Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Off the Coast of Massachusetts, 36539-36560 [2018-16200]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)]
[Notices]
[Pages 36539-36560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16200]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF926


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys Off 
the Coast of Massachusetts

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an Incidental Harassment Authorization (IHA) to 
take marine mammals, by harassment, incidental to high-resolution 
geophysical (HRG) survey investigations associated with marine site 
characterization activities off the coast of Massachusetts in the area 
of the Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf (OCS-A 0500) and along cable 
routes to the coast of Massachusettes (the Study Area).

DATES: This Authorization is valid for one year from the date of 
issuance.

FOR FURTHER INFORMATION CONTACT: Dale Youngkin, 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: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, 
please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to,

[[Page 36540]]

migration, breathing, nursing, breeding, feeding, or sheltering (Level 
B harassment).

Summary of Request

    On October 20, 2017 NMFS received an application from Bay State 
Wind for the taking of marine mammals incidental to site 
characterization investigations off the coast of Massachusetts in the 
OCS-A 0500 Study Area, designated and offered by the Bureau of Ocean 
Energy Management (BOEM), to support the development of an offshore 
wind project. Bay State Wind's request was for take, by Level A and 
Level B harassment, of a small number of 10 species or stocks of marine 
mammals. As there were changes to the proposed project activities and 
equipment proposed for use after this initial application submittal, a 
complete application was received in April, 2018. In addition, some 
species not originally considered for take have been authorized based 
on further consideration and coordination, so incidental take of 13 
species/stocks have now been authorized. Neither the applicant nor NMFS 
expects serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.

Description of the Specified Activity

Overview

    Bay State Wind proposes to conduct HRG surveys in the Study Area to 
support the characterization of the existing seabed and subsurface 
geological conditions in the Study Area. This information is necessary 
to support the final siting, design, and installation of offshore 
project facilities, turbines and subsea cables within the project area 
as well as to collect the data necessary to support the review 
requirements associated with Section 106 of the National Historic 
Preservation Act of 1966, as amended. Underwater sound resulting from 
Bay State Wind's proposed site characterization surveys has the 
potential to result in incidental take of marine mammals. This take of 
marine mammals is anticipated to be in the form of harassment and no 
serious injury or mortality is anticipated, nor is any authorized in 
this IHA.

Dates and Duration

    HRG surveys of the wind turbine generator (WTG) and offshore 
substation (OSS) areas are anticipated to commence upon issuance of the 
IHA and will last for approximately 60 days, including estimated 
weather down time. Likewise, the Export Cable Route HRG surveys are 
anticipated to commence upon issuance of the IHA and will last 
approximately 40 days (including estimated weather down time). Offshore 
and near coastal shallow water regions of the HRG survey will occur 
within the same 40-day timeframe.

Specified Geographic Region

    Bay State Wind's survey activities will occur in the approximately 
187,532-acre Lease Area designated and offered by BOEM, located 
approximately 14 miles (mi) south of Martha's Vineyard, Massachusetts 
at its closest point, as well as within 2 potential export cable routes 
to Somerset, MA and to Falmouth, MA (see Figure 1-1 of the IHA 
application). The Lease Area falls within the Massachusetts Wind Energy 
Area (MA WEA).
    A detailed description of the planned survey activities, including 
types of survey equipment planned for use, is provided in the Federal 
Register notice for the proposed IHA (83 FR 22443; May 15, 2018). Since 
that time, no changes have been made to the planned activities. 
Therefore, a detailed description is not repeated here. Please refer to 
that Federal Register notice for the description of the specific 
activity.

Comments and Responses

    NMFS published a notice of proposed IHA in the Federal Register on 
May 15, 2018 (83 FR 22443). During the 30-day public comment period, 
NMFS received comment letters from the Marine Mammal Commission 
(Commission) and a group of non-governmental organizations (NGOs) 
including Natural Resources Defense Council, the National Wildlife 
Federation, the Conservation Law Foundation, Defenders of Wildlife, 
Southern Environmental Law Center, Surfrider Foundation, Sierra Club, 
and the International Fund for Animal Welfare. No other public comments 
were received. NMFS has posted the comment letters received online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The U.S. Fish 
and Wildlife Service (USFWS) New England Field Office reviewed our 
proposal and had no comment. The following is a summary of the 
Commission comments received and NMFS's responses.
    Comment 1: The Commission notes that impulsive thresholds, rather 
than non-impulsive thresholds, were incorrectly used to model Level A 
harassment zones for the ultra-short baseline positioning system (UBPS) 
and sub-bottom profiler (SBP) sources, which resulted in overly 
conservative Level A harassment zones. The Commission stated that the 
correct threshold should have been used, regardless of whether the 
incorrect threshold was more conservative, and NMFS should prohibit 
applicants from using impulsive thresholds for non-impulsive sources.
    NMFS Response: NMFS appreciates the input from the Commission. We 
acknowledge the error, and have corrected it in this final notice 
(refer to Table 3) and IHA. Take by Level A harassment is not likely, 
even based on the larger (more conservative) isopleth associated with 
the impulsive threshold. The use of the non-impulsive threshold does 
not change our findings or determinations under the MMPA. NMFS does not 
allow applicants to arbitrarily choose which thresholds to use.
    Comment 2: The Commission recommended that NMFS refrain from 
authorizing Level A harassment takes of harbor porpoises.
    NMFS Response: Take by Level A harassment is not being authorized 
in this IHA.
    Comment 3: The Commission recommended that, until behavioral 
thresholds are updated, NMFS require applicants to use the 120-decibel 
(dB) re 1 micropascal ([mu]Pa), rather than 160- dB re 1[mu]Pa, 
threshold for acoustic, non-impulsive sources (e.g., sub-bottom 
profilers/chirps, echosounders, and other sonars including side-scan 
and fish-finding).
    NMFS Response: Certain sub-bottom profiling systems are 
appropriately considered to be impulsive sources (e.g., boomers, 
sparkers); therefore, the threshold of 160 dB re 1[mu]Pa will continue 
to be used for those sources. Other source types referenced by the 
Commission (e.g., chirp sub-bottom profilers, echosounders, and other 
sonars including side-scan and fish-finding) produce signals that are 
not necessarily strictly impulsive; however, NMFS finds that the 160-dB 
root mean square (rms) threshold is most appropriate for use in 
evaluating potential behavioral impacts to marine mammals because the 
temporal characteristics (i.e., intermittency) of these sources are 
better captured by this threshold. The 120-dB threshold is associated 
with continuous sources and was derived based on studies examining 
behavioral responses to drilling and dredging. Continuous sounds are 
those whose sound pressure level remains above that of the ambient 
sound, with negligibly small fluctuations in level (NIOSH, 1998; ANSI, 
2005). Examples of sounds that NMFS would categorize

[[Page 36541]]

as continuous are those associated with drilling or vibratory pile 
driving activities. Intermittent sounds are defined as sounds with 
interrupted levels of low or no sound (NIOSH, 1998). Thus, signals 
produced by these source types are not continuous but rather 
intermittent sounds. With regard to behavioral thresholds, we consider 
the temporal and spectral characteristics of signals produced by these 
source types to more closely resemble those of an impulse sound rather 
than a continuous sound. The threshold of 160 dB re 1[mu]Pa is 
typically associated with impulsive sources, which are inherently 
intermittent. Therefore, the 160 dB threshold (typically associated 
with impulsive sources) is more appropriate than the 120 dB threshold 
(typically associated with continuous sources) for estimating takes by 
behavioral harassment incidental to use of such sources.
    Comment 4: The Commission noted during informal consultation that 
NMFS informed the Commission that Orsted (BSW) conducted sound source 
verification (SSV) on the triple plate boom plate, which resulted in a 
greatly reduced Level B harassment zone for that sound source. The 
Commission recommended that NMFS provide the SSV report to its 
technical experts for review prior to allowing the Level B harassment 
zone to be reduced based on these findings.
    NMFS Response: NMFS has not revised the Level B harassment zone to 
support a recalculation of take based on this SSV report and does not 
intend to use the report to support different Level B harassment zones 
until and unless we are able to validate its findings based on 
technical review. NMFS has only recently received the SSV report from 
BSW and is currently reviewing it for potential use in future IHAs. 
Based on preliminary review of the report, it appears as though the 
actual Level B harassment isopleth for the Triple Plate Boomer would be 
no more than 100 m (and could be significantly less), which would 
equate to reduction in the ensonified area of at least 94%, as compared 
to the area associated with the 400-m Level B harassment zone that was 
modelled and presented in the notice of the proposed IHA (83 FR 22443, 
May 15, 2018).
    Comment 5: The Commission noted that Risso's dolphins were observed 
during an HRG survey conducted by a different company (Deepwater Wind, 
LLC) in 2017 in the same general area (Rhode Island-Massachusetts Wind 
Energy Area, located east of Long Island, New York and south of Rhode 
Island and Massachusetts). The Commission recommended that NMFS 
authorize at least 20 Level B harassment takes of this species based on 
encountering a group twice during the 60 days of the proposed 
activities.
    NMFS Response: NMFS has added Level B harassment takes for Risso's 
dolphin. Out of an abundance of caution, authorized takes assume a 
group of 15 individuals encountered twice during the survey activities 
for a total of 30 authorized takes by Level B harassment.
    Comment 6: The Commission states recommended that NMFS include 
takes of sei whales, Atlantic spotted dolphin, and long-finned pilot 
whales, ensuring that the number of takes authorized for each species 
is at least equal to the average group size of each species.
    NMFS Response: NMFS' decision not to authorize take for sei whales 
is based on very low calculated takes (low expectation that take is 
likely to occur based on very conservative take estimates) coupled with 
the fact that these species are not expected to occur based on past 
monitoring reports from the area. Calculated takes (which take into 
account the duration of the survey activities as well as the low 
densities for this species) did not round up to one take for sei 
whales. If any species for which take is not authorized are 
encountered, Bay State Wind are required to implement measures to avoid 
take of these species and NMFS believes that, in the unlikely event 
that a sei whale is encountered, Bay State Wind will be able to 
effectively mitigate to avoid take of this large cetacean species. 
However, as Atlantic spotted dolphins and long-finned pilot whales are 
much smaller cetaceans (hence, potentially harder to see to avoid take 
in certain conditions), may occur in much larger groups, and 
calculations resulted in at least a small amount of take for pilot 
whales, NMFS has modified the IHA to authorize a small number of takes 
by Level B harassment for these species to avoid requiring the 
applicant to shut down operations for avoidance of take in the unlikely 
event they are encountered.
    Comment 7: The Commission expressed concern that the method used to 
estimate the numbers of takes, which summed fractions of takes for each 
species across project days, does not account for and negates the 
intent of NMFS' 24-hour reset policy. The Commission recommended that 
NMFS share their rounding criteria guidance with the Commission in an 
expeditious manner.
    NMFS Response: NMFS appreciates the Commission's ongoing concern in 
this matter. Calculating predicted takes is not an exact science and 
there are arguments for taking different mathematical approaches in 
different situations, and for making qualitative adjustments in other 
situations. We believe, however, that the methodology used for take 
calculation in this IHA remains appropriate and is not at odds with the 
24-hour reset policy the Commission references. NMFS recently completed 
internal guidance on rounding and consideration of qualitative factors 
in the estimation of instances of take. NMFS' internal guidance on 
rounding and the consideration of qualitative factors in take 
estimation has been provided to the Commission.
    Comment 8: The Commission recommended that NMFS better evaluate the 
number of Level A and B harassment takes it plans to propose by 
considering both ecological/biological information and results from 
previous monitoring reports for all proposed authorizations prior to 
submitting them for publication in the Federal Register.
    NMFS Response: NMFS' reasoning takes into account past practice; 
what estimated take calculations yield; and what the applicant 
proposes, as well as a suite of situational and context factors such as 
the size of the zone; the likely effectiveness of the mitigation; and 
the behavior of the species in question when evaluating Level A and 
Level B harassment takes it proposes to authorize. NMFS also considers 
ecological/biological information and results from previous monitoring 
reports. The purpose of publishing the notice in the Federal Register 
is to obtain feedback on the proposed IHA and, when warranted based on 
feedback received, we may determine it is appropriate to revise our 
proposed authorizations. More information regarding how NMFS estimates 
instances of take, including consideration of qualitative factors, was 
provided to the Commission on June 27, 2018.
    Comment 9: The Commission recommended that NMFS require a standard 
30-minute pre- and post- monitoring clearance monitoring period and 15-
minute clearance times for small cetaceans and pinnipeds and a 30-
minute clearance time for larger cetaceans after a delay or shut down.
    NMFS Response: NMFS has revised the monitoring and clearance times 
as recommended by the Commission.
    Comment 10: The Commission requested clarification regarding 
certain issues associated with NMFS' notice that one-year renewals 
could be issued in certain limited circumstances and expressed concern 
that the process

[[Page 36542]]

would bypass the public notice and comment requirements. The Commission 
also suggested that NMFS should discuss the possibility of renewals 
through a more general route, such as a rulemaking, instead of notice 
in a specific authorization. The Commission further recommended that if 
NMFS did not pursue a more general route, that the agency provide the 
Commission and the public with a legal analysis supporting our 
conclusion that this process is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA. The Commission also noted that NMFS 
had recently begun utilizing abbreviated notices, referencing relevant 
documents, to solicit public input and suggested that NMFS use these 
notices and solicit review in lieu of the currently proposed renewal 
process.
    NMFS Response: The process of issuing a renewal IHA does not bypass 
the public notice and comment requirements of the MMPA. The notice of 
the proposed IHA expressly notifies the public that under certain, 
limited conditions an applicant could seek a renewal IHA for an 
additional year. The notice describes the conditions under which such a 
renewal request could be considered and expressly seeks public comment 
in the event such a renewal is sought. Additional reference to this 
solicitation of public comment has recently been added at the beginning 
of the FR notices that consider renewals, requesting input specifically 
on the possible renewal itself. NMFS appreciates the streamlining 
achieved by the use of abbreviated FR notices and intends to continue 
using them for proposed IHAs that include minor changes from previously 
issued IHAs, but which do not satisfy the renewal requirements. 
However, we believe our proposed method for issuing renewals meets 
statutory requirements and maximizes efficiency.
    Importantly, such renewals would be limited to circumstances where: 
the activities are identical or nearly identical to those analyzed in 
the proposed IHA; monitoring does not indicate impacts that were not 
previously analyzed and authorized; and, the mitigation and monitoring 
requirements remain the same, all of which allow the public to comment 
on the appropriateness and effects of a renewal at the same time the 
public provides comments on the initial IHA. NMFS has, however, 
modified the language for future proposed IHAs to clarify that all 
IHAs, including renewal IHAs, are valid for no more than one year and 
that the agency would consider only one renewal for a project at this 
time. In addition, notice of issuance or denial of a renewal IHA would 
be published in the Federal Register, as they are for all IHAs. The 
option for issuing renewal IHAs has been in NMFS's incidental take 
regulations since 1996. We will provide any additional information to 
the Commission and consider posting a description of the renewal 
process on our website before any renewal is issued utilizing this 
process.
    Comment 11: The Commission noted that in this instance, the public 
comment period closed on 14 June, 2018 which was two weeks after 
activities were scheduled to begin, as the final version of the 
application was not submitted until 5 April, 2018. The Commission 
recommended that NMFS take all steps necessary to ensure that it 
publishes and finalizes proposed IHAs far enough in advance of the 
planned start date to ensure full consideration is given to all 
comments received, noting this can only be accomplished if applicants 
provide their complete applications at the outset and respond to 
inquiries from NMFS in a timely manner.
    NMFS Response: The delay in issuance of this IHA was specifically 
to allow for the needed public review and comment period and to allow 
NMFS time to fully consider the comments received. We have thoroughly 
reviewed the comments received and discussed many of these comments 
with the Commission during informal consultation. Where appropriate, we 
have revised the proposed authorization. In instances where we disagree 
with the proposed revision, we have explained why we have not revised 
the authorization. More generally, NMFS publishes FR notices for 
proposed IHAs as quickly as possible once the application is received, 
but we cannot control either short processing times driven by the date 
the activity is supposed to start or later publication of proposed IHAs 
resulting from back and forth with the applicants to ensure we have the 
necessary information.
    Comment 12: The NGOs noted concern for the unusual mortality events 
(UME) that have been declared for humpback whales, minke whales, and 
North Atlantic right whales and expressed concern that the estimates 
derived from models presented in Roberts et al. (2016) may 
underrepresent density and seasonal presence of large whales in the 
survey area. The NGOs noted NMFS is required to use the best available 
science for species presence and densities, and recommended that NMFS 
consider additional data sources in density modeling in future analyses 
of estimated take, including initial data from state monitoring 
efforts, existing passive acoustic monitoring data, opportunistic 
marine mammal sightings data, and other data sources.
    NMFS Response: NMFS acknowledges the UMEs for minke whales since 
January 2017; north Atlantic right whales since June 2017; and humpback 
whales since January 2016. Please refer to the discussion of these UMEs 
in the Negligible Impact Determination section of this notice.
    NMFS has determined that the data provided by Roberts et al. (2016) 
represents the best available information concerning marine mammal 
density in the survey area and has used it accordingly. NMFS has 
considered other available information, including that cited by the 
commenters, and determined that it does not contradict the information 
provided by Roberts et al. (2016). The sources suggested by the 
commenters do not provide data in a format that is directly usable in 
an acoustic exposure analysis. We will continue to review data sources, 
including those recommended by commenters for consideration for their 
suitability for inclusion in future analyses to ensure the use of best 
available science in our analyses.
    In addition to considering the density estimates, NMFS has reviewed 
past monitoring reports from the survey area. In 2016, one fin and two 
minke whales were observed during surveys at distances ranging from 
1,000 to 2,000 m from the source. In 2017 there were 5 minke whales and 
13 fin whales observed while on survey with only one of these being 
close enough to be considered a take by Level B harassment. Review of 
past monitoring reports confirm that large whales are not as common in 
the survey area as small delphinoid species and at no point has the 
amount of take authorized been exceeded or even approached so as to 
cause concern that the amount would be met or exceeded. As presented in 
the proposed IHA notice (83 FR 22443, May 15, 2018), where warranted, 
estimated take calculations were adjusted based on average group size 
and sightings from the survey area and are not solely based on 
calculations based on density data.
    Comment 13: Regarding mitigation measures, the NGOs recommended 
NMFS impose a restriction on site assessment and characterization 
activities that have the potential to harass the North Atlantic right 
whale from November 1st to May 14th.
    NMFS Response: In evaluating how mitigation may or may not be 
appropriate to ensure the least practicable adverse impact on species 
or

[[Page 36543]]

stocks and their habitat, 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; and 
(2) the practicability of the measures for applicant implementation, 
which may consider such things as relative cost and impact on 
operations.
    No take of North Atlantic right whales is anticipated, nor are any 
takes authorized. In addition, although the IHA covers Bay State Wind's 
activities should they occur at any point during the year, as stated in 
the notice for the proposed IHA (83 FR 83 FR 22443, May 15, 2018), Bay 
State Wind's activities are anticipated to begin as soon as they 
receive their authorization and last for approximately 60 days (60 days 
for the offshore sections and 40 days for the inshore sections that may 
occur concurrently). In addition, again although the analysis covers 
activities conducted in any months, Bay State Wind's HRG survey 
activities are anticipated to be complete prior to the recommended 
restriction (November 1-May 14).
    Bay State Wind determined the planned duration of the survey based 
on their data acquisition needs, which are largely driven by the BOEM's 
data acquisition requirements prior to required submission of a 
construction and operations plan (COP). Any effort on the part of NMFS 
to restrict the months during which the survey could operate could have 
the effect of forcing the applicant to conduct additional months of 
surveys the following year, resulting in increased costs incurred by 
the applicant and extending the amount of time need to complete the 
surveys with associated additional production of underwater noise which 
could have further potential impacts to marine mammals. Thus, the time 
and area restrictions recommended by the commenters would not be 
practicable for the applicant to implement and would to some degree 
offset the benefit of the recommended measure. In addition, our 
analysis of the potential impacts of the survey on right whales does 
not indicate that such closures are warranted, as there are no takes of 
North Atlantic right whales anticipated or authorized and no marine 
mammal injury is expected as a result of the survey, nor is injury 
authorized in the IHA. Thus, in consideration of the limited potential 
benefits of time and area restrictions, in concert with the 
impracticability and increased cost on the part of the applicant that 
would result from such restrictions, NMFS has determined that time and 
area restrictions are not warranted in this case. Existing mitigation 
measures, including exclusion zones, ramp-up of survey equipment, and 
vessel strike avoidance measures, are sufficiently protective to ensure 
the least practicable adverse impact on species or stocks and their 
habitat.
    Comment 14: Regarding mitigation measures, the NGOs recommended 
that NMFS require that geophysical surveys commence, with ramp-up, 
during daylight hours only to maximize the probability that North 
Atlantic right whales are detected and confirmed clear of the exclusion 
zone, and that, if a right whale were detected in the exclusion zone 
during nighttime hours and the survey is shut down, developers should 
be required to wait until daylight hours for ramp-up to commence.
    NMFS Response: We acknowledge the limitations inherent in detection 
of marine mammals at night. However, as described above, no takes of 
North Atlantic right whales have been authorized and potential impacts 
to other marine mammals from the survey activities would be limited to 
short-term behavioral responses. Restricting surveys in the manner 
suggested by the commenters may reduce marine mammal exposures by some 
degree in the short term, but would not result in any significant 
reduction in either intensity or duration of noise exposure. No injury 
is expected to result even in the absence of mitigation, given the very 
small estimated Level A harassment zones. In the event that NMFS 
imposed the restriction suggested by the commenters, potentially 
resulting in a second season of surveys required for the applicant, 
vessels would be on the water introducing noise into the marine 
environment for an extended period of time. Therefore, in addition to 
practicability concerns for the applicant, the restrictions recommended 
by the commenters could result in the surveys spending increased time 
on the water, which may result in greater overall exposure to sound for 
marine mammals; thus the commenters have failed to demonstrate that 
such a requirement would result in a net benefit for affected marine 
mammals. Further, we note that past monitoring reports indicate the 
ability to detect marine mammals at night, including smaller cetaceans, 
with use of the infrared and night vision technologies in combination 
with passive acoustic monitoring (PAM) employed during nighttime 
activities. Therefore, in consideration of potential effectiveness of 
the recommended measure and its practicability for the applicant, NMFS 
has determined that restricting survey start-ups to daylight hours is 
not warranted in this case.
    We note that the proposed IHA Federal Register notice included a 
mitigation requirement that shutdown of geophysical survey equipment 
would be required upon confirmed PAM detection of a North Atlantic 
right whale at night, even in the absence of visual confirmation, 
except in cases where the acoustic detection can be localized and the 
right whale can be confirmed as being beyond the 500 meter (m) 
exclusion zone (EZ); equipment may be re-started no sooner than 30 
minutes after the last confirmed acoustic detection. This mitigation 
measure was retained and has been included as part of the issued IHA.
    Comment 15: The NGOs recommended that NMFS require a 500 m EZ for 
marine mammals (with the exception of dolphins that voluntarily 
approach the vessel). Additionally, the NGOs recommended that protected 
species observers (PSO) monitor to an extended 1,000 m EZ for North 
Atlantic right whales, and stated that NMFS has been inconsistent in 
its EZ requirements for different lease areas without explanation or 
justification.
    NMFS Response: NMFS' mitigation measures, including establishment 
of EZs, are based on consideration of a variety of factors including 
consideration of two primary factors: (1) The manner in which, and the 
degree to which, the successful implementation of the measure(s) would 
be expected to reduce impacts (which considers the nature of the 
potential adverse impact being mitigated and likelihood that the 
measure will be effective if implemented along with the likelihood of 
effective implementation), and (2) the practicability of the measure 
for the applicant (which may consider such things as cost and impact on 
operations among other things for activities not applicable to this 
authorization). These considerations may at times result in different 
outcomes and requirements between differing areas. Regarding the 
specific recommendation for a 1,000 m EZ specifically for North 
Atlantic right whales, we have determined that the 500 m EZ, as 
required in the IHA, is sufficiently protective. We note that the 500 m 
EZ exceeds the modeled distance to the conservatively modeled Level B 
harassment isopleth (400 m), thus for North Atlantic right whales 
detected by PSOs this EZ would effectively minimize potential instances 
of injury and harassment.
    Regarding the commenters' recommendation to require a 500 m EZ for 
all marine mammals (except dolphins that approach the vessel) we

[[Page 36544]]

have determined the EZs as currently required in the IHA (described in 
Mitigation Measures, below) are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. The 
EZs would prevent all potential instances of marine mammal injury. In 
this instance, injury would not be an expected outcome even in the 
absence of mitigation due to very small predicted isopleths 
corresponding to the Level A harassment threshold (Note that the 75 m 
Level A harassment threshold for harbor porpoises as discussed in the 
proposed IHA was based on the more conservative impulsive threshold and 
has since been updated with the correct non-impulsive threshold, which 
means the isopleth is actually < 5 m, as opposed to the previously 
considered 75 m) and would further prevent some instances of behavioral 
harassment, as well as limiting the intensity and/or duration of 
behavioral harassment that does occur. As NMFS has determined the EZs 
currently required in the IHA to be sufficiently protective, we do not 
think expanded EZs, beyond what is required in the IHA are warranted.
    Comment 16: The NGOs recommended that a combination of visual 
monitoring by PSOs and PAM should be required 24 hours per day.
    NMFS Response: As stated in the notice for the proposed IHA (83 FR 
22443, May 15, 2018) and below in the Mitigation section, when 
evaluating how mitigation may or may not be appropriate to ensure the 
least practicable adverse impact on marine mammals species or stocks 
and their habitats, as well as subsistence uses where applicable, NMFS 
considers two primary factors: (1) The manner in which, and the degree 
to which, the successful implementation of the measure(s) would be 
expected to reduce impacts (which considers the nature of the potential 
adverse impact being mitigated and likelihood that the measure will be 
effective if implemented along with the likelihood of effective 
implementation), and (2) The practicability of the measure for the 
applicant (which may consider such things as cost and impact on 
operations among other things for activities not applicable to this 
authorization). The PAM requirement has been included in the IHA 
because PAM was proposed by the applicant, and PAM is required in BOEM 
lease stipulations. We do not think the use of PAM is necessarily 
warranted for surveys using the sound sources proposed for use by the 
applicant, due to relatively small areas that are expected to be 
ensonified to the Level A harassment threshold making it unlikely that 
injury or more serious effects would result from the activities. As 
such, this is an example of a mitigation measure that NMFS would not 
require, but is implementing due to consideration of other factors. As 
we are not convinced that PAM is necessarily warranted for this type of 
survey, we do not think a requirement to expand the use of PAM to 24 
hours a day during the survey is warranted. Expanding the PAM 
requirement to 24 hours a day may also result in increased costs on the 
part of the applicant. When the potential benefits of a 24 hour PAM 
requirement are considered in concert with the potential increased 
costs on the part of the applicant that would result from such a 
requirement, we determined a requirement for 24 hour PAM operation is 
not warranted in this case. Given the lower level of effects to marine 
mammals from the types of surveys authorized in this IHA are expected 
to be limited to behavioral harassment even in the absence of 
mitigation, we have determined the current requirements for visual and 
acoustic monitoring are sufficient to ensure the EZs and Watch Zone are 
adequately monitored for this particular activity.
    Comment 17: The NGOs recommended that NMFS require a 10 knot speed 
restriction on all project-related vessels transiting to/from the 
survey area from February 1 to May 14, and that all project vessels 
operating within the survey area should be required to maintain a speed 
of 10 knots or less during the entire survey period. It was also noted 
that vessels less than 65 ft. in length are exempt from NMFS' 
regulations (presumably this is in reference to mandatory speed 
restrictions of 10 knots or less, in effect for the following seasonal 
management areas (SMA): Cape Cod Bay from January 1 through May 15 and/
or Block Island from November 1 through April 30 and/or the voluntary 
speeds in the voluntary DMAs, which includes the area south of 
Nantucket July 2, 2018 through July 15, 2018. We note here that the 
survey area is not within any of these areas, but that DMAs may be 
developed and Bay State Wind will be required to monitor for the 
creation of DMAs and abide by the requirements of any DMA created) and 
that the proposed IHA provided no speed restrictions for the Autonomous 
Surface Vessels (ASV) or other support vessels that may be operating 
during the survey months.
    NMFS Response: NMFS has analyzed the potential for ship strike 
resulting from Bay State Wind's activity and has determined that the 
mitigation measures specific to ship strike avoidance are sufficient to 
minimize the potential for ship strike such that we have determined 
this is discountable. These measures include: A requirement that all 
vessel operators comply with 10 knot (18.5 kilometer (km)/hour) or less 
speed restrictions in any SMA or Dynamic Management Area (DMA); a 
requirement that all vessel operators reduce vessel speed to 10 knots 
(18.5 km/hour) or less when any large whale, any mother/calf pairs, 
pods, or large assemblages of non-delphinoid cetaceans are observed 
within 100 m of an underway vessel; a requirement that all survey 
vessels maintain a separation distance of 500 m or greater from any 
sighted North Atlantic right whale; a requirement that, if underway, 
vessels must steer a course away from any sighted North Atlantic right 
whale at 10 knots or less until the 500 m minimum separation distance 
has been established; and a requirement that, if a North Atlantic right 
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. Additional measures to prevent the potential for ship strike 
are discussed in more detail below (see the Mitigation section). We 
have determined that the ship strike avoidance measures are sufficient 
to ensure the least practicable adverse impact on species or stocks and 
their habitat. We also note that vessel strike during surveys is 
extremely unlikely based on the low vessel speed; the survey vessel 
would maintain a speed of approximately 4 knots (7.4 km/hour) while 
transiting survey lines. The stated speed restrictions would apply to 
all vessels including the ASVs and support vessels. Further, given that 
the ASVs must be within a maximum of 800 m from the mother ship, the 
speed of the ASV vessels could not exceed that of the mother vessel.
    Comment 18: The NGOs recommended that NMFS analyses account for the 
potential for indirect ship strike risk resulting from habitat 
displacement.
    NMFS Response: NMFS determined that habitat displacement was not an 
expected outcome of the specified activity. As discussed in the notice 
for the proposed IHA (83 FR 22443, May 15, 2018) we anticipate marine 
mammals may avoid the area of disturbing noise, but this would be a 
relatively small area, as the Level B harassment zone was 
conservatively estimated to be 400 m, and would be short-term in nature 
such that habitat displacement is not anticipated. As discussed above, 
since publication of the proposed IHA notice, NMFS has received a sound 
source verification study from Bay State Wind for the Triple Plate 
Boomer and based on

[[Page 36545]]

preliminary review, the actual Level B harassment isopleth would be no 
more than 100 m, as compared to the 400-m modelled zone, so the area of 
disturbance would be significantly less than originally reported. 
Therefore, habitat displacement is not reasonably likely to occur an 
analysis of potential impacts to marine mammals from habitat 
displacement is not warranted in this case.
    Comment 19: The NGOs stated that NMFS should not adjust take 
numbers for North Atlantic right whales based on mitigation measures 
and stated that they do not share NMFS' level of confidence that it is 
possible to mitigate all potential for Level B harassment. This lack of 
confidence is based on (1) an assertion that the 160 dB threshold for 
behavioral harassment is not supported by best available science 
(citing to footnote 11 of the comment letter), and (2) an assertion 
that the monitoring protocols prescribed for the EZs are under-
protective (referring to Section III.D of the comment letter for 
further discussion).
    NMFS Response: Regarding the comment addressing the appropriateness 
of the 160-db behavioral harassment threshold, NMFS assumes that the 
reference to footnote 11 (Kraus, et al., 2016) in the comment is in 
error, and the correct reference was meant to be footnote 16, which 
references Nowacek et al., 2004 and Kastelein et al., 2012 and 2015 as 
sources for the assertion that take would occur with near certainty at 
exposure levels well below the 160 dB threshold for behavioral 
harassment. Regardless, NMFS notes that the potential for behavioral 
response to an anthropogenic source is highly variable and context-
specific and acknowledges the potential for Level B harassment at 
exposures to received levels below 160 dB rms. Alternatively, NMFS 
acknowledges the potential that animals exposed to received levels 
above 160 dB rms will not respond in ways constituting behavioral 
harassment. There are a variety of studies indicating that contextual 
variables play a very important role in response to anthropogenic 
noise, and the severity of effects are not necessarily linear when 
compared to a received level (RL). The studies cited in the comment 
(Nowacek et al., 2004 and Kastelein et al., 2012 and 2015) showed there 
were behavioral responses to sources below the 160 dB threshold, but 
also acknowledge the importance of context in these responses. For 
example, Nowacek et al., 2004 reported the behavior of five out of six 
North Atlantic right whales was disrupted at RLs of only 133-148 dB re 
1 [micro]Pa (returning to normal behavior within minutes) when exposed 
to an alert signal. However, the authors also reported that none of the 
whales responded to noise from transiting vessels or playbacks of ship 
noise even though the RLs were at least as strong, and contained 
similar frequencies, to those of the alert signal. The authors state 
that a possible explanation for whales responded to the alert signal 
and did not respond to vessel noise is due to the whales having been 
habituated to vessel noise, while the alert signal was a novel sound. 
In addition, the authors noted differences between the characteristics 
of the vessel noise and alert signal which may also have played a part 
in the differences in responses to the two noise types. Therefore, it 
was concluded that the signal itself, as opposed to the RL, was 
responsible for the response. DeRuiter et al. (2012) also indicate that 
variability of responses to acoustic stimuli depends not only on the 
species receiving the sound and the sound source, but also on the 
social, behavioral, or environmental contexts of exposure. Finally, 
Gong et al. (2014) highlighted that behavioral responses depend on many 
contextual factors, including range to source, RL above background 
noise, novelty of the signal, and differences in behavioral state. 
Similarly, Kastelein et al., 2015 (cited in the comment) examined 
behavioral responses of a harbor porpoise to sonar signals in a quiet 
pool, but stated behavioral responses of harbor porpoises at sea would 
vary with context such as social situation, sound propagation, and 
background noise levels.
    NMFS uses 160 dB (rms) as the exposure level for estimating Level B 
harassment takes and is currently considered the best available 
science, while acknowledging that the 160 db rms step-function approach 
is a simplistic approach. However, there appears to be a misconception 
regarding the concept of the 160 dB threshold. While it is correct that 
in practice it works as a step-function, i.e., animals exposed to 
received levels above the threshold are considered to be ``taken'' and 
those exposed to levels below the threshold are not, it is in fact 
intended as a sort of mid-point of likely behavioral responses (which 
are extremely complex depending on many factors including species, 
noise source, individual experience, and behavioral context). What this 
means is that, conceptually, the function recognizes that some animals 
exposed to levels below the threshold will in fact react in ways that 
are appropriately considered take, while others that are exposed to 
levels above the threshold will not. Use of the 160-dB threshold allows 
for a simplistic quantitative estimate of take, while we can 
qualitatively address the variation in responses across different 
received levels in our discussion and analysis.
    Overall, we reiterate the lack of scientific consensus regarding 
what might criteria might be more appropriate. Defining sound levels 
that disrupt behavioral patterns is difficult because responses depend 
on the context in which the animal receives the sound, including an 
animal's behavioral mode when it hears sounds (e.g., feeding, resting, 
or migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al., 2007; Ellison et al., 2012; 
Bain and Williams, 2006).
    There is currently no agreement on these complex issues, and NMFS 
followed the practice at the time of submission and review of this 
application in assessing the likelihood of disruption of behavioral 
patterns by using the 160 dB threshold. This threshold has remained in 
use in part because of the practical need to use a relatively simple 
threshold based on available information that is both predictable and 
measurable for most activities. We note that the seminal review 
presented by Southall et al. (2007) did not suggest any specific new 
criteria due to lack of convergence in the data. NMFS is currently 
evaluating available information towards development of guidance for 
assessing the effects of anthropogenic sound on marine mammal behavior. 
However, undertaking a process to derive defensible exposure-response 
relationships is complex (e.g., NMFS previously attempted such an 
approach, but is currently re-evaluating the approach based on input 
collected during peer review of NMFS (2016)). A recent systematic 
review by Gomez et al. (2016) was unable to derive criteria expressing 
these types of exposure-response relationships based on currently 
available data.
    NMFS acknowledges that there may be methods of assessing likely 
behavioral response to acoustic stimuli that better capture the 
variation and context-dependency of those responses than the simple 160 
dB step-function used here, there is no agreement on

[[Page 36546]]

what that method should be or how more complicated methods may be 
implemented by applicants. NMFS is committed to continuing its work in 
developing updated guidance with regard to acoustic thresholds, but 
pending additional consideration and process is reliant upon an 
established threshold that is reasonably reflective of available 
science.
    Regarding the assertion that that monitoring protocols prescribed 
for the EZs are under-protective, the comment refers to Section III.D 
of the comment letter for further discussion. The responses to Comments 
13-18 addresses the recommendation for additional mitigation measures 
in Section III.D of the comment letter. Please refer to these responses 
for NMFS' reasoning for why these additional measures are not warranted 
and why NMFS has determined that the monitoring protocols prescribes 
are sufficiently protective of marine mammals. Specifically, the 
required 500-m shutdown for North Atlantic right whales is adequate to 
effectively ensure that no takes occur for this species, given the 
large size (visibility) of the animals, the visual and PAM monitoring, 
and results of past reports regarding right whales in the area (please 
also refer to the Estimated Take section of this notice).
    Further, since publication of the notice of the proposed IHA (83 FR 
22443, May 15, 2018), NMFS received a sound source verification (SSV) 
study for the sound source with the largest Level B harassment isopleth 
(Applied Acoustics S-Boom Triple Plate Boomer). The Level B harassment 
isopleth was modelled to be 400 m, which was presented in the proposed 
IHA. Preliminary analysis of the new SSV study indicates that the 
actual Level B harassment isopleth for this source is no larger than 
100 m (and may be significantly smaller), which means that the 
associated area ensonified above the Level B harassment zone is at 
least 94% smaller as compared to that associated with the 400-m 
isopleth and discussed in the proposed notice. This new information 
further strengthens the NMFS' determination that the required 500-m 
shut down for North Atlantic right whales will successfully avoid take 
of this species.
    Comment 20: The NGOs recommended that NMFS encourage offshore wind 
developers to partner with scientists to collect data that would 
increase the understanding of the effectiveness of night vision and 
infra-red technologies off Rhode Island, Massachusetts, and the broader 
region, with a view towards greater reliance on these technologies to 
commence surveys during nighttime hours in the future.
    NMFS Response: NMFS agrees with the NGOs that improved data on 
relative effectiveness of night vision and infra-red technologies would 
be beneficial and could help to inform future efforts at detection of 
marine mammals during nighttime activities. The commenters have not 
provided us with any specific recommendations to evaluate beyond a 
broad recommendation. However, we agree that coordination and 
communication between offshore wind developers and researchers on 
effectiveness of night vision and infra-red technologies should be 
encouraged to the extent possible. NMFS also notes that a requirement 
for the final report submitted to NMFS to include an assessment of the 
effectiveness of night vision equipment used during nighttime surveys, 
including comparisons of relative effectiveness among the different 
types of night vision equipment used, is included in the IHA. The IHA 
issued in 2016 (81 FR 56589, August 22, 2016) also included this 
requirement, so information gained from this IHA furthers this 
commitment.

Description of Marine Mammals in the Area of the Specified Activity

    Sections 3 and 4 of Bay State Wind's IHA application summarize 
available information regarding the status and trends, distribution and 
habitat preferences, and behavior and life history of the potentially 
affected species. Additional information regarding population trends 
and threats may be found in NMFS's Stock Assessment Reports (SAR; 
https://www.nmfs.noaa.gov/pr/sars/species.htm) and more general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS' website (https://www.nmfs.noaa.gov/pr/species/mammals/).
    Table 1 lists all marine mammal species with expected occurrence in 
the Northwest Atlantic Outer Continental Shelf (OCS) and summarizes 
information related to the population or stock, including regulatory 
status under the MMPA and Endangered Species Act (ESA) as well as 
potential biological removal (PBR), where known. For taxonomy, we 
follow the Committee on Taxonomy (2016). PBR is defined by the MMPA as 
the maximum number of animals, not including natural mortalities, that 
may be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS' SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprise that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic Ocean SARs (e.g., Hayes et al., 2017). All values 
presented in Table 1 are the most recent available at the time of 
publication and are available in the 2016 SARs (Hayes et al., 2017) and 
draft 2017 SARs (available online at: https://www.nmfs.noaa.gov/pr/sars/draft.htm).

                                      Table 1--Marine Mammals Known To Occur in the Waters of Southern New England
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Stock abundance
           Common name                Scientific name    ESA/MMPA status \1\     (CV; Nmin) \2\           Stock               PBR          Annual M/SI3
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Toothed Whales (Odontoceti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin.....  Lagenorhynchus        N/A................  48,819 (0.61;        W. North Atlantic..  304............  74.
                                    acutus.                                    30,403).
Atlantic spotted dolphin.........  Stenella frontalis..  N/A................  44,715 (0.43;        W. North Atlantic..  316............  0.
                                                                               31,610).
Bottlenose dolphin...............  Tursiops truncatus..  Northern coastal     11,548 (0.36;        W. North Atlantic,   86.............  1-
                                                          stock is Strategic.  8,620).              Northern Migratory                   7.5.
                                                                                                    Coastal.
Clymene dolphin..................  Stenella clymene....  N/A................  Unknown............  W. North Atlantic..  Unknown........  0.
Fraser's dolphin.................  Lagenodelphis hosei.  N/A................  Unknown............  W. North Atlantic..  Unknown........  0.
Pan-tropical spotted dolphin.....  Stenella attenuata..  N/A................  3,333 (0.91; 1,733)  W. North Atlantic..  17.............  0.
Risso's dolphin..................  Grampus griseus.....  N/A................  18,250 (0.46;        W. North Atlantic..  126............  53.6.
                                                                               12,619).

[[Page 36547]]

 
Rough-toothed dolphin............  Steno bredanensis...  N/A................  271 (1.0; 134).....  W. North Atlantic..  1.3............  0.
Short-beaked common dolphin......  Delphinus delphis...  N/A................  70,184 (0.28;        W. North Atlantic..  557............  409.
                                                                               55,690).
Striped dolphin..................  Stenella              N/A................  54,807 (0.3;         W. North Atlantic..  428............  0.
                                    coeruleoalba.                              42,804).
Spinner dolphin..................  Stenella              N/A................  Unknown............  W. North Atlantic..  Unknown........  0.
                                    longirostris.
White-beaked dolphin.............  Lagenorhynchus        N/A................  2,003 (0.94; 1,023)  W. North Atlantic..  10.............  0.
                                    albirostris.
Harbor porpoise..................  Phocoena phocoena...  N/A................  79,833 (0.32;        Gulf of Maine/Bay    706............  437.
                                                                               61,415).             of Fundy.
Killer whale.....................  Orcinus orca........  N/A................  Unknown............  W. North Atlantic..  Unknown........  0.
Pygmy killer whale...............  Feresa attenuata....  N/A................  Unknown............  W. North Atlantic..  Unknown........  0.
False killer whale...............  Pseudorca crassidens  Strategic..........  442 (1.06; 212)....  W. North Atlantic..  2.1............  Unknown.
Long-finned pilot whale..........  Globicephala melas..  N/A................  5,636 (0.63; 3,464)  W. North Atlantic..  35.............  38.
Short-finned pilot whale.........  Globicephala          N/A................  21,515 (0.37;        W. North Atlantic..  159............  192.
                                    macrorhynchus.                             15,913).
Sperm whale......................  Physeter              Endangered.........  2,288 (0.28; 1,815)  North Atlantic.....  3.6............  0.8.
                                    macrocephalus.
Pigmy sperm whale................  Kogia breviceps.....  N/A................  3,785 \4\ (0.47;     W. North Atlantic..  21.............  3.5.
                                                                               2,598).
Dwarf sperm whale................  Kogia sima..........  N/A................  3,785 \4\ (0.47;     W. North Atlantic..  21.............  3.5.
                                                                               2,598).
Cuvier's beaked whale............  Ziphius cavirostris.  N/A................  6,532 (0.32; 5,021)  W. North Atlantic..  50.............  0.4.
Blainville's beaked whale........  Mesoplodon            N/A................  7,092 \5\ (0.54;     W. North Atlantic..  46.............  0.2.
                                    densirostris.                              4,632).
Gervais' beaked whale............  Mesoplodon europaeus  N/A................  7,092 \5\ (0.54;     W. North Atlantic..  46.............  0.
                                                                               4,632).
True's beaked whale..............  Mesoplodon mirus....  N/A................  7,092 \5\ (0.54;     W. North Atlantic..  46.............  0.
                                                                               4,632).
Sowerby's beaked whale...........  Mesoplodon bidens...  N/A................  7,092 \5\ (0.54;     W. North Atlantic..  46.............  0.
                                                                               4,632).
Northern bottlenose whale........  Hyperoodon            N/A................  Unknown............  W. North Atlantic..  Unknown........  0.
                                    ampullatus.
Melon-headed whale...............  Peponocephala         N/A................  Unknown............  W. North Atlantic..  Unknown........  0.
                                    electra.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Baleen Whales (Mysticeti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale......................  Balaenoptera          N/A................  2,591 (0.81; 1,425)  Canadian East Coast  14.............  8.25.
                                    acutorostrata.
Blue whale.......................  Balaenoptera          Endangered.........  Unknown (Unknown;    W. North Atlantic..  0.9............  Unknown.
                                    musculus.                                  440).
Fin whale........................  Balaenoptera          Endangered.........  1,618 (0.33; 1,234)  W. North Atlantic..  2.5............  3.8.
                                    physalus.
Humpback whale...................  Megaptera             N/A................  823 (0; 823).......  Gulf of Maine......  13.............  9.05.
                                    novaeangliae.
North Atlantic right whale.......  Eubalaena glacialis.  Endangered.........  440 (0; 440).......  W. North Atlantic..  1..............  5.66.
Sei whale........................  Balaenoptera          Endangered.........  357 (0.52; 236)....  Nova Scotia........  0.5............  0.8.
                                    borealis.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Earless Seals (Phocidae)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seals.......................  Halichoerus grypus..  N/A................  424,300 (0.16;       W. North Atlantic..  Unknown........  4,937.
                                                                               371,444).
Harbor seals.....................  Phoca vitulina......  N/A................  75,834 (0.15;        W. North Atlantic..  2,006..........  389.
                                                                               66,884).
Hooded seals.....................  Cystophora cristata.  N/A................  Unknown............  W. North Atlantic..  Unknown........  Unknown.
Harp seal........................  Phoca groenlandica..  N/A................  8,300,000 (Unknown)  W. North Atlantic..  Unknown........  Unknown.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Species information in bold italics are species expected to be taken and are authorized for take in our IHA; others are not expected or authorized
  to be taken.
\1\ A strategic stock is defined as any marine mammal stock: (1) For which the level of direct human-caused mortality exceeds the potential biological
  removal (PBR) level; (2) which is declining and likely to be listed as threatened under the Endangered Species Act (ESA); or (3) which is listed as
  threatened or endangered under the ESA or as depleted under the Marine Mammal Protection Act (MMPA).
\2\ NMFS stock assessment reports online at: www.nmfs.noaa.gov/pr/sars. CV = coefficient of variarion; Nmin = minimum estimate of stock abundance.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g.,
  commercial fisheries, ship strike, etc.). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
  A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ This estimate may include both the dwarf and pygmy sperm whales.
\5\ This estimate includes Gervais' and Blainville's beaked whales and undifferentiated Mesoplodon spp. beaked whales.
Sources: Hayes et al., 2016, Waring et al., 2015; Waring et al., 2013; Waring et al., 2011; Warring et al., 2010; RI SAMP, 2011; Kenney and Vigness-
  Raposa, 2009; NMFS, 2012.

    All species that could potentially occur in the survey area are 
included in Table 1. However, the proposed IHA (83 FR 22443, May 15, 
2018) noted that the temporal and/or spatial occurrence of all but 10 
species listed in Table 1 is such that take of these species is not 
expected to occur, and they were not discussed further. Take of the 
remaining species was not anticipated either because they have very low 
densities in the project area, are known to occur further offshore than 
the project area, or are considered very unlikely to occur in the 
project area during the survey due to the species' seasonal occurrence 
in the area. However, based on review of public comments received and 
consideration of updated sighting information, takes of Risso's 
dolphins, Atlantic spotted dolphins, and long-finned pilot whales have 
been added even though they were not included in the proposed IHA. This 
brings the total to 13 species/stocks of marine mammals authorized for 
incidental take in this IHA.
    A detailed description of the species likely to be affected by Bay 
State Wind's survey, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (83 FR 
22443; May 15, 2018); since that time, we are not aware of any changes 
in the status of these species and stocks; therefore, detailed 
descriptions are not repeated here. As Risso's dolphins, Atlantic 
spotted dolphins, and long-finned pilot whales were not included in the 
proposed IHA, descriptions of these species are included below. Please 
refer to the Federal Register notice for the proposed IHA for 
descriptions of other species. Please also refer to NMFS' website 
(www.fisheries.noaa.gov/species-directory) for generalized species 
accounts.

Risso's Dolphin

    Risso's dolphin is typically an offshore dolphin that is uncommon 
to see inshore (Reeves et al., 2002). Risso's dolphin prefers temperate 
to tropical waters along the continental shelf edge and can range from 
Cape Hatteras to Georges Bank from spring through fall,

[[Page 36548]]

and throughout the mid-Atlantic Bight out to oceanic waters during 
winter (Payne et al., 1984). Risso's dolphins are usually seen in 
groups of 12 to 40, but loose aggregations of 100 to 200 or more are 
seen occasionally (Reeves et al., 2002).

Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate 
waters ranging from southern New England, south to Gulf of Mexico and 
the Caribbean to Venezuela (Waring et al., 2014). This stock regularly 
occurs in continental shelf waters south of Cape Hatteras and in 
continental shelf edge and continental slope waters north of this 
region (Waring et al., 2014). There are two forms of this species, with 
the larger ecotype inhabiting the continental shelf and usually found 
inside or near the 200 m isobaths (Waring et al., 2014). Atlantic 
spotted dolphins are not listed under the ESA and the stock is not 
considered depleted or strategic under the MMPA.

Long-Finned Pilot Whale

    Long-finned pilot whales are found from North Carolina and north to 
Iceland, Greenland and the Barents Sea (Waring et al., 2016). In U.S. 
Atlantic waters the species is distributed principally along the 
continental shelf edge off the northeastern U.S. coast in winter and 
early spring and in late spring, pilot whales move onto Georges Bank 
and into the Gulf of Maine and more northern waters and remain in these 
areas through late autumn (Waring et al., 2016). Long-finned pilot 
whales are not listed under the ESA. The Western North Atlantic stock 
is considered strategic under the MMPA.
    Information concerning marine mammal hearing, including marine 
mammal functional hearing groups, was provided in the Federal Register 
notice for the proposed IHA (83 FR 22443; May 15, 2018), and that 
information is not repeated here; please refer to that Federal Register 
notice for this information. For further information about marine 
mammal functional hearing groups and associated frequency ranges, 
please see NMFS (2016) for a review of available information. Fourteen 
marine mammal species (twelve cetacean and two pinniped (both phocid) 
species) have the potential to co-occur with the survey activities. Of 
the cetacean species that may be present, four are classified as low-
frequency cetaceans (i.e., North Atlantic right whale, humpback whale, 
fin whale, and minke whale), six are classified as mid-frequency 
cetaceans (i.e., sperm whale, bottlenose dolphin, common dolphin. 
Atlantic white sided dolphin, Risso's dolphin, and long-finned pilot 
whale), and one is classified as a high-frequency cetacean (i.e., 
harbor porpoise).

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Bay State Wind's survey 
activities have the potential to result in take of marine mammals by 
harassment in the vicinity of the survey area. The Federal Register 
notice for the proposed IHA (83 FR 22443; May 15, 2018) included a 
discussion of the effects of anthropogenic noise on marine mammals and 
their habitat, and that information is not repeated here. No instances 
of serious injury or mortality are expected as a result of the planned 
activities.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which informed 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, the MMPA defines ``harassment'' as any act of pursuit, torment, 
or annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes would be by Level B harassment, as use of the HRG 
equipment (i.e., USBL&GAPS systems, sub-bottom profilers, sparkers, and 
boomers) has the potential to result in disruption of behavioral 
patterns for individual marine mammals. However, the potential for 
auditory injury (Level A harassment), primarily for high frequency 
species (i.e., harbor porpoise) was discussed in the proposed IHA (83 
FR 22443, May 15, 2018). While it was noted that auditory injury was 
unlikely, NMFS proposed to authorize a small number of takes by Level A 
harassment for harbor porpoises because the applicant requested this 
out of an abundance of caution. However, after further discussion and 
consideration of the public comments received, the applicant has 
withdrawn the request for authorization for Level A harassment takes 
and none is being authorized in this IHA. Due to the physical 
properties of the sound sources and the nature of the activities in 
combination with the hearing capabilities of marine mammals in the 
Study Area, Level A harassment is so unlikely as to be discountable.
    Project activities that have the potential to cause Level B 
harassment include underwater noise from operation of the HRG survey 
sub-bottom profilers, boomers, sparkers, and equipment positioning 
systems. No take by Level A harassment (including injury or serious 
injury), or mortality is authorized. NMFS does not anticipate take 
resulting from the movement of vessels associated with construction 
because there will be a limited number of vessels moving at slow speeds 
and the BOEM lease agreement requires measures to ensure vessel strike 
avoidance.
    As described below, we estimate take by estimating: (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. Below we describe these components in 
more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--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, and behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2011). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine

[[Page 36549]]

mammals are likely to be behaviorally harassed in a manner we consider 
Level B harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g. 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources. Bay State Wind's proposed activity 
includes the use of intermittent impulsive (HRG Equipment) sources, and 
therefore the 160 dB re 1 [mu]Pa (rms) threshold is applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to 
assess auditory injury (Level A harassment) to five different marine 
mammal groups (based on hearing sensitivity) as a result of exposure to 
noise from two different types of sources (impulsive or non-impulsive).
    These thresholds are provided in Table 2 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2016 Technical Guidance, which may be accessed at: 
https://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB    Cell 4: LE,MF,24h 198 dB.
                                          LE,MF,24h: 185 dB;.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h 201 dB.
                                          LE,PW,24h 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat 232 dB;    Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
    When NMFS' Acoustic Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component of 
the new thresholds, NMFS developed an optional User Spreadsheet that 
includes tools to help predict takes. We note that because of some of 
the assumptions included in the methods used for these tools, we 
anticipate that isopleths produced are typically going to be 
overestimates of some degree, which will result in some degree of 
overestimate of Level A harassment takes. However, these tools offer 
the best way to predict appropriate isopleths when more sophisticated 
3D modeling methods are not available, and NMFS continues to develop 
ways to quantitatively refine these tools, and will qualitatively 
address the output where appropriate. For mobile sources such as the 
HRG survey equipment proposed for use in Bay State Wind's activity, the 
User Spreadsheet predicts the closest distance at which a stationary 
animal would not incur PTS if the sound source traveled by the animal 
in a straight line at a constant speed. Inputs used in the User 
Spreadsheet, and the resulting isopleths for the various HRG equipment 
types are reported in Appendix A of Bay State Wind's IHA application, 
and distances to the acoustic exposure criteria discussed above are 
shown in Tables 3 and 4.

   Table 3--Distances to Thresholds for Level A Harassment (PTS onset)
------------------------------------------------------------------------
                                  Marine mammal level a
   Generalized hearing group      harassment (PTS Onset)   Distance (m)
------------------------------------------------------------------------
                    USBL/GAPS Positioning Systems 1 *
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
LF cetaceans...................  219 dBpeak/............              --
                                 183 dB SELcum..........              --
MF cetaceans...................  230 dBpeak/............              --
                                 185 dB SELcum..........              --
HF cetaceans...................  202 dBpeak/............              --
                                 155 dB SELcum..........              --
Phocid pinnipeds...............  218 dBpeak/............              --
                                 185 dB SELcum..........              --
------------------------------------------------------------------------

[[Page 36550]]

 
                         Sub-bottom Profiler \1\
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
LF cetaceans...................  219 dBpeak/............              --
                                 183 dB SELcum..........              --
MF cetaceans...................  230 dBpeak/............              --
                                 185 dB SELcum..........              --
HF cetaceans...................  202 dBpeak/............              --
                                 155 dB SELcum..........              --
Phocid pinnipeds...............  218 dBpeak/............              --
                                 185 dB SELcum..........              --
------------------------------------------------------------------------
             Innomar SES-2000 Medium Sub-Bottom Profiler **
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
LF cetaceans...................  199 dB SELcum..........             N/A
MF cetaceans...................  198 dB SELcum..........              --
HF cetaceans...................  173 dB SELcum..........             < 5
Phocid pinnipeds...............  201 dB SELcum..........             N/A
------------------------------------------------------------------------
                               Sparker \1\
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
LF cetaceans...................  219 dBpeak/............              --
                                 183 dB SELcum..........              --
MF cetaceans...................  230 dBpeak/............              --
                                 185 dB SELcum..........              --
HF cetaceans...................  202 dBpeak/............             < 3
                                 155 dB SELcum..........              --
Phocid pinnipeds...............  218 dBpeak/............              --
                                 185 dB SELcum..........              --
------------------------------------------------------------------------
                                 Boomer
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
LF cetaceans...................  219 dBpeak/............             < 2
                                 183 dB SELcum..........             <15
MF cetaceans...................  230 dBpeak/............              --
                                 185 dB SELcum..........              --
HF cetaceans...................  202 dBpeak/............            < 10
                                 155 dB SELcum..........              <1
Phocid pinnipeds...............  218 dBpeak/............             < 2
                                 185 dB SELcum..........              <1
------------------------------------------------------------------------
Notes:
Peak SPL criterion is unweighted, whereas the cumulative SEL criterion
  is M-weighted for the given marine mammal hearing group;
Calculated sound levels and results are based on NMFS Acoustic Technical
  Guidance companion User Spreadsheet except as indicated (refer to
  Appendix A of the IHA application, which includes all spreadsheets);
\1\ Indicates distances for this equipment type have been field
  verified;
-- Indicates not expected
* Indicates that while calculated with the incorrect threshold
  (impulsive instead of non-impulsive), due to the fact that impulsive
  threshold would be larger and still not anticipated to be measureable,
  this was not recalculated here.
** Indicates a change from the proposed IHA. In proposed IHA, these
  distances were calculated with the impulsive threshold, which resulted
  in larger isopleths. The values presented her are calculated with
  corrected, non-impulsive, threshold.


   Table 4--Distances to Level B Harassment Thresholds (160 dBRMS 90%)
------------------------------------------------------------------------
                                                Marine mammal level B
             Survey equipment                 harassment 160 dBRMS re 1
                                                    [micro]Pa (m)
------------------------------------------------------------------------
                     USBL & GAPS Positioning Systems
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Sonardyne Ranger 2 USBL HPT 5/7000........                             6
Sonardyne Ranger 2 USBL HPT 3000..........                             1
Easytrak Nexus 2 USBL.....................                             2
IxSea GAPS System.........................                             1
------------------------------------------------------------------------
                             Sidescan Sonar
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
EdgeTech 4200 dual frequency Side Scan                               N/A
 Sonar....................................
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
                             Multibeam Sonar
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
R2 Sonic 2024 Multibeam Echosounder.......                           N/A

[[Page 36551]]

 
Kongsberg EM2040C Dual Band Head..........                           N/A
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
                      Shallow Sub-Bottom Profilers
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Edgetech 3200 XS 216......................                             9
Innomar SES-2000 Sub Bottom Profiler......                       \1\ 135
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
                                Sparkers
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
GeoMarine Geo-Source 400tip...............                            54
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
                                 Boomers
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
Applied Acoustics S-Boom Triple Plate                            \1\ 400
 Boomer...................................
------------------------------------------------------------------------
Notes:
\1\ These sources modeled with RAM/BELLHOP
The Level B harassment criterion is unweighted.
N/A indicates the operating frequencies are above all relevant marine
  mammal hearing thresholds and these systems were not directly assessed
  in this IHA.

    Bay State Wind completed an underwater noise monitoring program for 
field verification at the project site prior to commencement of the HRG 
survey that took place in 2016. One of the main objectives of this 
program was to determine the apparent sound source levels of HRG 
activities. Results from field verification studies during previously 
authorized activities were used where applicable and manufacturer 
source levels were adjusted to reflect the field verified levels. 
However, not all equipment proposed for use in the 2018 season was used 
in the 2016 activities. As no field data currently exists for the 
Innomar sub-bottom profiler, acoustic modeling was completed using a 
version of the U.S. Naval Research Laboratory's Range-dependent 
Acoustic Model (RAM) and BELLHOP Gaussian beam ray-trace propagation 
model (Porter and Liu 1994). The proposed IHA notice noted that this 
was done for the Applied Acoustics S-Boom Triple Plate Boomer as well, 
but since publication of that notice (83 FR 22443, May 15, 2018), NMFS 
has received a sound source verification study which calculated the 
Level B harassment isopleth for this source. Preliminary analysis 
indicates that actual distance to the Level B harassment threshold is 
no more than 100 m, and could be significantly smaller, which would 
result in no less than a 94% decrease in the size of the associated 
area ensonified above the Level B harassment threshold for this source, 
as compared to the 400-m isopleth. However, because review of the SSV 
report has not been completed and because the report was not available 
until after the proposed IHA was noticed to the public, the take 
estimates have not been modified to reflect this new information, which 
would result in a significant reduction.
    Further, calculations of the ensonified area are conservative due 
to the directionality of the sound sources. For the various HRG 
transducers Bay State Wind proposes to use for these activities, the 
beamwidth varies from 200[deg] (almost omnidirectional) to 1[deg]. The 
modeled directional sound levels were then used as the input for the 
acoustic propagation models, which do not take the directionality of 
the source into account. Therefore, the volume of area affected would 
be much lower than modeled in cases with narrow beamwidths such as the 
Innomar SES-2000 sub-bottom profiler, which has a 1[deg] beamwidth.

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.
    The data used as the basis for estimating species density (``D'') 
for the Study Area are derived from data provided by Duke University's 
Marine Geospatial Ecology Lab and the Marine Life Data and Analysis 
Team. This data set is a compilation of the best available marine 
mammal data (1994-2014) and was prepared in a collaboration between 
Duke University, Northeast Regional Planning Body, University of 
Carolina, the Virginia Aquarium and Marine Science Center, and NOAA 
(Roberts et al., 2016; MDAT 2016).
    Northeast Navy Operations Area (OPAREA) Density Estimates (DoN, 
2007) were used in support for estimating take for seals, which 
represents the only available comprehensive data for seal abundance. 
Navy Oparea Density Estimates (NODEs) utilized vessel-based and aerial 
survey data collected by NMFS from 1998-2005 during broad-scale 
abundance studies. Modeling methodology is detailed in DoN (2007). 
Therefore, for the purposes of the take calculations, NODEs Density 
Estimates (DoN, 2007) as reported for the summer and fall seasons were 
used to estimate harbor seal and gray seal densities.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce an initial quantitative take estimate. In order to 
estimate the number of marine mammals predicted to be exposed to sound 
levels that would result in harassment, radial distances to predicted 
isopleths corresponding to harassment thresholds are calculated, as 
described above. Those distances are then used to calculate the area(s) 
around the HRG survey equipment predicted to be ensonified to sound 
levels that exceed harassment thresholds. The area estimated to be 
ensonified to relevant thresholds in a single day of the survey is then 
calculated, based on areas predicted to be ensonified around the HRG 
survey equipment and the estimated trackline distance traveled per day 
by the survey vessel.
    The estimated distance of the daily vessel trackline was determined 
using the estimated average speed of the vessel and the 24-hour or 
daylight-only

[[Page 36552]]

operational period within each of the corresponding survey segments. 
All noise producing survey equipment are assumed to be operating 
concurrently and the entire duration of the survey. Using the distance 
of 400 m (1,312 ft) to the Level B harassment isopleth and the 
estimated daily vessel track of approximately 177.8 km (110.5 miles) 
for 24-hour operations and 43 km (26.7 miles) for daylight-only 
operations, areas of ensonification (zone of influence, or ZOI) were 
calculated and used as a basis for calculating takes of marine mammals. 
The ZOI is based on the worst case (since it assumes the equipment with 
the larger ZOI will be operating all the time), and are presented in 
Table 5. Take calculations were based on the highest seasonal species 
density as derived from Duke University density data (Roberts et al., 
2016) for cetaceans and seasonal OPAREA density estimates (DoN, 2007) 
for pinnipeds. The resulting take calculations and number of authorized 
takes (rounded to the nearest whole number) are presented in Table 6.

                            Table 5--Survey Segment Distances and Zones of Influence
----------------------------------------------------------------------------------------------------------------
                                                                                                    Calculated
                                                    Total track    Number active     Estimated        level B
                 Survey segment                      line (km)      survey days    distance/ day  harassment ZOI
                                                                                       (km)          (km \2\)
----------------------------------------------------------------------------------------------------------------
Lot 3 (WSG/OSS Location-Offshore)...............           2,845              60           177.8          142.74
Lot 1 (nearshore)...............................           1,091              18            43.0           34.88
Lot 2 (offshore)................................             563              15           177.8          142.74
Lot 4 (offshore)................................           2,253              37           177.8          142.74
Lot 5 (nearshore)...............................             108               5            43.0           34.88
----------------------------------------------------------------------------------------------------------------


                                                                 Table 6--Estimated B Harassment Takes for HRG Survey Activities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Lot 3 (WSG/OSS      Lot 2 (Somerset      Lot 1 (Somerset      Lot 4 (Falmouth      Lot 5 (Falmouth            Totals
                                                                  location-offshore)    export-offshore)    export--nearshore)    export-offshore)    export--nearshore) -----------------------
                                                                ---------------------------------------------------------------------------------------------------------
                                                                  Highest              Highest              Highest              Highest              Highest
                                                                  Seasonal             Seasonal             Seasonal             Seasonal             Seasonal
                            Species                                 Avg.                 Avg.                 Avg.                 Avg.                 Avg.
                                                                  Density     Calc.    Density     Calc.    Density     Calc.    Density     Calc.    Density     Calc.   Authorized     % of
                                                                    \a\       take       \a\       take       \a\       take       \a\       take       \a\       take       take     population
                                                                  (Number/             (Number/             (Number/             (Number/             (Number/
                                                                    100                  100                  100                  100                  100
                                                                   km\2\)               km\2\)               km\2\)               km\2\)               km\2\)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale *...................................       0.96     82.22       1.25     26.76  .........  ........       0.79     41.72  .........  ........    \b\ 0.00        0.00
                                                                              (0.00)               (0.00)                                    (0.00)
Humpback whale.................................................       0.15     12.44       0.12      2.46  .........  ........       0.04      2.30  .........  ........          17        2.07
Fin whale......................................................       0.27     23.24       0.19      4.15  .........  ........       0.07      3.64  .........  ........          31        1.92
Sei whale......................................................       0.02      0.00       0.02      0.38  .........  ........       0.01      0.00  .........  ........        0.00        0.00
Sperm whale....................................................       0.01      0.71       0.01      0.15  .........  ........       0.00      0.22  .........  ........       \c\ 5        0.22
Minke whale....................................................       0.08      7.00       0.05      1.14  .........  ........       0.03      1.82  .........  ........      \d\ 20        0.77
Bottlenose dolphin.............................................       1.72    147.34       0.46      9.85  .........  ........       9.00    475.06  .........  ........   \c\ 1,000        8.66
Risso's dolphin \e\............................................       0.00      0.00       0.00      0.00  .........  ........       0.00      0.00  .........  ........          30        0.16
Atlantic spotted dolphin \e\...................................       0.02      0.00       0.01      0.29  .........  ........       0.46      0.00  .........  ........          50        0.11
Long-finned pilot whale \e\....................................       0.26      0.00       0.13      2.88  .........  ........       0.01      0.00  .........  ........           3        0.05
Common dolphin.................................................       6.26    535.71       2.74     58.67  .........  ........       0.46     24.34  .........  ........   \d\ 2,000        2.85
Atlantic white-sided dolphin...................................       1.90    162.75       1.07     22.98  .........  ........       0.21     10.85  .........  ........     \c\ 500        1.02
Harbor porpoise................................................       6.67    677.69       4.89    124.17  .........  ........       1.11     69.52  .........  ........         871        1.09
Harbor seal \f\................................................       9.74    834.41       9.74    208.60       9.74     61.15       9.74    514.55       9.74     16.99       1,636        2.16
Gray seal \f\..................................................      14.12  1,209.26      14.12    302.32      14.12     88.65      14.12    745.71      14.12     24.62       2,371        0.56
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
* Calculated takes based on the overly conservative 400 m Level B harassment isopleth originally reported. Since publication of the proposed IHA, a sound source verification has been received,
  which indicates that the Level B harassment zone would be greatly reduced.
\a\ Density values from Duke University (Roberts et al., 2016) except for pinnipeds
\b\ Exclusion zone exceeds Level B harassment isopleth; take adjusted to 0 given mitigation to prevent take
\c\ Value not based on calculated takes, but estimates from applicant based on recent sightings information
\d\ Adjusted to account for actual take sighting data in the Survey Area to date (Smultea Environmental Sciences, 2016; Gardline, 2016)
\e\ The number of authorized takes (Level B harassment only) for these species has been increased from the estimated take to mean group size. Source for long-finned pilot whale group size
  estimate is: Augusto et al. (2017). Source for Atlantic spotted dolphin group size estimate is: Jefferson et al. (2008). Source for Risso's dolphin group size estimate is: Baird and Stacey
  (1991).
\f\ Density from NODEs (DoN, 2007)

    As noted in Table 6, requested take estimates were adjusted to 
account for typical group size and were also adjusted to account for 
recent sightings data (Smultea Environmental Sciences, 2016; Gardline, 
2016) for certain species. In addition, requested Level A harassment 
take numbers for harbor porpoise were included in the proposed IHA 
Federal Register notice (83 FR 22443, May 15, 2018). In that notice, 
NMFS stated that due to a variety of reasons, Level A harassment take 
was not a likely occurrence (short pulse duration and highly 
directional sound pulse transmission of these mobile sources in 
addition to the propensity of harbor porpoises to avoid such sound 
sources and the unlikely probability that they would remain within the 
narrow beam long enough to accumulate energy to experience PTS), but a 
small number of Level A harassment take was proposed at the request of 
Bay State

[[Page 36553]]

Wind out of an abundance of caution. However, since publication of the 
proposed IHA, and consideration of public comments received, NMFS has 
determined that Level A harassment take is so unlikely as to be 
discountable. Bay State Wind has agreed and withdrew the request for 
authorization of Level A harassment take. Therefore, no Level A 
harassment take for harbor porpoises has been authorized. The requested 
take numbers remain adjusted for north Atlantic right whales due to the 
implementation of a 500 m shutdown zone, which is greater than the 
conservatively modeled 400 m Level B behavioral harassment zone, to 
avoid Level B harassment takes of this species consistent with the 
Proposed IHA. As discussed previously, preliminary analysis of a sound 
source verification study of the Triple Plate Boomer indicates that the 
Level B harassment isopleth is actually no more than 100 m, which 
further supports our determination that implementation of the 500 m 
shutdown zone for North Atlantic right whales would successfully avoid 
any take for this species. Finally, the proposed IHA did not include 
proposed take of Risso's dolphins, Atlantic spotted dolphins, or long-
finned pilot whales. After consideration of public comments received as 
well as review of monitoring reports and IHAs for other activities in 
the same general area, NMFS has added authorized Level B harassment 
takes of these species.
    Bay State Wind's calculations do not take into account whether a 
single animal is harassed multiple times or whether each exposure is a 
different animal. Therefore, the numbers in Tables 6 are the maximum 
number of animals that may be harassed during the HRG surveys (i.e., 
Bay State Wind assumes that each exposure event is a different animal). 
With the exception of north Atlantic right whales, these estimates do 
not account for prescribed mitigation measures that Bay State Wind 
would implement during the specified activities and the fact that other 
mitigation measures may be imposed as part of other agreements that Bay 
State Wind must adhere to, such as their lease agreement with BOEM.
    No take of North Atlantic right whale is requested, nor is any take 
of this species authorized. The conservatively modeled Level B 
behavioral harassment (400 m) is well within the 500 m mitigation shut 
down zone for this species and, based on the described monitoring 
measures, information from previous monitoring reports, and in 
consideration of the size and visibility of this species, and 
consideration of a recently-received sound source verification study 
for the Applied Acoustics S-Boom Triple Plate Boomer (which indicates 
the Level B harassment zone is substantially less than modelled) it is 
reasonable to expect that North Atlantic right whales will be able to 
be observed such that shut down would occur well beyond the threshold 
for potential behavioral harassment.
    There are several reasons why the 400-m Level B harassment 
threshold is considered conservative. First, calculation of the 
ensonified area does not take directionality of the sound source into 
account and this results in a conservative estimate for the ZOI. The 
Applied Acoustics S-Boom triple plate boomer resulted in the largest 
isopleth for Level B harassment, so the ZOI was calculated using this 
400 m isopleth and, as described above, this equipment has a beamwidth 
of 25[deg]-35[deg] (is not omnidirectional) so the actual ensonified 
volume would be less than the calculated area. Further, the equipment 
with the largest radial distance to Level B harassment thresholds was 
used to calculate the ZOI under the assumption that this equipment 
would be in use for the entirety of the survey activities. The 
calculated takes are conservative because these HRG sound sources have 
very short pulse durations that are also not taken into account in 
calculations of take, but would lessen the potential for marine mammals 
to be exposed to the sound source for long enough periods to result in 
the potential for take as described above. Last, although the 
information has not been used to modify the ensonified area and inform 
the take estimates, because it has not been fully reviewed and 
verified, we note our recent receipt (since the proposed FRN for this 
IHA was published) of the results of a sound source verification study 
for the Applied Acoustics S-Boom Triple Plate Boomer, which suggest a 
notably smaller Level B harassment zone (see the Comment Response 
section for more detail).

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 such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such 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 such 
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) and the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    Bay State Wind must implement the following mitigation measures 
during site characterization surveys utilizing HRG survey equipment. 
The mitigation measures outlined in this section are based on protocols 
and procedures that have been successfully implemented and resulted in 
no observed take of marine mammals for similar offshore projects and 
previously approved by NMFS (DONG Energy, 2016, ESS, 2013; Dominion, 
2013 and 2014), as well as results of sound source verification (SSV) 
studies implemented by Bay State Wind during past activities in the 
proposed project area.

Marine Mammal Exclusion and Monitoring Zones

    Protected species observers (PSOs) must monitor the following 
exclusion/monitoring zones for the presence of marine mammals:
     A 1,640 feet (ft) (500-m) exclusion zone for North 
Atlantic right whales, which encompasses the largest Level B harassment 
isopleth of 400 m for the

[[Page 36554]]

Applied Acoustics S-Boom Triple Plate Boomer;
     A 328-ft (100-m) exclusion zone for non-delphinoid large 
cetacean and ESA-listed marine mammals, which is consistent with vessel 
strike avoidance measures stipulated in the BOEM lease; and
     A 1,312-ft (400-m) Level B harassment monitoring zone for 
all marine mammals except for North Atlantic right whales, which is the 
extent of the largest Level B harassment isopleth for the Applied 
Acoustics S-Boom Triple Plate Boomer. We note that the actual area 
monitored (watch zone) will be much larger than this and must include 
the largest area visible. All marine mammals observed within the watch 
zone must be reported in the monitoring reports, but only marine 
mammals within the Level B harassment zone will be counted as Level B 
harassment takes in the monitoring reports.
    The distances from the sound sources for these exclusion/monitoring 
zones are based on distances to NMFS Level B harassment threshold or 
requirements of the BOEM lease stipulations for vessel strike avoidance 
(discussed below). The representative area ensonified to the MMPA Level 
B harassment threshold for each of the pieces of HRG survey equipment 
represents the zone within which take of a marine mammal could occur. 
The distances to the harassment criteria were used to support the 
estimate of take as well as the development of the monitoring and/or 
mitigation measures. Radial distance to NMFS' Level A and Level B 
harassment thresholds are summarized in Table 5 above.
    Visual monitoring of the established exclusion and monitoring 
zone(s) for the HRG surveys must be performed by qualified and NMFS-
approved PSOs. Observer qualifications must include direct field 
experience on a marine mammal observation vessel and/or aerial surveys 
in the Atlantic Ocean/Gulf of Mexico. An observer team comprising a 
minimum of four NMFS-approved PSOs and two certified PAM operators (PAM 
operators shall not function as PSOs), operating in shifts, must be 
stationed aboard either the survey vessel or a dedicated PSO-vessel. 
PSOs and PAM operators must work in shifts such that no one monitor 
must work more than 4 consecutive hours without a 2-hour break or 
longer than 12 hours during any 24-hour period. During daylight hours 
the PSOs must rotate in shifts of 1 on and 3 off, while during 
nighttime operations PSOs must work in pairs. The PAM operators must 
also be on call as necessary during daytime operations should visual 
observations become impaired. Each PSO must monitor 360 degrees of the 
field of vision.
    PSOs are responsible for visually monitoring and identifying marine 
mammals approaching or within the established exclusion zone(s) during 
survey activities. It is the responsibility of the Lead PSO on duty to 
communicate the presence of marine mammals as well as to communicate 
and ensure the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate. PAM operators 
must communicate detected vocalizations to the Lead PSO on duty, who is 
then be responsible for implementing the necessary mitigation 
procedures. A mitigation and monitoring communications flow diagram has 
been included as Appendix A in the IHA application.
    PSOs must be equipped with binoculars and have the ability to 
estimate distances to marine mammals located in proximity to the vessel 
and/or exclusion zone using range finders. 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 
species. Digital single-lens reflex camera equipment must be used to 
record sightings and verify species identification. During night 
operations, PAM (see Passive Acoustic Monitoring requirements below) 
and night-vision equipment in combination with infrared video 
monitoring must be used (Additional details and specifications of the 
night-vision devices and infrared video monitoring technology will be 
provided under separate cover by the Bay State Wind Survey Contractor 
once selected.). Position data must be recorded using hand-held or 
vessel global positioning system (GPS) units for each sighting.
    For monitoring around the ASV, a dual thermal/high definition (HD) 
camera must be installed on the mother vessel, facing forward, angled 
in a direction so as to provide a field of view ahead of the vessel and 
around the ASV. The ASV must be kept in sight of the mother vessel at 
all times (within 2,625 ft (800 m)). PSOs must be able to monitor the 
real time output of the camera on hand-held devices. Images from the 
cameras must be captured for review and to assist in verifying species 
identification. A monitor must also be installed on the bridge 
displaying the real-time picture from the thermal/HD camera installed 
on the front of the ASV itself, providing a further forward field of 
view of the craft. In addition, night-vision goggles with thermal clip-
ons, as mentioned above, and a hand-held spotlight must be provided 
such that PSOs can focus observations in any direction, around the 
mother vessel and/or the ASV. PSOs must also monitor the data as it is 
acquired by the ASV utilizing a real time IP radio link. For each 12 
hour shift, an ASV technician must be assigned to manage the vessel and 
monitor the array of cameras, radars, and thermal equipment during 
their shift to ensure the vehicle is operating properly and to take 
over control of the vessel should the need arise. Additionally, there 
must be 2 survey technicians per shift assigned to acquire the ASV 
survey data.
    The PSOs must begin observation of the exclusion zone(s) at least 
30 minutes prior to ramp-up of HRG survey equipment. Use of noise-
producing equipment must not begin until the exclusion zone is clear of 
all marine mammals for at least 30 minutes.
    If a marine mammal is detected approaching or entering the 
exclusion zones during the HRG survey, the vessel operator must adhere 
to the shutdown procedures described below to minimize noise impacts on 
the animals.
    At all times, the vessel operator must maintain a separation 
distance of 500 m from any sighted North Atlantic right whale as 
stipulated in the Vessel Strike Avoidance procedures described below. 
These stated requirements must be included in the site-specific 
training to be provided to the survey team.

Vessel Strike Avoidance

    The Applicant must ensure that vessel operators and crew maintain a 
vigilant watch for cetaceans and pinnipeds and slow down or stop their 
vessels to avoid striking these species. Survey vessel crew members 
responsible for navigation duties must receive site-specific training 
on marine mammal and sea turtle sighting/reporting and vessel strike 
avoidance measures. Vessel strike avoidance measures must include the 
following, except under extraordinary circumstances, when complying 
with these requirements would put the safety of the vessel or crew at 
risk:
     All vessel operators must comply with 10 knot (<18.5 km 
per hour (km/h)) speed restrictions in any DMA. In addition, all 
vessels operating from November 1 through July 31 must operate at 
speeds of 10 knots (<18.5 km/h) or less;
     All vessel operators must reduce vessel speed to 10 knots 
or less when mother/calf pairs, pods, or larger assemblages of non-
delphinoid cetaceans are observed near an underway vessel;

[[Page 36555]]

     All survey vessels must maintain a separation distance of 
1,640 ft (500 m) or greater from any sighted North Atlantic right 
whale;
     If underway, vessels must steer a course away from any 
sighted North Atlantic right whale at 10 knots (<18.5 km/h) or less 
until the 1,640 ft (500 m) minimum separation distance has been 
established. If a North Atlantic right whale is sighted in a vessel's 
path, or within 330 ft (100 m) to an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Engines shall 
not be engaged until the North Atlantic right whale has moved outside 
of the vessel's path and beyond 330 ft (100 m). If stationary, the 
vessel must not engage engines until the North Atlantic right whale has 
moved beyond 330 ft (100 m);
     All vessels must maintain a separation distance of 330 ft 
(100 m) or greater from any sighted non-delphinoid (i.e., mysticetes 
and sperm whales) cetaceans. If sighted, the vessel underway must 
reduce speed and shift the engine to neutral, and must not engage the 
engines until the non-delphinoid cetacean has moved outside of the 
vessel's path and beyond 330 ft (100 m). If a survey vessel is 
stationary, the vessel must not engage engines until the non-delphinoid 
cetacean has moved out of the vessel's path and beyond 330 ft (100 m);
     All underway vessels must avoid excessive speed or abrupt 
changes in direction to avoid injury to any sighted delphinoid cetacean 
or pinniped; and
     All vessels must maintain a separation distance of 164 ft 
(50 m) or greater from any sighted pinniped.
    The training program must be provided to NMFS for review and 
approval prior to the start of surveys. Confirmation of the training 
and understanding of the requirements must be documented on a training 
course log sheet. Signing the log sheet certifies that the crew members 
understand and must comply with the necessary requirements throughout 
the survey event.

Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team shall consult 
the NMFS North Atlantic right whale reporting systems for the presence 
of North Atlantic right whales throughout survey operations. However, 
the proposed survey activities will occur outside of the seasonal 
management area (SMA) located off the coast of Massachusetts and Rhode 
Island. The proposed survey activities are also scheduled to occur 
outside of the seasonal mandatory speed restriction period for this SMA 
(November 1 through April 30); however, survey vessels will operate at 
or below the speed restrictions due to the nature of the survey 
activities.
    Throughout all survey operations, the Applicant shall monitor the 
NMFS North Atlantic right whale reporting systems for the establishment 
of a DMA. If NMFS should establish a DMA in the Study Area under 
survey, within 24 hours of the establishment of the DMA the Applicant 
shall work with NMFS to shut down and/or alter the survey activities to 
avoid the DMA.

Passive Acoustic Monitoring

    As per the BOEM Lease, alternative monitoring technologies (e.g., 
active or passive acoustic monitoring) are required if a Lessee intends 
to conduct geophysical surveys at night or when visual observation is 
otherwise impaired. To support 24-hour HRG survey operations, Bay State 
Wind shall use certified PAM operators with experience reviewing and 
identifying recorded marine mammal vocalizations, as part of the 
project monitoring during nighttime operations to provide for optimal 
acquisition of species detections at night, or as needed during periods 
when visual observations may be impaired. In addition, PAM systems 
shall be employed during daylight hours to support system calibration 
and PSO and PAM team coordination, as well as in support of efforts to 
evaluate the effectiveness of the various mitigation techniques (i.e., 
visual observations during day and night, compared to the PAM 
detections/operations).
    Given the range of species that could occur in the Study Area, the 
PAM system shall consist of an array of hydrophones with both broadband 
(sampling mid-range frequencies of 2 kHz to 200 kHz) and at least one 
low-frequency hydrophone (sampling range frequencies of 10 Hz to 30 
kHz). Monitoring of the PAM system shall be conducted from a customized 
processing station aboard the HRG survey vessel. The on-board 
processing station provides the interface between the PAM system and 
the operator. The PAM operator(s) shall monitor the hydrophone signals 
in real time both aurally (using headphones) and visually (via the 
monitor screen displays). Bay State Wind proposes the use of PAMGuard 
software for `target motion analysis' to support localization in 
relation to the identified exclusion zone. PAMGuard is an open source 
software/hardware interface to enable flexibility in the configuration 
of in-sea equipment (number of hydrophones, sensitivities, spacing, and 
geometry). PAM operators shall immediately communicate detections/
vocalizations to the Lead PSO on duty who will ensure the 
implementation of the appropriate mitigation measure (e.g., shutdown) 
even if visual observations by PSOs have not been made.

Ramp-Up

    As per the BOEM Lease, a ramp-up procedure shall be used for HRG 
survey equipment capable of adjusting energy levels at the start or re-
start of HRG survey activities. A ramp-up procedure shall be used at 
the beginning of HRG survey activities in order to provide additional 
protection to marine mammals near the Study Area by allowing them to 
vacate the area prior to the commencement of survey equipment use. The 
ramp-up procedure shall not be initiated during daytime, night time, or 
periods of inclement weather if the exclusion zone cannot be adequately 
monitored by the PSOs using the appropriate visual technology (e.g., 
reticulated binoculars, night vision equipment) and/or PAM for a 30-
minute period. A ramp-up shall begin with the power of the smallest 
acoustic HRG equipment at its lowest practical power output appropriate 
for the survey. The power shall then be gradually turned up and other 
acoustic sources added such that the source level would increase in 
steps not exceeding 6 dB per 5-minute period. If marine mammals are 
detected within the HRG survey exclusion zone prior to or during the 
ramp-up, activities shall be delayed until the animal(s) has moved 
outside the monitoring zone and no marine mammals are detected for a 
period of 30 minutes.

Shutdown Procedures

    The EZ around the HRG survey equipment shall be monitored, as 
previously described, by PSOs and at night by PAM operators for the 
presence of marine mammals before, during, and after HRG surveys. The 
vessel operator must comply immediately with any call for shutdown by 
the Lead PSO. Any disagreement should be discussed only after shutdown.
    As per the BOEM Lease, if a non-delphinoid (i.e., mysticetes and 
sperm whales) cetacean is detected at or within the established Level A 
harassment exclusion zone, an immediate shutdown of the HRG survey 
equipment is required. Subsequent restart of the electromechanical 
survey equipment must use the ramp-up procedures described above and 
may only occur following clearance of the exclusion zone for 30 minutes 
for large cetaceans or 15 minutes for small cetaceans and pinnipeds. 
Subsequent power up of the survey equipment must use the ramp-up

[[Page 36556]]

procedures described above and may occur after the exclusion zone is 
clear of small cetaceans and/or pinniped for 15 minutes and large 
cetaceans for 30 minutes.
    If the HRG sound source (including the sub-bottom profiler) shuts 
down for reasons other than encroachment into the exclusion zone by a 
marine mammal including but not limited to a mechanical or electronic 
failure, resulting in in the cessation of sound source for a period 
greater than 20 minutes, a restart for the HRG survey equipment 
(including the sub-bottom profiler) is required using the full ramp-up 
procedures and clearance of the exclusion zone of all cetaceans for 30 
minutes, or 15 minutes for pinnipeds. If the pause is less than 20 
minutes, the equipment may be restarted as soon as practicable at its 
operational level as long as visual surveys were continued diligently 
throughout the silent period and the exclusion zone remained clear of 
cetaceans and pinnipeds. If the visual surveys were not continued 
diligently during the pause of 20 minutes or less, a restart of the HRG 
survey equipment (including the sub-bottom profiler) is required using 
the full ramp-up procedures and clearance of the exclusion zone for all 
cetaceans and pinnipeds for 30 minutes.
    The required mitigation measures are designed to avoid the already 
low potential for injury (Level A harassment) and minimize Level B 
harassment, as well as to minimize the potential for vessel strikes. 
There are no known marine mammal rookeries or mating grounds in the 
survey area that would otherwise potentially warrant increased 
mitigation measures for marine mammals or their habitat (or both). The 
proposed survey would occur in an area that has been identified as a 
biologically important area (BIA) for migration for North Atlantic 
right whales. However, given the small spatial extent of the survey 
area relative to the substantially larger spatial extent of the right 
whale migratory area, the survey is not expected to appreciably reduce 
migratory habitat nor to negatively impact the migration of North 
Atlantic right whales. In addition, the timing of importance for 
migration in this biologically important area BIA is March-April and 
November-December, and Bay State Wind's proposed activities are 
anticipated to occur outside of the timing of importance. Thus, 
mitigation to address the proposed survey's occurrence in North 
Atlantic right whale migratory habitat is not warranted. The proposed 
survey area would partially overlap spatially with a biologically 
important feeding area for fin whales. However, the fin whale feeding 
area is sufficiently large (2,933 km\2\), and the acoustic footprint of 
the proposed survey is sufficiently small that the survey is not 
expected to appreciably reduce fin whale feeding habitat nor to 
negatively impact the feeding of fin whales, thus mitigation to address 
the proposed survey's occurrence in fin whale feeding habitat is not 
warranted. Further, we believe the required mitigation measures are 
practicable for the applicant to implement
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammals 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 ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the proposed action area.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring Measures

    Visual Monitoring--Visual monitoring shall be performed by 
qualified and NMFS-approved PSOs (see discussion of PSO qualifications 
and requirements in Marine Mammal Exclusion Zones above).
    The PSOs shall begin observation of the monitoring zone during all 
HRG survey activities, which will encompass the maximum sight distance 
possible, including harassment zones and exclusion zones. Observations 
of the monitoring zone shall continue throughout the survey activity. 
PSOs shall be responsible for visually monitoring and identifying 
marine mammals approaching or entering the established monitoring zone 
during survey activities.
    Observations shall take place from the highest available vantage 
point on the survey vessel. General 360-degree scanning shall occur 
during the monitoring periods, and target scanning by the PSO shall 
occur when alerted of a marine mammal presence. For monitoring around 
the autonomous surface vessel (ASV), a dual thermal/HD camera shall be 
installed on the mother vessel facing forward and angled in a direction 
so as to provide a field of view ahead of the vessel and around the 
ASV. PSOs shall be able to monitor the real-time output of the camera 
on hand-held computer tablets. Images from the cameras shall be able to 
be captured and reviewed to assist in verifying species identification. 
A monitor shall also be installed in the bridge displaying the real-
time images from the thermal/HD camera installed on the front of the 
ASV itself, providing a further forward view of the craft. In addition, 
night-vision goggles with thermal clip-ons and a hand-held spotlight 
shall be provided and used such that PSOs can focus observations in any 
direction around the mother vessel and/or the ASV.
    Data on all PSO observations shall be recorded based on standard 
PSO collection requirements. This shall include dates and locations of 
construction operations; time of observation, location and weather; 
details of the sightings (e.g., species, age

[[Page 36557]]

classification [if known], numbers, behavior, distance from the 
source); and details of any observed behavioral disturbances, injury or 
mortality). The data sheet shall be provided to both NMFS and BOEM for 
review and approval prior to the start of survey activities. In 
addition, prior to initiation of survey work, all crew members will 
undergo environmental training, a component of which shall focus on the 
procedures for sighting and protection of marine mammals. A briefing 
shall also be conducted between the survey supervisors and crews, the 
PSOs, and the Applicant. The purpose of the briefing shall be to 
establish responsibilities of each party, define the chains of command, 
discuss communication procedures, provide an overview of monitoring 
purposes, and review operational procedures.

Reporting Measures

    The Applicant shall provide the following reports as necessary 
during survey activities:
    Any observed significant behavioral reactions (e.g., animals 
departing the area) or injury or mortality to any marine mammals must 
be reported to NMFS and BOEM within 24 hours of observation. Dead or 
injured protected species are reported to the NMFS Greater Atlantic 
Regional Fisheries Office Stranding Hotline (800-900-3622) within 24 
hours of sighting, regardless of whether the injury is caused by a 
vessel. In addition, if the injury or death was caused by a collision 
with a project related vessel, the Applicant must ensure that NMFS and 
BOEM are notified of the strike within 24 hours. The Applicant must use 
the form included as Appendix A to Addendum C of the Lease to report 
the sighting or incident. If the Applicant is responsible for the 
injury or death, the vessel must assist with any salvage effort as 
requested by NMFS. Additional reporting requirements for injured or 
dead animals are described below (Notification of Injured or Dead 
Marine Mammals).

Notification of Injured or Dead Marine Mammals

    In the unanticipated event that the specified activities lead to an 
unauthorized injury of a marine mammal or mortality (e.g., ship-strike, 
gear interaction, and/or entanglement), Bay State Wind must immediately 
cease the specified activities and report the incident to the Chief of 
the Permits and Conservation Division, Office of Protected Resources 
and the NOAA Greater Atlantic Regional Fisheries Office (GARFO) 
Stranding Coordinator. The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the event. NMFS will work with Bay State Wind to 
minimize reoccurrence of such an event in the future. Bay State Wind 
shall not resume activities until notified by NMFS.
    In the event that Bay State Wind discovers an injured or dead 
marine mammal and determines that the cause of the injury or death is 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition), Bay State Wind shall immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources and the GARFO Stranding 
Coordinator. The report shall include the same information identified 
in the paragraph above. Activities shall be allowed to continue while 
NMFS reviews the circumstances of the incident. NMFS will work with the 
Applicant to determine if modifications in the activities are 
appropriate.
    In the event that Bay State Wind discovers an injured or dead 
marine mammal and determines that the injury or death is not associated 
with or related to the activities authorized in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Bay State Wind shall report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the NMFS Greater Atlantic Regional 
Fisheries Office Regional Stranding Coordinator, within 24 hours of the 
discovery. Bay State Wind shall provide photographs or video footage 
(if available) or other documentation of the stranded animal sighting 
to NMFS. Bay State Wind can continue its operations in such a case.
    Within 90 days after completion of the marine site characterization 
survey activities, a technical report shall be provided to NMFS and 
BOEM that fully documents the methods and monitoring protocols, 
summarizes the data recorded during monitoring, estimates the number of 
marine mammals that may have been taken during survey activities, and 
provides an interpretation of the results and effectiveness of all 
monitoring tasks. Any recommendations made by NMFS must be addressed in 
the final report prior to acceptance by NMFS.
    In addition to the Applicant's reporting requirements outlined 
above, the Applicant shall provide an assessment report of the 
effectiveness of the various mitigation techniques, i.e. visual 
observations during day and night, compared to the PAM detections/
operations. This shall be submitted as a draft to NMFS and BOEM 30 days 
after the completion of the HRG surveys and as a final version 60 days 
after completion of the surveys.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. 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

[[Page 36558]]

sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the majority of our analyses applies to all of 
the species listed in Table 6, given that the anticipated effects of 
the HRG surveys on different marine mammal species or stocks are 
expected to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of the expected 
take on the population due to differences in population status, or 
impacts on habitat, they are described independently in the analysis 
below.
    As discussed in the ``Potential Effects of the Specified Activity 
on Marine Mammals and Their Habitat'' section of the proposed IHA 
notice and referenced above, masking, non-auditory physical effects, 
and vessel strike are not expected to occur. Animals in the area would 
likely incur no more than brief hearing impairment (i.e., TTS) due to 
generally low SPLs--and in the case of the HRG survey equipment use, 
directional beam pattern, transient signals, and moving sound sources--
and the fact that most marine mammals would more likely avoid a loud 
sound source rather than swim in such close proximity for an amount of 
time as to result in TTS. Further, once an area has been surveyed, it 
is not likely that it will be surveyed again, therefore reducing the 
likelihood of repeated impacts within the project area.
    Potential impacts to marine mammal habitat were discussed 
previously in the Proposed IHA document (83 FR 22443, May 15, 2018; see 
the ``Potential Effects of the Specified Activity on Marine Mammals and 
their Habitat'' section). Marine mammal habitat may be impacted by 
elevated sound levels and some sediment disturbance, but these impacts 
would be temporary and relatively short term. Feeding behavior is not 
likely to be significantly impacted, as marine mammals appear to be 
less likely to exhibit behavioral reactions or avoidance responses 
while engaged in feeding activities (Richardson et al., 1995). Prey 
species are mobile, and are broadly distributed throughout the Study 
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, 
the availability of similar habitat and resources in the surrounding 
area, and the lack of important or unique marine mammal habitat, 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.

ESA-Listed Marine Mammal Species

    The North Atlantic right whale population demonstrated overall 
growth of 2.8 percent per year between 1990 to 2010, despite a decline 
in 1993 and no growth between 1997 and 2000 (Pace et al., 2017). 
However, since 2010 the population has been in decline, with a 99.99 
percent probability of a decline of just under one percent per year 
(Pace et al., 2017). In the western North Atlantic, there were 
estimated to be 458 whales in November 2015 (as reported in NMFS's 
draft 2017 SARs and Table 2) based on a Bayesian mark-recapture open 
population model, which accounts for individual differences in the 
probability of being photographed (95 percent credible intervals 444-
471, Pace et al., 2017). While photographic data for 2016 are still 
being processed, using this same Bayesian methodology with the 
available data as of September 1, 2017, gave an estimate of 451 
individuals for 2016 (Pettis et al., 2017a). While data are not yet 
available to statistically estimate the population's trend beyond 2015, 
three lines of evidence indicate the population is still in decline. 
First, calving rates in 2016 and 2017 were low, with only five new 
calves being documented in 2017 (Pettis et al., 2017a), well below the 
number needed to compensate for expected mortalities (Pace et al., 
2017). In 2018, no new North Atlantic right whale calves were 
documented in their calving grounds; this represented the first time 
since annual NOAA aerial surveys began in 1989 that no new right whale 
calves were observed. Long-term photographic identification data 
indicate new calves rarely go undetected, so these years likely 
represent a continuation of the low calving rates that began in 2012 
(Kraus et al., 2007; Pace et al., 2017). Second, as noted above, the 
preliminary abundance estimate for 2016 is 451 individuals, down 
approximately 1.5 percent from 458 in 2015. Third, since June 2017, at 
least 18 North Atlantic right whales have died in what has been 
declared an Unusual Mortality Event (UME; see additional discussion of 
the UME below), and at least one calf died prior to this in April 2017 
(NMFS, 2017). Currently, no identified right whale recovery goals have 
been met (for more information on these goals, see the 2005 recovery 
plan; NMFS, 2005, 2017). With whaling now prohibited, the two major 
known human causes of mortality are vessel strikes and entanglement in 
fishing gear. Some progress has been made in mitigating vessel strikes 
by regulating vessel speeds in certain areas (78 FR 73726; December 9, 
2013) (Conn and Silber, 2013), but entanglement in fishing gear remains 
a major threat (Kraus et al., 2016).
    There are currently insufficient data to determine population 
trends for fin whale (Waring et al., 2015). There is also no exact 
accounting of the total number of sperm whales worldwide, but the best 
estimate is between 300,000 to 450,000 individuals. There is no 
designated critical habitat for any ESA-listed marine mammals within 
the Study Area, and none of the stocks for non-listed species 
authorized to be taken are considered ``depleted'' or ``strategic'' by 
NMFS under the MMPA.
    ESA-listed species for which takes are authorized are sperm whales 
and fin whales, and these effects are anticipated to be limited to 
lower level behavioral effects. No take has been authorized for North 
Atlantic right whales.

Biologically Important Areas (BIA)

    A small portion of a BIA for fin whale feeding is within the survey 
area. However, the portion of the fin whale feeding BIA within the HRG 
survey area is a very small portion of the overall BIA, and HRG 
activities would ensonify such a small area that fin whale foraging is 
not anticipated to be substantially impacted. In addition, as stated 
above, authorized takes are limited to Level B harassment and are 
anticipated to be mainly short-term and temporary behavioral harassment 
and it is anticipated that normal foraging activity would commence 
shortly after any behavioral disturbance if any were to occur.
    The survey area is within a BIA for North Atlantic right whale 
migration with timing of importance being March-April (northward 
migration) and November-December (southward migration). Pregnant North 
Atlantic right whales migrate south, through the mid-Atlantic region of 
the United States, to low latitudes during late fall where they 
overwinter and give birth in shallow, coastal waters (Kenney, 2009). 
During spring, these females migrate back north with their new calves 
to high latitude foraging grounds where they feed on large 
concentrations of copepods, primarily Calanus finmarchicus (NMFS, 
2017). Some non-reproductive North Atlantic right whales (males, 
juveniles, non-reproducing females) also migrate south through the mid-
Atlantic region, although at more variable times throughout the winter, 
while others

[[Page 36559]]

appear to not migrate south, and instead remain in the northern feeding 
grounds year round or go elsewhere (Bort et al., 2015; Morano et al., 
2012; NMFS, 2017). Bay State Wind's HRG survey activity is scheduled to 
begin as soon as the IHA is issued and continue for approximately 60 
days, so it is anticipated that HRG survey activities would be 
completed prior to the months when highest densities are expected to be 
present, though the possibility that the survey would occur in this 
time period was still analyzed and no take of North Atlantic right 
whales has been authorized in the IHA issued to Bay State Wind, as HRG 
survey operations are required to shut down at 500 m to avoid any 
potential for behavioral harassment of this species.

Unusual Mortality Events (UME)

    A UME is defined under the MMPA as ``a stranding that is 
unexpected; involves a significant die-off of any marine mammal 
population; and demands immediate response.'' Three UMEs are ongoing 
and under investigation relevant to HRG survey area. These involve 
humpback whales, North Atlantic right whales, and minke whales. 
Specific information for each ongoing UME is provided below. There is 
currently no direct connection between the three UMEs, as there is no 
evident cause of stranding or death that is common across the three 
species involved in the different UMEs. Additionally, strandings across 
the three species are not clustering in space or time.
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida. As of 
June 2018, partial or full necropsy examinations have been conducted on 
approximately half of the 76 known cases. Of the cases examined, 
approximately half had evidence of human interaction (ship strike or 
entanglement). Fourteen of these investigated mortalities showed blunt 
force trauma or pre-mortem propeller wounds indicative of vessel 
strike, which is above the annual long-term average; however, these 
findings of pre-mortem vessel strike are not consistent across all of 
the whales examined and more research is needed. NOAA is consulting 
with researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. Three previous 
UMEs involving humpback whales have occurred since 2000, in 2003, 2005, 
and 2006. More information is available at www.fisheries.noaa.gov/national/marine-life-distress/2016-2018-humpback-whale-unusual-mortality-event-along-atlantic-coast (accessed July 2, 2018).
    Since 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. As of June 2018, 
partial or full necropsy examinations have been conducted on 18 of the 
33 known cases. Preliminary findings in several of the whales have 
shown evidence of human interactions or infectious disease. These 
findings are not consistent across all of the whales examined, so more 
research is needed. As part of the UME investigation process, NOAA is 
assembling an independent team of scientists to coordinate with the 
Working Group on Marine Mammal Unusual Mortality Events to review the 
data collected, sample stranded whales, and determine the next steps 
for the investigation. More information is available at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-minke-whale-unusual-mortality-event-along-atlantic-coast (accessed March 19, 
2018).
    Elevated North Atlantic right whale mortalities began in June 2017, 
primarily in Canada. To date, there are a total of 18 confirmed dead 
stranded whales and 1 suspected dead (12 in Canada; 6 in the United 
States; 1 suspected dead in the United States), and 5 live whale 
entanglements in Canada have been documented. Full necropsy 
examinations have been conducted on eleven of the cases, with results 
currently available for seven of these that occurred in Canada (Daoust 
et al., 2017). Results indicate that two whales died from entanglement 
in fishing gear and, for four whales, necropsy findings were compatible 
with acute death due to trauma (although it is uncertain whether they 
were struck pre- or post-mortem) (Daoust et al., 2017). Several 
investigated cases are undetermined due to advanced decomposition. 
Overall, findings to date confirm that vessel strikes and fishing gear 
entanglement continue to be the key threats to recovery of North 
Atlantic right whales. In response, the Canadian government has enacted 
fishery closures to help reduce future entanglements and has modified 
fixed gear fisheries, as well as implementing temporary mandatory 
vessel speed restrictions in a portion of the Gulf of St. Lawrence. 
NOAA is cooperating with Canadian government officials as they 
investigate the incidents in Canadian waters. A previous UME involving 
right whales occurred in 1996. More information is available at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-north-atlantic-right-whale-unusual-mortality-event (accessed March 19, 2018).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes by giving animals the opportunity to move away 
from the sound source before HRG survey equipment reaches full energy 
and preventing animals from being exposed to sound levels that have the 
potential to cause injury (Level A harassment) and more severe Level B 
harassment during HRG survey activities. Additional vessel strike 
avoidance requirements will further mitigate potential impacts to 
marine mammals during vessel transit to and within the Study Area.
    Bay State Wind did not request, and NMFS is not authorizing, take 
of marine mammals by serious injury, or mortality. NMFS expects that 
most takes would primarily be in the form of short-term Level B 
behavioral harassment in the form of brief startling reaction and/or 
temporary vacating 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). This is largely due to the short time scale of the proposed 
activities, the low source levels and intermittent nature of many of 
the technologies proposed to be used, as well as the required 
mitigation.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality, serious injury or injury is anticipated or 
authorized;
     Take is anticipated to be limited to Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area due to the intermittent and short term 
nature of the activities as well as the directionality of the sound 
sources;
     While the survey area is within areas noted as 
biologically important for north Atlantic right whale migration 
mitigation measures to shut down at 500 m are expected to avoid any 
take of the species. Further, although our analysis considers the 
potential for the activities to occur at any point during the year, 
they are anticipated to take place outside of the timeframe of noted

[[Page 36560]]

importance for migration for the North Atlantic right whale BIA
     Similarly, due to the small overlap of the survey 
activities with the biologically important area for fin whales, along 
with the size of the required shutdown, which should avoid the majority 
of impacts, the survey activities are not expected to affect foraging 
behavior of this species.
     For all species, the percentage of stocks affected are 
less than 9 percent of the stock. This represents the total instances 
of take and does not consider that there are likely repeat exposures of 
the same individuals, which would mean that the percentage of 
individuals are likely lower. In addition, these takes are anticipated 
to be Level B harassment takes in the form of short-term startle or 
avoidance reactions that would not affect the species or stock.
    NMFS concludes that exposures to marine mammal species and stocks 
due to Bay State Wind's HRG survey activities would result in only 
short-term (temporary and short in duration) and relatively infrequent 
effects to individuals exposed, and not of the type or severity that 
would be expected to be additive for the very small portion of the 
stocks and species likely to be exposed. Animals may temporarily avoid 
the immediate area, but are not expected to permanently abandon the 
area. Major shifts in habitat use, distribution, or foraging success, 
are not expected. For the reasons described herein, NMFS does not 
anticipate the authorized take to impact annual rates of recruitment or 
survival.
    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 monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
Bay State Wind's proposed HRG survey activities will have a negligible 
impact on the affected marine mammal species or stocks.

Small Numbers

    The takes authorized for the HRG survey represent 2.07 percent of 
the Gulf of Maine stock of humpback whale (West Indies Distinct 
Population Segment); 1.92 percent of the WNA stock of fin whale; 0.77 
percent of the Canadian East Coast stock of minke whale; 0.22 percent 
of the North Atlantic stock of sperm whales; 8.66 percent of the 
Western North Atlantic stock of bottlenose dolphins; 0.16 percent of 
the WNA stock of Risso's dolphins; 0.11 percent of the WNA stock of 
Atlantic spotted dolphins; 0.05 percent of the WNA stock of long-finned 
pilot whales; 2.85 percent of the WNA stock of common dolphin; 1.02 
percent of the WNA stock of Atlantic white-sided dolphin; 1.09 percent 
of the Gulf of Maine/Bay of Fundy stock of harbor porpoise; 2.16 
percent of the WNA stock of harbor seal; and 0.56 percent of the North 
Atlantic stock of gray seal. These take estimates represent the 
percentage of each species or stock that could be taken and are small 
numbers relative to the affected species or stock sizes. Further, the 
authorized take numbers are the maximum numbers of animals that are 
expected to be harassed during the project; it is possible that some of 
these exposures may occur to the same individual, which would mean the 
percentage of stock taken would be smaller as it would not take into 
account these multiple exposures of the same individual(s). Therefore, 
NMFS finds that small numbers of marine mammals will be taken relative 
to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

National Environmental Policy Act (NEPA)

    The U.S. Bureau of Ocean Energy Management (BOEM) prepared an 
Environmental Assessment (EA) in accordance with the National 
Environmental Policy Act (NEPA), to evaluate the issuance of wind 
energy leases covering the entirety of the Massachusetts Wind Energy 
Area (including the OCS-A 0500 Study Area), and the approval of site 
assessment activities within those leases (BOEM, 2014). NMFS previously 
adopted BOEM's EA and issued a Finding of No Significant Effect (FONSI) 
for similar work in 2016 (81 FR 56589, August 22, 2016).
    NMFS has reviewed the BOEM EA and our previous FONSI and has 
determined that this action is consistent with categories of activities 
identified in CE B4 of the Companion Manual for NOAA Administrative 
Order 216-6A, which do not individually or cumulatively have the 
potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion. 
Accordingly, NMFS has determined that the issuance of the IHA qualifies 
to be categorically excluded from further NEPA review. We have reviewed 
all comments submitted in response to the proposed IHA notice prior to 
concluding our NEPA process and making a final decision on the IHA 
request.

Endangered Species Act

    The NMFS Office of Protected Resources is authorizing the 
incidental take fin whales, which are listed under the ESA. BOEM 
consulted with NMFS GARFO under section 7 of the ESA on commercial wind 
lease issuance and site assessment activities on the Atlantic Outer 
Continental Shelf in Massachusetts, Rhode Island, New York and New 
Jersey Wind Energy Areas. The NMFS GARFO issued a Biological Opinion 
concluding that these activities may adversely affect but are not 
likely to jeopardize the continued existence of the North Atlantic 
right, fin, and sperm whale. The Biological Opinion can be found online 
at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Upon 
request from the NMFS Office of Protected Resources, the NMFS GARFO 
will issue an amended incidental take statement associated with this 
Biological Opinion to include the takes of the ESA-listed fin whale 
authorized through this IHA.

Authorization

    NMFS has issued an IHA to Bay State Wind for conducting marine site 
characterization surveys offshore of Massachusetts and along potential 
submarine cable routes for a period of one year, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: July 24, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-16200 Filed 7-27-18; 8:45 am]
 BILLING CODE 3510-22-P