETMA is 

expected to result in minor, short-term 

behavioral effects on marine mammal 

species due to exposure to underwater 

sound from site characterization survey 

activities. Behavioral disturbance is 

expected to occur intermittently in the 

vicinity of NEETMA’s survey area 

during the one-year timeframe. Level B 

harassment will be reduced through use 

of mitigation measures described herein. 

Additionally, as discussed elsewhere, 

NMFS has determined that NEETMA’s 

activities fall within the scope of 

activities analyzed in GARFO’s 

programmatic consultation regarding 

geophysical surveys along the U.S. 

Atlantic coast in the three Atlantic 

Renewable Energy Regions (completed 

June 29, 2021; revised September 2021), 

which concluded surveys such as those 

planned by NEETMA are not likely to 

adversely affect endangered listed 

species or adversely modify or destroy 

critical habitat. Accordingly, NMFS has 

determined that the issuance of this IHA 

will result in no more than negligible (as 

that term is defined by the Companion 

Manual for NAO 216–6A) adverse 

effects on species protected by the ESA 

and the MMPA. 

Further, the issuance of this IHA will 

not result in highly controversial 

environmental effects or result in 

environmental effects that are uncertain, 

unique, or unknown because numerous 

entities have been engaged in site 

characterization surveys that result in 

Level B harassment of marine mammals 

in the United States. This type of 

activity is well documented; prior 

authorizations and analysis 

demonstrates issuance of an IHA for this 

type of action only affects the marine 

mammals that are the subject of the 

specific authorization and, thus, no 

potential for significant cumulative 

impacts are expected, regardless of past, 

present, or reasonably foreseeable 

actions, even though the impacts of the 

action may not be significant by itself. 

Based on this evaluation, we concluded 

that the issuance of the IHA qualifies to 

be categorically excluded from further 

NEPA review. 

Comment 15: LBI requests that NMFS 

conduct an analysis and submit a 

Federal consistency determination to 

the State of New Jersey pursuant to the 

Coastal Zone Management Act (CZMA), 

if NMFS had not done so already. 

Referencing a March 2015 consistency 

determination issued by the New Jersey 

Department of Environmental Protection 

(NJDEP) involving a separate and 

unrelated proposed marine geophysical 

survey in the Atlantic Ocean off the 

Coast of New Jersey, LBI expressed 

concern that the survey proposed by 

NEETMA may not be consistent with 

New Jersey Coastal Zone Management 

rules. 

NMFS response: NMFS cannot submit 

a Federal consistency determination to 

the State of New Jersey, because this 

activity is not a Federal agency activity 

proposed by NMFS under NOAA’s 

CZMA regulations at 15 CFR part 930, 

subpart C. Rather, NMFS is reviewing 

an application for a Federal 

authorization for NEETMA’s proposed 

survey. As such, whether a CZMA 

review is required is determined by the 

regulations governing CZMA Federal 

consistency review of Federal license or 

permit activities found at 15 CFR part 

930, subpart D. If an applicant for a 

Federal license or permit activity is not 

required by 15 CFR part 930, subpart D 

to submit a CZMA consistency 

certification to a state, then the 

authorizing Federal agency, in this case, 

NMFS cannot compel or require the 

applicant to submit a consistency 

certification. 

In this case, NEETMA was not, and is 

not, required to submit a CZMA 

consistency certification to the State of 

New Jersey under 15 CFR part 930, 

subpart D, because NMFS MMPA IHAs 

are not, pursuant to 15 CFR 930.53, 

listed in New Jersey’s federallyapproved coastal management program 

and New Jersey has not described a 


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geographic location in Federal waters 

for the NMFS authorization. In addition, 

the State of New Jersey did not request 

approval from the Director of NOAA’s 

Office for Coastal Management (formerly 

known as the Office of Ocean and 

Coastal Resource Management) to 

review NEETMA’s application to NMFS 

as an unlisted activity pursuant to 15 

CFR 930.54, and the time period to 

make such a request has passed. 

Regarding the CZMA Federal 

consistency unlisted activity review 

request process under 15 CFR 930.54, 

NMFS published its Federal Register 

notice for NEETMA’s MMPA IHA 

application on May 9, 2022. The State 

of New Jersey then had 30 days to notify 

NEETMA, NMFS and the Director of 

NOAA’s Office for Coastal Management 

that it was seeking approval to review 

the activity as an unlisted activity. The 

State of New Jersey did not make such 

a request and the 30-day period ended 

on June 8, 2022. Accordingly, 

NEETMA’s IHA application is not 

subject to Federal consistency review 

under the CZMA and NMFS denies 

LBI’s request. 

Comment 16: Oceana made comments 

objecting to NMFS’ renewal process 

regarding the extension of any one-year 

IHA with a 15-day public comment 

period, and suggested a 30-day public 

comment period is necessary for any 

renewal request. 

NMFS response: NMFS’ IHA renewal 

process meets all statutory 

requirements. In prior responses to 

comments about IHA renewals (e.g., 84 

FR 52464; October 2, 2019 and 85 FR 

53342; August 28, 2020), NMFS has 

explained how the renewal process, as 

implemented, is consistent with the 

statutory requirements contained in 

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

further, promotes NMFS’ goals of 

improving conservation of marine 

mammals and increasing efficiency in 

the MMPA compliance process. 

Therefore, we intend to continue 

implementing the renewal process. 

In particular, we emphasize that any 

renewal IHA does have a 30-day public 

comment period associated with initial 

issuance of the IHA, and accordingly 

each renewal IHA is made available for 

a total 45-day public comment period. 

The notice of the proposed IHA 

published in the Federal Register on 

May 9, 2022 (87 FR 27575) made clear 

that NMFS was seeking comment on the 

proposed IHA and the potential 

issuance of a renewal for this survey. As 

detailed in the Federal Register notice 

for the proposed IHA and on the 

agency’s website, 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. NMFS’ analysis of the 

anticipated impacts on marine 

mammals caused by the applicant’s 

activities covers both the Initial IHA 

period and the possibility of a 1-year 

renewal. Therefore a member of the 

public considering commenting on a 

proposed initial IHA also knows the 

scope of activities (or subset of 

activities) that would be included in a 

proposed renewal IHA, the potential 

impacts of those activities, the 

maximum amount and type of take that 

could be caused by those activities, the 

mitigation and monitoring measures 

that would be required, and the basis for 

the agency’s negligible impact 

determinations, least practicable 

adverse impact findings, small numbers 

findings, and (if applicable) the no 

unmitigable adverse impact on 

subsistence use finding—all the 

information needed to provide complete 

and meaningful comments on a possible 

renewal at the time of considering the 

proposed initial IHA. Reviewers have 

the information needed to meaningfully 

comment on both the immediate 

proposed IHA and a possible 1-year 

renewal, should the IHA holder choose 

to request one. 

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 the same as 

those in the initial IHA, are nearly 

identical such that the changes would 

have either no effect on impacts to 

marine mammals or would 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, which includes NMFS’ direct 

notice to anyone who commented on 

the proposed initial IHA, 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 17: Oceana and COA 

remarked that NMFS must utilize the 

best available science. The commenters 

further suggest that NMFS has not done 

so, specifically, referencing information 

regarding the NARW such as updated 

population estimates and recent habitat 

usage patterns in NEETMA’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 North 

Atlantic Right Whale Report Card 

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

NMFS response: While NMFS agrees 

that the best available science should be 

used for assessing NARW abundance 

estimates, we disagree that the North 

Atlantic Right Whale Report Card (i.e., 

Pettis et al. (2022)) study represents the 

most recent and best available estimate 

for NARW abundance. Rather the 

revised abundance estimate (368; 95 

percent with a confidence interval of 

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

subsequently included in the 2021 draft 

Stock Assessment Reports (SARs; 

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

national/marine-mammal-protection/ 

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

proposed IHA, provides the most recent 

and best available estimate, and 

introduced improvements to NMFS’ 

right whale abundance model. 

Specifically, Pace (2021) looked at a 


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different way of characterizing annual 

estimates of age-specific survival. NMFS 

considered all relevant information 

regarding NARW, including the 

information cited by the commenters. 

However, NMFS relies on the SAR. 

Recently (after publication of the notice 

of proposed IHA), NMFS has updated 

its species web page to recognize the 

population estimate for NARWs is now 

below 350 animals (https://

www.fisheries.noaa.gov/species/northatlantic-right-whale). (See the footnote 

under Table 3 in the proposed Federal 

Register notice (87 FR 27575; May 9, 

2022)). We anticipate that this 

information will be presented in the 

draft 2022 SAR. We note that this 

change in abundance estimate would 

not change our analysis regarding the 

estimated take of NARWs, nor affect our 

ability to make the required findings 

under the MMPA for NEETMA’s survey 

activities. 

NMFS further notes that Oceana 

seems 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 draft 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 a portion of migratory habitat 

for NARWs, year-round ‘‘core’’ NARW 

foraging habitat (Oleson et al., 2020) is 

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 NEETMA, such as in the Great South 

Channel and Georges Bank Shelf Break 

feeding BIA. Furthermore, and as 

discussed in the proposed Notice (87 FR 

27575; May 9, 2022), 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 Notice 

announcing the proposed IHA, any 

impacts to marine mammals are 

expected to be temporary and minor 

and, given the relative size of the survey 

area compared to the overall migratory 

route leading to foraging habitat (which 

is not affected by the specified activity). 

Comparatively, the survey area is 

approximately 5,184 km2 and the 

NARW migratory BIA is 269,448 km2. 

Because of this, and in context of the 

minor, low-level nature of the impacts 

expected to result from the planned 

survey, such impacts are not expected to 

result in disruption to biologically 

important behaviors. 

Comment 18: Oceana noted that 

chronic stressors are an emerging 

concern for NARW conservation and 

recovery, and stated that chronic stress 

may result in energetic effects for 

NARWs. Oceana suggested that NMFS 

has not fully considered both the use of 

the area and the effects of both acute 

and chronic stressors on the health and 

fitness of NARWs, as disturbance 

responses in NARWs could lead to 

chronic stress or habitat displacement, 

leading to an overall decline in their 

health and fitness. 

NMFS response: NMFS agrees with 

Oceana that both acute and chronic 

stressors are of concern for NARW 

conservation and recovery. We 

recognize that acute stress from acoustic 

exposure is one potential impact of 

these surveys, and that chronic stress 

can have fitness, reproductive, etc. 

impacts at the population-level scale. 

NMFS has carefully reviewed the best 

available scientific information in 

assessing impacts to marine mammals, 

and recognizes that the surveys have the 

potential to impact marine mammals 

through behavioral effects, stress 

responses, and auditory masking. 

However, NMFS does not expect that 

the generally short-term, intermittent, 

and transitory marine site 

characterization survey activities 

planned by NEETMA 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 km2) compared 

with the survey area (5,184 km2). Thus, 

the transitory nature of NARWs at this 

location means it is unlikely for any 

exposure to cause chronic effects as 

NEETMA’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 NEETMA’s 

described survey activities. 

Comment 19: Oceana states that 

NMFS must make an assessment of 

which activities, technologies and 

strategies are truly necessary to provide 

information to inform site 

characterization surveys and which are 

not critical, asserting that NMFS should 

prescribe the appropriate survey 

techniques. In general, Oceana stated 

that NMFS must require that all IHA 

applicants minimize the impacts of 

underwater noise to the fullest extent 

feasible, including through the use of 

best available technology and methods 

to minimize sound levels from 

geophysical surveys. 

NMFS response: The MMPA requires 

that an IHA include measures that will 

effect the least practicable adverse 

impact on the affected species and 

stocks and 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 

evaluates the effects expected as a result 

of the specified activity, makes the 

necessary findings, and prescribes 


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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 20: Oceana has requested 

NMFS prepare a vessel traffic plan on 

the basis that the site characterization 

surveys will increase the vessel traffic in 

and around the project area. 

NMFS response: NMFS disagrees that 

vessel traffic would increase 

significantly to a level where adverse 

impacts would occur to marine 

mammals in and around NEETMA’s 

survey site. NEETMA anticipates the 

use of up to three concurrently 

operating survey vessels during the 

entire effective period of the IHA, over 

the approximate survey area of 5,183.97 

km2. Due to the size of the planned 

survey area and the small number of 

vessels expected to be operating 

specifically relating to NEETMA’s 

project, NMFS considers it highly 

unlikely that this level of additional 

vessels would increase the risk to the 

species in and around the area. 

Furthermore, NEETMA did not 

request authorization for take incidental 

to vessel traffic during their site 

characterization surveys. Nevertheless, 

NMFS analyzed the potential for vessel 

strikes to occur during the survey, and 

determined that the potential for vessel 

strike is so low as to be discountable. 

NMFS does not authorize any take of 

marine mammals incidental to vessel 

strike resulting from the survey. If 

NEETMA were to strike a marine 

mammal with a vessel, this would be an 

unauthorized take and be in violation of 

the MMPA. This gives NEETMA a 

strong incentive to operate its vessels 

with all due caution and to effectively 

implement the suite of vessel strike 

avoidance measures called for in the 

IHA. NEETMA proposed a very 

conservative suite of mitigation 

measures related to vessel strike 

avoidance, including measures 

specifically designed to avoid impacts 

to NARWs. Section 4(f) in the IHA 

contains a suite of non-discretionary 

requirements pertaining to ship strike 

avoidance, including vessel operation 

protocols and monitoring. To date, 

NMFS is not aware of site 

characterization vessel from surveys 

reporting a ship strike within the United 

States. When considered in the context 

of low overall probability of any vessel 

strike by NEETMA vessels, given the 

limited additional survey-related vessel 

traffic relative to existing traffic in the 

survey area, the comprehensive visual 

monitoring, and other additional 

mitigation measures described herein, 

NMFS believes these measures are 

sufficiently protective to avoid ship 

strike. These measures are described 

fully in the Mitigation section below, 

and include, but are not limited to: 

Training for all vessel observers and 

captains, daily monitoring of NARW 

Sighting Advisory System, WhaleAlert 

app, and USCG Channel 16 for 

situational awareness regarding NARW 

presence in the survey area, 

communication protocols if whales are 

observed by any NEETMA personnel, 

vessel operational protocol should any 

marine mammal be observed, and visual 

monitoring. 

Comment 21: Oceana suggests that 

protected species observers (PSOs) 

complement their survey efforts using 

additional technologies, such as infrared 

detection devices when in low-light 

conditions. 

NMFS response: NMFS agrees with 

Oceana regarding this suggestion and a 

requirement to utilize a thermal 

(infrared) device during low-light 

conditions was included in the 

proposed Federal Register notice. That 

requirement is included as a 

requirement of the issued IHA. 

Comment 22: Oceana suggests that 

NMFS require vessels maintain a 

separation distance of at least 500 m 

from NARWs at all times. 

NMFS response: NMFS agrees with 

Oceana regarding this suggestion and a 

requirement to maintain a separation 

distance of at least 500 m from NARWs 

at all times was included in the 

proposed Federal Register notice and 

was included as a requirement in the 

issued IHA. 

Comment 23: Oceana recommended 

that the IHA should require all vessels 

supporting site characterization to be 

equipped with and using Class A 

Automatic Identification System (AIS) 

devices at all times while on the water. 

Oceana suggested this requirement 

should apply to all vessels, regardless of 

size, associated with the survey. 

NMFS response: NMFS is generally 

supportive of the idea that vessels 

involved with survey activities be 

equipped with and using Class A 

Automatic Identification System 

(devices) at all times while on the water. 

Indeed, there is a precedent for NMFS 

requiring such a stipulation for 

geophysical surveys in the Atlantic 

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

however, those activities carried the 

potential for much more significant 

impacts than the marine site 

characterization surveys to be carried 

out by NEETMA, 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 24: Oceana asserts that the 

IHA must include requirements to hold 

all vessels associated with site 

characterization surveys accountable to 

the IHA requirements, including vessels 

owned by the developer, contractors, 

employees, and others regardless of 

ownership, operator, and contract. They 

state that exceptions and exemptions 

will create enforcement uncertainty and 

incentives to evade regulations through 

reclassification and redesignation. They 

recommend that NMFS simplify this by 

requiring all vessels to abide by the 

same requirements, regardless of size, 

ownership, function, contract or other 

specifics. 

NMFS response: NMFS agrees with 

Oceana and required these measures in 

the proposed IHA and final IHA. The 

IHA requires that a copy of the IHA 

must be in the possession of NEETMA, 

the vessel operators, the lead PSO, and 

any other relevant designees of 

NEETMA carrying out activities subject 

to this IHA. The IHA also states that 

NEETMA must ensure that the vessel 

operator and other relevant vessel 

personnel, including the 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 25: Oceana stated that the 

IHA must include a requirement for all 

phases of the NEETMA’s site 

characterization to subscribe to the 

highest level of transparency, including 

frequent reporting to Federal agencies, 

requirements to report all visual and 

acoustic detections of NARWs and any 

dead, injured, or entangled marine 

mammals to NMFS or the Coast Guard 

as soon as possible and no later than the 

end of the PSO shift. Oceana states that 

to foster stakeholder relationships and 

allow public engagement and oversight 

of the permitting, the IHA should 

require all reports and data to be 

accessible on a publicly available 

website 

NMFS response: NMFS agrees with 

the need for reporting and indeed, the 

MMPA calls for IHAs to incorporate 

reporting requirements. As included in 

the proposed IHA, the final IHA 

includes requirements for reporting that 

supports Oceana’s recommendations. 


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NEETMA 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, NEETMA must 

immediately report sighting information 

to the NMFS North Atlantic Right 

Whale Sighting Advisory System and to 

the U.S. Coast Guard, and that any 

discoveries of injured or dead marine 

mammals be reported by Atlantic 

Shores to the Office of Protected 

Resources, NMFS, and to the New 

England/Mid-Atlantic Regional 

Stranding Coordinator as soon as 

feasible. All reports and associated data 

submitted to NMFS are included on the 

website for public inspection. 

Comment 26: Oceana recommends a 

shutdown requirement if a NARW or 

other ESA-listed species is detected in 

the clearance zone as well as a 

publically available explanation of any 

exemptions as to why the applicant 

would not be able to shutdown in these 

situations. 

NMFS response: There are several 

shutdown requirements described in the 

Federal Register notice of the proposed 

IHA (87 FR 27575; May 9, 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, NEETMA must notify NMFS 

if a NARW is observed at any time by 

any survey vessels during surveys or 

during vessel transit. Additionally, 

NEETMA 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., preclearance 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 right 

whale is detected within the Exclusion 

Zone before a shutdown is 

implemented, the right whale and its 

distance from the sound source, 

including if it is within the Level B 

harassment zone, would be reported in 

NEETMA’s final monitoring report and 

made publicly available on NMFS’ 

website. NEETMA 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 27: Oceana recommended 

that when HRG surveys are allowed to 

resume after a shutdown event, the 

surveys should be required to use a 

ramp-up procedure to encourage any 

nearby marine life to leave the area. 

NMFS response: NMFS agrees with 

this recommendation and included in 

the Federal Register notice of the 

proposed IHA (87 FR 27575; May 9, 

2022) and in this final IHA, which 

includes a stipulation that, when 

technically feasible, survey equipment 

must be ramped up at the start or restart 

of survey activities. Operators must 

ramp up sources to half power for 5 

minutes and then proceed to full power. 

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 zone (EZ). 

Comment 28: COA is concerned 

regarding the number of species that 

could be impacted by the activities, as 

well as a lack of baseline data being 

available for species in the area. In 

addition, COA has stated that NMFS did 

not adequately address the potential for 

cumulative impacts to bottlenose 

dolphins from Level B harassment over 

several years of project activities. 

NMFS response: We appreciate the 

concern expressed by COA. NMFS 

utilizes the best available science when 

analyzing which species may be 

impacted by an applicant’s proposed 

activities. Based on information found 

in the scientific literature, as well as 

based on density models developed by 

Duke University, all marine mammal 

species included in the proposed 

Federal Register notice have some 

likelihood of occurring in NEETMA’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. 

Furthermore, NMFS notes that it has 

previously addressed discussions on 

cumulative impact analyses in previous 

comments and references COA back to 

these specific responses in this notice. 

Regarding the lack of baseline 

information cited by COA, with specific 

concern pointed out for harbor seals, 

NMFS points towards two sources of 

information for marine mammal 

baseline information: the Ocean/Wind 

Power Ecological Baseline Studies, 

January 2008-December 2009 completed 

by the New Jersey Department of 

Environmental Protection in July 2010 

(https://dspace.njstatelib.org/xmlui/ 

handle/10929/68435) and the Atlantic 

Marine Assessment Program for 

Protected Species (AMAPPS; https://

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

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

from 2010 to 2020 (https://

www.fisheries.noaa.gov/resource/ 

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

that cover the areas across the Atlantic 

Ocean. NMFS has duly considered this 

and all available information. 

Based on the information presented, 

NMFS has determined that no new 

information has become available, nor 

do the commenters present additional 

information, that would change our 

determinations since the publication of 

the proposed notice. 

Description of Marine Mammals in the 

Area of Specified Activities 

Sections 3 and 4 of NEETMA’s 

application summarize the available 

information regarding status and trends, 

distribution and habitat preferences, 

and behavior and life history, of the 

potentially affected species. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

Stock Assessment Reports (SARs; 

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

national/marine-mammal-protection/ 

marine-mammal-stock-assessments) 

and more general information about 

these species (e.g., physical and 

behavioral descriptions) may be found 

on NMFS’ website (https://

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

Table 3 lists all species or stocks for 

which take is authorized for this action, 

and summarizes information related to 

the species or stock, including 

regulatory status under the MMPA and 

Endangered Species Act (ESA) and 

potential biological removal (PBR), 

where known. PBR is defined by the 

MMPA as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 


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optimum sustainable population (as 

described in NMFS’ SARs). While no 

mortality is anticipated or authorized 

here, PBR and annual serious injury and 

mortality from anthropogenic sources 

are included here as gross indicators of 

the status of the species and other 

threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All stocks 

managed under the MMPA in this 

region are assessed in NMFS’ U.S. 

Atlantic and Gulf of Mexico Marine 

Mammal Stock Assessment Reports 

(SAR). NMFS has utilized the more 

recent SAR information (in this case, the 

draft 2021 U.S. Atlantic and Gulf of 

Mexico Marine Mammal SARs). All 

values presented in Table 3 are the most 

recent available at the time of 

publication (including from the draft 

2021 SARs) and are available online at: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments). 

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

NEETMA’S ACTIVITY

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

North Atlantic right whale ... Eubalaena glacialis ............. Western North Atlantic ....... E/D, Y 368 (0; 356; 2020) 5 ........................ 0.8 18.6 

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

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

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

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

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

Risso’s dolphin ................... Grampus griseus ................ Western North Atlantic ....... -/-, N 35,493 (0.19; 30,289; 2016) ........... 303 54.3 

Long-finned pilot whale ...... Globicephala melas ............ Western North Atlantic ....... -/-, N 39,215 (0.3; 30,627; 2016) ............. 306 21 

Short-finned pilot whale ...... Globicephala 

macrorhynchus.

Western North Atlantic ....... -/-, Y 28,924 (0.24; 23,637, 2016) ........... 236 136 

Atlantic white-sided dolphin Lagenorhynchus acutus ..... Western North Atlantic ....... -/-, N 93,233 (0.71; 54,443; 2016) ........... 544 26 

Common dolphin ................ Delphinus delphis ............... Western North Atlantic ....... -/-, Y 172,897 (0.21, 145,216, 2016) ....... 526 399 

Common bottlenose dolphin Tursiops truncatus .............. Western North Atlantic— 

Offshore.

-/-, N 62,851 (0.23; 51,914; 2016) ........... 519 28 

Western North Atlantic— 

Coastal Migratory.

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

Atlantic spotted dolphin ...... Stenella frontalis ................. Western North Atlantic ....... -/-, N 39,921 (0.27; 32,032; 2016) ........... 320 0 

Harbor porpoise .................. Phocoena ............................ Gulf of Maine/Bay of Fundy -/-, N 95,543 (0.31; 74,034; 2016) ........... 851 217 

Order Carnivora—Superfamily Pinnipedia 

Harbor seal ......................... Phoca vitulina ..................... Western North Atlantic ....... -/-, N 75,834 (0.15; 66,884; 2012) ........... 2006 350 

Gray seal 4 .......................... Halichoerus grypus ............. Western North Atlantic ....... -/-, N 27,131 (0.19; 23,158; 2016) ........... 1389 4,729 

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

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

as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is 

the coefficient of variation; Nmin is the minimum estimate of stock abundance. 3These 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’ stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total stock. 5The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for North Atlantic right 

whales 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 NEETMA’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 27575; May 9, 

2022). Since that time, we are not aware 

of any changes in the status of these 

species and stocks or other relevant new 

information; therefore, detailed 

descriptions are not provided here. 

Please refer to that Federal Register 

notice for those descriptions. 

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 


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(dB) threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 4. 

TABLE 4—MARINE MAMMAL HEARING GROUPS (NMFS, 2018) 

Hearing group Generalized hearing 

range 1

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

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

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

australis).

275 Hz to 160 kHz. 

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

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

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

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

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

The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

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

2009; Reichmuth and Holt, 2013). 

For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018) for a review of 

available information. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

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 27575; May 9, 2022) included a 

discussion of the potential effects of the 

specified activity on marine mammals 

and their habitat, therefore that 

information is not repeated here; please 

refer to the Federal Register notice (87 

FR 27575; May 9, 2022) for that 

information. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through the 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). 

For this IHA, authorized takes are by 

Level B harassment only, in the form of 

disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to noise from certain 

HRG acoustic sources. Based 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 authorized. 

Consideration of the anticipated 

effectiveness of the 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. Furthermore and as previously 

described, no serious injury or mortality 

is anticipated or 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) the number of days of activities. 

We note that while these factors can 

contribute to a basic calculation to 

provide an initial prediction of takes, 

additional information that can 

qualitatively inform take estimates is 

also sometimes available (e.g., previous 

monitoring results or average group 

size). Below, we describe the factors 

considered here in more detail and 

present the authorized take numbers. 

Acoustic Thresholds 

NMFS uses acoustic thresholds that 

identify the received level of 

underwater sound above which exposed 

marine mammals will 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 mPa 

(rms) for the impulsive sources (i.e., 

boomers, sparkers) and non-impulsive, 

intermittent sources (e.g., CHIRP SBPs) 

evaluated here for NEETMA’s survey 

activities. 

Level A Harassment—NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0) 

(Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

(Level A harassment) to five different 

marine mammal groups (based on 

hearing sensitivity) as a result of 

exposure to noise from two different 

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


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NMFS’ 2018 Technical Guidance, which 

may be accessed at 

www.fisheries.noaa.gov/national/ 

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

NEETMA’s survey activities include 

the use of impulsive (i.e., sparkers and 

boomers) and non-impulsive, 

intermittent (e.g., CHIRP SBP) sources. 

These can be found in Table 2. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that will feed into identifying the area 

ensonified above the acoustic 

thresholds, which include source levels 

and transmission loss coefficient. 

NMFS has developed a user-friendly 

methodology for estimating the extent of 

the Level B harassment isopleths 

associated with relevant HRG survey 

equipment (NMFS, 2020). This 

methodology incorporates frequency 

and directionality to refine estimated 

ensonified zones. For acoustic sources 

that operate with different beamwidths, 

the maximum beamwidth was used, and 

the lowest frequency of the source was 

used when calculating the frequencydependent absorption coefficient. 

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 previously 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. Refer back to Table 2 to see the 

HRG equipment types that may be used 

during the planned surveys and the 

source levels associated with those HRG 

equipment types. Table 5 depicts the 

estimated Level B harassment isopleths 

for each acoustic source. 

TABLE 5—DISTANCES TO LEVEL B HARASSMENT THRESHOLD (160 dB rms) 

Equipment 

category HRG equipment 

Distance to 

Level B 

harassment 

threshold in 

meters 

(m) 

Shallow SBPs ET 216 CHIRP ........................................................................................................................................................ 9 

ET 424 CHIRP ........................................................................................................................................................ 4 

GeoPulse 5430 ........................................................................................................................................................ 21 

TB CHIRP III ........................................................................................................................................................... 48 

Medium SBPs AA, triple plate S-Boom (700–1,000 J) ................................................................................................................... 34 

AA, Dura-spark UHD (500 J/400 tip ....................................................................................................................... 141 

AA, Dura-spark UHD 400+400 ................................................................................................................................ 141 

GeoMarine Geo Spark 2000 (400 tip) .................................................................................................................... 141 

Results of modeling using the 

methodology described previously 

indicated that, of the HRG survey 

equipment planned for use by NEETMA 

that has the potential to result in Level 

B harassment of marine mammals, the 

Applied Acoustics Dura-Spark UHDs 

and GeoMarine Geo-Source sparkers 

will 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 5. 

Although NEETMA does not expect to 

use sparker sources on all planned 

survey days, it assumed, for purposes of 

analysis, that the sparker will be used 

on all survey days. This is a 

conservative approach, as the actual 

sources used on individual survey days 

may produce smaller harassment 

distances. 

Marine Mammal Occurrence 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

Habitat-based density models 

produced by the Duke University 

Marine Geospatial Ecology Laboratory 

and the Marine-life Data and Analysis 

Team, based on the best available 

marine mammal data from 1992–201 

obtained in a collaboration between 

Duke University, the Northeast Regional 

Planning Body, the University of North 

Carolina Wilmington, the Virginia 

Aquarium and Marine Science Center, 

and NOAA (Roberts et al., 2016a; 

Curtice et al., 2018), represent the best 

available information regarding marine 

mammal densities in the survey area. 

More recently, these data have been 

updated with new modeling results and 

include density estimates for pinnipeds 

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

The density data presented by Roberts 

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

incorporates aerial and shipboard linetransect survey data from NMFS and 

other organizations and incorporates 

data from eight physiographic and 16 

dynamic oceanographic and biological 

covariates, and controls for the 

influence of sea state, group size, 

availability bias, and perception bias on 

the probability of making a sighting. 

These density models were originally 

developed for all cetacean taxa in the 

U.S. Atlantic (Roberts et al., 2016a). In 

subsequent years, certain models have 

been updated based on additional data 

as well as certain methodological 

improvements. More information is 

available online at https://

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

EC/. Marine mammal density estimates 

in the survey area (animals/km2) were 

obtained using the most recent model 

results for all taxa (Roberts et al., 2016b, 

2017, 2018, 2020). The updated models 

incorporate additional sighting data, 

including sightings from NOAA’s 

Atlantic Marine Assessment Program for 

Protected Species (AMAPPS) surveys. 

For the exposure analysis, marine 

mammal density data from Roberts et al. 

(2016a, 2016b, 2017, 2018, 2020, 2021a, 

2021b) were mapped for the survey area 

using a geographic information system 

(GIS). NEETMA used all 10 × 10 km (6.2 

× 6.2 mile) grid cells (5 × 5 km (3.1 × 

3.1 mile) for the North Atlantic right 

whale) where the centroid was within 

each survey area in developing 

estimated density values for each 

species. For data in which the Roberts 

et al. data does not provide outputs at 

the species level (i.e., pilot whale spp. 

and pinnipeds) the single annual 

density was used. For all other species, 

the monthly densities were used to 


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yield the average annual density. 

Bottlenose dolphin density estimates 

were also divided based on the specified 

stock. 

In the Roberts et al. (2016b, 2017, 

2018) models, species-specific 

delineations were not made for some 

marine mammals, including some 

pinniped species’ (harbor seal and gray 

seal) and for pilot whale spp. (longfinned and short-finned). For pilot 

whales, both species are known to share 

similar habitat in the Project area, feed 

on similar prey, and have overlapping 

distributions (Mintzer et al., 2008; Rone 

and Pace, 2012). Hayes et al. (2017) 

noted a particular overlap between the 

two species between New Jersey and 

George’s Bank. Furthermore, due to 

their similar appearances at sea and 

difficulty in distinguishing speciesspecific characteristics, observers are 

likely to combine sightings of pilot 

whales (Waring, 1993; Rone and Pace, 

2012; Stepanuk et al., 2018). 

Regarding the pinniped species, 

because the seasonality, feeding 

preferences, and habitat use by gray 

seals often overlaps with that of harbor 

seals in the survey areas, it was assumed 

that modeled takes of seals could occur 

to either of the respective species. 

As discussed in the application, the 

single annual density for each marine 

mammal group (pilot whale spp. and 

pinnipeds) was applied and the results 

were divided between each species, 

resulting in an equal split based on the 

lack of evidence to support a different 

allocation. 

For the bottlenose dolphin densities, 

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

not differentiate by stock. The Western 

North Atlantic northern migratory 

coastal stock is generally expected to 

occur only in coastal waters from the 

shoreline to approximately the 20-m 

(65-ft) isobath (Hayes et al., 2018). Both 

of these stocks have the potential to 

occur in the Northern and Southern 

survey areas. To account for the 

potential for mixed stocks within the 

survey areas, the densities of the two 

stocks were apportioned based on the 

20-m isobaths contour. Any grid cells in 

the Roberts et al. data that feel entirely 

inshore of the 20-m isobaths were 

assigned to the coastal migratory stock. 

Any grid cells that fell outside this 20- 

m isobaths were apportioned to the 

offshore stock. 

Densities from both of the survey sites 

were averaged annually to provide a 

density estimate for each species; please 

see Table 6 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. 

TABLE 6—MAXIMUM SEASONAL MARINE MAMMAL DENSITIES (NUMBER OF ANIMALS PER 100 km2) IN THE NORTHERN AND

SOUTHERN SURVEY AREAS

Species groups Marine mammal species Stock 

Mean annual density 

(number of animals/100km2) a

Northern 

survey area 

Southern 

survey area 

Cetaceans ....................................... North Atlantic right whale ............... Western North Atlantic ................... 0.169 0.102 

Fin whale ........................................ Western North Atlantic ................... 0.154 0.058 

Sperm whale .................................. North Atlantic ................................. 0.017 0.002 

Humpback whale ........................... Gulf of Maine ................................. 0.042 0.040 

Common minke whale ................... Canadian East Coast ..................... 0.044 0.010 

Risso’s dolphin ............................... Western North Atlantic ................... 0.014 0.001 

Long-finned pilot whale .................. Western North Atlantic ................... 0.108 0.005 

Short-finned pilot whale ................. Western North Atlantic ................... 0.108 0.005 

Atlantic white-sided dolphin ........... Western North Atlantic ................... 0.836 0.092 

Common dolphin (short-beaked) ... Western North Atlantic ................... 5.692 0.739 

Common bottlenose dolphin .......... Western North Atlantic—Offshore 2.616 8.158 

Western North Atlantic—Coastal 

Migratory.

14.203 33.409 

Atlantic spotted dolphin .................. Western North Atlantic ................... 0.129 0.004 

Harbor porpoise ............................. Gulf of Maine/Bay of Fundy ........... 3.012 0.874 

Pinnipeds ........................................ Harbor seal .................................... Western North Atlantic ................... 1.690 1.226 

Gray seal ........................................ Western North Atlantic ................... 1.690 1.226 

aAll density data was derived from Roberts et al. (2016a, 2016b, 2017, 2018, 2020, 2021a, 2021b). 

Take Calculation and Estimation 

Here we describe how the information 

provided previously 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 will result 

in harassment, radial distances to 

predicted isopleths corresponding to 

Level B harassment thresholds are 

calculated, as described previously. The 

maximum distance (i.e., 141 m distance 

associated with the Medium SBPs) to 

the Level B harassment criterion and the 

estimated distance traveled per day by 

a given survey vessel (i.e., 62 km (38.5 

mi)) are then used to calculate the daily 

ensonified area, or zone of influence 

(ZOI) around the survey vessel. 

NEETMA estimates that the surveys 

will achieve a maximum daily track line 

distance of 62 km per day (24-hour 

period). This distance accounts for the 

vessel traveling at approximately 4- 

knots and accounts for non-active 

survey periods. Based on the maximum 

estimated distance to the Level B 

harassment threshold of 141 m (refer 

back to Table 5) and the maximum 

estimated daily track line distance of 62 

km across both survey sites, an area of 

5,183.97 km2 will be ensonified to the 

Level B harassment threshold during 

NEETMA’s surveys (Table 7) based on 

the following formula: 

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

+ pr2

Where: Distance/day = the maximum 

distance a survey vessel could travel in 

a 24-hour period; and r = the maximum 

radial distance from a given sound 

source to the NOAA Level B harassment 

thresholds. 


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TABLE 7—ZOI FOR EACH TYPE OF REPRESENTATIVE HRG SURVEY EQUIPMENT

Equipment type 

Largest 

harassment 

isopleth in 

km (m); r 

Distance/day in 

km ZOI (km2) 

Shallow SBP .............................................................................................................. 0.048 (48) 62 5.98 

Medium SBP (sparker) .............................................................................................. 0.141 (141) .............................. 17.61 

These calculated ZOIs were than 

input to yield the total ensonified area 

per day (in km2), as shown in Table 8 

below. 

TABLE 8—HRG SURVEY AREA DISTANCES FOR NEETMA’S PROJECT

HRG survey equipment 

type 

Specific equipment used Largest 

harassment 

isopleth; 

r (km) 

Survey 

distances 

per day 

(km)1

Calculated 

ZOI per day 

(km2) 

Shallow SBP ................. TB CHIRP III 0.048 62 5.98 

Medium (SBP) .............. AA, Dura-spark UHD 

(500 J/400 tip).

AA, Dura-spark UHD 

400+400.

GeoMarine 

Geo Spark 

2000 (400 tip) 

........................ 0.141 17.61 

1Assumes 24-hours of survey activity during the Project. 

As described previously, this is a 

conservative estimate as it assumes the 

HRG source that results in the greatest 

isopleth distance to the Level B 

harassment threshold will be operated 

at all times during the entire survey, 

which may not ultimately occur. 

The number of marine mammals 

expected to be incidentally taken per 

day is then calculated by estimating the 

number of each species predicted to 

occur within the daily ensonified area 

(animals/km2), incorporating the 

maximum seasonal estimated marine 

mammal densities as described 

previously. Estimated numbers of each 

species taken per day across both survey 

sites are then multiplied by the total 

number of survey days (i.e., 320). The 

product is then rounded, to generate an 

estimate of the total number of instances 

of harassment expected for each species 

over the duration of the survey. A 

summary of this method is illustrated in 

the following formula with the resulting 

authorized take of marine mammals 

shown in Table 9: 

Estimated Take = D × ZOI × # of days 

Where: D = average species density (per 

km2); and ZOI = maximum daily 

ensonified area to relevant thresholds. 

TABLE 9—TOTAL AUTHORIZED TAKES BY LEVEL B HARASSMENT AND PERCENT OF POPULATION/STOCK FOR NEETMA’S

PROJECT

Marine mammal species Stock 

Calculated level B take Authorized level B take 

Northern 

survey 

area 

Southern 

survey area 

Total 

authorized a % stock c

North Atlantic right whale ............................. Western North Atlantic ......... 7.40 0.83 8 2.17 

Fin whale ...................................................... Western North Atlantic ......... 6.73 0.47 7 0.10 

Sperm whale ................................................. North Atlantic ........................ 0.73 0.02 3 0.07 

Humpback whale .......................................... Gulf of Maine ........................ 1.83 0.33 3 (6) b 0.21 (0.43) b

Common minke whale .................................. Canadian East Coast ........... 1.92 0.08 2 0.01 

Risso’s dolphin .............................................. Western North Atlantic ......... 0.62 0.01 30 0.09 

Long-finned pilot whale ................................. Western North Atlantic ......... 4.72 0.04 20 0.05 

Short-finned pilot whale ................................ Western North Atlantic ......... 4.72 0.04 20 0.07 

Atlantic white-sided dolphin .......................... Western North Atlantic ......... 36.52 0.76 37 0.04 

Common dolphin (short-beaked) .................. Western North Atlantic ......... 248.52 6.04 255 0.15 

Common bottlenose dolphin ......................... Western North Atlantic—Offshore.53.88 9.27 63 0.10 

Western North Atlantic— 

Coastal Migratory.

325.25 235.27 561 8.45 

Atlantic spotted dolphin ................................ Western North Atlantic ......... 5.61 0.03 100 0.25 

Harbor porpoise ............................................ Gulf of Maine/Bay of Fundy 131.51 7.15 139 0.15 

Harbor seal ................................................... Western North Atlantic ......... 73.77 10.02 84 0.14 

Gray seal ...................................................... Western North Atlantic ......... 73.77 10.02 84 0.31 

aAll of these values were requested by NEETMA, with exception for the value in parenthesis found for humpback whales. 

bThe values in parenthesis were a proposed adjustment by NMFS based on a proposed adjustment to account for higher recorded occurrences of humpback whales in the New York Bight area (see King et al., 2021). c Calculated percentages of population/stock were based on the population estimates (Nest) found in the NMFS’s draft 2021 U.S. Atlantic and 

Gulf of Mexico Marine Mammal Stock Assessment on NMFS’s website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). 


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Adjustments were made for sperm 

whales (Barkaszi and Kelly, 2019), 

Risso’s dolphin (Baird et al., 1991; 

Barkaszi and Kelly, 2019), pilot whales 

spp. (CETAP, 1982), and Atlantic 

spotted dolphins (Jefferson et al., 2008) 

based on typical group sizes due to 

estimated takes lower than the predicted 

group size. The take numbers shown in 

Table 9 represent those originally 

calculated and requested by NEETMA 

with minor modifications adjusted by 

NMFS for one species. 

Based on recent information from 

King et al. (2021) that demonstrated that 

the humpback whale is commonly 

sighted along the New York Bight area, 

NMFS determined that the humpback 

whale take request may be too low given 

the occurrence of animals near the 

survey area. Because of this, NMFS has 

increased the requested take to account 

for underestimates to the actual 

occurrence of this species within the 

density data. 

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 requires that the following 

mitigation measures be implemented 

during NEETMA’s marine site 

characterization surveys. Pursuant to 

Section 7 of the ESA, NEETMA will 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-englandmid-atlantic/consultations/section-7- 

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

Marine Mammal Exclusion Zones and 

Harassment Zones 

Marine mammal EZs will be 

established around the HRG survey 

equipment and monitored by NMFSapproved PSOs: 

• 500 m EZ for North Atlantic right 

whales during use of specified acoustic 

sources (sparkers, boomers, and nonparametric sub-bottom profilers). 

• 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 

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. 

Pre-Start Clearance 

Marine mammal clearance zones will 

be established around the HRG survey 

equipment and monitored by PSOs: 

• 500 m for all ESA-listed marine 

mammals; and, 

• 100 m for all other marine 

mammals. 

NEETMA 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 a clearance zone during 

the pre-start clearance period, ramp-up 

may not begin until the animal(s) has 

been observed exiting its respective 

exclusion zone or until an additional 

time period has elapsed with no further 

sighting (i.e., 15 minutes for small 

odontocetes and seals, and 30 minutes 

for all other species). 

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). 


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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 

(refer back to Table 5), shutdown will 

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 rampup procedures will be initiated as 

described in the previous section. 

The shutdown requirement will be 

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. 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 is 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), however, these 

procedure will be required for nonparametric sub-bottom profilers (e.g., 

CHIRPs). 

Vessel Strike Avoidance 

NEETMA must adhere to the 

following measures except in the case 

where compliance will create an 

imminent and serious threat to a person 

or vessel or to the extent that a vessel 

is restricted in its ability to maneuver 

and, because of the restriction, cannot 

comply. 

• Vessel operators and crews must 

maintain a vigilant watch for all 

protected species and slow down, stop 

their vessel, or alter course, as 

appropriate and regardless of vessel 

size, to avoid striking any protected 

species. A visual observer aboard the 

vessel must monitor a vessel strike 

avoidance zone based on the 

appropriate separation distance around 

the vessel (distances stated below). 

Visual observers monitoring the vessel 

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

members, but crew members 

responsible for these duties must be 

provided sufficient training to (1) 

distinguish protected species from other 

phenomena and (2) broadly to identify 

a marine mammal as a right whale, 

other whale (defined in this context as 

sperm whales or baleen whales other 

than right whales), or other marine 

mammal. 

• Members of the monitoring team 

will consult NMFS North Atlantic right 

whale reporting system and WhaleAlert 

(http://www.whalealert.org), as able, for 

the presence of North Atlantic right 

whales throughout survey operations, 

and for the establishment of a DMA. If 

NMFS should establish a DMA in the 

survey area during the survey, the 

vessels will abide by speed restrictions 

in the DMA. 

• All survey vessels, regardless of 

size, must observe a 10-kn (5.14 m/s) 

speed restriction in specific areas 

designated by NMFS for the protection 

of North Atlantic right whales from 

vessel strikes including seasonal 

management areas (SMAs) and dynamic 

management areas (DMAs) when in 

effect; 

• All vessels greater than or equal to 

19.8 m in overall length operating from 

November 1 through April 30 will 

operate at speeds of 10 kn (5.14 m/s) or 

less at all times; 

• All vessels must reduce their speed 

to 10 kn (5.14 m/s) or less when mother/ 

calf pairs, pods, or large assemblages of 

cetaceans are observed near a vessel; 

• All vessels must maintain a 

minimum separation distance of 500 m 

from right whales and other ESA-listed 

large whales; 

• If a whale is observed but cannot be 

confirmed as a species other than a right 

whale or other ESA-listed large whale, 

the vessel operator must assume that it 

is a right whale and take appropriate 

action; 

• All vessels must maintain a 

minimum separation distance of 100 m 

from non-ESA listed whales; 

• All vessels must, to the maximum 

extent practicable, attempt to maintain a 

minimum separation distance of 50 m 

from all other marine mammals, with an 

understanding that at times this may not 

be possible (e.g., for animals that 

approach the vessel). 

• 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 the 

applicant’s measures, as well as other 

measures considered by NMFS, we have 

determined that the required mitigation 

measures provide the means of effecting 

the least practicable impact on marine 

mammal species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance. 

Monitoring and Reporting 

In order to issue an IHA for an 

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

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104 (a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the action area. Effective 

reporting is critical both to compliance 

as well as ensuring that the most value 

is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density). 


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• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

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

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

of marine mammal species with the 

action; or (4) biological or behavioral 

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

feeding areas). 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors. 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks. 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat). 

• Mitigation and monitoring 

effectiveness. 

Monitoring Measures 

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. NEETMA 

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. 

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) will ensure 360° 

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 

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 draft 

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 

PR.ITP.MonitoringReports@

noaa.gov,nmfs.gar.incidental-take@

noaa.gov, and ITP.Potlock@noaa.gov. 

The report must contain at minimum, 

the following: 

• PSO names and affiliations; 

• Dates of departures and returns to 

port with port name; 

• Dates and times (Greenwich Mean 

Time) of survey effort and times 

corresponding with PSO effort; 

• Vessel location (latitude/longitude) 

when survey effort begins and ends; 

• Vessel location at beginning and 

end of visual PSO duty shifts; 

• Vessel heading and speed at 

beginning and end of visual PSO duty 

shifts and upon any line change; 

• Environmental conditions while on 

visual survey (at beginning and end of 

PSO shift and whenever conditions 

change significantly), including wind 

speed and direction, Beaufort sea state, 

Beaufort wind force, swell height, 

weather conditions, cloud cover, sun 

glare, and overall visibility to the 

horizon; 

• Factors that may be contributing to 

impaired observations during each PSO 

shift change or as needed as 

environmental conditions change (e.g., 

vessel traffic, equipment malfunctions); 

and 

• Survey activity information, such as 

type of survey equipment in operation, 

acoustic source power output while in 

operation, and any other notes of 

significance (i.e., pre-start clearance 

survey, ramp-up, shutdown, end of 

operations, etc.). 


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If a marine mammal is sighted, the 

following information should be 

recorded: 

• Watch status (sighting made by PSO 

on/off effort, opportunistic, crew, 

alternate vessel/platform); 

• PSO who sighted the animal; 

• Time of sighting; 

• Vessel location at time of sighting; 

• Water depth; 

• Direction of vessel’s travel (compass 

direction); 

• Direction of animal’s travel relative 

to the vessel; 

• Pace of the animal; 

• Estimated distance to the animal 

and its heading relative to vessel at 

initial sighting; 

• Identification of the animal (e.g., 

genus/species, lowest possible 

taxonomic level, or unidentified); also 

note the composition of the group if 

there is a mix of species; 

• Estimated number of animals (high/ 

low/best); 

• Estimated number of animals by 

cohort (adults, yearlings, juveniles, 

calves, group composition, etc.); 

• Description (as many distinguishing 

features as possible of each individual 

seen, including length, shape, color, 

pattern, scars or markings, shape and 

size of dorsal fin, shape of head, and 

blow characteristics); 

• Detailed behavior observations (e.g., 

number of blows, number of surfaces, 

breaching, spyhopping, diving, feeding, 

traveling; as explicit and detailed as 

possible; note any observed changes in 

behavior); 

• Animal’s closest point of approach 

and/or closest distance from the center 

point of the acoustic source; 

• Platform activity at time of sighting 

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

acquisition, other); and 

• Description of any actions 

implemented in response to the sighting 

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

or course alteration, etc.) and time and 

location of the action. 

If a North Atlantic right whale is 

observed at any time by PSOs or 

personnel on any Project vessels, during 

surveys or during vessel transit, 

NEETMA must immediately report 

sighting information to the NMFS North 

Atlantic Right Whale Sighting Advisory 

System: (866) 755–6622. North Atlantic 

right whale sightings in any location 

may also be reported to the U.S. Coast 

Guard via Channel 16. 

In the event that NEETMA personnel 

discover an injured or dead marine 

mammal, NEETMA will report the 

incident to the NMFS Office of 

Protected Resources (OPR) and the 

NMFS New England/Mid-Atlantic 

Stranding Coordinator (978–282–8478 

or 978–281–9291) as soon as feasible. 

The report will include the following 

information: 

• Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• General circumstances under which 

the animal was discovered. 

In the unanticipated event of a ship 

strike of a marine mammal by any vessel 

involved in the activities covered by the 

IHA, NEETMA will report the incident 

to the NMFS OPR and the NMFS New 

England/Mid-Atlantic Stranding 

Coordinator (978–282–8478 or 978– 

281–9291) as soon as feasible. The 

report will include the following 

information: 

• Time, date, and location (latitude/ 

longitude) of the incident; 

• Species identification (if known) or 

description of the animal(s) involved; 

• Vessel’s speed during and leading 

up to the incident; 

• Vessel’s course/heading and what 

operations were being conducted (if 

applicable); 

• Status of all sound sources in use; 

• Description of avoidance measures/ 

requirements that were in place at the 

time of the strike and what additional 

measures were taken, if any, to avoid 

strike; 

• Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, visibility) 

immediately preceding the strike; 

• Estimated size and length of animal 

that was struck; 

• Description of the behavior of the 

marine mammal immediately preceding 

and following the strike; 

• If available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; 

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

dead, injured but alive, injured and 

moving, blood or tissue observed in the 

water, status unknown, disappeared); 

and 

• To the extent practicable, 

photographs or video footage of the 

animal(s). 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

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

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 

of the mitigation. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’s implementing 

regulations (54 FR 40338; September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

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

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

To avoid repetition, our analysis 

applies to all the species listed in Table 

3 given that NMFS expects the 

anticipated effects of the survey to be 

similar in nature. Where there are 

meaningful differences between species 

or stocks—as is the case of the North 

Atlantic right whale—they are included 

as separate subsections below. NMFS 

does not anticipate that serious injury or 

mortality will occur as a result from 

HRG surveys, even in the absence of 

mitigation, and no serious injury or 

mortality is authorized. 

As discussed in the Potential Effects 

of Specified Activities on Marine 

Mammals and their Habitat section of 

the proposed Federal Register notice 

(87 FR 27575; May 9, 2022), nonauditory physical effects and vessel 

strike are not expected to occur. NMFS 

expects that all potential takes will 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 were 

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 


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overall stock is unlikely to result in any 

significant realized decrease in viability 

for the affected individuals, and thus 

will not result in any adverse impact to 

the stock as a whole. As described 

previously, Level A harassment is not 

expected to occur given the nature of 

the operations and the estimated size of 

the Level A harassment zones. 

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 activities in estimating take 

numbers and evaluated here, in reality 

much of the survey activity will 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 survey area and 

there are no feeding areas known to be 

biologically important to marine 

mammals within the survey area. There 

is no designated critical habitat for any 

ESA-listed marine mammals in the 

survey area. 

North Atlantic Right Whales 

The status of the North Atlantic right 

whale population is of heightened 

concern and, therefore, merits 

additional analysis. As noted 

previously, elevated North Atlantic right 

whale mortalities began in June 2017 

and there is an active UME. Overall, 

preliminary findings support human 

interactions, specifically vessel strikes 

and entanglements, as the cause of 

death for the majority of right whales. 

As noted previously, the survey area 

overlaps a migratory corridor BIA for 

North Atlantic right whales. Due to the 

fact that the survey activities are 

temporary and the spatial extent of 

sound produced by the survey will be 

very small relative to the spatial extent 

of the available migratory habitat in the 

BIA, right whale migration is not 

expected to be impacted by the survey. 

Given the relatively small size of the 

ensonified area, it is unlikely that prey 

availability will 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 NEETMA’s activities. 

Additionally, only very limited take by 

Level B harassment of North Atlantic 

right whales has been requested and is 

authorized by NMFS, as HRG survey 

operations are required to maintain a 

500 m EZ and shutdown if a North 

Atlantic right whale is sighted at or 

within the EZ. The 500 m shutdown 

zone for right whales is conservative, 

considering the Level B harassment 

isopleth for the most impactful acoustic 

source (i.e., sparker) is estimated to be 

141 m, and thereby minimizes the 

potential for behavioral harassment of 

this species. As noted previously, Level 

A harassment is not expected due to the 

small PTS zones associated with HRG 

equipment types planned for use. NMFS 

does not anticipate North Atlantic right 

whales takes that will result from 

NEETMA’s survey activities will impact 

annual rates of recruitment or survival. 

Thus, any takes that occur will not 

result in population level impacts. 

Other Marine Mammal Species With 

Active UMEs 

As noted previously, there are several 

active UMEs occurring in the vicinity of 

NEETMA’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 3, including those with active 

UMEs, to the level of least practicable 

adverse impact. In particular they will 

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 for 

this Project. 

NMFS expects that takes will 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 will only 

be exposed briefly to a small ensonified 

area that might result in take. 

Additionally, required mitigation 

measures will further reduce exposure 

to sound that could result in more 

severe behavioral harassment. 

Biologically Important Areas for Other 

Species 

As previously discussed, impacts 

from the Project are expected to be 

localized to the specific area of activity 

and only during periods of time where 

NEETMA’s acoustic sources are active. 

While areas of biological importance to 

fin whales, humpback whales, and 

harbor seals can be found off the coast 

of New Jersey and New York, NMFS 

does not expect this action to affect 

these areas. These important areas are 

found outside of the range of this survey 

area, as is the case with fin whales and 

humpback whales (BIAs found further 

north), and, therefore, not expected to 

be impacted by NEETMA’s survey 

activities. 

There are three major haul-out sites 

exist for harbor seals along New Jersey, 

including at Great Bay, Sand Hook, and 

Barnegat Inlet (CWFNJ, 2015). As 

hauled out seals will be out of the water, 

no in-water effects are expected. 

Determinations 

In summary and as described 

previously, the following factors 

primarily support our determination 

that the impacts resulting from this 

activity are not expected to adversely 


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40820 Federal Register / Vol. 87, No. 130 / Friday, July 8, 2022 / Notices 

affect the species or stock through 

effects on annual rates of recruitment or 

survival: 

• No mortality or serious injury is 

anticipated or will be authorized; 

• No Level A harassment is 

anticipated, even in the absence of 

mitigation measures, or authorized; 

• Foraging success is not likely to be 

significantly impacted as effects on 

species that serve as prey species for 

marine mammals from the survey are 

expected to be minimal; 

• The availability of alternate areas of 

similar habitat value for marine 

mammals to temporarily vacate the 

survey area during the planned survey 

to avoid exposure to sounds from the 

activity; 

• Take is anticipated to be by Level 

B behavioral harassment only, 

consisting of brief startling reactions 

and/or temporary avoidance of the 

survey area; 

• While the survey area is within 

areas noted as a migratory BIA for North 

Atlantic right whales, the activities will 

occur in such a comparatively small 

area such that any avoidance of the 

survey area due to activities will not 

affect migration. In addition, mitigation 

measures require shutdown at 500 m 

(almost four times the size of the Level 

B harassment isopleth (141 m)), which 

minimizes the effects of the take on the 

species; and, 

• The required mitigation measures, 

including visual monitoring and 

shutdowns, are expected to minimize 

potential impacts to marine mammals. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

required mitigation, monitoring, and 

reporting measures, NMFS finds that the 

total marine mammal take from 

NEETMA’s survey activities will have a 

negligible impact on all affected marine 

mammal species or stocks. 

Small Numbers 

As noted previously, 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 proposes to authorize 

incidental take of 15 marine mammal 

species (with 16 managed stocks). The 

total amount of takes authorized relative 

to the best available population 

abundance is less than 8.5 percent for 

each stock which NMFS finds are small 

numbers of marine mammals relative to 

the estimated overall population 

abundances for those stocks (Table 3). 

Based on the analysis of the specified 

activity contained herein and in our 

Notice proposing issuance of the IHA 

(including the required mitigation and 

monitoring measures) and the 

anticipated take of marine mammals, 

NMFS finds that small numbers of 

marine mammals will be taken relative 

to the population size of the affected 

species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks will not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (ESA: 16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

IHAs, NMFS Office of Protected 

Resources (OPR) consults internally 

whenever we propose to authorize take 

for endangered or threatened species. 

NMFS is authorizing the incidental 

take of four species of marine mammals 

which are listed under the ESA, 

including the North Atlantic right, fin, 

sei, and sperm whale, and has 

determined that these activities fall 

within the scope of activities analyzed 

in GARFO’s programmatic consultation 

regarding geophysical surveys along the 

U.S. Atlantic coast in the three Atlantic 

Renewable Energy Regions (completed 

June 29, 2021; revised September 2021). 

The consultation concluded that NMFS’ 

authorization of take incidental to these 

types of activities under the MMPA is 

not likely to adversely affect ESA-listed 

marine mammals. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

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

NOAA Administrative Order (NAO) 

216–6A, NMFS must review our action 

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

respect to potential impacts on the 

human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 (IHAs with no 

anticipated serious injury or mortality) 

of the Companion Manual for NOAA 

Administrative Order 216–6A, which do 

not individually or cumulatively have 

the potential for significant impacts on 

the quality of the human environment 

and for which we have not identified 

any extraordinary circumstances that 

will 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 NEETMA 

for conducting site characterization 

surveys off New Jersey from July 1, 2022 

through June 30, 2023, provided the 

previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. The final IHA and 

NEETMA’s IHA application can be 

found on NMFS’ website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-nexteraenergy-transmission-midatlanticholdings-llc-marine. 

Dated: July 5, 2022. 

Kimberly Damon-Randall, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2022–14569 Filed 7–7–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XV188 

Request for Information on Industry 

Needs for Space Situational 

Awareness Data and Value-Added 

Services, and Related Liability 

Considerations 

AGENCY: Office of Space Commerce, 

Department of Commerce, National 


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