Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys of Lease Areas OCS-A 0486, OCS-A 0487, and OCS-A 0500, 36054-36082 [2019-15802]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 144 (Friday, July 26, 2019)]
[Notices]
[Pages 36054-36082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15802]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG909


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys of 
Lease Areas OCS-A 0486, OCS-A 0487, and OCS-A 0500

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received an application from Orsted Wind Power LLC 
(Orsted) for 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 and Rhode 
Island in the areas of Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS) 
currently being leased by the Applicant's affiliates Deepwater Wind New 
England, LLC and Bay State Wind LLC, respectively. These are identified 
as OCS-A 0486, OCS-A 0487, and OCS-A 0500 (collectively referred to as 
the Lease Areas). Orsted is also proposing to conduct marine site 
characterization surveys along one or more export cable route corridors 
(ECRs) originating from the Lease Areas and landing along the shoreline 
at locations from New York to Massachusetts, between Raritan Bay (part 
of the New York Bight) to Falmouth, Massachusetts (see Figure 1). 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to issue an IHA to Orsted to incidentally 
take, by Level B harassment only, small numbers of marine mammals 
during the specified activities. NMFS will consider public comments 
prior to making any final decision on the issuance of the requested 
MMPA authorizations and agency responses will be summarized in the 
final notice of our decision.

DATES: Comments and information must be received no later than August 
26, 2019.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National

[[Page 36055]]

Marine Fisheries Service. Physical comments should be sent to 1315 
East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable without change. 
All personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Rob Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.

National Environmental Policy Act (NEPA)

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    Accordingly, NMFS is preparing an Environmental Assessment (EA) to 
consider the environmental impacts associated with the issuance of the 
proposed IHA. NMFS' [EIS or EA] [was or will be] made available at 
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On March 8, 2019, NMFS received an application from Orsted for the 
taking of marine mammals incidental to HRG and geotechnical survey 
investigations in the OCS-A 0486, OCS-A 0487, and OCS-A 0500 Lease 
Areas, designated and offered by the Bureau of Ocean Energy Management 
(BOEM) as well as along one or more ECRs between the southern portions 
of the Lease Areas and shoreline locations from New York to 
Massachusetts, to support the development of an offshore wind project. 
Orsted's request is for take, by Level B harassment, of small numbers 
of 15 species or stocks of marine mammals. The application was 
considered adequate and complete on May 23, 2019. Neither Orsted nor 
NMFS expects serious injury or mortality to result from this activity 
and, therefore, an IHA is appropriate.
    NMFS previously issued two IHAs to both Bay State Wind (81 FR 
56589, August 22, 2016; 83 FR 36539, July 30, 2018) and Deepwater Wind 
(82 FR 32230, July 13, 2017; 83 FR 28808, June 21, 2018) for similar 
activities. Orsted has complied with all the requirements (e.g., 
mitigation, monitoring, and reporting) of the issued IHAs.

Description of the Specified Activity

Overview

    Orsted proposes to conduct HRG surveys in the Lease Area and ECRs 
to support the characterization of the existing seabed and subsurface 
geological conditions. 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 Orsted'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 are anticipated to commence in August, 2019. Orsted is 
proposing to conduct continuous HRG survey operations 24-hours per day 
(Lease Area and ECR Corridors) using multiple vessels. Based on the 
planned 24-hour operations, the survey activities for all survey 
segments would require 666 vessel days total if one vessel were 
surveying the entire survey line continuously. However, an estimated 5 
vessels may be used simultaneously with a maximum of no more than 9 
vessels. Therefore, all of the survey will be completed within one 
year. See Table 1 for the estimated number of vessel days for each 
survey segment. This is considered the total number of vessel days 
required, regardless of the number of vessels used. While actual survey 
duration would shorten given the use of multiple vessels, total vessel 
days provides an equivalent estimate of exposure for a given area. The 
estimated durations to complete survey activities do not include 
weather downtime. Surveys are anticipated to commence upon issuance of 
the requested IHA, if appropriate.

[[Page 36056]]



            Table 1--Summary of Proposed HRG Survey Segments
------------------------------------------------------------------------
                                                          Total duration
             Survey segment               Total  line km      (vessel
                                              per day         days) *
------------------------------------------------------------------------
Lease Area OCS-A 0486...................              70              79
Lease Area OCS-A 0487...................  ..............             140
Lease Area OCS-A 0500...................  ..............              94
ECR Corridor(s).........................  ..............             353
                                         -------------------------------
    Total...............................  ..............             666
------------------------------------------------------------------------
* Estimate is based on total time for one (1) vessel to complete survey
  activities.

Specified Geographic Region

    Orsted's survey activities will occur in the Lease Areas designated 
and offered by BOEM, located approximately 14 miles (mi) south of 
Martha's Vineyard, Massachusetts at its closest point, as well as 
within potential export cable route corridors off the coast of New 
York, Connecticut, Rhode Island, and Massachusetts shown in Figure 1. 
Water depth in these areas for the majority of the survey area is 1-55 
m. However south of Long Island in the area we are surveying for cable 
routes, the maximum depth reaches 77 m in some locations. Also there is 
a very small area in the area north of the eastern end of Long Island 
that reaches a depth of 123 m.
 BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN26JY19.000


[[Page 36057]]


 BILLING CODE 3510-22-C

Detailed Description of Specified Activities

    Marine site characterization surveys will include the following HRG 
survey activities:
     Depth sounding (multibeam depth sounder) to determine 
water depths and general bottom topography (currently estimated to 
range from approximately 3 to 180 feet (ft), 1 to 55 m, in depth below 
mean lower low water);
     Magnetic intensity measurements for detecting local 
variations in regional magnetic field from geological strata and 
potential ferrous objects on and below the seabed;
     Seafloor imaging (sidescan sonar survey) for seabed 
sediment classification purposes, to identify natural and man-made 
acoustic targets resting on the bottom as well as any anomalous 
features;
     Sub-bottom profiler to map the near surface stratigraphy; 
and
     Ultra High Resolution Seismic (UHRS) equipment to map 
deeper subsurface stratigraphy as needed.
    Table 2 identifies the representative survey equipment that is 
being considered in support of the HRG survey activities. The make and 
model of the HRG equipment will vary depending on availability. The 
primary operating frequency is oftentimes defined by the HRG equipment 
manufacturer or HRG contractor. The pulse duration provided represents 
best engineering estimates of the RMS90 values based on 
anticipated operator and sound source verification (SSV) reports of 
similar equipment (see Appendix E in Application). Orsted SSV reports 
also provide relevant information on anticipated settings. For most HRG 
sources, the midrange frequency is typically deemed appropriate for 
hydroacoustic assessment purposes. The SSV reports have also reasonably 
assumed that the HRG equipment were being operated at configurations 
deemed appropriate for the Survey Area. None of the proposed HRG survey 
activities will result in the disturbance of bottom habitat in the 
Survey Area.

                       Table 2--Summary of Proposed HRG Survey Data Acquisition Equipment
----------------------------------------------------------------------------------------------------------------
                                   Range of                       Representative                      Primary
  Representative HRG survey        operating     Baseline source    RMS90 pulse        Pulse         operating
          equipment               frequencies       level \a\        duration       repetition       frequency
                                     (kHz)                          (millisec)       rate (Hz)         (kHz)
----------------------------------------------------------------------------------------------------------------
                          USBL & Global Acoustic Positioning System (GAPS) Transceiver
----------------------------------------------------------------------------------------------------------------
Sonardyne Ranger 2             19-34...........  200 dBRMS......             300               1              26
 transponder \b\.
Sonardyne Ranger 2 USBL HPT 5/ 19 to 34........  200 dBRMS......             300               1              26
 7000 transceiver \b\.
Sonardyne Ranger 2 USBL HPT    19 to 34........  194 dBRMS......             300               3            26.5
 3000 transceiver \b\.
Sonardyne Scout Pro            35 to 50........  188 dBRMS......             300               1            42.5
 transponder \b\.
Easytrak Nexus 2 USBL          18 to 32........  192 dBRMS......             300               1              26
 transceiver \b\.
IxSea GAPS transponder \b\...  20 to 32........  188 dBRMS......              20              10              26
Kongsberg HiPAP 501/502 USBL   21 to 31........  190 dBRMS......             300               1              26
 transceiver \b\.
Edgetech BATS II transponder   17 to30.........  204 dBRMS......             300               3            23.5
 \b\.
----------------------------------------------------------------------------------------------------------------
                                       Shallow Sub-Bottom Profiler (Chirp)
----------------------------------------------------------------------------------------------------------------
Edgetech 3200 \c\............  2 to 16.........  212 dBRMS......             150               5               9
EdgeTech 216 \b\.............  2 to 16.........  174 dBRMS......              22               2               6
EdgeTech 424 \b\.............  4 to 24.........  176 dBRMS......             3.4               2              12
EdgeTech 512 \b\.............  0.5 to 12.......  177 dBRMS......             2.2               2               3
Teledyne Benthos Chirp III--   2 to 7..........  197 dBRMS......         5 to 60               4             3.5
 TTV 170 \b\.
GeoPulse 5430 A Sub-bottom     1.5 to 18.......  214 dBRMS......              25              10             4.5
 Profiler \b\ \e\.
PanGeo LF Chirp \b\..........  2 to 6.5........  195 dBRMS......           481.5            0.06               3
PanGeo HF Chirp \b\..........  4.5 to 12.5.....  190 dBRMS......           481.5            0.06               5
----------------------------------------------------------------------------------------------------------------
                                         Parametric Sub-Bottom Profiler
----------------------------------------------------------------------------------------------------------------
Innomar SES-2000 Medium 100    85 to 115.......  247 dBRMS......       0.07 to 2              40              85
 \c\.
Innomar SES-2000 Standard &    85 to 115.......  236 dBRMS......       0.07 to 2              60              85
 Plus \b\.
Innomar SES-2000 Medium 70     60 to 80........  241 dBRMS......      0.1 to 2.5              40              70
 \b\.
Innomar SES-2000 Quattro \b\.  85 to 115.......  245 dBRMS......       0.07 to 1              60              85
PanGeo 2i Parametric \b\.....  90-115..........  239 dBRMS......            0.33              40             102
----------------------------------------------------------------------------------------------------------------
                                Medium Penetration Sub-Bottom Profiler (Sparker)
----------------------------------------------------------------------------------------------------------------
GeoMarine Geo-Source 400tip    0.2 to 5........  212 dBPeak; 201              55               2               2
 \d\.                                             dBRMS.
GeoMarine Geo-Source 600tip    0.2 to 5........  214 dBPeak; 205              55               2               2
 \d\.                                             dBRMS.
GeoMarine Geo-Source 800tip    0.2 to 5........  215 dBPeak; 206              55               2               2
 \d\.                                             dBRMS.
Applied Acoustics Dura-Spark   0.3 to 1.2......  225 dBPeak; 214              55             0.4               1
 400 System \d\.                                  dBRMS.
GeoResources Sparker 800       0.05 to 5.......  215 dBPeak; 206              55             2.5             1.9
 System \d\.                                      dBRMS.
----------------------------------------------------------------------------------------------------------------

[[Page 36058]]

 
                                 Medium Penetration Sub-Bottom Profiler (Boomer)
----------------------------------------------------------------------------------------------------------------
Applied Acoustics S-Boom       0.250 to 8......  228 dBPeak;....             0.6               3             0.6
 1000J b.                                        208 dBRMS......
Applied Acoustics S-Boom 700J  0.1 to 5........  211 dBPeak;....               5               3             0.6
 \b\.                                            205 dBRMS......
----------------------------------------------------------------------------------------------------------------
Notes:
\a\ Baseline source levels were derived from manufacturer-reported source levels (SL) when available either in
  the manufacturer specification sheet or from the SSV report. When manufacturer specifications were unavailable
  or unclear, Crocker and Fratantonio (2016) SLs were utilized as the baseline:
\b\ source level obtained from manufacturer specifications;
\c\ source level obtained from SSV-reported manufacturer SL;
\d\ source level obtained from Crocker and Fratantonio (2016);
\e\ unclear from manufacturer specifications and SSV whether SL is reported in peak or rms; however, based on
  SLpk source level reported in SSV, assumption is SLrms is reported in specifications.
The transmit frequencies of sidescan and multibeam sonars for the 2019 marine site characterization surveys
  operate outside of marine mammal functional hearing frequency range.

    The deployment of HRG survey equipment, including the use of 
intermittent, impulsive sound-producing equipment operating below 200 
kilohertz (kHz), has the potential to cause acoustic harassment to 
marine mammals. Based on the frequency ranges of the equipment to be 
used in support of the HRG survey activities (Table 2) and the hearing 
ranges of the marine mammals that have the potential to occur in the 
Survey Area during survey activities (Table 3), the noise produced by 
the ultrashort baseline (USBL) and global acoustic positioning system 
(GAPS) transceiver systems; sub-bottom profilers (parametric and 
chirp); sparkers; and boomers fall within the established marine mammal 
hearing ranges and have the potential to result in harassment of marine 
mammals. All HRG equipment proposed for use is shown in Table 2.
    Assuming a maximum survey track line to fully cover the Survey 
Area, the survey activities will be supported by vessels sufficient in 
size to accomplish the survey goals in specific survey areas and 
capable of maintaining both the required course and a survey speed to 
cover approximately 70.0 kilometers (km) per day at a speed of 4 knots 
(7.4 km per hour) while acquiring survey lines. While survey tracks 
could shorten, the maximum survey track scenario has been selected to 
provide operational flexibility and to cover the possibility of 
multiple landfall locations and associated cable routes. Survey 
segments represent a maximum extent, and distances may vary depending 
on contractor used.
    Orsted has proposed to reduce the total duration of survey 
activities and minimize cost by conducting continuous HRG survey 
operations 24-hours per day for all survey segments. Total survey 
effort has been conservatively estimated to require up to a full year 
to provide survey flexibility on specific locations and vessel numbers 
to be utilized (likely between 5-9), which will be determined at the 
time of contractor selection.
    Orsted also proposes to complete the proposed survey quickly and 
efficiently by using multiple vessels of varying size depending on 
survey segment location. To reduce the total survey duration, 
simultaneous survey activities will occur across multiple vessels in 
respective survey segments, where appropriate. Additionally, Orsted may 
elect to use an autonomous surface vehicle (ASV) to support survey 
operations. Use of an ASV in combination with a mother vessel allows 
the project team to double the survey daily production. The ASV will 
capture data in water depths shallower than 26 ft (8 m), increasing the 
shallow end reach of the larger vessel. The ASV can be used for 
nearshore operations and shallow work (20 ft (6 m) and less) in a 
``manned'' configuration. The ASV and mother vessel will acquire survey 
data in tandem and the ASV will be kept within sight of the mother 
vessel at all times. The ASV will operate autonomously along a parallel 
track to, and slightly ahead of, the mother vessel at a distance set to 
prevent crossed signaling of survey equipment (within 2,625 ft (800 m)) 
During data acquisition surveyors have full control of the data being 
acquired and have the ability to make changes to settings such as 
power, gain, range scale etc. in real time.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Proposed 
Mitigation'' and ``Proposed Monitoring and Reporting'').

Description of Marine Mammals in the Area of the Specified Activity

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS' Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS' 
website (https://www.fisheries.noaa.gov/find-species).
    We expect that the species listed in Table 3 will potentially occur 
in the project area and will potentially be taken as a result of the 
proposed project. Table 3 summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2018). 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 
is included here as a gross indicator of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent

[[Page 36059]]

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., 2018). All values presented in 
Table 3 are the most recent available at the time of publication and 
are available in the 2017 SARs (Hayes et al., 2018) and draft 2018 SARs 
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                               Table 3--Marine Mammal Known to Occur in Survey Area Waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic (Y/N)     Nmin, most recent          PBR       Annual M/
                                                                                            \1\         abundance survey) \2\                    SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic Right whale.....  Eubalaena glacialis...  Western North Atlantic  E/D; Y             451 (0; 445; 2017)...             0.9       5.56
                                                              (WNA).
Family Balaenopteridae (rorquals):
    Humpback whale.................  Megaptera novaeangliae  Gulf of Maine.........  -/-; N             896 (0; 896; 2012)...            14.6        9.7
    Fin whale......................  Balaenoptera physalus.  WNA...................  E/D; Y             1,618 (0.33; 1,234;               2.5        2.5
                                                                                                         2011).
    Sei whale......................  Balaenoptera borealis.  Nova Scotia...........  E/D; Y             357 (0.52; 236)......             0.5        0.8
    Minke whale....................  Balaenoptera            Canadian East Coast...  -/-; N             2,591 (0.81; 1,425)..              14        7.7
                                      acutorostrata.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale....................  Physeter macrocephalus  E; Y..................  2,288              North Atlantic.......             3.6        0.8
                                                                                     (0.28;
                                                                                     1,815)
Family Delphinidae:
    Long-finned pilot whale........  Globicephala melas....  WNA...................  -/-; Y             5,636 (0.63; 3,464)..              35         38
Bottlenose dolphin.................  Tursiops spp..........  WNA Offshore..........  -/-; N             77,532 (0.40; 56053;              561       39.4
                                                                                                         2016).
Short beaked common dolphin........  Delphinus delphis.....  WNA...................  -/-; N             70,184 (0.28; 55,690;             557        406
                                                                                                         2011).
Atlantic white-sided dolphin.......  Lagenorhynchus acutus.  WNA...................  -/-; N             48,819 (0.61; 30,403;             304         30
                                                                                                         2011).
Atlantic spotted dolphin...........  Stenella frontalis....  WNA...................  -/-: N             44,715 (0.43; 31,610;             316          0
                                                                                                         2013).
Risso's dolphin....................  Grampus griseus.......  WNA...................  -/-; N             18,250 (0.5; 12,619;              126       49.7
                                                                                                         2011).
Family Phocoenidae (porpoises):
    Harbor porpoise................  Phocoena phocoena.....  Gulf of Maine/Bay of    -/-; N             79,833 (0.32; 61,415;             706        256
                                                              Fundy.                                     2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal..........................  Halichoerus grypus....  -; N..................  27,131             W. North Atlantic....           1,389      5,688
                                                                                     (0.19;
                                                                                     23,158)
Harbor seal........................  Phoca vitulina........  -; N..................  75,834             W. North Atlantic....             345        333
                                                                                     (0.15;
                                                                                     66,884)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.


[[Page 36060]]

    As described below, 15 species (with 15 managed stocks) temporally 
and spatially co-occur with the activity to the degree that take is 
reasonably likely to occur, and we have proposed authorizing it.
    The following subsections provide additional information on the 
biology, habitat use, abundance, distribution, and the existing threats 
to the non-ESA-listed and ESA-listed marine mammals that are both 
common in the waters of the outer continental shelf (OCS) of Southern 
New England and have the likelihood of occurring, at least seasonally, 
in the Survey Area. These species include the North Atlantic right, 
humpback, fin, sei, minke, sperm, and long finned pilot whale, 
bottlenose, short-beaked common, Atlantic white-sided, Atlantic 
spotted, and Risso's dolphins, harbor porpoise, and gray and harbor 
seals (BOEM 2014). Although the potential for interactions with long-
finned pilot whales and Atlantic spotted and Risso's dolphins is 
minimal, small numbers of these species may transit the Survey Area and 
are included in this analysis.

Cetaceans

North Atlantic Right Whale

    The North Atlantic right whale ranges from the calving grounds in 
the southeastern United States to feeding grounds in New England waters 
and into Canadian waters (Waring et al., 2017). Right whales have been 
observed in or near southern New England during all four seasons; 
however, they are most common in the spring when they are migrating 
north and in the fall during their southbound migration (Kenney and 
Vigness-Raposa 2009). Surveys have demonstrated the existence of seven 
areas where North Atlantic right whales congregate seasonally, 
including north and east of the proposed survey area in Georges Bank, 
off Cape Cod, and in Massachusetts Bay (Waring et al., 2017). In 
addition modest late winter use of a region south of Martha's Vineyard 
and Nantucket Islands was recently described (Stone et al. 2017). A 
large increase in aerial surveys of the Gulf of St. Lawrence documented 
at least 36 and 117 unique individuals using the region, respectively, 
during the summers of 2015 and 2017 (NMFS unpublished data). In the 
late fall months (e.g. October), right whales are generally thought to 
depart from the feeding grounds in the North Atlantic and move south to 
their calving grounds off Florida. However, recent research indicates 
our understanding of their movement patterns remains incomplete (Davis 
et al. 2017). A review of passive acoustic monitoring data from 2004 to 
2014 throughout the western North Atlantic Ocean demonstrated nearly 
continuous year-round right whale presence across their entire habitat 
range, including in locations previously thought of as migratory 
corridors, suggesting that not all of the population undergoes a 
consistent annual migration (Davis et al. 2017). The number of North 
Atlantic right whale vocalizations detected in the proposed survey area 
were relatively constant throughout the year, with the exception of 
August through October when detected vocalizations showed an apparent 
decline (Davis et al. 2017). North Atlantic right whales are expected 
to be present in the proposed survey area during the proposed survey, 
especially during the summer months, with numbers possibly lower in the 
fall. The proposed survey area is part of a migratory Biologically 
Important Area (BIA) for North Atlantic right whales; this important 
migratory area is comprised of the waters of the continental shelf 
offshore the East Coast of the United States and extends from Florida 
through Massachusetts. A map showing designated BIAs is available at: 
https://cetsound.noaa.gov/biologically-important-area-map.
    NMFS' regulations at 50 CFR part 224.105 designated nearshore 
waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal 
Management Areas (SMA) for right whales in 2008. SMAs were developed to 
reduce the threat of collisions between ships and right whales around 
their migratory route and calving grounds. A portion of one SMA, 
overlaps spatially with a section of the proposed survey area. The SMA 
is active from November 1 through April 30 of each year.
    The western North Atlantic 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 1 percent per year (Pace et al. 
2017). Between 1990 and 2015, calving rates varied substantially, with 
low calving rates coinciding with all three periods of decline or no 
growth (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. However, in 2019 at least seven right 
whale calves have been identified (Savio 2019). Data indicates that the 
number of adult females fell from 200 in 2010 to 186 in 2015 while 
males fell from 283 to 272 in the same time frame (Pace et al., 2017). 
In addition, elevated North Atlantic right whale mortalities have 
occurred since June 7, 2017. A total of 26 confirmed dead stranded 
whales (18 in Canada; 8 in the United States), have been documented to 
date. This event has been declared an Unusual Mortality Event (UME), 
with human interactions (i.e., fishery-related entanglements and vessel 
strikes) identified as the most likely cause. More information is 
available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2018-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whale

    Humpback whales are found worldwide in all oceans. Humpback whales 
were listed as endangered under the Endangered Species Conservation Act 
(ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks 
continued to be listed as endangered. NMFS recently evaluated the 
status of the species, and on September 8, 2016, NMFS divided the 
species into 14 distinct population segments (DPS), removed the current 
species-level listing, and in its place listed four DPSs as endangered 
and one DPS as threatened (81 FR 62259; September 8, 2016). The 
remaining nine DPSs were not listed. The West Indies DPS, which is not 
listed under the ESA, is the only DPS of humpback whale that is 
expected to occur in the survey area. The best estimate of population 
abundance for the West Indies DPS is 12,312 individuals, as described 
in the NMFS Status Review of the Humpback Whale under the Endangered 
Species Act (Bettridge et al., 2015).
    In New England waters, feeding is the principal activity of 
humpback whales, and their distribution in this region has been largely 
correlated to abundance of prey species, although behavior and 
bathymetry are factors influencing foraging strategy (Payne et al. 
1986, 1990). Humpback whales are frequently piscivorous when in New 
England waters, feeding on herring (Clupea harengus), sand lance 
(Ammodytes spp.), and other small fishes, as well as euphausiids in the 
northern Gulf of Maine (Paquet et al. 1997). During winter, the 
majority of humpback whales from North Atlantic feeding areas 
(including the Gulf of Maine) mate and calve in the West Indies, where 
spatial and genetic mixing among feeding groups occurs, though 
significant numbers of animals are found in mid- and high-latitude 
regions

[[Page 36061]]

at this time and some individuals have been sighted repeatedly within 
the same winter season, indicating that not all humpback whales migrate 
south every winter (Waring et al., 2017). Other sightings of note 
include 46 sightings of humpbacks in the New York- New Jersey Harbor 
Estuary documented between 2011 and 2016 (Brown et al. 2017). Multiple 
humpbacks were observed feeding off Long Island during July of 2016 
(https://www.greateratlantic.fisheries.noaa.gov/mediacenter/2016/july/26_humpback_whales_visit_new_york.html, accessed 31 December, 2018) and 
there were sightings during November-December 2016 near New York City 
(https://www.greateratlantic.fisheries.noaa.gov/mediacenter/2016/december/09_humans_and_humpbacks_of_new_york_2.html, accessed 31 
December 2018).
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida. The event 
has been declared a UME. Partial or full necropsy examinations have 
been conducted on approximately half of the 93 known cases. A portion 
of the whales have shown evidence of pre-mortem vessel strike; however, 
this finding is not consistent across all of the whales examined so 
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. More detailed information is available at: 
https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2018-humpback-whale-unusual-mortality-event-along-atlantic-coast#causes-of-the-humpback-whale-ume (accessed June 3, 2019). Three previous UMEs 
involving humpback whales have occurred since 2000, in 2003, 2005, and 
2006.

Fin Whale

    Fin whales are common in waters of the U. S. Atlantic Exclusive 
Economic Zone (EEZ), principally from Cape Hatteras northward (Waring 
et al., 2017). Fin whales are present north of 35-degree latitude in 
every season and are broadly distributed throughout the western North 
Atlantic for most of the year, though densities vary seasonally (Waring 
et al., 2017). The main threats to fin whales are fishery interactions 
and vessel collisions (Waring et al., 2017). New England waters 
represent a major feeding ground for fin whales. The proposed survey 
area would overlap spatially and temporally with a feeding BIA for fin 
whales. The important fin whale feeding area occurs from March through 
October and stretches from an area south of Montauk Point to south of 
Martha's Vineyard.

Sei Whale

    The Nova Scotia stock of sei whales can be found in deeper waters 
of the continental shelf edge waters of the northeastern United States 
and northeastward to south of Newfoundland. NOAA Fisheries considers 
sei whales occurring from the U.S. East Coast to Cape Breton, Nova 
Scotia, and east to 42[deg] W as the Nova Scotia stock of sei whales 
(Waring et al. 2016; Hayes et al. 2018). In the Northwest Atlantic, it 
is speculated that the whales migrate from south of Cape Cod along the 
eastern Canadian coast in June and July, and return on a southward 
migration again in September and October (Waring et al. 2014; 2017). 
Spring is the period of greatest abundance in U.S. waters, with 
sightings concentrated along the eastern margin of Georges Bank and 
into the Northeast Channel area, and along the southwestern edge of 
Georges Bank in the area of Hydrographer Canyon (Waring et al., 2015).

Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude 
waters. The Canadian East Coast stock can be found in the area from the 
western half of the Davis Strait (45[deg] W) to the Gulf of Mexico 
(Waring et al., 2017). This species generally occupies waters less than 
100 m deep on the continental shelf. There appears to be a strong 
seasonal component to minke whale distribution in which spring to fall 
are times of relatively widespread and common occurrence, and when the 
whales are most abundant in New England waters, while during winter the 
species appears to be largely absent (Waring et al., 2017).
    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. Partial or full 
necropsy examinations have been conducted on more than 60 percent of 
the 59 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 June 3, 
2019).

Sperm Whale

    The distribution of the sperm whale in the U.S. EEZ occurs on the 
continental shelf edge, over the continental slope, and into mid-ocean 
regions (Waring et al. 2014). The basic social unit of the sperm whale 
appears to be the mixed school of adult females plus their calves and 
some juveniles of both sexes, normally numbering 20-40 animals in all. 
Sperm whales are somewhat migratory; however, their migrations are not 
as specific as seen in most of the baleen whale species. In the North 
Atlantic, there appears to be a general shift northward during the 
summer, but there is no clear migration in some temperate areas (Rice 
1989). In summer, the distribution of sperm whales includes the area 
east and north of Georges Bank and into the Northeast Channel region, 
as well as the continental shelf (inshore of the 100-m isobath) south 
of New England. In the fall, sperm whale occurrence south of New 
England on the continental shelf is at its highest level, and there 
remains a continental shelf edge occurrence in the mid-Atlantic bight. 
In winter, sperm whales are concentrated east and northeast of Cape 
Hatteras. Their distribution is typically associated with waters over 
the continental shelf break and the continental slope and into deeper 
waters (Whitehead et al. 1991). Sperm whale concentrations near drop-
offs and areas with strong currents and steep topography are correlated 
with high productivity. These whales occur almost exclusively found at 
the shelf break, regardless of season.

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). They are 
generally found along the edge of the continental shelf (a depth of 330 
to 3,300 feet (100 to 1,000 meters)), choosing areas of high relief or 
submerged banks in cold or temperate shoreline waters. In the western 
North Atlantic, long-finned pilot whales are pelagic, occurring in 
especially high densities in winter and spring over the continental 
slope, then moving inshore and onto the shelf in summer and autumn 
following squid

[[Page 36062]]

and mackerel populations (Reeves et al. 2002). They frequently travel 
into the central and northern Georges Bank, Great South Channel, and 
Gulf of Maine areas during the late spring and remain through early 
fall (May and October) (Payne and Heinemann 1993).

Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of 
the North Atlantic, primarily in continental shelf waters to the 100-m 
depth contour from central West Greenland to North Carolina (Waring et 
al., 2017). The Gulf of Maine stock is most common in continental shelf 
waters from Hudson Canyon to Georges Bank, and in the Gulf of Maine and 
lower Bay of Fundy. Sighting data indicate seasonal shifts in 
distribution (Northridge et al., 1997). During January to May, low 
numbers of white-sided dolphins are found from Georges Bank to Jeffreys 
Ledge (off New Hampshire), with even lower numbers south of Georges 
Bank, as documented by a few strandings collected on beaches of 
Virginia to South Carolina. From June through September, large numbers 
of white-sided dolphins are found from Georges Bank to the lower Bay of 
Fundy. From October to December, white-sided dolphins occur at 
intermediate densities from southern Georges Bank to southern Gulf of 
Maine (Payne and Heinemann 1990). Sightings south of Georges Bank, 
particularly around Hudson Canyon, occur year round but at low 
densities.

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 is usually 
found inside or near the 200 m isobaths (Waring et al., 2014). The 
smaller ecotype has less spots and occurs in the Atlantic Ocean, but is 
not known to occur in the Gulf of Mexico. Atlantic spotted dolphins are 
not listed under the ESA and the stock is not considered depleted or 
strategic under the MMPA.

Common Dolphin

    The short-beaked common dolphin is found world-wide in temperate to 
subtropical seas. In the North Atlantic, short-beaked common dolphins 
are commonly found over the continental shelf between the 100-m and 
2,000-m isobaths and over prominent underwater topography and east to 
the mid-Atlantic Ridge (Waring et al., 2016). This species is found 
between Cape Hatteras and Georges Bank from mid-January to May, 
although they migrate onto the northeast edge of Georges Bank in the 
fall where large aggregations occur (Kenney and Vigness-Raposa 2009), 
where large aggregations occur on Georges Bank in fall (Waring et al. 
2007). Only the western North Atlantic stock may be present in the 
Survey Area.

Bottlenose Dolphin

    There are two distinct bottlenose dolphin ecotypes in the western 
North Atlantic: The coastal and offshore forms (Waring et al., 2015). 
The migratory coastal morphotype resides in waters typically less than 
65.6 ft (20 m) deep, along the inner continental shelf (within 7.5 km 
(4.6 miles) of shore), around islands, and is continuously distributed 
south of Long Island, New York into the Gulf of Mexico. This migratory 
coastal population is subdivided into 7 stocks based largely upon 
spatial distribution (Waring et al. 2015). Of these 7 coastal stocks, 
the Western North Atlantic migratory coastal stock is common in the 
coastal continental shelf waters off the coast of New Jersey (Waring et 
al. 2017). Generally, the offshore migratory morphotype is found 
exclusively seaward of 34 km (21 miles) and in waters deeper than 34 m 
(111.5 feet). This morphotype is most expected in waters north of Long 
Island, New York (Waring et al. 2017; Hayes et al. 2017; 2018). The 
offshore form is distributed primarily along the outer continental 
shelf and continental slope in the Northwest Atlantic Ocean from 
Georges Bank to the Florida Keys and is the only type that may be 
present in the survey area as the survey area is north of the northern 
extent of the range of the Western North Atlantic Northern Migratory 
Coastal Stock.

Risso's Dolphins

    Risso's dolphins are distributed worldwide in tropical and 
temperate seas (Jefferson et al. 2008, 2014), and in the Northwest 
Atlantic occur from Florida to eastern Newfoundland (Leatherwood et al. 
1976; Baird and Stacey 1991). Off the northeastern U.S. coast, Risso's 
dolphins are distributed along the continental shelf edge from Cape 
Hatteras northward to Georges Bank during spring, summer, and autumn 
(CETAP 1982; Payne et al. 1984) (Figure 1). In winter, the range is in 
the mid-Atlantic Bight and extends outward into oceanic waters (Payne 
et al. 1984).

Harbor Porpoise

    In the Survey Area, only the Gulf of Maine/Bay of Fundy stock may 
be present. This stock is found in U.S. and Canadian Atlantic waters 
and is concentrated in the northern Gulf of Maine and southern Bay of 
Fundy region, generally in waters less than 150 m deep (Waring et al., 
2017). During fall (October-December) and spring (April-June) harbor 
porpoises are widely dispersed from New Jersey to Maine. During winter 
(January to March), intermediate densities of harbor porpoises can be 
found in waters off New Jersey to North Carolina, and lower densities 
are found in waters off New York to New Brunswick, Canada They are seen 
from the coastline to deep waters (>1800 m; Westgate et al. 1998), 
although the majority of the population is found over the continental 
shelf (Waring et al., 2017).

Harbor Seal

    Harbor seals are year-round inhabitants of the coastal waters of 
eastern Canada and Maine (Katona et al. 1993), and occur seasonally 
along the coasts from southern New England to New Jersey from September 
through late May. While harbor seals occur year-round north of Cape 
Cod, they only occur during winter migration, typically September 
through May, south of Cape Cod (Southern New England to New Jersey) 
(Waring et al. 2015; Kenney and Vigness-Raposa 2009).

Gray Seal

    There are three major populations of gray seals found in the world; 
eastern Canada (western North Atlantic stock), northwestern Europe and 
the Baltic Sea. Gray seals in the survey area belong to the western 
North Atlantic stock. The range for this stock is thought to be from 
New Jersey to Labrador. Current population trends show that gray seal 
abundance is likely increasing in the U.S. Atlantic EEZ (Waring et al., 
2017). Although the rate of increase is unknown, surveys conducted 
since their arrival in the 1980s indicate a steady increase in 
abundance in both Maine and Massachusetts (Waring et al., 2017). It is 
believed that recolonization by Canadian gray seals is the source of 
the U.S. population (Waring et al., 2017).
    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire and 
Massachusetts. This event has been declared a UME. Additionally, seals 
showing clinical signs of stranding have occurred as far

[[Page 36063]]

south as Virginia, although not in elevated numbers. Therefore the UME 
investigation now encompasses all seal strandings from Maine to 
Virginia. Between July 1, 2018 and June 26, 2019, a total of 2,593 seal 
strandings have been recorded as part of this designated Northeast 
Pinniped UME. Based on tests conducted so far, the main pathogen found 
in the seals is phocine distemper virus. Additional testing to identify 
other factors that may be involved in this UME are underway.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. The functional groups and the associated 
frequencies are indicated below (note that these frequency ranges 
correspond to the range for the composite group, with the entire range 
not necessarily reflecting the capabilities of every species within 
that group):
     Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 Hertz (Hz) and 35 kHz;
     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz.
     Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
     Pinnipeds in water; Otariidae (eared seals): Generalized 
hearing is estimated to occur between 60 Hz and 39 kHz.
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Fifteen marine mammal species (thirteen cetacean and two pinniped (both 
phocid) species) have the reasonable potential to co-occur with the 
proposed survey activities. Please refer to Table 2. Of the cetacean 
species that may be present, five are classified as low-frequency 
cetaceans (i.e., all mysticete species), seven are classified as mid-
frequency cetaceans (i.e., all delphinid species and the sperm whale), 
and one is classified as high-frequency cetacean (i.e., harbor 
porpoise).

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

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take by Incidental Harassment section 
later in this document includes a quantitative analysis of the number 
of individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take by Incidental Harassment 
section, and the Proposed Mitigation section, to draw conclusions 
regarding the likely impacts of these activities on the reproductive 
success or survivorship of individuals and how those impacts on 
individuals are likely to impact marine mammal species or stocks.

Background on Sound

    Sound is a physical phenomenon consisting of minute vibrations that 
travel through a medium, such as air or water, and is generally 
characterized by several variables. Frequency describes the sound's 
pitch and is measured in Hz or kHz, while sound level describes the 
sound's intensity and is measured in dB. Sound level increases or 
decreases exponentially with each dB of change. The logarithmic nature 
of the scale means that each 10-dB increase is a 10-fold increase in 
acoustic power (and a 20-dB increase is then a 100-fold increase in 
power). A 10-fold increase in acoustic power does not mean that the 
sound is perceived as being 10 times louder, however. Sound levels are 
compared to a reference sound pressure (micro-Pascal) to identify the 
medium. For air and water, these reference pressures are ``re: 20 micro 
pascals ([micro]Pa)'' and ``re: 1 [micro]Pa,'' respectively. Root mean 
square (RMS) is the quadratic mean sound pressure over the duration of 
an impulse. RMS is calculated by squaring all of the sound amplitudes, 
averaging the squares, and then taking the square root of the average 
(Urick, 1975). RMS accounts for both positive and negative values; 
squaring the pressures makes all values positive so that they may be 
accounted for in the summation of pressure levels. This measurement is 
often used in the context of discussing behavioral effects, in part 
because behavioral effects, which often result from auditory cues, may 
be better expressed through averaged units rather than by peak 
pressures.

Acoustic Impacts

    HRG survey equipment use during the geophysical surveys may 
temporarily impact marine mammals in the area due to elevated in-water 
sound levels. Marine mammals are continually exposed to many sources of 
sound. Naturally occurring sounds such as lightning, rain, sub-sea 
earthquakes, and biological sounds (e.g., snapping shrimp, whale songs) 
are widespread throughout the world's oceans. Marine mammals produce 
sounds in various contexts and use sound for various biological 
functions including, but not limited to: (1) Social interactions; (2) 
foraging; (3) orientation; and (4) predator detection. Interference 
with producing or receiving these sounds may result in adverse impacts. 
Audible distance, or received levels of sound depend on the nature of 
the sound source, ambient noise conditions, and the sensitivity of the 
receptor to the sound (Richardson et al., 1995). Type

[[Page 36064]]

and significance of marine mammal reactions to sound are likely 
dependent on a variety of factors including, but not limited to, (1) 
the behavioral state of the animal (e.g., feeding, traveling, etc.); 
(2) frequency of the sound; (3) distance between the animal and the 
source; and (4) the level of the sound relative to ambient conditions 
(Southall et al., 2007).
    When sound travels (propagates) from its source, its loudness 
decreases as the distance traveled by the sound increases. Thus, the 
loudness of a sound at its source is higher than the loudness of that 
same sound a kilometer away. Acousticians often refer to the loudness 
of a sound at its source (typically referenced to one meter from the 
source) as the source level and the loudness of sound elsewhere as the 
received level (i.e., typically the receiver). For example, a humpback 
whale 3 km from a device that has a source level of 230 dB may only be 
exposed to sound that is 160 dB loud, depending on how the sound 
travels through water (e.g., spherical spreading (6 dB reduction with 
doubling of distance) was used in this example). As a result, it is 
important to understand the difference between source levels and 
received levels when discussing the loudness of sound in the ocean or 
its impacts on the marine environment.
    As sound travels from a source, its propagation in water is 
influenced by various physical characteristics, including water 
temperature, depth, salinity, and surface and bottom properties that 
cause refraction, reflection, absorption, and scattering of sound 
waves. Oceans are not homogeneous and the contribution of each of these 
individual factors is extremely complex and interrelated. The physical 
characteristics that determine the sound's speed through the water will 
change with depth, season, geographic location, and with time of day 
(as a result, in actual active sonar operations, crews will measure 
oceanic conditions, such as sea water temperature and depth, to 
calibrate models that determine the path the sonar signal will take as 
it travels through the ocean and how strong the sound signal will be at 
a given range along a particular transmission path). As sound travels 
through the ocean, the intensity associated with the wavefront 
diminishes, or attenuates. This decrease in intensity is referred to as 
propagation loss, also commonly called transmission loss.

Hearing Impairment

    Marine mammals may experience temporary or permanent hearing 
impairment when exposed to loud sounds. Hearing impairment is 
classified by temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for onset of PTS in any marine 
mammal; therefore, PTS-onset must be estimated from TTS-onset 
measurements and from the rate of TTS growth with increasing exposure 
levels above the level eliciting TTS-onset. PTS is considered auditory 
injury (Southall et al., 2007) and occurs in a specific frequency range 
and amount. Irreparable damage to the inner or outer cochlear hair 
cells may cause PTS; however, other mechanisms are also involved, such 
as exceeding the elastic limits of certain tissues and membranes in the 
middle and inner ears and resultant changes in the chemical composition 
of the inner ear fluids (Southall et al., 2007). Given the higher level 
of sound, longer durations of exposure necessary to cause PTS as 
compared with TTS, and the small zone within which sound levels would 
exceed criteria for onset of PTS, it is unlikely that PTS would occur 
during the proposed HRG surveys.

Temporary Threshold Shift

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be stronger in order to be 
heard. At least in terrestrial mammals, TTS can last from minutes or 
hours to (in cases of strong TTS) days, can be limited to a particular 
frequency range, and can occur to varying degrees (i.e., a loss of a 
certain number of dBs of sensitivity). For sound exposures at or 
somewhat above the TTS threshold, hearing sensitivity in both 
terrestrial and marine mammals recovers rapidly after exposure to the 
noise ends.
    Marine mammal hearing plays a critical role in communication with 
conspecifics and in interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to 
serious. For example, a marine mammal may be able to readily compensate 
for a brief, relatively small amount of TTS in a non-critical frequency 
range that takes place during a time when the animals is traveling 
through the open ocean, where ambient noise is lower and there are not 
as many competing sounds present. Alternatively, a larger amount and 
longer duration of TTS sustained during a time when communication is 
critical for successful mother/calf interactions could have more 
serious impacts if it were in the same frequency band as the necessary 
vocalizations and of a severity that it impeded communication. The fact 
that animals exposed to levels and durations of sound that would be 
expected to result in this physiological response would also be 
expected to have behavioral responses of a comparatively more severe or 
sustained nature is also notable and potentially of more importance 
than the simple existence of a TTS.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin, beluga whale, harbor porpoise, and Yangtze finless 
porpoise) and three species of pinnipeds (northern elephant seal, 
harbor seal, and California sea lion) exposed to a limited number of 
sound sources (i.e., mostly tones and octave-band noise) in laboratory 
settings (e.g., Finneran et al., 2002 and 2010; Nachtigall et al., 
2004; Kastak et al., 2005; Lucke et al., 2009; Mooney et al., 2009; 
Popov et al., 2011; Finneran and Schlundt, 2010). In general, harbor 
seals (Kastak et al., 2005; Kastelein et al., 2012a) and harbor 
porpoises (Lucke et al., 2009; Kastelein et al., 2012b) have a lower 
TTS onset than other measured pinniped or cetacean species. However, 
even for these animals, which are better able to hear higher 
frequencies and may be more sensitive to higher frequencies, exposures 
on the order of approximately 170 dBRMS or higher for brief 
transient signals are likely required for even temporary (recoverable) 
changes in hearing sensitivity that would likely not be categorized as 
physiologically damaging (Lucke et al., 2009). Additionally, the 
existing marine mammal TTS data come from a limited number of 
individuals within these species. There are no data available on noise-
induced hearing loss for mysticetes (of note, the source operating 
characteristics of some of Orsted's proposed HRG survey equipment--
i.e., the equipment positioning systems--are unlikely to be audible to 
mysticetes). For summaries of data on TTS in marine mammals or for 
further discussion of TTS onset thresholds, please see NMFS (2018), 
Southall et al. (2007), Finneran and Jenkins (2012), and Finneran 
(2015).
    Scientific literature highlights the inherent complexity of 
predicting TTS onset in marine mammals, as well as the importance of 
considering exposure duration when assessing potential impacts (Mooney 
et al., 2009a, 2009b; Kastak et al., 2007). Generally, with sound 
exposures of equal energy,

[[Page 36065]]

quieter sounds (lower sound pressure level (SPL)) of longer duration 
were found to induce TTS onset more than louder sounds (higher SPL) of 
shorter duration (more similar to sub-bottom profilers). For 
intermittent sounds, less threshold shift will occur than from a 
continuous exposure with the same energy (some recovery will occur 
between intermittent exposures) (Kryter et al., 1966; Ward, 1997). For 
sound exposures at or somewhat above the TTS-onset threshold, hearing 
sensitivity recovers rapidly after exposure to the sound ends; 
intermittent exposures recover faster in comparison with continuous 
exposures of the same duration (Finneran et al., 2010). NMFS considers 
TTS as Level B harassment that is mediated by physiological effects on 
the auditory system.
    Marine mammals in the Survey Area during the HRG survey are 
unlikely to incur TTS hearing impairment due to the characteristics of 
the sound sources, which include low source levels (208 to 221 dB re 1 
[micro]Pa-m) and generally very short pulses and duration of the sound. 
Even for high-frequency cetacean species (e.g., harbor porpoises), 
which may have increased sensitivity to TTS (Lucke et al., 2009; 
Kastelein et al., 2012b), individuals would have to make a very close 
approach and also remain very close to vessels operating these sources 
in order to receive multiple exposures at relatively high levels, as 
would be necessary to cause TTS. Intermittent exposures--as would occur 
due to the brief, transient signals produced by these sources--require 
a higher cumulative SEL to induce TTS than would continuous exposures 
of the same duration (i.e., intermittent exposure results in lower 
levels of TTS) (Mooney et al., 2009a; Finneran et al., 2010). Moreover, 
most marine mammals would more likely avoid a loud sound source rather 
than swim in such close proximity as to result in TTS. Kremser et al. 
(2005) noted that the probability of a cetacean swimming through the 
area of exposure when a sub-bottom profiler emits a pulse is small--
because if the animal was in the area, it would have to pass the 
transducer at close range in order to be subjected to sound levels that 
could cause temporary threshold shift and would likely exhibit 
avoidance behavior to the area near the transducer rather than swim 
through at such a close range. Further, the restricted beam shape of 
the sub-bottom profiler and other HRG survey equipment makes it 
unlikely that an animal would be exposed more than briefly during the 
passage of the vessel. Boebel et al. (2005) concluded similarly for 
single and multibeam echosounders, and more recently, Lurton (2016) 
conducted a modeling exercise and concluded similarly that likely 
potential for acoustic injury from these types of systems is 
negligible, but that behavioral response cannot be ruled out. Animals 
may avoid the area around the survey vessels, thereby reducing 
exposure. Any disturbance to marine mammals is likely to be in the form 
of temporary avoidance or alteration of opportunistic foraging behavior 
near the survey location.

Masking

    Masking is the obscuring of sounds of interest to an animal by 
other sounds, typically at similar frequencies. Marine mammals are 
highly dependent on sound, and their ability to recognize sound signals 
amid other sound is important in communication and detection of both 
predators and prey (Tyack, 2000). Background ambient sound may 
interfere with or mask the ability of an animal to detect a sound 
signal even when that signal is above its absolute hearing threshold. 
Even in the absence of anthropogenic sound, the marine environment is 
often loud. Natural ambient sound includes contributions from wind, 
waves, precipitation, other animals, and (at frequencies above 30 kHz) 
thermal sound resulting from molecular agitation (Richardson et al., 
1995).
    Background sound may also include anthropogenic sound, and masking 
of natural sounds can result when human activities produce high levels 
of background sound. Conversely, if the background level of underwater 
sound is high (e.g., on a day with strong wind and high waves), an 
anthropogenic sound source would not be detectable as far away as would 
be possible under quieter conditions and would itself be masked. 
Ambient sound is highly variable on continental shelves (Thompson, 
1965; Myrberg, 1978; Desharnais et al., 1999). This results in a high 
degree of variability in the range at which marine mammals can detect 
anthropogenic sounds.
    Although masking is a phenomenon which may occur naturally, the 
introduction of loud anthropogenic sounds into the marine environment 
at frequencies important to marine mammals increases the severity and 
frequency of occurrence of masking. For example, if a baleen whale is 
exposed to continuous low-frequency sound from an industrial source, 
this would reduce the size of the area around that whale within which 
it can hear the calls of another whale. The components of background 
noise that are similar in frequency to the signal in question primarily 
determine the degree of masking of that signal. In general, little is 
known about the degree to which marine mammals rely upon detection of 
sounds from conspecifics, predators, prey, or other natural sources. In 
the absence of specific information about the importance of detecting 
these natural sounds, it is not possible to predict the impact of 
masking on marine mammals (Richardson et al., 1995). In general, 
masking effects are expected to be less severe when sounds are 
transient than when they are continuous. Masking is typically of 
greater concern for those marine mammals that utilize low-frequency 
communications, such as baleen whales, and from sources of lower 
frequency, because of how far low-frequency sounds propagate.
    Marine mammal species, including ESA-listed species, that may be 
exposed to survey noise are widely dispersed. As such, only a very 
small percentage of the population is likely to be within the radius of 
masking at any given time. Richardson et al. (1995) concludes broadly 
that, although further data are needed, localized or temporary 
increases in masking probably cause few problems for marine mammals, 
with the possible exception of populations highly concentrated in an 
ensonified area. While some number of marine mammals may be subject to 
occasional masking as a result of survey activity, temporary shifts in 
calling behavior to reduce the effects of masking, on the scale of no 
more than a few minutes, are not likely to result in failure of an 
animal to feed successfully, breed successfully, or complete its life 
history.
    Furthermore, marine mammal communications would not likely be 
masked appreciably by sound from most HRG survey equipment given the 
narrow beam widths, directionality of the signal, relatively small 
ensonified area, and the brief period when an individual mammal is 
likely to be exposed to sound from the HRG survey equipment.
    Marine mammal communications would not likely be masked appreciably 
by the sub-profiler or pingers' signals given the directionality of the 
signal and the brief period when an individual mammal is likely to be 
within its beam, as well as the higher frequencies.

Non-Auditory Physical Effects (Stress)

    Classic stress responses begin when an animal's central nervous 
system perceives a potential threat to its homeostasis. That perception 
triggers stress responses regardless of whether a stimulus actually 
threatens the animal; the mere perception of a threat is

[[Page 36066]]

sufficient to trigger a stress response (Moberg, 2000; Seyle, 1950). 
Once an animal's central nervous system perceives a threat, it mounts a 
biological response or defense that consists of a combination of the 
four general biological defense responses: Behavioral responses, 
autonomic nervous system responses, neuroendocrine responses, or immune 
responses.
    In the case of many stressors, an animal's first and sometimes most 
economical (in terms of biotic costs) response is behavioral avoidance 
of the potential stressor or avoidance of continued exposure to a 
stressor. An animal's second line of defense to stressors involves the 
sympathetic part of the autonomic nervous system and the classical 
``fight or flight'' response which includes the cardiovascular system, 
the gastrointestinal system, the exocrine glands, and the adrenal 
medulla to produce changes in heart rate, blood pressure, and 
gastrointestinal activity that humans commonly associate with 
``stress.'' These responses have a relatively short duration and may or 
may not have significant long-term effect on an animal's welfare.
    An animal's third line of defense to stressors involves its 
neuroendocrine systems; the system that has received the most study has 
been the hypothalamus-pituitary-adrenal system (also known as the HPA 
axis in mammals or the hypothalamus-pituitary-interrenal axis in fish 
and some reptiles). Unlike stress responses associated with the 
autonomic nervous system, virtually all neuro-endocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction (Moberg, 1987; Rivier, 1995), altered 
metabolism (Elasser et al., 2000), reduced immune competence (Blecha, 
2000), and behavioral disturbance. Increases in the circulation of 
glucocorticosteroids (cortisol, corticosterone, and aldosterone in 
marine mammals; see Romano et al., 2004) have been equated with stress 
for many years.
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and distress is the biotic cost 
of the response. During a stress response, an animal uses glycogen 
stores that can be quickly replenished once the stress is alleviated. 
In such circumstances, the cost of the stress response would not pose a 
risk to the animal's welfare. However, when an animal does not have 
sufficient energy reserves to satisfy the energetic costs of a stress 
response, energy resources must be diverted from other biotic function, 
which impairs those functions that experience the diversion. For 
example, when mounting a stress response diverts energy away from 
growth in young animals, those animals may experience stunted growth. 
When mounting a stress response diverts energy from a fetus, an 
animal's reproductive success and its fitness will suffer. In these 
cases, the animals will have entered a pre-pathological or pathological 
state which is called ``distress'' (Seyle, 1950) or ``allostatic 
loading'' (McEwen and Wingfield, 2003). This pathological state will 
last until the animal replenishes its biotic reserves sufficient to 
restore normal function. Note that these examples involved a long-term 
(days or weeks) stress response exposure to stimuli.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses have also been documented 
fairly well through controlled experiments; because this physiology 
exists in every vertebrate that has been studied, it is not surprising 
that stress responses and their costs have been documented in both 
laboratory and free-living animals (for examples see, Holberton et al., 
1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; 
Lankford et al., 2005; Reneerkens et al., 2002; Thompson and Hamer, 
2000). Information has also been collected on the physiological 
responses of marine mammals to exposure to anthropogenic sounds (Fair 
and Becker, 2000; Romano et al., 2002). For example, Rolland et al. 
(2012) found that noise reduction from reduced ship traffic in the Bay 
of Fundy was associated with decreased stress in North Atlantic right 
whales. In a conceptual model developed by the Population Consequences 
of Acoustic Disturbance (PCAD) working group, serum hormones were 
identified as possible indicators of behavioral effects that are 
translated into altered rates of reproduction and mortality.
    Studies of other marine animals and terrestrial animals would also 
lead us to expect some marine mammals to experience physiological 
stress responses and, perhaps, physiological responses that would be 
classified as ``distress'' upon exposure to high frequency, mid-
frequency and low-frequency sounds. For example, Jansen (1998) reported 
on the relationship between acoustic exposures and physiological 
responses that are indicative of stress responses in humans (for 
example, elevated respiration and increased heart rates). Jones (1998) 
reported on reductions in human performance when faced with acute, 
repetitive exposures to acoustic disturbance. Trimper et al. (1998) 
reported on the physiological stress responses of osprey to low-level 
aircraft noise while Krausman et al. (2004) reported on the auditory 
and physiology stress responses of endangered Sonoran pronghorn to 
military overflights. Smith et al. (2004a, 2004b), for example, 
identified noise-induced physiological transient stress responses in 
hearing-specialist fish (i.e., goldfish) that accompanied short- and 
long-term hearing losses. Welch and Welch (1970) reported physiological 
and behavioral stress responses that accompanied damage to the inner 
ears of fish and several mammals.
    Hearing is one of the primary senses marine mammals use to gather 
information about their environment and to communicate with 
conspecifics. Although empirical information on the relationship 
between sensory impairment (TTS, PTS, and acoustic masking) on marine 
mammals remains limited, it seems reasonable to assume that reducing an 
animal's ability to gather information about its environment and to 
communicate with other members of its species would be stressful for 
animals that use hearing as their primary sensory mechanism. Therefore, 
we assume that acoustic exposures sufficient to trigger onset PTS or 
TTS would be accompanied by physiological stress responses because 
terrestrial animals exhibit those responses under similar conditions 
(NRC, 2003). More importantly, marine mammals might experience stress 
responses at received levels lower than those necessary to trigger 
onset TTS. Based on empirical studies of the time required to recover 
from stress responses (Moberg, 2000), we also assume that stress 
responses are likely to persist beyond the time interval required for 
animals to recover from TTS and might result in pathological and pre-
pathological states that would be as significant as behavioral 
responses to TTS.
    In general, there are few data on the potential for strong, 
anthropogenic underwater sounds to cause non-auditory physical effects 
in marine mammals. Such effects, if they occur at all, would presumably 
be limited to short distances and to activities that extend over a 
prolonged period. The available data do not allow identification of a 
specific exposure level above which non-auditory effects can be 
expected (Southall et al., 2007). There is no definitive evidence that 
any

[[Page 36067]]

of these effects occur even for marine mammals in close proximity to an 
anthropogenic sound source. In addition, marine mammals that show 
behavioral avoidance of survey vessels and related sound sources, are 
unlikely to incur non-auditory impairment or other physical effects. 
NMFS does not expect that the generally short-term, intermittent, and 
transitory HRG surveys would create conditions of long-term, continuous 
noise and chronic acoustic exposure leading to long-term physiological 
stress responses in marine mammals.

Behavioral Disturbance

    Behavioral responses to sound are highly variable and context-
specific. Many different variables can influence an animal's perception 
of and response to (nature and magnitude) an acoustic event. An 
animal's prior experience with a sound or sound source affects whether 
it is less likely (habituation) or more likely (sensitization) to 
respond to certain sounds in the future (animals can also be innately 
pre-disposed to respond to certain sounds in certain ways) (Southall et 
al., 2007). Related to the sound itself, the perceived nearness of the 
sound, bearing of the sound (approaching vs. retreating), similarity of 
a sound to biologically relevant sounds in the animal's environment 
(i.e., calls of predators, prey, or conspecifics), and familiarity of 
the sound may affect the way an animal responds to the sound (Southall 
et al., 2007, DeRuiter et al., 2013). Individuals (of different age, 
gender, reproductive status, etc.) among most populations will have 
variable hearing capabilities, and differing behavioral sensitivities 
to sounds that will be affected by prior conditioning, experience, and 
current activities of those individuals. Often, specific acoustic 
features of the sound and contextual variables (i.e., proximity, 
duration, or recurrence of the sound or the current behavior that the 
marine mammal is engaged in or its prior experience), as well as 
entirely separate factors such as the physical presence of a nearby 
vessel, may be more relevant to the animal's response than the received 
level alone. Studies by DeRuiter et al. (2012) 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.
    Ellison et al. (2012) outlined an approach to assessing the effects 
of sound on marine mammals that incorporates contextual-based factors. 
The authors recommend considering not just the received level of sound, 
but also the activity the animal is engaged in at the time the sound is 
received, the nature and novelty of the sound (i.e., is this a new 
sound from the animal's perspective), and the distance between the 
sound source and the animal. They submit that this ``exposure 
context,'' as described, greatly influences the type of behavioral 
response exhibited by the animal. This sort of contextual information 
is challenging to predict with accuracy for ongoing activities that 
occur over large spatial and temporal expanses. However, distance is 
one contextual factor for which data exist to quantitatively inform a 
take estimate. Other factors are often considered qualitatively in the 
analysis of the likely consequences of sound exposure, where supporting 
information is available.
    Exposure of marine mammals to sound sources can result in, but is 
not limited to, no response or any of the following observable 
response: Increased alertness; orientation or attraction to a sound 
source; vocal modifications; cessation of feeding; cessation of social 
interaction; alteration of movement or diving behavior; habitat 
abandonment (temporary or permanent); and, in severe cases, panic, 
flight, stranding, potentially resulting in death (Southall et al., 
2007). A review of marine mammal responses to anthropogenic sound was 
first conducted by Richardson (1995). More recent reviews (Nowacek et 
al.,2007; DeRuiter et al., 2012 and 2013; Ellison et al., 2012) address 
studies conducted since 1995 and focused on observations where the 
received sound level of the exposed marine mammal(s) was known or could 
be estimated. Southall et al. (2016) states that results demonstrate 
that some individuals of different species display clear yet varied 
responses, some of which have negative implications, while others 
appear to tolerate high levels, and that responses may not be fully 
predicable with simple acoustic exposure metrics (e.g., received sound 
level). Rather, the authors state that differences among species and 
individuals along with contextual aspects of exposure (e.g., behavioral 
state) appear to affect response probability.
    Changes in dive behavior can vary widely. They may consist of 
increased or decreased dive times and surface intervals as well as 
changes in the rates of ascent and descent during a dive. Variations in 
dive behavior may reflect interruptions in biologically significant 
activities (e.g., foraging) or they may be of little biological 
significance. Variations in dive behavior may also expose an animal to 
potentially harmful conditions (e.g., increasing the chance of ship-
strike) or may serve as an avoidance response that enhances 
survivorship. The impact of a variation in diving resulting from an 
acoustic exposure depends on what the animal is doing at the time of 
the exposure and the type and magnitude of the response.
    Avoidance is the displacement of an individual from an area as a 
result of the presence of a sound. Richardson et al. (1995) noted that 
avoidance reactions are the most obvious manifestations of disturbance 
in marine mammals. Avoidance is qualitatively different from the flight 
response, but also differs in the magnitude of the response (i.e., 
directed movement, rate of travel, etc.). Oftentimes avoidance is 
temporary, and animals return to the area once the noise has ceased. 
However, longer term displacement is possible and can lead to changes 
in abundance or distribution patterns of the species in the affected 
region if they do not become acclimated to the presence of the sound 
(Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006). 
Acute avoidance responses have been observed in captive porpoises and 
pinnipeds exposed to a number of different sound sources (Kastelein et 
al., 2001; Finneran et al., 2003; Kastelein et al., 2006a; Kastelein et 
al., 2006b).
    Southall et al. (2007) reviewed the available literature on marine 
mammal hearing and behavioral and physiological responses to human-made 
sound with the goal of proposing exposure criteria for certain effects. 
This peer-reviewed compilation of literature is very valuable, though 
Southall et al. (2007) note that not all data are equal, some have poor 
statistical power, insufficient controls, and/or limited information on 
received levels, background noise, and other potentially important 
contextual variables--such data were reviewed and sometimes used for 
qualitative illustration but were not included in the quantitative 
analysis for the criteria recommendations. All of the studies 
considered, however, contain an estimate of the received sound level 
when the animal exhibited the indicated response.
    For purposes of analyzing responses of marine mammals to 
anthropogenic sound and developing criteria, NMFS (2018) differentiates 
between pulse (impulsive) sounds (single and multiple) and non-pulse 
sounds. For purposes of evaluating the potential for take of marine 
mammals resulting from underwater noise due to the conduct of the 
proposed HRG surveys (operation of USBL positioning system and the sub-
bottom profilers), the criteria for Level A harassment (PTS onset) from

[[Page 36068]]

impulsive noise was used as prescribed in NMFS (2018) and the threshold 
level for Level B harassment (160 dBRMS re 1 [micro]Pa) was 
used to evaluate takes from behavioral harassment.
    Studies that address responses of low-frequency cetaceans to sounds 
include data gathered in the field and related to several types of 
sound sources, including: Vessel noise, drilling and machinery 
playback, low-frequency M-sequences (sine wave with multiple phase 
reversals) playback, tactical low-frequency active sonar playback, 
drill ships, and non-pulse playbacks. These studies generally indicate 
no (or very limited) responses to received levels in the 90 to 120 dB 
re: 1[micro]Pa range and an increasing likelihood of avoidance and 
other behavioral effects in the 120 to 160 dB range. As mentioned 
earlier, though, contextual variables play a very important role in the 
reported responses and the severity of effects do not increase linearly 
with received levels. Also, few of the laboratory or field datasets had 
common conditions, behavioral contexts, or sound sources, so it is not 
surprising that responses differ.
    The studies that address responses of mid-frequency cetaceans to 
sounds include data gathered both in the field and the laboratory and 
related to several different sound sources, including: Pingers, 
drilling playbacks, ship and ice-breaking noise, vessel noise, Acoustic 
harassment devices (AHDs), Acoustic Deterrent Devices (ADDs), mid-
frequency active sonar, and non-pulse bands and tones. Southall et al. 
(2007) were unable to come to a clear conclusion regarding the results 
of these studies. In some cases animals in the field showed significant 
responses to received levels between 90 and 120 dB, while in other 
cases these responses were not seen in the 120 to 150 dB range. The 
disparity in results was likely due to contextual variation and the 
differences between the results in the field and laboratory data 
(animals typically responded at lower levels in the field). The studies 
that address the responses of mid-frequency cetaceans to impulse sounds 
include data gathered both in the field and the laboratory and related 
to several different sound sources, including: Small explosives, airgun 
arrays, pulse sequences, and natural and artificial pulses. The data 
show no clear indication of increasing probability and severity of 
response with increasing received level. Behavioral responses seem to 
vary depending on species and stimuli.
    The studies that address responses of high-frequency cetaceans to 
sounds include data gathered both in the field and the laboratory and 
related to several different sound sources, including: Pingers, AHDs, 
and various laboratory non-pulse sounds. All of these data were 
collected from harbor porpoises. Southall et al. (2007) concluded that 
the existing data indicate that harbor porpoises are likely sensitive 
to a wide range of anthropogenic sounds at low received levels (around 
90 to 120 dB), at least for initial exposures. All recorded exposures 
above 140 dB induced profound and sustained avoidance behavior in wild 
harbor porpoises (Southall et al., 2007). Rapid habituation was noted 
in some but not all studies.
    The studies that address the responses of pinnipeds in water to 
sounds include data gathered both in the field and the laboratory and 
related to several different sound sources, including: AHDs, various 
non-pulse sounds used in underwater data communication, underwater 
drilling, and construction noise. Few studies exist with enough 
information to include them in the analysis. The limited data suggest 
that exposures to non-pulse sounds between 90 and 140 dB generally do 
not result in strong behavioral responses of pinnipeds in water, but no 
data exist at higher received levels (Southall et al., 2007). The 
studies that address the responses of pinnipeds in water to impulse 
sounds include data gathered in the field and related to several 
different sources, including: Small explosives, impact pile driving, 
and airgun arrays. Quantitative data on reactions of pinnipeds to 
impulse sounds is limited, but a general finding is that exposures in 
the 150 to 180 dB range generally have limited potential to induce 
avoidance behavior (Southall et al., 2007).
    Sound can disrupt behavior through masking, or interfering with, an 
animal's ability to detect, recognize, or discriminate between acoustic 
signals of interest (e.g., those used for intraspecific communication 
and social interactions, prey detection, predator avoidance, 
navigation) (Richardson et al., 1995; Erbe and Farmer, 2000; Tyack, 
2000; Erbe et al., 2016). Masking occurs when the receipt of a sound is 
interfered with by another coincident sound at similar frequencies and 
at similar or higher intensity, and may occur whether the sound is 
natural (e.g., snapping shrimp, wind, waves, precipitation) or 
anthropogenic (e.g., shipping, sonar, seismic exploration) in origin. 
The ability of a noise source to mask biologically important sounds 
depends on the characteristics of both the noise source and the signal 
of interest (e.g., signal-to-noise ratio, temporal variability, 
direction), in relation to each other and to an animal's hearing 
abilities (e.g., sensitivity, frequency range, critical ratios, 
frequency discrimination, directional discrimination, age or TTS 
hearing loss), and existing ambient noise and propagation conditions. 
Masking these acoustic signals can disturb the behavior of individual 
animals, groups of animals, or entire populations. Under certain 
circumstances, marine mammals experiencing significant masking could 
also be impaired from maximizing their performance fitness in survival 
and reproduction. Therefore, when the coincident (masking) sound is 
man-made, it may be considered harassment when disrupting or altering 
critical behaviors. The frequency range of the potentially masking 
sound is important in determining any potential behavioral impacts. For 
example, low-frequency signals may have less effect on high-frequency 
echolocation sounds produced by odontocetes but are more likely to 
affect detection of mysticete communication calls and other potentially 
important natural sounds such as those produced by surf and some prey 
species. The masking of communication signals by anthropogenic noise 
may be considered as a reduction in the communication space of animals 
(e.g., Clark et al., 2009; Matthews et al., 2016) and may result in 
energetic or other costs as animals change their vocalization behavior 
(e.g.,Miller et al., 2000; Foote et al., 2004; Parks et al., 2007; Di 
Iorio and Clark, 2009; Holt et al., 2009).
    Marine mammals are likely to avoid the HRG survey activity, 
especially harbor porpoises, while the harbor seals might be attracted 
to them out of curiosity. However, because the sub-bottom profilers and 
other HRG survey equipment operate from a moving vessel, and the 
predicted maximum distance to the 160 dBRMS re 1[micro]Pa 
isopleth (Level B harassment criteria) is 178 m, the area and time that 
this equipment would be affecting a given location is very small. 
Further, once an area has been surveyed, it is not likely that it will 
be surveyed again, therefore reducing the likelihood of repeated HRG-
related impacts within the survey area.
    A number of cetacean mass stranding events have been linked to use 
of military active sonar. We considered the potential for HRG equipment 
to result in standings or indirect injury or mortality based on the 
2008 mass stranding of approximately one hundred melon-headed whales in 
a Madagascar lagoon system. An investigation of the event indicated 
that use of a high-frequency

[[Page 36069]]

mapping system (12-kHz multibeam echosounder) was the most plausible 
and likely initial behavioral trigger of the event, while providing the 
caveat that there is no unequivocal and easily identifiable single 
cause (Southall et al., 2013). The investigatory panel's conclusion was 
based on (1) very close temporal and spatial association and directed 
movement of the survey with the stranding event; (2) the unusual nature 
of such an event coupled with previously documented apparent behavioral 
sensitivity of the species to other sound types (Southall et al., 2006; 
Brownell et al., 2009); and (3) the fact that all other possible 
factors considered were determined to be unlikely causes. Specifically, 
regarding survey patterns prior to the event and in relation to 
bathymetry, the vessel transited in a north-south direction on the 
shelf break parallel to the shore, ensonifying large areas of deep-
water habitat prior to operating intermittently in a concentrated area 
offshore from the stranding site; this may have trapped the animals 
between the sound source and the shore, thus driving them towards the 
lagoon system. The investigatory panel systematically excluded or 
deemed highly unlikely nearly all potential reasons for these animals 
leaving their typical pelagic habitat for an area extremely atypical 
for the species (i.e., a shallow lagoon system). Notably, this was the 
first time that such a system has been associated with a stranding 
event. The panel also noted several site- and situation-specific 
secondary factors that may have contributed to the avoidance responses 
that led to the eventual entrapment and mortality of the whales. 
Specifically, shoreward-directed surface currents and elevated 
chlorophyll levels in the area preceding the event may have played a 
role (Southall et al., 2013). The report also notes that prior use of a 
similar system in the general area may have sensitized the animals and 
also concluded that, for odontocete cetaceans that hear well in higher 
frequency ranges where ambient noise is typically quite low, high-power 
active sonars operating in this range may be more easily audible and 
have potential effects over larger areas than low frequency systems 
that have more typically been considered in terms of anthropogenic 
noise impacts. It is, however, important to note that the relatively 
lower output frequency, higher output power, and complex nature of the 
system implicated in this event, in context of the other factors noted 
here, likely produced a fairly unusual set of circumstances that 
indicate that such events would likely remain rare and are not 
necessarily relevant to use of lower-power, higher-frequency systems 
more commonly used for HRG survey applications. The risk of similar 
events recurring may be very low, given the extensive use of active 
acoustic systems used for scientific and navigational purposes 
worldwide on a daily basis and the lack of direct evidence of such 
responses previously reported.

Tolerance

    Numerous studies have shown that underwater sounds from industrial 
activities are often readily detectable by marine mammals in the water 
at distances of many kilometers. However, other studies have shown that 
marine mammals at distances more than a few kilometers away often show 
no apparent response to industrial activities of various types (Miller 
et al., 2005). This is often true even in cases when the sounds must be 
readily audible to the animals based on measured received levels and 
the hearing sensitivity of that mammal group. Although various baleen 
whales, toothed whales, and (less frequently) pinnipeds have been shown 
to react behaviorally to underwater sound from sources such as airgun 
pulses or vessels under some conditions, at other times, mammals of all 
three types have shown no overt reactions (e.g., Malme et al., 1986; 
Richardson et al., 1995; Madsen and Mohl, 2000; Croll et al., 2001; 
Jacobs and Terhune, 2002; Madsen et al., 2002; Miller et al., 2005). In 
general, pinnipeds seem to be more tolerant of exposure to some types 
of underwater sound than are baleen whales. Richardson et al. (1995) 
found that vessel sound does not seem to strongly affect pinnipeds that 
are already in the water. Richardson et al. (1995) went on to explain 
that seals on haulouts sometimes respond strongly to the presence of 
vessels and at other times appear to show considerable tolerance of 
vessels, and Brueggeman et al. (1992) observed ringed seals (Pusa 
hispida) hauled out on ice pans displaying short-term escape reactions 
when a ship approached within 0.16-0.31 mi (0.25-0.5 km). Due to the 
relatively high vessel traffic in the Survey Area it is possible that 
marine mammals are habituated to noise from project vessels in the 
area.

Vessel Strike

    Ship strikes of marine mammals can cause major wounds, which may 
lead to the death of the animal. An animal at the surface could be 
struck directly by a vessel, a surfacing animal could hit the bottom of 
a vessel, or a vessel's propeller could injure an animal just below the 
surface. The severity of injuries typically depends on the size and 
speed of the vessel (Knowlton and Kraus, 2001; Laist et al., 2001).
    The most vulnerable marine mammals are those that spend extended 
periods of time at the surface in order to restore oxygen levels within 
their tissues after deep dives (e.g., the sperm whale). In addition, 
some baleen whales, such as the North Atlantic right whale, seem 
generally unresponsive to vessel sound, making them more susceptible to 
vessel collisions (Nowacek et al., 2004). These species are primarily 
large, slow moving whales. Smaller marine mammals (e.g., bottlenose 
dolphin) move quickly through the water column and are often seen 
riding the bow wave of large ships. Marine mammal responses to vessels 
may include avoidance and changes in dive pattern (NRC, 2003).
    An examination of all known ship strikes from all shipping sources 
(civilian and military) indicates vessel speed is a principal factor in 
whether a vessel strike results in death (Knowlton and Kraus, 2001; 
Laist et al., 2001; Jensen and Silber, 2003; Vanderlaan and Taggart, 
2007). In assessing records with known vessel speeds, Laist et al. 
(2001) found a direct relationship between the occurrence of a whale 
strike and the speed of the vessel involved in the collision. The 
authors concluded that most deaths occurred when a vessel was traveling 
in excess of 24.1 km/h (14.9 mph; 13 knots). Given the slow vessel 
speeds and predictable course necessary for data acquisition, ship 
strike is unlikely to occur during the geophysical and geotechnical 
surveys. Most marine mammals would be able to easily avoid vessels and 
are likely already habituated to the presence of numerous vessels in 
the area. Further, Orsted shall implement measures (e.g., vessel speed 
restrictions and separation distances; see Proposed Mitigation 
Measures) set forth in the BOEM Lease to reduce the risk of a vessel 
strike to marine mammal species in the Survey Area. Finally, survey 
vessels will travel at slow speeds (approximately 4 knots) during the 
survey, which reduces the risk of injury in the unlikely the event a 
survey vessel strikes a marine mammal.

Effects on Marine Mammal Habitat

    Bottom disturbance associated with the HRG activities may include 
grab sampling to validate the seabed classification obtained from the 
multibeam echosounder/sidescan sonar data. This will typically be 
accomplished using a Mini-Harmon Grab with 0.1 m\2\ sample area or the

[[Page 36070]]

slightly larger Harmon Grab with a 0.2 m\2\ sample area. This limited 
and highly localized impact to habitat in relation to the comparatively 
vast area of surrounding open ocean, would not be expected to result in 
any effects to prey availability. The HRG survey equipment itself will 
not disturb the seafloor.
    There are no feeding areas, rookeries, or mating grounds known to 
be biologically important to marine mammals within the proposed project 
area with the exception of a feeding BIA for fin whales and migratory 
BIA for North Atlantic right whales which were described previously. 
There is also no designated critical habitat for any ESA-listed marine 
mammals. NMFS' regulations at 50 CFR part 224 designated the nearshore 
waters of the Mid-Atlantic Bight as the Mid-Atlantic U.S. Seasonal 
Management Area (SMA) for right whales in 2008. Mandatory vessel speed 
restrictions are in place in that SMA from November 1 through April 30 
to reduce the threat of collisions between ships and right whales 
around their migratory route and calving grounds.
    We are not aware of any available literature on impacts to marine 
mammal prey species from HRG survey equipment. However, because the HRG 
survey equipment introduces noise to the marine environment, there is 
the potential for avoidance of the area around the HRG survey 
activities by marine mammal prey species. Any avoidance of the area on 
the part of marine mammal prey species would be expected to be short 
term and temporary. Because of the temporary nature of the disturbance, 
the availability of similar habitat and resources (e.g.,prey species) 
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. 
Impacts on marine mammal habitat from the proposed activities will be 
temporary, insignificant, and discountable.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, the MMPA defines ``harassment'' as: Any act of pursuit, torment, 
or annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to sound from HRG equipment. Based on the 
nature of the activity and the anticipated effectiveness of the 
mitigation measures (i.e., shutdown--discussed in detail below in 
Proposed Mitigation section), Level A harassment is neither anticipated 
nor proposed to be authorized.
    As described previously, no mortality is anticipated or proposed to 
be authorized for this activity. Below we describe how the take is 
estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the proposed 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, 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 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. Orsted's proposed activities include 
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, 2018) identifies dual criteria to 
assess auditory injury (Level A harassment) to five different marine 
mammal groups (based on hearing sensitivity) as a result of exposure to 
noise from two different types of sources (impulsive or non-impulsive).
    These thresholds are provided in Table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at: 
https://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

[[Page 36071]]



                     Table 4--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 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]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, which include source levels and transmission loss 
coefficient.
    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 take. 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 Orsted'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.
    Orsted conducted field verification tests on different types of HRG 
equipment within the proposed Lease Areas during previous site 
characterization survey activities. NMFS is proposing to authorize take 
in these same three Lease Areas listed below.
     OCS-A 0486 & OCS-A 0487: Marine Acoustics, Inc. (MAI), 
under contract to Oceaneering International completed an underwater 
noise monitoring program for the field verification for equipment to be 
used to survey the Skipjack Windfarm Project (MAI 2018a; 2018b).
     OCS-A 0500 Lease Area: The Gardline Group (Gardline), 
under contract to Alpine Ocean Seismic Survey, Inc., completed an 
underwater noise monitoring program for the field verification within 
the Lease Area prior to the commencement of the HRG survey which took 
place between August 14 and October 6, 2016 (Gardline 2016a, 2016b, 
2017). Additional field verifications were completed by the RPS Group, 
under contract to Terrasond prior to commencement of the 2018 HRG field 
survey campaign (RPS 2018).
    Field Verification results are shown in Table 5. The purpose of the 
field verification programs was to determine distances to the 
regulatory thresholds for injury/mortality and behavior disturbance of 
marine mammals that were established during the permitting process.
    As part of their application, Orsted collected field verified 
source levels and calculated the differential between the averaged 
measured field verified source levels versus manufacturers' reported 
source levels for each tested piece of HRG equipment. The results of 
the field verification studies were used to derive the variability in 
source levels based on the extrapolated values resulting from 
regression analysis. These values were used to further calibrate 
calculations for a specific suite of HRG equipment of similar type. 
Orsted stated that the calculated differential accounts for both the 
site specific environmental conditions and directional beam width 
patterns and can be applied to similar HRG equipment within one of the 
specified equipment categories (e.g., USBL & GAPS Transceivers, Shallow 
Sub-Bottom Profilers (SBP), Parametric SBP, Medium Penetration SBP 
(Sparker), and Medium Penetration SBP (Boomer)). For example, the 
manufacturer of the Geosource 800J medium penetration SBP reported a 
source level of 206 dB RMS. The field verification study measured a 
source level of 189 dB RMS (Gardline 2016a, 2017). Therefore, the 
differential between the manufacturer and field verified SL is -17 dB 
RMS. Orsted proposed to apply this differential (-17 dB) to other HRG 
equipment in the medium penetration SBP (sparker) category with an 
output of approximately 800 joules. Orsted employed this methodology 
for all non-field verified equipment within a specific equipment 
category. These new differential-based proxy SLs were inserted into the 
User Spreadsheet and used to calculate the Level A and Level B 
harassment isopleths for the various hearing groups. Table 5 shows the 
field verified equipment SSV results as well as applicable non-verified 
equipment broken out by equipment category.

[[Page 36072]]



Table 5--Summary of Field Verified HRG Equipment SSV Results and Applicable HRG Devices Grouped by Category Type
----------------------------------------------------------------------------------------------------------------
                                                                          Source level
                                                     Baseline  source   measured during
   Representative HRG  survey        Operating       level  (dB re 1    [Oslash]rsted FV   2019 HRG survey data
           equipment                frequencies          [mu]Pa)       surveys  (dB re 1   acquisition equipment
                                                                            [mu]Pa)
----------------------------------------------------------------------------------------------------------------
                                    USBL & GAPS Transponder and Transceiver a
----------------------------------------------------------------------------------------------------------------
Sonardyne Ranger 2.............  19 to 34 kHz.....  200 dBRMS........  166 dBRMS........  Sonardyne Ranger 2
                                                                                           USBL HPT 5/7000;
                                                                                           Sonardyne Ranger 2
                                                                                           USBL HPT 3000;
                                                                                           Sonardyne Scout Pro;
                                                                                           Easytrak Nexus 2
                                                                                           USBL; IxSea GAPS
                                                                                           System; Kongsberg
                                                                                           HiPAP 501/502 USBL;
                                                                                           Edgetech BATS II.
----------------------------------------------------------------------------------------------------------------
                                    Shallow Sub-Bottom Profilers (Chirp) a c
----------------------------------------------------------------------------------------------------------------
GeoPulse 5430 A Sub-bottom       1.5 to 18 kHz....  214 dBRMS........  173 dBRMS........  Edgetech 3200;
 Profiler.                                                                                 Teledyne Benthos
                                                                                           Chirp III--TTV 170.
EdgeTech 512...................  0.5 to 12 kHz....  177 dBRMS........  166 dBRMS........  PanGeo LF Chirp;
                                                                                           PanGeo HF Chirp;
                                                                                           EdgeTech 216;
                                                                                           EdgeTech 424.
----------------------------------------------------------------------------------------------------------------
                                        Parametric Sub-Bottom Profiler d
----------------------------------------------------------------------------------------------------------------
Innomar SES-2000 Medium 100....  85 to 115........  247 dBRMS........  187 dBRMS........  Innomar SES-2000
                                                                                           Standard & Plus;
                                                                                           Innomar SES-2000
                                                                                           Medium 70; Innomar
                                                                                           SES-2000 Quattro;
                                                                                           PanGeo 2i Parametric.
----------------------------------------------------------------------------------------------------------------
                               Medium Penetration Sub-Bottom Profiler (Sparker) a
----------------------------------------------------------------------------------------------------------------
Geo-Resources Geo-Source 600 J.  0.05 to 5 kHz....  214 dBPeak; 205    206 dBPeak; 183    GeoMarine Geo-Source
                                                     dBRMS.             dBRMS.             400tip; Applied
                                                                                           Acoustics Dura-Spark
                                                                                           400 System.
Geo-Resources Geo-Source 800 J.  0.05 to 5 kHz....  215 dBPeak; 206    212 dBPeak; 189    GeoMarine Geo-Source
                                                     dBRMS.             dBRMS.             800.
----------------------------------------------------------------------------------------------------------------
                               Medium Penetration Sub-Bottom Profiler (Boomer) b c
----------------------------------------------------------------------------------------------------------------
Applied Acoustics S-Boom Triple  0.1 to 5.........  211 dBPeak; 205    195 dBPeak; 173    Not used for any other
 Plate Boomer (700J).                                dBRMS.             dBRMS.             equipment.
Applied Acoustics S-Boom Triple  0.250 to 8 kHz...  228 dBPeak; 208    215 dBPeak; 198    Not used for any other
 Plate Boomer (1000J).                               dBRMS.             dBRMS.             equipment.
----------------------------------------------------------------------------------------------------------------
Sources: a Gardline 2016a, 2017; b RPS 2018; c MAI 2018a; d Subacoustech 2018

    After careful consideration, NMFS concluded that the use of 
differentials to derive proxy SLs is not appropriate or acceptable. 
NMFS determined that when field verified measurements are compared to 
the source levels measured in a controlled experimental setting (i.e., 
Crocker and Fratantonio, 2016), there are significant discrepancies in 
isopleth distances for the same equipment that cannot be explained 
solely by absorption and scattering of acoustic energy. There are a 
number of variables, including potential differences in propagation 
rate, operating frequency, beam width, and pulse width that make us 
question whether SL differential values can be universally applied 
across different pieces of equipment, even if they fall within the same 
equipment category. Therefore, NMFS did not employ Orsted's proposed 
use of differentials to determine Level A and Level B harassment 
isopleths or proposed take estimates.
    As noted above, much of the HRG equipment proposed for use during 
Orsted's survey has not been field-verified. NMFS employed an alternate 
approach in which data reported by Crocker and Fratantonio (2016) was 
used to establish injury and behavioral harassment zones. If Crocker 
and Fratantonio (2016) did not provide data on a specific piece of 
equipment within a given equipment category, the SLs reported in the 
study for measured equipment are used to represent all the other 
equipment within that category, regardless of whether any of the 
devices has been field verified. If SSV data from Crocker and 
Fratantonio (2016) is not available across an entire equipment 
category, NMFS instead adopted the field verified results from 
equipment that had been tested. Here, the largest field verified SL was 
used to represent the entire equipment category. These values were 
applied to the User Spreadsheet to calculate distances for each of the 
proposed HRG equipment categories that might result in harassment of 
marine mammals. Inputs to the User Spreadsheet are shown in Table 6. 
The source levels used in Table 6 are from field verified values shown 
in Table 5. However, source levels for the EdgeTech 512 (177 dB RMS) 
and Applied Acoustics S-Boom Triple Plate Boomer (1,000j) (203 dB RMS) 
were derived from Crocker and Fratantonio (2016). Table 7 depicts 
isopleths that could result in injury to a specific hearing group.

                                                                             Table 6--Inputs to the User Spreadsheet
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                             USBL              Shallow penetration SBP-   Shallow penetration SBP-       Parametric  SBP      Medium penetration SBP--  Medium penetration SBP--
                                  ---------------------------           chirp                      chirp           --------------------------          sparker                   boomer
       Spreadsheet tab used                                  ------------------------------------------------------                          ---------------------------------------------------
                                     D: Mobile source: Non-     D: Mobile source: Non-     D: Mobile source: Non-    D: Mobile source: Non-       F: Mobile source:         F: Mobile source:
                                    impulsive,  intermittent   impulsive,  intermittent   impulsive,  intermittent  impulsive,  intermittent   impulsive, intermittent   impulsive, intermittent
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
HRG Equipment....................  Sonardyne Ranger 2.......  GeoPulse 5430 A Sub-       EdgeTech 512.............  Innomar SES 2000 Medium   GeoMarine Geo-Source 800  Applied Acoustics S-Boom
                                                               bottom Profiler.                                      100.                      J.                        Triple Plate Boomer
                                                                                                                                                                         (1,000j).

[[Page 36073]]

 
Source Level (dB RMS SPL)........  166......................  173......................  177 *....................  187.....................  212 Pk; 189 RMS.........  209 Pk; 203 RMS.*
Weighting Factor Adjustment (kHz)  26.......................  4.5......................  3........................  42......................  2.......................  0.6.
Source Velocity (m/s)............  2.045....................  2.045....................  2.045....................  2.045...................  2.045...................  2.045.
Pulse Duration (seconds).........  0.3......................  0.025....................  0.0022...................  0.001...................  0.055...................  0.0006.
1/Repetition rate [caret]          1........................  0.1......................  0.50.....................  0.025...................  0.5.....................  0.333.
 (seconds).
Source Level (PK SPL)............  .........................  .........................  .........................  ........................  212.....................  215.
Propagation (xLogR)..............  20.......................  20.......................  20.......................  20......................  20......................  20.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Crocker and Fratantonio (2016).


  Table 7--Maximum Distances to Level A Harassment Isopleths Based on Data From Field Verification Studies and
                                Crocker and Fratantonio (2016) (Where Available)
----------------------------------------------------------------------------------------------------------------
                                                                                                        Lateral
   Representative HRG survey equipment          Marine mammal group                PTS onset            distance
                                                                                                          (m)
----------------------------------------------------------------------------------------------------------------
                                          USBL/GAPS Positioning Systems
----------------------------------------------------------------------------------------------------------------
Sonardyne Ranger 2.......................  LF cetaceans................  199 dB SELcum...............  .........
                                           MF cetaceans................  198 dB SELcum...............  .........
                                           HF cetaceans................  173 dB SELcum...............         <1
                                           Phocid pinnipeds............  201 dB SELcum...............  .........
----------------------------------------------------------------------------------------------------------------
                                       Shallow Sub-Bottom Profiler (Chirp)
----------------------------------------------------------------------------------------------------------------
Edgetech 512.............................  LF cetaceans................  199 dB SELcum...............  .........
                                           MF cetaceans................  198 dB SELcum...............  .........
                                           HF cetaceans................  173 dB SELcum...............  .........
                                           Phocid pinnipeds............  201 dB SELcum...............  .........
GeoPulse 5430 A Sub-bottom Profiler......  LF cetaceans................  199 dB SELcum...............  .........
                                           MF cetaceans................  198 dB SELcum...............  .........
                                           HF cetaceans................  173 dB SELcum...............  .........
                                           Phocid pinnipeds............  201 dB SELcum...............  .........
----------------------------------------------------------------------------------------------------------------
                                         Parametric Sub-bottom Profiler
----------------------------------------------------------------------------------------------------------------
Innomar SES-2000 Medium 100..............  LF cetaceans................  199 dB SELcum...............  .........
                                           MF cetaceans................  198 dB SELcum...............  .........
                                           HF cetaceans................  173 dB SELcum...............         <2
                                           Phocid pinnipeds............  201 dB SELcum...............  .........
----------------------------------------------------------------------------------------------------------------
                                Medium Penetration Sub-Bottom Profiler (Sparker)
----------------------------------------------------------------------------------------------------------------
GeoMarine Geo-Source 800tip..............  LF cetaceans................  219 dBpeak, 183 dB SELcum...    --, < 1
                                           MF cetaceans................  230 dBpeak, 185 dB SELcum...  .........
                                           HF cetaceans................  202 dBpeak, 155 dB SELcum...     <4, <1
                                           Phocid pinnipeds............  218 dBpeak, 185 dB SELcum...     --, <1
----------------------------------------------------------------------------------------------------------------
                                 Medium Penetration Sub-Bottom Profiler (Boomer)
----------------------------------------------------------------------------------------------------------------
Applied Acoustics S-Boom Triple Plate      LF cetaceans................  219 dBpeak, 183 dB SELcum...     --, <1
 Boomer (1000j).
                                           MF cetaceans................  230 dBpeak, 185 dB SELcum...  .........
                                           HF cetaceans................  202 dBpeak, 155 dB SELcum...     <3, --
                                           Phocid pinnipeds............  218 dBpeak, 185 dB SELcum...  .........
----------------------------------------------------------------------------------------------------------------

    In the absence of Crocker and Fratantonio (2016) data, as noted 
above, NMFS determined that field verified SLs could be used to 
delineate Level A harassment isopleths which can be used to represent 
all of the HRG equipment within that specific category. While there is 
some uncertainty given that the SLs associated with assorted HRG 
equipment are variable within a given category, all of the predicted 
distances based on the field-verified source level are small enough to 
support a prediction that Level A harassment is unlikely to occur. 
While it is possible that Level A harassment isopleths of non-verified 
equipment would be larger than those shown in Table 7, it is unlikely 
that such zones would be substantially greater in size such that take 
by Level A harassment would be expected. Therefore, NMFS is not 
proposing to authorize any take from Level A harassment.
    The methodology described above was also applied to calculate Level 
B harassment isopleths as shown in Table 8. Note that the spherical 
spreading propagation model (20logR) was used to derive behavioral 
harassment isopleths for equipment measured by Crocker and Fratantonio 
(2016) data. However, the practical spreading model (15logR) was used 
to conservatively assess distances to Level B harassment thresholds for 
equipment not tested by Crocker and

[[Page 36074]]

Fratantonio (2016). Table 8 shows calculated Level B harassment 
isopleths for specific equipment tested by Crocker and Fratantonio 
(2016) which is applied to all devices within a given category. In 
cases where Crocker and Fratantonio (2016) collected measurement on 
more than one device, the largest calculated isopleth is used to 
represent the entire category. Table 8 also shows field-verified SLs 
and associated Level B harassment isopleths for equipment categories 
that lack relevant Crocker & Fratantonio (2016) measurements. 
Additionally, Table 8 also references the specific field verification 
studies that were used to develop the isopleths. For these categories, 
the largest calculated isopleth in each category was also used to 
represent all equipment within that category.
    Further information depicting how Level B harassment isopleths were 
derived for each equipment category is described below:
    USBL and GAPS: There are no relevant information sources or 
measurement data within the Crocker and Fratantonio (2016) report. 
However, SSV tests were conducted on the Sonardyne Ranger 2 (Gardline 
2016a, 2017) and the IxSea GAPS System (MAI 2018b). Of the two devices, 
the IxSea GAPS System had the larger Level B harassment isopleth 
calculated at a distance of 6 m. It is assumed that all equipment 
within this category will have the same Level B harassment isopleth.
    Parametric SBP: There are no relevant data contained in Crocker and 
Fratantonio (2016) report for parametric SBPs. However, results from an 
SSV study showed a Level B harassment isopleth of 63 m for the Innomar-
2000 SES Medium 100 system (Subacoustech 2018). Therefore, 63 m will 
serve as the Level B harassment isopleth for all parametric SBP 
devices.
    SBP (Chirp): Crocker and Fratantonio (2016) tested two chirpers, 
the Edge Tech (ET) models 424 and 512. The largest calculated isopleth 
is 7 m associated with the Edgetech 512. This distance will be applied 
to all other HRD equipment within this category.
    SBP (sparkers): The Applied Acoustics Dura-Spark 400 was the only 
sparker tested by Crocker and Fratantonio (2016). The Level B 
harassment isopleth calculated for this devise is 141 m and represents 
all equipment within this category.
    SBP (Boomers): The Crocker and Fratantonio report (2016) included 
data on the Applied Acoustics S-Boom Triple Plate Boomer (1,000J) and 
the Applied Acoustics S-Boom Boomer (700J). The results showed 
respective Level B harassment isopleths of 141 m and 178 m. Therefore, 
the Level B harassment isopleth for both boomers will be established at 
a distance of 178 m.

           Table 8--Distances to Level B Harassment Isopleths
------------------------------------------------------------------------
                                                     Measured SSV level
                                        Lateral      at closest point of
       HRG survey equipment           distance to      approach single
                                      Level B (m)     pulse SPL  (dB re
                                                         1[mu]Pa\2\)
------------------------------------------------------------------------
                         USBL & GAPS Transceiver
------------------------------------------------------------------------
Sonardyne Ranger 2 \a\............               2  126 to 132 @40 m
Sonardyne Scout Pro...............  ..............  N/A
Easytrak Nexus 2 USBL.............  ..............  N/A
IxSea GAPS System \e\.............               6  144 @35 m
Kongsberg HiPAP 501/502 USBL......  ..............  N/A
Edgetech BATS II..................  ..............  N/A
------------------------------------------------------------------------
                   Shallow Sub-Bottom Profiler (Chirp)
------------------------------------------------------------------------
Edgetech 3200 \f\.................               5  153 @30 m
EdgeTech 216 \e\..................               2  142 @35 m
EdgeTech 424......................               6  Crocker and
                                                     Fratantonio (2016):
                                                     SL = 176
EdgeTech 512 \c\..................             2.4  141 dB @40 m
                                                    130 dB @200 m
                                                 7  Crocker and
                                                     Fratantonio (2016):
                                                     SL = 177
Teledyne Benthos Chirp III--TTV     ..............  N/A
 170.
GeoPulse 5430 A Sub-Bottom                       4  145 @20 m
 Profiler \a\.
PanGeo LF Chirp (Corer)...........  ..............  N/A
PanGeo HF Chirp (Corer)...........  ..............  N/A
------------------------------------------------------------------------
                     Parametric Sub-Bottom Profiler
------------------------------------------------------------------------
Innomar SES-2000 Medium 100                     63  129 to 133 @100 m
 Parametric Sub-Bottom Profiler
 \b\.
Innomar SES-2000 Medium 70          ..............  N/A
 Parametric Sub-Bottom Profiler.
Innomar SES-2000 Standard & Plus    ..............  N/A
 Parametric Sub-Bottom Profiler.
Innomar SES-2000 Quattro..........  ..............  N/A
PanGeo 2i Parametric (Corer)......  ..............  N/A
------------------------------------------------------------------------
            Medium Penetration Sub-Bottom Profiler (Sparker)
------------------------------------------------------------------------
GeoMarine Geo-Source 400tip.......  ..............  N/A
GeoMarine Geo-Source 600tip \a\...              34  [email protected] m
GeoMarine Geo-Source 800tip \a\...              86  [email protected] m
Applied Acoustics Dura-Spark 400               141  Crocker and
 System \g\.                                         Fratantonio (2016);
                                                     SL = 203
GeoResources Sparker 800 System...  ..............  N/A
------------------------------------------------------------------------
             Medium Penetration Sub-Bottom Profiler (Boomer)
------------------------------------------------------------------------
Applied Acoustics S-Boom Boomer                 20  146 @144
 1000 J operation d g.                         141  Crocker and
                                                     Fratantonio (2016);
                                                     SL = 203

[[Page 36075]]

 
Applied Acoustics S-Boom Boomer/                14  142 @38 m
 700 J operation d g.                          178  Crocker and
                                                     Fratantonio (2016);
                                                     SL = 205
------------------------------------------------------------------------
Sources:
\a\ Gardline 2016a, 2017.
\b\ Subacoustech 2018.
\c\ MAI 2018a.
\d\ NCE, 2018.
\e\ MAI 2018b.
\f\ Subacoustech 2017.
\g\ Crocker and Fratantonio, 2016.

    For the purposes of estimated take and implementing proposed 
mitigation measure, it is assumed that all HRG equipment will operate 
concurrently. Therefore, NMFS conservatively utilized the largest 
isopleth of 178 m, derived from the Applied Acoustics S-Boom Boomer 
medium SBP, to establish the Level B harassment zone for all HRG 
categories and devices.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. In order to estimate 
the number of marine mammals predicted to be exposed to sound levels 
that would result in harassment, radial distances to predicted 
isopleths corresponding to 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 by a single vessel 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 daily area is 
multiplied by the marine mammal density of a given species. This value 
is then multiplied by the number of proposed vessel days (666).
    HRG survey equipment has the potential to cause harassment as 
defined by the MMPA (160 dBRMS re 1 [micro]Pa). As noted 
previously, all noise producing survey equipment/sources are assumed to 
be operated concurrently by each survey vessel on every vessel day. The 
greatest distance to the Level B harassment threshold of 160 
dBRMS90% re 1 [mu]Pa level B for impulsive sources is 178 m 
associated with the Applied Acoustics S-Boom Boomer (700J) (Crocker & 
Fratantonio, 2016). Therefore, this distance is conservatively used to 
estimate take by Level B harassment.
    The estimated distance of the daily vessel trackline was determined 
using the estimated average speed of the vessel and the 24-hour 
operational period within each of the corresponding survey segments. 
Estimates of incidental take by HRG survey equipment are calculated 
using the 178 m Level B harassment isopleth, estimated daily vessel 
track of approximately 70 km, and the daily ensonified area of 25.022 
km\2\ for 24-hour operations as shown in Table 9, multiplied by 666 
days.

                   Table 9--Survey Segment Distances and Level B Harassment Isopleth and Zone
----------------------------------------------------------------------------------------------------------------
                                                     Number of       Estimated         Level      Calculated ZOI
                 Survey segment                    active survey   distances per    harassment        per day
                                                    vessel days      day (km)       isopeth (m)       (km\2\)
----------------------------------------------------------------------------------------------------------------
Lease Area OCS-A 0486...........................              79          70.000             178          25.022
Lease Area OCS-A 0487...........................             140  ..............  ..............  ..............
Lease Area OCS-A 0500...........................              94  ..............  ..............  ..............
ECR Corridor(s).................................             353  ..............  ..............  ..............
----------------------------------------------------------------------------------------------------------------

    The data used as the basis for estimating species density for the 
Lease Area are derived from data provided by Duke Universities' 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 
(1994-2018) 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. 2016a; Curtice et al. 2018). Recently, these data have been updated 
with new modeling results and have included density estimates for 
pinnipeds (Roberts et al. 2016b; 2017; 2018). Because the seasonality 
of, and habitat use by, gray seals roughly overlaps with harbor seals, 
the same abundance estimate is applicable. Pinniped density data (as 
presented in Roberts et al. 2016b; 2017; 2018) were used to estimate 
pinniped densities for the Lease Area Survey segment and ECR Corridor 
Survey segment(s). Density data from Roberts et al. (2016b; 2017; 2018) 
were mapped within the boundary of the Survey Area for each segment 
using geographic information systems. For all Survey Area locations, 
the maximum densities as reported by Roberts et al. (2016b; 2017; 
2018), were averaged over the survey duration (for spring, summer, fall 
and winter) for the entire HRG survey area based on the proposed HRG 
survey schedule as depicted in Table 7. The Level B ensonified area and 
the projected duration of each respective survey segment was used to 
produce the estimated take calculations provided in Table 10.

[[Page 36076]]



                                                 Table 10--Marine Mammal Density and Estimated Level B Harassment Take Numbers at 178 m Isopleth
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Lease area OCS-A 0500     Lease area OCS-A 0486     Lease area OCS-A 0487        ECR corridor(s)            Adjusted totals
                                                            ------------------------------------------------------------------------------------------------------------------------------------
                                                               Average                   Average                   Average                   Average
                          Species                              seasonal                  seasonal                  seasonal                  seasonal                     Take
                                                             density \a\   Calculated  density \a\   Calculated  density \a\   Calculated  density \a\   Calculated  authorization   Percent of
                                                               (No./100    take (No.)    (No./100    take (No.)    (No./100    take (No.)    (No./100    take (No.)       (No.)      population
                                                              km[sup2])                 km[sup2])                 km[sup2])                 km[sup2])
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.................................        0.502       11.798        0.383        7.570        0.379       13.262        0.759       67.029         \c\ 10           2.2
Humpback whale.............................................        0.290        6.814        0.271        5.354        0.277        9.717        0.402       35.537             58           6.4
Fin whale..................................................        0.350        8.221        0.210        4.157        0.283        9.929        0.339       29.905             52           3.2
Sei whale..................................................        0.014        0.327        0.005        0.106        0.009        0.306        0.011        0.946              2           0.5
Sperm whale................................................        0.018        0.416        0.014        0.272        0.017        0.581        0.047        4.118              5           0.2
Minke whale................................................        0.122        2.866        0.075        1.487        0.094        3.275        0.126       11.146             19           0.7
Long-finned pilot whale....................................        1.895       44.571        0.504        9.969        1.012       35.449        1.637      144.590            235           4.2
Bottlenose dolphin.........................................        1.992       46.844        1.492       57.800        1.478       43.874       25.002    2,208.314          2,357           3.0
Short beaked common dolphin................................       22.499      529.176        7.943      157.012       14.546      509.559       19.198    1,695.655          2,892           4.1
Atlantic white-sided dolphin...............................        7.349      172.857        2.006       39.656        3.366      117.896        7.634      674.282          1,005           2.1
Spotted dolphin............................................        0.105        2.477        2.924        0.313        1.252        1.119        0.109        9.611         \d\ 50           0.1
Risso's dolphin............................................        0.037        0.859        0.016        0.120        0.032        0.498        0.037        3.291         \d\ 30           0.2
Harbor porpoise............................................        5.389      126.757        5.868      115.997        4.546      159.253       20.098    1,775.180          2,177          <0.1
Harbor seal \b\............................................        7.633      179.522        6.757      133.558        3.966      138.918       45.934    4,057.192          4,509           5.9
Gray Seal \b\..............................................        7.633      179.522        6.757      133.558        3.966      138.918       45.934    4,057.192          4,509          16.6
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\a\ Cetacean density values from Duke University (Roberts et al. 2016, 2017, 2018).
\b\ Pinniped density values from Duke University (Roberts et al. 2016, 2017, 2018) reported as ``seals'' and not species-specific.
\c\ Exclusion zone exceeds Level B isopleth; take adjusted to 10 given duration of survey.
\d\ 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 Atlantic spotted dolphin group size
  estimate is: Jefferson et al. (2008). Source for Risso's dolphin group size estimate is: Baird and Stacey (1991).

    For the North Atlantic right whale, NMFS proposes to establish a 
500-m exclusion zone which substantially exceeds the distance to the 
level B harassment isopleth (178 m). However, Orsted will be operating 
24 hours per day for a total of 666 vessel days. Even with the 
implementation of mitigation measures (including night-vision goggles 
and thermal clip-ons) it is reasonable to assume that night time 
operations for an extended period could result in a limited number of 
right whales being exposed to underwater sound at Level B harassment 
levels. Given the fact that take has been conservatively calculated 
based on the largest source, which will not be operating at all times, 
and is thereby likely over-estimated to some degree, the fact that 
Orsted will implement a shutdown zone at 2.5 times the predicted Level 
B threshold distance for that largest source (and more than that for 
the smaller sources), and the fact that night vision goggles with 
thermal clips will be used for nighttime operations, NMFS predicts that 
10 right whales may be taken by Level B harassment.

Proposed 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.
    With NMFS' input during the application process, Orsted is 
requesting 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 previously approved by NMFS 
(DONG Energy, 2016, ESS, 2013; Dominion, 2013 and 2014).
    Orsted will develop an environmental training program that will be 
provided to all vessel crew prior to the start of survey and during any 
changes in crew such that all survey personnel are fully aware and 
understand the mitigation, monitoring and reporting requirements. Prior 
to implementation, the training program will be provided to NOAA 
Fisheries for review and approval. Confirmation of the training and 
understanding of the requirements will be documented on a training 
course log sheet. Signing the log sheet will certify that the crew 
members understand and will comply with the necessary requirements 
throughout the survey event.

Marine Mammal Monitoring Zone, Harassment Zone and Exclusion Zone

    Protected species observers (PSOs) will observe the following 
monitoring and exclusion zones for the presence of marine mammals:
     500-m exclusion zone for North Atlantic right whales;
     100-m exclusion zone for large whales (except North 
Atlantic right whales); and
     180-m Level B harassment zone for all marine mammals 
except for North Atlantic right whales. This represents the largest 
Level B harassment isopleth applicable to all hearing groups.
    If a marine mammal is detected approaching or entering the 
exclusion zones during the HRG survey, the vessel

[[Page 36077]]

operator would adhere to the shutdown procedures described below to 
minimize noise impacts on the animals.
    At all times, the vessel operator will 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 will be included in the site-specific 
training to be provided to the survey team.

Pre-Clearance of the Exclusion Zones

    Orsted will implement a 30-minute clearance period of the exclusion 
zones prior to the initiation of ramp-up. During this period the 
exclusion zones will be monitored by the PSOs, using the appropriate 
visual technology for a 30-minute period. Ramp up may not be initiated 
if any marine mammal(s) is within its respective exclusion zone. If a 
marine mammal is observed within an exclusion zone during the pre-
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and 30 minutes for all other species).

Ramp-Up

    A ramp-up procedure will 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 will be used at the beginning of HRG 
survey activities in order to provide additional protection to marine 
mammals near the Survey Area by allowing them to vacate the area prior 
to the commencement of survey equipment use. The ramp-up procedure will 
not be initiated during periods of inclement conditions or if the 
exclusion zones cannot be adequately monitored by the PSOs, using the 
appropriate visual technology for a 30-minute period.
    A ramp-up would begin with the powering up of the smallest acoustic 
HRG equipment at its lowest practical power output appropriate for the 
survey. When technically feasible the power would then be gradually 
turned up and other acoustic sources would be added.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective exclusion zone. Ramp-up will continue if the animal has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and 30 minutes for all other species).

Shutdown Procedures

    An immediate shut-down of the HRG survey equipment will be required 
if a marine mammal is sighted at or within its respective exclusion 
zone. The vessel operator must comply immediately with any call for 
shut-down by the Lead PSO. Any disagreement between the Lead PSO and 
vessel operator should be discussed only after shut-down has occurred. 
Subsequent restart of the survey equipment can be initiated if the 
animal has been observed exiting its respective exclusion zone with 30 
minutes of the shut-down or until an additional time period has elapsed 
with no further sighting (i.e., 15 minutes for small odontocetes and 30 
minutes for all other species).
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 180 
m Level B harassment zone, shutdown must occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up, if PSOs have maintained 
constant observation and no detections of any marine mammal have 
occurred within the respective exclusion zones. If the acoustic source 
is shut down for a period longer than 30 minutes and PSOs have 
maintained constant observation then ramp-up procedures will be 
initiated as described in previous section.
    The shutdown requirement is waived for small delphinids of the 
following genera: Delphinus, Lagenodelphis, Lagenorhynchus, 
Lissodelphis, Stenella, Steno, and Tursiops. If a delphinid (individual 
belonging to the indicated genera of the Family Delphinidae), is 
visually detected within the exclusion zone, no shutdown is required 
unless the visual PSO confirms the individual to be of a genus other 
than those listed, in which case a shutdown is required.

Vessel Strike Avoidance

    Orsted will ensure that vessel operators and crew maintain a 
vigilant watch for cetaceans and pinnipeds and slow down or stop their 
vessels to avoid striking these species. Survey vessel crew members 
responsible for navigation duties will receive site-specific training 
on marine mammal and sea turtle sighting/reporting and vessel strike 
avoidance measures. Vessel strike avoidance measures will 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 will comply with 10 knot (<18.5 km 
per hour [km/h]) speed restrictions in any Dynamic Management Area 
(DMA) when in effect and in Mid-Atlantic Seasonal Management Areas 
(SMA) from November 1 through April 30;
     All vessel operators will 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;
     All survey vessels will 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 will 
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 will 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 will not engage engines until the non-delphinoid 
cetacean has moved out of the vessel's path and beyond 330 ft (100 m);
     All vessels will maintain a separation distance of 164 ft 
(50 m) or greater from any sighted delphinid cetacean. Any vessel 
underway remain parallel to a sighted delphinid cetacean's course 
whenever possible, and avoid excessive speed or abrupt changes in 
direction. Any vessel underway reduces vessel speed to 10 knots or less 
when pods (including mother/calf pairs) or large assemblages of 
delphinid cetaceans are observed. Vessels may not adjust course and 
speed until the delphinid cetaceans have moved beyond 164 ft (50 m) 
and/or the abeam of the underway vessel;
     All vessels underway will not divert to approach any 
delphinid

[[Page 36078]]

cetacean or pinniped. Any vessel underway will avoid excessive speed or 
abrupt changes in direction to avoid injury to the sighted delphinid 
cetacean or pinniped; and
     All vessels will maintain a separation distance of 164 ft 
(50 m) or greater from any sighted pinniped.

Seasonal Operating Requirements

    Between watch shifts members of the monitoring team will consult 
NOAA Fisheries North Atlantic right whale reporting systems for the 
presence of North Atlantic right whales throughout survey operations. 
Survey vessels may transit the SMA located off the coast of Rhode 
Island (Block Island Sound SMA) and at the entrance to New York Harbor 
(New York Bight SMA). The seasonal mandatory speed restriction period 
for this SMA is November 1 through April 30.
    Throughout all survey operations, Orsted will monitor NOAA 
Fisheries North Atlantic right whale reporting systems for the 
establishment of a DMA. If NOAA Fisheries should establish a DMA in the 
Lease Area under survey, the vessels will abide by speed restrictions 
in the DMA per the lease condition.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed 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.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     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.

Proposed Monitoring Measures

    Visual monitoring of the established monitoring and exclusion 
zone(s) for the HRG surveys will be performed by qualified, NMFS-
approved PSOs, the resumes of whom will be provided to NMFS for review 
and approval prior to the start of survey activities. During these 
observations, the following guidelines shall be followed:
    Other than brief alerts to bridge personnel of maritime hazards and 
the collection of ancillary wildlife data, no additional duties may be 
assigned to the PSO during his/her visual observation watch. For all 
HRG survey segments, an observer team comprising a minimum of four NOAA 
Fisheries-approved PSOs, operating in shifts, will be stationed aboard 
respective survey vessels. Should the ASV be utilized, at least one PSO 
will be stationed aboard the mother vessel to monitor the ASV 
exclusively. PSOs will work in shifts such that no one monitor will 
work more than 4 consecutive hours without a 2-hour break or longer 
than 12 hours during any 24-hour period. Any time that an ASV is in 
operation, PSOs will work in pairs. During daylight hours without ASV 
operations, a single PSO will be required. PSOs will rotate in shifts 
of 1 on and 3 off during daylight hours when an ASV is not operating 
and work in pairs during all nighttime operations.
    The PSOs will begin observation of the monitoring and exclusion 
zones during all HRG survey operations. Observations of the zones will 
continue throughout the survey activity and/or while equipment 
operating below 200 kHz are in use. The PSOs will be responsible for 
visually monitoring and identifying marine mammals approaching or 
entering the established zones during survey activities. It will be the 
responsibility of the Lead PSO on duty to communicate the presence of 
marine mammals as well as to communicate and enforce the action(s) that 
are necessary to ensure mitigation and monitoring requirements are 
implemented as appropriate.
    PSOs will be equipped with binoculars and will have the ability to 
estimate distances to marine mammals located in proximity to their 
respective exclusion zones and monitoring zone using range finders. 
Reticulated binoculars will also be available to PSOs for use as 
appropriate based on conditions and visibility to support the siting 
and monitoring of marine species. Camera equipment capable of recording 
sightings and verifing species identification will be utilized. During 
night operations, night-vision equipment (night-vision goggles with 
thermal clip-ons) and infrared technology will be used. Position data 
will be recorded using hand-held or vessel global positioning system 
(GPS) units for each sighting.
    Observations will take place from the highest available vantage 
point on all the survey vessels. General 360-degree scanning will occur 
during the monitoring periods, and target scanning by the PSOs will 
occur when alerted of a marine mammal presence.
    For monitoring around the ASV, a dual thermal/HD camera will 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. One PSO will be assigned to monitor the ASV exclusively at all 
times during both day and night when in use. The ASV will be kept in 
sight of the mother vessel at all times (within 800 m). This dedicated 
PSO will have a clear, unobstructed view of the ASV's exclusion and 
monitoring zones. While conducting survey operations, PSOs will adjust 
their positions appropriately to ensure adequate coverage of the entire 
exclusion and monitoring zones around the respective sound sources. 
PSOs will also be able to monitor the real time output of the camera on 
hand-held iPads. Images from the cameras can be

[[Page 36079]]

captured for review and to assist in verifying species identification. 
A monitor will 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 will be provided such that PSOs can 
focus observations in any direction, around the mother vessel and/or 
the ASV. The ASV camera is only utilized at night as part of the 
reduced visibility program, during which one PSO monitors the ASV 
camera and the forward-facing camera mounted on mothership. The second 
PSO would use the hand held devices to cover the areas around the 
mothership that the forward-facing camera could not cover.
    Observers will maintain 360[deg] coverage surrounding the 
mothership vessel and the ASV when in operation, which will travel 
ahead and slightly offset to the mothership on the survey line. PSOs 
will adjust their positions appropriately to ensure adequate coverage 
of the entire exclusion zone around the mothership and the ASV.
    As part of the monitoring program, PSOs will record all sightings 
beyond the established monitoring and exclusion zones, as far as they 
can see. Data on all PSO observations will be recorded based on 
standard PSO collection requirements.

Proposed Reporting Measures

    Orsted will provide the following reports as necessary during 
survey activities:

Notification of Injured or Dead Marine Mammals

    In the unanticipated event that the specified HRG and geotechnical 
activities lead to an unauthorized injury of a marine mammal (Level A 
harassment) or mortality (e.g., ship-strike, gear interaction, and/or 
entanglement), Orsted would 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 
would 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 would not resume until NMFS is able to review the 
circumstances of the event. NMFS would work with Orsted to minimize 
reoccurrence of such an event in the future. Orsted would not resume 
activities until notified by NMFS.
    In the event that Orsted 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), Orsted would immediately report the incident to the 
Chief of the Permits and Conservation Division, Office of Protected 
Resources and the GARFO Stranding Coordinator. The report would include 
the same information identified in the paragraph above. Activities 
would be allowed to continue while NMFS reviews the circumstances of 
the incident. NMFS would work with the Applicant to determine if 
modifications in the activities are appropriate.
    In the event that Orsted 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), Orsted would report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the GARFO Stranding Coordinator, within 24 hours of the discovery. 
Orsted would provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to NMFS. Orsted can 
continue its operations in such a case.
    Within 90 days after completion of the marine site characterization 
survey activities, a draft technical report will be provided to NMFS 
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.

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 sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 8, given that many of the 
anticipated effects of this project on different marine mammal 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 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, PTS, TTS, masking, non-
auditory physical effects, and vessel strike are not expected to occur. 
Marine mammal habitat may experience limited physical

[[Page 36080]]

impacts in the form of grab samples taken from the sea floor. This 
highly localized habitat impact is negligible in relation to the 
comparatively vast area of surrounding open ocean, and would not be 
expected to result in any effects to prey availability. The HRG survey 
equipment itself will not result in physical habitat disturbance. 
Avoidance of the area around the HRG survey activities by marine mammal 
prey species is possible. However, any avoidance by prey species would 
be expected to be short term and temporary. Marine mammal feeding 
behavior is not likely to be significantly impacted. Prey species are 
mobile, and are broadly distributed throughout the Survey Area; 
therefore, marine mammals that may be temporarily displaced during 
survey activities are expected to be able to resume foraging once they 
have moved away from areas with disturbing levels of underwater noise. 
Because of the availability of similar habitat and resources in the 
surrounding area the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.

ESA-Listed Marine Mammal Species

    ESA-listed species for which takes are proposed are right, fin, 
sei, and sperm whales, and these effects are anticipated to be limited 
to lower level behavioral effects. NMFS does not anticipate that 
serious injury or mortality would occur to ESA-listed species, even in 
the absence of proposed mitigation and the proposed authorization does 
not authorize any serious injury or mortality. As discussed in the 
Potential Effects section, non-auditory physical effects and vessel 
strike are not expected to occur. We expect that most potential takes 
would be in the form of short-term Level B behavioral harassment in the 
form of temporary avoidance of the area or decreased foraging (if such 
activity were occurring), reactions that are considered to be of low 
severity and with no lasting biological consequences (e.g., Southall et 
al., 2007). The proposed survey is not anticipated to affect the 
fitness or reproductive success of individual animals. Since impacts to 
individual survivorship and fecundity are unlikely, the proposed survey 
is not expected to result in population-level effects for any ESA-
listed species or alter current population trends of any ESA-listed 
species.
    There is no designated critical habitat for any ESA-listed marine 
mammals within the Survey Area.

Biologically Important Areas (BIA)

    The proposed Survey Area includes a fin whale feeding BIA effective 
between March and October. The fin whale feeding area is sufficiently 
large (2,933 km\2\), and the acoustic footprint of the proposed survey 
is sufficiently small (<20 km\2\ ensonified per day to the Level B 
harassment threshold assuming simultaneous operation of two survey 
ships) that whale feeding habitat would not be reduced appreciably. Any 
fin whales temporarily displaced from the proposed survey area would be 
expected to have sufficient remaining feeding habitat available to 
them, and would not be prevented from feeding in other areas within the 
biologically important feeding habitat. In addition, any displacement 
of fin whales from the BIA would be expected to be temporary in nature. 
Therefore, we do not expect fin whale feeding to be negatively impacted 
by the proposed survey.
    The proposed survey area includes a biologically important 
migratory area for North Atlantic right whales (effective March-April 
and November-December) that extends from Massachusetts to Florida 
(LaBrecque, et al., 2015). Off the south coast of Massachusetts and 
Rhode Island, this biologically important migratory area extends from 
the coast to beyond the shelf break. The fact that the spatial acoustic 
footprint of the proposed survey is very small relative to the spatial 
extent of the available migratory habitat means that right whale 
migration is not expected to be impacted by the proposed survey. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration. Additionally, only very limited take by 
Level B harassment of North Atlantic right whales has been proposed as 
HRG survey operations are required to shut down at 500 m to minimize 
the 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.'' Four UMEs are ongoing and 
under investigation relevant to HRG survey area. These involve humpback 
whales, North Atlantic right whales, minke whales, and pinnipeds. 
Specific information for each ongoing UME is provided below. There is 
currently no direct connection between the four UMEs, as there is no 
evident cause of stranding or death that is common across the species 
involved in the different UMEs. Additionally, strandings across these 
species are not clustering in space or time.
    As noted previously, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida since 
January 2016 Of the cases examined, approximately half had evidence of 
human interaction (ship strike or entanglement). Beginning in January 
2017, elevated minke whale strandings have occurred along the Atlantic 
coast from Maine through South Carolina, with highest numbers in 
Massachusetts, Maine, and New York. Preliminary findings in several of 
the whales have shown evidence of human interactions or infectious 
disease. Elevated North Atlantic right whale mortalities began in June 
2017, primarily in Canada. Overall, preliminary findings support human 
interactions, specifically vessel strikes or rope entanglements, as the 
cause of death for the majority of the right whales. Elevated numbers 
of harbor seal and gray seal mortalities were first observed in July, 
2018 and have occurred across Maine, New Hampshire and Massachusetts. 
Based on tests conducted so far, the main pathogen found in the seals 
is phocine distemper virus although additional testing to identify 
other factors that may be involved in this UME are underway.
    Direct physical interactions (ship strikes and entanglements) 
appear to be responsible for many of the UME humpback and right whale 
mortalities recorded. The proposed HRG survey will require ship strike 
avoidance measures which would minimize the risk of ship strikes while 
fishing gear and in-water lines will not be employed as part of the 
survey. Furthermore, the proposed activities are not expected to 
promote the transmission of infectious disease among marine mammals. 
The survey is not expected to result in the deaths of any marine 
mammals or combine with the effects of the ongoing UMEs to result in 
any additional impacts not analyzed here.
    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, even in the biologically 
important areas described above.
    Accordingly, Orsted did not request, and NMFS is not proposing to 
authorize, take of marine mammals by

[[Page 36081]]

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). Since the source 
is mobile, a specified area would be ensonified by sound levels that 
could result in take for only a short period. Additionally, required 
mitigation measures would reduce exposure to sound that could result in 
harassment.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the Survey Area;
     While the Survey Area is within areas noted as 
biologically important for north Atlantic right whale migration, the 
activities would occur in such a comparatively small area such that any 
avoidance of the survey area due to activities would not affect 
migration. In addition, mitigation measures to shut down at 500 m to 
minimize potential for Level B behavioral harassment would limit any 
take of the species. Similarly, due to the small footprint of the 
survey activities in relation to the size of a biologically important 
area for fin whales foraging, the survey activities would not affect 
foraging behavior of this species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from Orsted's proposed HRG survey activities will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    The numbers of marine mammals that we propose for authorization to 
be taken, for all species and stocks, would be considered small 
relative to the relevant stocks or populations (less than 17 percent 
for all authorized species).
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
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.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the Greater Atlantic 
Regional Field Office (GARFO), whenever we propose to authorize take 
for endangered or threatened species.
    Within the project area, fin, Sei, humpback, North Atlantic right, 
and sperm whale are listed as endangered under the ESA. Under section 7 
of the ESA, BOEM consulted with NMFS 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. NOAA's GARFO issued a Biological Opinion concluding that these 
activities may adversely affect but are not likely to jeopardize the 
continued existence of fin whale or North Atlantic right whale. NMFS is 
also consulting internally on the issuance of an IHA under section 
101(a)(5)(D) of the MMPA for this activity and the existing Biological 
Opinion may be amended to include an incidental take exemption for 
these marine mammal species, as appropriate.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Orsted for HRG survey activities effective one year 
from the date of issuance, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the IHA itself is available for review in conjunction with 
this notice at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed 
survey. We also request at this time comment on the potential renewal 
of this proposed IHA as described in the paragraph below. Please 
include with your comments any supporting data or literature citations 
to help inform decisions on the request for this IHA or a subsequent 
Renewal.
    On a case-by-case basis, NMFS may issue a one-year IHA renewal with 
an additional 15 days for public comments when (1) another year of 
identical or nearly identical activities as described in the Specified 
Activities section of this notice is planned or (2) the activities as 
described in the Specified Activities section of this notice would not 
be completed by the time the IHA expires and a second IHA would allow 
for completion of the activities beyond that described in the Dates and 
Duration section of this notice, provided all of the following 
conditions are met:

[[Page 36082]]

     A request for renewal is received no later than 60 days 
prior to expiration of the current IHA.
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal are identical to the activities analyzed under the 
initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take 
because only a subset of the initially analyzed activities remain to be 
completed under the Renewal).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: July 19, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-15802 Filed 7-25-19; 8:45 am]
 BILLING CODE 3510-22-P