Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys of Lease Areas, 52464-52488 [2019-21458]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 191 (Wednesday, October 2, 2019)]
[Notices]
[Pages 52464-52488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21458]


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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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to 
[Oslash]rsted Wind Power LLC ([Oslash]rsted) to take small numbers of 
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). 
These areas are currently being leased by the Applicant's affiliates, 
Deepwater Wind New England, LLC and Bay State Wind LLC respectively, 
and are identified as OCS-A 0486, OCS-A 0487, and OCS-A 0500 
(collectively referred to as the Lease Areas). [Oslash]rsted is also 
planning 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.

DATES: This authorization is effective one year from the date of 
issuance.

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 the issued IHA, 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.) 
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

[[Page 52465]]

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.

Summary of Request

    On March 8, 2019, NMFS received an application from [Oslash]rsted 
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. [Oslash]rsted'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 [Oslash]rsted nor NMFS expects serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate.
    NMFS previously issued two IHAs to [Oslash]rsted subsidiaries 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. [Oslash]rsted has complied with all the 
requirements (e.g., mitigation, monitoring, and reporting) of the 
issued IHAs.

Description of the Specified Activity

Overview

    The purpose of the HRG surveys in the Lease Area and ECRs is 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 [Oslash]rsted's 
planned 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. 
[Oslash]rsted plans 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.
    A detailed description of the planned survey activities, including 
types of survey equipment planned for use, is provided in the Federal 
Register notice for the proposed IHA (84 FR 36054; July 26, 2019). 
Please refer to that Federal Register notice for the description of the 
specified activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on July 26, 2019 (84 FR 36054). During the 30-day 
public comment period, NMFS received comment letters from: (1) The 
Marine Mammal Commission (Commission); (2) the law firm of Gatzke 
Dillon & Balance LLP representing the community group ACK Residents 
Against Wind Turbines (ACK Residents); and (3) a group of environmental 
non-governmental organizations (ENGOs) including the Natural Resources 
Defense Council, Conservation Law Foundation, National Wildlife 
Federation, Defenders of Wildlife, WDC North America, NY4WHALES, 
Wildlife Conservation Society, Surfrider Foundation, Mass Audubon, 
Ocean Conservation Research, International Marine Mammal Project of the 
Earth Island Institute, and IFAW--International Fund for Animal 
Welfare. NMFS has posted the comments online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The following is a summary of the public comments received and 
NMFS' responses.
    Comment 1: The Commission recommended that NMFS review the in-situ 
measured Level B harassment zones submitted by [Oslash]rsted and use 
them rather than the source levels back-calculated from those 
measurements to inform the extents of the Level B harassment zones.
    Response: NMFS has reviewed the in-situ measured Level B harassment 
isopleth zones at length. When NMFS compared the field sound source 
verification (SSV) measurements to the source levels measured in a 
controlled experimental setting (i.e., Crocker and Fratantonio, 2016), 
we found sizable discrepancies for calculated impact distances for the 
same equipment that cannot be explained solely by absorption and 
scattering of acoustic energy. We suspect that these discrepancies are 
due to the beam pattern of many HRG sources, and the likelihood that 
many field SSVs were measured outside the main lobe of the source at 
various degrees. Given this information, NMFS elected to rely on the 
source levels developed by Crocker and Fratantonio (2016) if such 
information was available for a specific piece of equipment. If 
equipment had not been tested in a controlled setting, NMFS used source 
levels provided by the equipment manufacturer.
    Comment 2: The Commission recommended that pulse duration and 
number of pulses should be used to adjust the respective source levels 
where appropriate. Furthermore, the Commission recommended that both 
beam width and operating frequency of the various sources should be 
used to better inform the extents of the Level B harassment zones and 
that NMFS should assume a consistent 20logR propagation loss for all 
Level B harassment zone calculations. The Commission recommended that, 
if SPLrms-based source levels are used to inform the extents of the 
Level B harassment zones, NMFS consult with BOEM regarding how the 
SPLrms-based source levels from Crocker and Fratantonio (2016) should 
be used.
    Response: Since the Level B harassment threshold is a pressure 
measurement, energy accumulation over time is not measured. As such, 
pulse duration and number of pulses is not relevant to calculating 
Level B harassment thresholds. NMFS is currently working on an interim 
guidance document that may be used to establish sound source levels and 
propagation analyses for all HRG sources. Beam width specifications, 
operating frequencies and a propagation rate of 20logR will likely be 
used to estimate harassment zones. NMFS will share the guidance 
document with the Commission once it has been finalized. Furthermore, 
NMFS has been in discussions with BOEM regarding appropriate uses of 
source levels from Crocker and Fratantonio (2016).

[[Page 52466]]

    Comment 3: The Commission recommended that NMFS work with BOEM to 
develop methodological and signal processing standards for use by 
action proponents that conduct HRG surveys.
    Response: NMFS understands there is a need for such standards and 
is working collaboratively with BOEM on this effort.
    Comment 4: The Commission recommended that NMFS refrain from using 
the proposed renewal process. The Commission stated that the renewal 
process should be used sparingly and selectively, by limiting its use 
only to those proposed incidental harassment authorizations that are 
expected to have the lowest levels of impacts to marine mammals and 
that require the least complex analyses. NGOs asserted that NMFS 
apparently intends the Renewal process to become the rule rather than 
an exception, citing to a number of proposed IHAs that included 
requests for comment on a potential Renewal.
    Response: As described in the Federal Register notice for the 
proposed IHA (84 FR 36054; July 26, 2019) and on NMFS' website where 
information on all MMPA incidental take authorization processes is 
provided, requests for Renewal IHAs are appropriate only in limited and 
well-defined circumstances. NMFS does not anticipate many projects that 
would meet all the criteria for a Renewal. Nonetheless, information 
about the Renewal process and the opportunity to comment on a potential 
Renewal is included in every notice of a proposed IHA because NMFS 
cannot predetermine who may seek or qualify for a Renewal. Under 
section 101(a)(5)(D), it is up to an applicant to request incidental 
harassment authorization; NMFS includes information about the potential 
Renewal process in all proposed IHAs because it is at least initially 
up to the applicant to decide whether they want to seek qualification 
for a Renewal IHA. NMFS has also explained that the possibility of a 
Renewal must be included in the notice of the initial proposed IHA for 
the agency to consider a Renewal request, for the purpose of providing 
adequate opportunity for public comment on the project during the 30-
day comment period on the appropriateness of, and any information 
pertinent to, a Renewal. Where the commenter has likely already 
reviewed and commented on the initial proposed IHA and a potential 
Renewal for these same activities, activities by the same IHA holder in 
the same geographic area, the abbreviated additional comment period is 
sufficient for consideration of the results of the preliminary 
monitoring report and new information (if any) from the past months.
    NMFS' purpose in providing for Renewals is two-fold. First and 
foremost, the efficiencies in dealing with these simple, low-impact 
projects (which have already been fully described and analyzed in the 
initial IHA) frees up limited staff resources to increase focus on more 
complex and impactful projects and improves our ability to conserve and 
protect marine mammals by even better evaluating and utilizing new 
science, evolving technologies, and potential new mitigation measures. 
In addition, while the agency has always striven for efficiency in 
regulatory processes, recent directives have called for agencies to put 
processes in place that reduce regulatory timelines and the regulatory 
burden on the public. The Renewal process reduces the effort needed by 
both applicants and NMFS staff for simple, relatively low impact 
projects with little to no uncertainty regarding effects that have 
already been fully analyzed by the agency and considered by the 
public--with no reduction in protection to marine mammals.
    Comment 5: The Commission argued that the additional 15-day comment 
period for Renewals places a burden on reviewers who will need to 
review the original authorization and numerous supporting documents and 
then formulate comments very quickly.
    Response: NMFS has taken a number of steps to ensure the public has 
adequate notice, time, and information to be able to comment 
effectively on Renewal IHAs. Federal Register notices for proposed 
initial IHAs identify the conditions under which a one-year Renewal IHA 
could be appropriate. This information would have been presented in the 
Request for Public Comments section, which encouraged submission of 
comments on a potential one-year Renewal in addition to the initial IHA 
during the initial 30-day comment period. With Renewals limited to 
another year of identical or nearly identical activity in the same 
location or a subset of the initial activity that was not completed, 
this information about the Renewal process and the project-specific 
information provided in the Federal Register notice provides reviewers 
with the information needed to provide information and comment on both 
the initial IHA and a potential Renewal for the project. Thus reviewers 
interested in submitting comments on a proposed Renewal during the 
additional 15-day comment period will have already reviewed the 
activities, the species and stocks affected, and the mitigation and 
monitoring measures, which will not change from the IHA issued, and the 
anticipated effects of those activities on marine mammals and provided 
their comments and any information pertinent to a possible Renewal 
during the initial 30-day comment period. When we receive a request for 
a Renewal IHA, if the project is appropriate for a Renewal we will 
publish notice of the proposed IHA Renewal in the Federal Register and 
provide the additional 15 days for public comment to allow review of 
the additional documents (preliminary monitoring report, Renewal 
request, and proposed Renewal), which should just confirm that the 
activities have not changed (or only minor changes), commit to continue 
the same mitigation and monitoring measures, and document that 
monitoring does not indicate any impacts of a scale or nature not 
previously analyzed.
    In addition, to minimize any burden on reviewers, NMFS will 
directly contact all commenters on the initial IHA by email, phone, or, 
if the commenter did not provide email or phone information, by postal 
service to provide them direct notice about the opportunity to submit 
any additional comments.
    Comment 6: The Commission and ENGOs expressed concern that the 
Renewal process discussed in the notice for the proposed IHA is 
inconsistent with the statutory requirements contained in section 
101(a)(5)(D) of the MMPA. The ENGOs asserted that IHAs can be valid for 
not more than one year and both commenters stated that 30 days for 
comment, including on Renewal IHAs, is required.
    Response: NMFS' IHA Renewal process meets all statutory 
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA, 
are valid for a period of not more than one year. And the public has at 
least 30 days to comment on all proposed IHAs, with a cumulative total 
of 45 days for IHA Renewals. One commenter characterized the agency's 
request for comments as seeking comment on the Renewal process and the 
proposed IHA, but the request for comments was not so limited. As noted 
above, the Request for Public Comments section made clear that the 
agency was seeking comment on both the initial proposed IHA and the 
potential issuance of a Renewal for this project. Because any Renewal 
(as explained in the Request for Public Comments section) is limited to 
another year of identical or nearly identical activities in the same 
location (as described in the Description of Proposed Activity section) 
or the same activities

[[Page 52467]]

that were not completed within the one-year period of the initial IHA, 
reviewers have the information needed to effectively comment on both 
the immediate proposed IHA and a possible one-year Renewal, should the 
IHA holder choose to request one in the coming months. Minor changes 
were previously made to the description of the Renewal process to make 
this even clearer.
    While there will be additional documents submitted with a Renewal 
request, for a qualifying Renewal these will be limited to 
documentation that NMFS will make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS will also confirm, among other things, that the 
activities will occur in the same location; involve the same species 
and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The Renewal request 
will also contain a preliminary monitoring report, but that is to 
verify that effects from the activities do not indicate impacts of a 
scale or nature not previously analyzed. The additional 15-day public 
comment period provides the public an opportunity to review these few 
documents, provideany additional pertinent information and comment on 
whether they think the criteria for a Renewal have been met. Between 
the initial 30-day comment period on these same activities and the 
additional 15 days, the total comment period for a Renewal is 45 days.
    In addition to the IHA Renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress' intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for Renewals in the regulations, description of the process 
and express invitation to comment on specific potential Renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
Renewals respectively, NMFS has ensured that the public ``is invited 
and encouraged to participate fully in the agency decision-making 
process.'' Otherwise the NGOs cite to a House of Representatives' 
Report that discusses the timing of public comment where a request is 
received for an IHA identical to one issued in the previous year. But 
the bill that this report accompanied included a specific provision for 
renewing IHAs, which was not included in the final public law. 
Therefore it is unknown how the statement in the House Report relates, 
if at all, to NMFS' implementation of the statutory provisions that in 
the end were enacted.
    Comment 7: NGOs asserted that NMFS must explain why applicants who 
conduct activities that may result in incidental harassment of marine 
mammals for more than one year should not be required to apply under 
section 101(a)(5)(A), which provides for incidental take authorizations 
for up to five years.
    Response: While all take of marine mammals is prohibited under the 
MMPA unless authorized or exempted, it is up to the operator to 
determine whether their activities may result in the incidental take of 
marine mammals and therefore whether they should request incidental 
take coverage from NMFS. This includes it being the applicant's choice, 
if their activities will result in harassment only, whether to seek a 
multi-year authorization under section 101(a)(5)(A) or a one-year 
authorization, with the potential for a one-year Renewal for certain 
limited projects, under section 101(a)(5)(D). Where Congress provided 
both options and stated that authorizations proceed ``upon request'' of 
the applicant, NMFS cannot ``require'' an applicant to pursue 
authorization under a particular provision if they qualify under 
either.
    Comment 8: ACK Residents indicated that the proposed IHA provided 
no description of the existing noise and vessel traffic conditions 
within the impact area of the proposed survey activity. Thus, there is 
no baseline from which to conduct a proper impact analysis.
    Response: Ambient ocean noise levels generally do not exceed 100 dB 
in the Atlantic waters of the Northeast United States (Haver et al., 
2018). Noise from ship traffic can temporarily increase ocean noise in 
a localized area around the vessel. However, the threshold for Level B 
harassment is 120 dB. Ambient noise levels below that value or brief 
noise level increases from vessel traffic in a small, localized area 
have no impact on our analysis.
    Comment 9: ACK Residents and the ENGOs noted that the analysis does 
not evaluate the project's contribution to the cumulative take of 
marine mammals as it fails to account for existing noise and vessel 
conditions, as well as other wind energy leases near or adjacent to the 
[Oslash]rsted project area. The ENGOs further recommended that the 
agency carefully analyze the cumulative impacts from the proposed 
survey activities on the North Atlantic right whale and other protected 
species.
    Response: The MMPA grants exceptions to its broad take prohibition 
for a ``specified activity.'' 16 U.S.C. 1371(a)(5)(A)(i). Cumulative 
impacts (also referred to as cumulative effects) is a term that appears 
in the context of NEPA and the ESA, but it is defined differently in 
those different contexts. Neither the MMPA nor NMFS's codified 
implementing regulations address consideration of other unrelated 
activities and their impacts on populations. However, the preamble for 
NMFS's implementing regulations (54 FR 40338; September 29, 1989) 
states in response to comments that the impacts from other past and 
ongoing anthropogenic activities are to be incorporated into the 
negligible impact analysis via their impacts on the environmental 
baseline. Accordingly, NMFS here has factored into its negligible 
impact analyses the impacts of other past and ongoing anthropogenic 
activities via their impacts on the baseline (e.g., as reflected in the 
density/distribution and status of the species, population size and 
growth rate, and other relevant stressors (such as incidental mortality 
in commercial fisheries)). Further, as part of the NEPA process, NMFS 
drafted an environmental assessment (EA) that analyzed potential 
impacts from past, present, and reasonably foreseeable future actions. 
These actions included vessel traffic, geophysical and geotechnical 
surveys (including those from nearby wind development projects), and 
military readiness activities. NMFS determined that there were no 
cumulatively significant impacts to marine mammals and their habitat 
and the agency signed a finding of no significance (FONSI) in 
September, 2019. The EA/FONSI is available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-llc-site-characterization-surveys-renewable., for this 
activity and NMFS' authorization of incidental take of right whales and 
other ESA-listed species in the Biological Opinion issued in April 2013 
as part of a programmatic consultation between BOEM and NMFS. NMFS' 
biological opinion was that the

[[Page 52468]]

proposed action is not likely to jeopardize the continued existence of 
identified ESA-listed species. It is also NMFS' opinion that the 
proposed action is not likely to destroy or adversely modify designated 
North Atlantic right whale critical habitat.
    Comment 10: ACK Residents argued that the analysis did not assess 
the project's potential to cause vessel strikes and that NMFS should 
have quantified the number of vessels, project-related vessel miles, or 
vessel density and then correlated this figure to the number of marine 
mammals that may be present in the impact area. Without this 
information, ACK Residents felt it was impossible to determine whether 
the proposed mitigation measures can be effectively implemented and 
whether they would successfully reduce take-related impacts on the 
marine mammal species.
    Response: NMFS clearly stated in the proposed IHA that between 5 
and 9 survey vessels would be used concurrently. NMFS did analyze the 
potential effects of use of multiple vessels in the EA. Given the size 
of the survey area, the relatively low density of marine mammal species 
authorized for take, slow vessel speeds, and additional required vessel 
strike avoidance measures, NMFS has determined the likelihood of vessel 
strike as a result of the surveys to be so low as to be discountable. 
There have been no reported ship strikes of species during multiple HRG 
surveys for which NMFS has issued incidental take authorizations. 
Further, [Oslash]rsted shall implement measures (e.g., vessel speed 
restrictions, separation distances, protected species observer (PSO) 
monitoring and shutdown requirements) to reduce the risk of a vessel 
strike to marine mammal species.
    Comment 11: ACK Residents noted that the analysis fails to assess 
noise impacts on whale communication and navigation, both of which rely 
on echolocation and sound transmission.
    Response: In the section on Potential Effects of the Specified 
Activity on Marine Mammals and Their Habitat contained in the proposed 
IHA, NMFS included a subsection on the potential effects of masking. 
The comparatively lower source levels and higher frequencies of the 
sources used in these activities mean that sound attenuates at 
relatively short distances from the source and is unlikely to 
meaningfully add to background noise in the area. NMFS determined that 
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. Please 
refer to that section for additional detail.
    Comment 12: ACK Residents and the ENGOs commented that the proposed 
IHA analysis failed to examine the extent to which marine mammals, in 
response to the noise emitted by the survey equipment and/or the 
threats posed by project-related vessels, would move out of the project 
area. Additionally, they felt that NMFS did not evaluate the potential 
negative impacts that displaced marine mammals would sustain, including 
indirect ship strike resulting from increased vulnerability to other 
vessels not subject to the mitigation measures imposed on [Oslash]rsted 
vessels.
    Response: NMFS determined that habitat displacement was not an 
expected outcome of the specified activity. As discussed in the notice 
for the proposed IHA (84 FR 36054; July 26, 2019), we anticipate marine 
mammals may temporarily avoid the area of disturbing noise, but this 
would be a relatively small area even when multiple survey are 
operating concurrently. The Level B harassment zone was conservatively 
estimated to be only 178 m around any participating survey vessels and 
is actually smaller (maximum of 141 m) as described later in the 
Estimated Take section. Additionally, any potential effects are 
expected to be short-term, given the movement of both whales and boats 
and the small overall area of potential overlap and response. 
Therefore, habitat displacement is not reasonably likely to occur. 
Furthermore, if an aggregation of right whales concentrated in a 
feeding area, they should be readily observed by PSOs and survey 
vessels would be required to employ vessel strike avoidance measures 
including maintaining a separation distance of at least 500 m.
    Comment 13: ACK Residents pointed out that NMFS omitted a required 
element of a proper harassment assessment--namely, that the agency 
failed to correlate the anticipated take of each individual marine 
mammal species to its overall stock or population.
    Response: As a result of the analysis of the anticipated effects 
and authorized take described in the Negligible Impact Determination 
section, NMFS found that that the total marine mammal take from 
[Oslash]rsted's planned HRG survey activities will have a negligible 
impact on each of the affected marine mammal species or stocks. 
Specifically, the nature and scale of the take authorized for this 
activity is such that no impacts to reproduction or survival of any 
individuals are predicted, and therefore no impacts to the stocks are 
anticipated to follow. Additionally, NMFS concluded in the Small 
Numbers section that the numbers of marine mammals authorized for take, 
for all species and stocks, would be considered small relative to the 
relevant stocks or populations. Please refer to that section for 
additional detail.
    Comment 14: ACK Residents expressed concern that the operating 
frequency assumed in the analysis may not be the one used in the field 
during the actual survey work and, therefore, much of the analysis is 
meaningless.
    Response: The operating frequencies used as part of the analysis 
were supplied by the equipment manufacturer. NMFS assumed that the 
primary operating frequency was the midpoint between the high and low 
ranges of HRG equipment. NMFS acknowledges that the actual operating 
frequencies utilized for specific equipment during survey activities 
may not be the midpoints. However, use of other frequencies within the 
manufacturers' supplied ranges would have no effect on our analysis, 
including Level B harassment zone sizes or calculated take numbers. In 
this case, sound frequency was not used as a factor in the 
determination of Level B harassment isopleths, which was a conservative 
choice, given that the sound from higher frequency sources (such as 
those used here) actually attenuates more quickly, resulting in smaller 
isopleths and harassment zones.
    Comment 15: Since NMFS is authorizing 10 right whale takes by Level 
B harassment, ACK Residents contend that NMFS must lack confidence that 
the mitigation measures will work.
    Response: NMFS understands that the required mitigation and 
monitoring measures may not be 100 percent effective under all 
conditions. Due to night time operations over an extended period (666 
vessel days), NMFS acknowledges that a limited number of right whales 
may enter into the Level B harassment zone without being observed. 
Therefore, NMFS has conservatively authorized take of 10 right whales 
by Level B harassment.
    Comment 16: ACK Residents noted that the analysis needs to disclose 
is whether the surveys will take place during those times of year when 
each marine mammal species is expected to be present in the project 
impact area. That information is not provided.
    Response: NMFS indicated that survey activities for all survey 
segments

[[Page 52469]]

would require 666 vessel days total if one vessel were surveying the 
entire survey line. Activities are likely to be continuous throughout 
the one-year effective period. To account for seasonal density 
variance, density data were mapped within the boundary of the survey 
area for each segment using geographic information systems. For each 
survey segment, the maximum densities for each season (spring, summer, 
fall and winter) as reported by Roberts et al. (2016b; 2017; 2018), 
were averaged to establish an annual density for the entire year.
    Comment 17: According to ACK Residents, recent data not included in 
the analysis shows that more right whales are moving into or near the 
project area. This means that the number of right whales potentially 
affected by the project is likely higher than assumed in the analysis. 
Additionally, the ENGOs felt that the density maps produced by Roberts 
et al. (2016) did not fully reflect the abundance, distribution, and 
density of marine mammals for the U.S. East Coast and therefore should 
not be the only information source relied upon when estimating take.
    Response: NMFS has determined that the data provided by Roberts et 
al. (2016; 2017; 2018) represents the best available information 
concerning marine mammal density in the survey area and has used it 
accordingly. NMFS has considered other available information, and 
determined that it does not contradict the information provided by 
Roberts et al. (2016; 2017; 2018). The sources suggested by the 
commenters do not provide data in a format that is directly usable in 
an acoustic exposure analysis. The references were either anecdotal or 
did not contain density information. Additionally, and as explained in 
greater detail in the Estimated Take section, a recent marine mammal 
monitoring report covering Lease Area OCS-A 0500 and nearby ECR 
corridors did not record any confirmed right whale sightings from 3 
separate HRG survey vessels over a combined period of 376 vessel days. 
We will continue to review data sources, including those recommended by 
commenters for consideration for their suitability for inclusion in 
future analyses to ensure the use of best available science in our 
analyses.
    Comment 18: ACK Residents and the ENGOs alleged that NMFS did not 
explain or analyze the extent to which the planned ``concurrent'' use 
of HRG survey equipment changes the noise analysis or increases the 
potential take risk to marine mammals.
    Response: NMFS addressed the concurrent use of multiple survey 
vessels and equipment in the EA. Given the size of the survey area, 
these vessels may be operating at considerable distance from one 
another. In some instances, however, vessels would be no closer than 
500 m to each other. Since the largest Level B harassment isopleth is 
178 m, there is no chance that the sound fields exceeding the Level B 
harassment threshold generated by each vessel would overlap and either 
increase the predicted received sound levels above established 
thresholds or increase cumulative exposure beyond what has been 
modelled. Furthermore, multiple vessels on the water means that more 
PSOs would be active and, therefore, would be more capable of detecting 
species of concern. This information would be distributed among 
operating survey vessels, potentially reducing impacts to such species. 
Importantly, the use of multiple survey vessels as well as autonomous 
survey vehicles (ASVs) concurrently will decrease the total number of 
days during which anthropogenic sound is introduced into the marine 
environment.
    Comment 19: ACK Residents asserted that since right whales can dive 
deeply and spend significant amount of time underwater, they may not be 
visually detected, even by trained PSOs using high-powered binoculars 
and night-vision goggles.
    Response: NMFS finds visual observation by PSOs to be generally 
effective in detecting and helping to mitigate less cryptic (e.g., non-
deep divers), larger marine mammal species (such as right whales), 
especially in shallower waters such as those in the activity area.
    Comment 20: ENGOs recommended that NMFS impose a restriction on 
site assessment and characterization activities that have the potential 
to injure or harass the North Atlantic right whale (i.e., source level 
>180 dB re 1 uPa) minimally from November 1st to May 14th in the Lease 
Areas.
    Response: In evaluating how mitigation may or may not be 
appropriate to ensure the least practicable adverse impact on species 
or stocks and their habitat, we carefully consider two primary factors: 
(1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat; and 
(2) the practicability of the measures for applicant implementation, 
which may consider such things as relative cost and impact on 
operations.
    NMFS is concerned about the status of the North Atlantic right 
whale population given that a UME has been in effect for this species 
since June of 2017 and that there have been a number of recent 
mortalities. While NMFS expects that the effects of a single HRG survey 
would be less impactful than those of some other larger sources of 
concern, the potential impacts of multiple HRG vessels (5-9 according 
to [Oslash]rsted) operating simultaneously in areas of higher right 
whale density are not well-documented and warrant caution. NMFS 
reviewed the best available right whale abundance data for the planned 
survey area extending from southern New England to southern Long Island 
(Roberts et al. 2017). We determined that right whale abundance is 
significantly higher in the period starting in late winter and 
extending to late spring in the eastern portion of the survey area.
    [Oslash]rsted anticipates that approximately 25% of the Lease Area 
vessel days (78) may occur between March and June, the months in which 
right whale density in the Lease Areas is highest. Also, no more than 
5% of the total vessel days (33) are anticipated for the ECR area north 
of the lease areas between February and April, an area and season in 
which right whale densities are also comparatively higher. While this 
greater detail regarding the likely spatio-temporal distribution of 
surveys across the action area alleviates some concerns (i.e., showing 
that survey are days are not disproportionally concentrated in the 
high-density areas and times), NMFS worked with [Oslash]rsted to 
further limit impacts by limiting the number of surveys that will 
operate concurrently in the Lease Areas in high-density months. 
[Oslash]rsted plans to operate one to two vessels concurrently, with up 
to three vessels for short periods of time--and has committed to 
operate no more than 3 HRG survey vessels concurrently from March 
through June within the three identified lease areas (OCS-A 0486, 0487, 
and 0500) and ECR areas north of the lease areas up to, but not 
including, coastal and bay waters. This requirement is included in the 
IHA.
    Limiting the number of survey vessels operating concurrently during 
high-density months in high-density areas will help to reduce both the 
number and intensity of right whale takes. Regarding practicability, 
the timing of [Oslash]rsted's surveys is driven by a complex suite of 
factors including availability of vessels and equipment (which are used 
for other surveys and by other companies), other permitting timelines, 
and the timing of certain restrictions associated with fisheries gear, 
among other things.

[[Page 52470]]

Nonetheless, [Oslash]rsted has indicated that there is enough 
flexibility to revise their survey plan such that they can both 
accommodate this measure and satisfy their permitting and operational 
obligations, and we do not anticipate that these restrictions will 
impact [Oslash]rsted's ability to execute their survey plan within the 
planned 666 vessel days. Therefore, NMFS determined that this required 
mitigation measure is sufficient to ensure the least practicable 
adverse impact on species or stocks and their habitat.
    Comment 21: The ENGOs recommended that geophysical surveys should 
commence, with ramp up, during daylight hours only to maximize the 
probability that marine mammals are detected and confirmed clear of the 
exclusion zone. They state that if a right whale is detected in the EZ 
at night and the survey shuts down, the survey should not resume until 
daylight hours.
    Response: We acknowledge the limitations inherent in detection of 
marine mammals at night. However, similar to the discussion above 
regarding time closures, restricting the ability of the applicant to 
ramp-up surveys only during daylight hours would have the potential to 
result in lengthy shutdowns of the survey equipment, which could result 
in the applicant failing to collect the data they have determined is 
necessary, which could result in the need to conduct additional surveys 
the following year. This would result in significantly increased costs 
incurred by the applicant. Thus the restriction suggested by the 
commenters would not be practicable for the applicant to implement. In 
addition, potential impacts to marine mammals authorized for take would 
be limited to short-term behavioral responses. Restricting surveys in 
the manner suggested by the commenters may reduce marine mammal 
exposures by some degree in the short term, but would not result in any 
significant reduction in either intensity or duration of noise 
exposure. No injury is expected to result even in the absence of 
mitigation, given the very small estimated Level A harassment zones. In 
the event that NMFS imposed the restriction suggested by the 
commenters, vessels would potentially be on the water for an extended 
time introducing noise into the marine environment. Therefore, in 
addition to practicability concerns for the applicant, the restrictions 
recommended by the commenters could result in the surveys spending 
increased time on the water, which may result in greater overall 
exposure to sound for marine mammals; thus the commenters have not 
demonstrated that such a requirement would result in a net benefit. In 
consideration of potential effectiveness of the recommended measure and 
its practicability for the applicant, NMFS has determined that 
restricting survey start-ups to daylight hours is not warranted in this 
case.
    Comment 22: The ENGOs stated that is incumbent upon the agency to 
address potential impacts to other endangered and protected whale 
species, particularly in light of the UMEs declared for right whales, 
humpback whales and minke whales, as well as the several strategic and/
or depleted stocks of small cetaceans that inhabit the region.
    Response: NMFS acknowledges the UMEs for minke whales since January 
2017; north Atlantic right whales since June 2017; humpback whales 
since January 2016, and pinnipeds since July 2018. We discuss the 
potential impacts of HRG surveys on species for which UMEs have been 
declared and for which take is authorized in the Negligible Impact 
Determination section. Please refer to that discussion.
    Comment 23: The ENGOs urged NMFS to fund analyses of recently 
collected sighting and acoustic data for all data-holders; and continue 
to fund and expand surveys and studies to improve our understanding of 
distribution and habitat use of marine mammals.
    Response: We agree with the ENGOs that analyses of recently 
collected sighting and acoustic data, as well as continued marine 
mammal surveys, are warranted, and we welcome the opportunity to 
participate in fora where implications of such data for potential 
mitigation measures would be discussed; however, we do not have broad 
statutory authority or the ability to require that all ``data-holders'' 
fund such analyses and surveys. Additionally, NMFS will fund pertinent 
surveys based on agency priorities and budgetary considerations.
    Comment 24: The ENGOs indicated that NMFS should review and approve 
night vision and infrared equipment prior to reliance on this untested 
technology to reduce survey risk. Additionally, the ENGOs commented 
that NMFS should encourage developers to partner with scientists to 
collect data that would increase the understanding of the effectiveness 
of night vision and infrared technologies in the Northeast region.
    Response: NMFS agrees with the ENGOs that improved data on relative 
effectiveness of night vision and infra-red technologies would be 
beneficial and could help to inform future efforts at detection of 
marine mammals during nighttime activities. Currently, there are no 
existing standards that NMFS could use to approve night vision and 
infrared equipment. Right whales can be seen at night from a 
considerable distance, depending on conditions. Note that in a recent 
IHA monitoring report submitted to NMFS after completion of an HRG 
survey off the coast of Delaware (Deepwater Wind, 83 FR 28808, June 21, 
2018) a single confirmed right whale and a second probable right whale 
were observed at night by infra-red cameras at distances of 1,251 m and 
approximately 800 m respectively.
    The commenters have not provided us with any specific 
recommendations to evaluate beyond a broad recommendation. However, we 
will encourage coordination and communication between offshore wind 
developers and researchers on effectiveness of night vision and infra-
red technologies, to the extent possible. While we acknowledge that no 
technology is 100% effective either during daylight or nighttime hours, 
the equipment used here will enhance PSO's ability to detect marine 
mammals at night and the fact that not all will be detected is 
accounted for in the authorized take.
    Comment 25: The ENGOs maintained that the minimum radii of EZs 
should be increased and maintained throughout survey activities. NMFS 
must require use of sufficient monitoring practices to ensure a 500-m 
EZ for all marine mammals around all vessels conducting activities with 
noise levels that could result in injury or harassment to these 
species. PSOs should also, to the extent feasible, monitor beyond the 
minimum 500-m EZ to an extended 1,000 m-EZ for North Atlantic right 
whales. Additionally, the ENGOs recommended that survey activity must 
be shut down upon the visual or acoustic detection of a North Atlantic 
right whale.
    Response: Regarding the recommendation for a 1,000 m EZ 
specifically for North Atlantic right whales, we have determined that 
the 500-m EZ, as required in the IHA, is sufficiently protective. We 
note that the 500-m EZ exceeds by almost three times the modeled 
distance to the largest Level B harassment isopleth (178 m). Thus for 
North Atlantic right whales detected by PSOs, all forms of incidental 
take (both injury and behavioral harassment) would be avoided. For the 
same reason we are not requiring shutdown if a right whale is observed 
beyond 500 m, presumably at any distance. Similarly, the recommended 
500-m EZ for other species is overly conservative when a

[[Page 52471]]

178 m isopleth has been modeled for behavioral harassment.
    Comment 26: The ENGOs recommended that a combination of visual 
monitoring by PSOs and passive acoustic monitoring (PAM) should be used 
at all times.
    Response: There are several reasons why we do not think the use of 
PAM is warranted for surveys using the HRG sound sources planned for 
use by [Oslash]rsted. PAM can be an important tool for augmenting 
detection capabilities in certain circumstances, however, its utility 
in further reducing impact for [Oslash]rsted's HRG activities is very 
limited. First, for this activity, the area expected to be ensonified 
above the level B harassment threshold are relatively small (and as 
described in the Take Estimate section, even smaller than indicated in 
the proposed IHA, a maximum of 141 m as described in the Estimated Take 
section). PAM is only capable of detecting animals that are actively 
vocalizing while many marine mammal species vocalize infrequently or 
during certain activities, which means that only a subset of the 
animals within the range of the PAM will be detected (and potentially 
have reduced impacts). Additionally, localization and range detection 
can be challenging for under certain scenarios. For example, 
odontocetes are fast moving and often travel in large or dispersed 
groups which make estimating their localization difficult. Also, the 
ability of PAM to detect baleen whale vocalizations is further limited 
due to being deployed from the stern of a vessel, which puts the PAM 
hydrophones in proximity to propeller noise and low frequency engine 
noise that can mask the low frequency sounds emitted by baleen whales, 
including right whales. Last, as noted previously, [Oslash]rsted has 
detected low numbers of marine mammals in previous surveys, and even 
lower numbers necessitating a shutdown because of the small size of the 
zone. As an example, the recent monitoring report submitted for Lease 
Area OCS-A 0500 and nearby ECR corridors recorded 496 sightings of 
marine mammals over 376 vessel days. (A sighting could be a single 
animal or group of animals observed in the same area at the same time.) 
However, only 51 of the sightings required any type of mitigation 
action (44 shutdown and 7 delay events). Given the low sightings rate 
(1.3 per vessel day) and mitigation rate (1 mitigation action per 7.3 
vessel days), the addition of this detection capability (assuming that 
it would add as many shutdowns again as assumed for visual mitigation, 
which may be an overestimate) is likely to have only a nominal effect 
on reducing potential impacts to marine mammals in the survey area.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for right whales and other low frequency species), and the 
cost and impracticability of implementing a PAM program, we have 
determined the current requirements for visual monitoring are 
sufficient to ensure the least practicable adverse impact on the 
affected species or stocks and their habitat.
    Comment 27: The ENGOs recommended that shift schedule of the NMFS-
approved PSOs aboard the survey vessel must also be adjusted to a 
minimum of four PSOs following a two-on two-off rotation, each 
responsible for scanning no more than 180[deg] of the EZ at any given 
time.
    Response: Previous IHAs issued for HRG surveys have required that a 
single PSO must be stationed at the highest vantage point and engaged 
in general 360-degree scanning during daylight hours. A number of 
marine mammal monitoring reports submitted to NMFS have effectively 
employed this approach. NMFS sees no reason to deviate from this 
practice at the present time, as any added benefit would be limited and 
uncertain versus the known added cost. However, NMFS will require the 
use of 2 PSOs any time that (ASVs) are being used as well as during 
night operations.
    Comment 28: The ENGOs recommended that all vessels operating within 
the survey area, including support vessels, should maintain a speed of 
10 knots or less during the entire survey period including those 
vessels transiting to/from the survey area.
    Response: NMFS has analyzed the potential for ship strike resulting 
from [Oslash]rsted's activity and has determined that the mitigation 
measures specific to ship strike avoidance are sufficient to avoid the 
potential for ship strike. These include: A requirement that all vessel 
operators comply with 10 knot (18.5 kilometer (km)/hour) or less speed 
restrictions in any SMA or Dynamic Management Area (DMA); a requirement 
that all vessel operators reduce vessel speed to 10 knots (18.5 km/
hour) or less when any large whale, any mother/calf pairs, pods, or 
large assemblages of non-delphinoid cetaceans are observed within 100 m 
of an underway vessel; a requirement that all survey vessels maintain a 
separation distance of 500-m or greater from any sighted North Atlantic 
right whale; a requirement that, if underway, vessels must steer a 
course away from any sighted North Atlantic right whale at 10 knots or 
less until the 500-m minimum separation distance has been established; 
and a requirement that, if a North Atlantic right whale is sighted in a 
vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. We have 
determined that the ship strike avoidance measures are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. As noted previously, occurrence of vessel strike during 
surveys is extremely unlikely based on the low vessel speed of 
approximately 4 knots (7.4 km/hour) while transiting survey lines.
    Comment 29: The ENGOs suggested that it should be NMFS' top 
priority to consider any initial data from State monitoring efforts, 
passive acoustic monitoring data, opportunistic marine mammal sightings 
data, and other data sources, and to take steps now to develop a 
dataset that more accurately reflects marine mammal presence so that it 
is in hand for future IHA authorizations and other work.
    Response: NMFS will review any recommended data sources and will 
continue to use the best available information. We welcome future 
input, even outside the comment period for this particular IHA, from 
interested parties on data sources that may be of use in analyzing the 
potential presence and movement patterns of marine mammals, including 
North Atlantic right whales, in New England waters.
    Comment 30: The ENGOs asserted that collectively, the agency's 
assumptions regarding mitigation effectiveness are unfounded and cannot 
be used to justify any reduction in the number of takes authorized. The 
ENGOs stressed that NMFS must not adjust take numbers for endangered 
North Atlantic right whales based on arbitrary and capricious 
assumptions regarding the effectiveness of unproven mitigation measures 
which include the following: (i) The agency's reliance on a 160 dB 
threshold for behavioral harassment is not supported by best available 
scientific information in other low- to mid-frequency sources that 
indicates Level B takes will occur with near certainty at exposure 
levels well below the 160 dB threshold; (ii) the best available 
scientific information on habitat use of the Lease Areas, including as 
an increasingly important foraging site, has not been considered by the

[[Page 52472]]

agency (iii) the geographic and temporal extent, and the 24-hour 
nature, of the survey activities proposed to be authorized; (iv) the 
assumption that marine mammals will take measures to avoid the sound 
even though studies have not found avoidance behavior to be 
generalizable among species and contexts, and even though avoidance may 
itself constitute take under the MMPA; and (v) the monitoring protocols 
the agency prescribes for the EZ are under-protective. The ENGOs 
pointed out that the mitigation measures in the proposed IHA are 
overall less protective than previous IHA authorizations issued for the 
region.
    Response: The five comments provided by the ENGOs are addressed 
individually below.
    (i) NMFS acknowledges that the potential for behavioral response to 
an anthropogenic source is highly variable and context-specific and 
acknowledges the potential for Level B harassment at exposures to 
received levels below 160 dB rms. Alternatively, NMFS acknowledges the 
potential that not all animals exposed to received levels above 160 dB 
rms will not respond in ways constituting behavioral harassment. There 
are a variety of studies indicating that contextual variables play a 
very important role in response to anthropogenic noise, and the 
severity of effects are not necessarily linear when compared to a 
received level (RL). The studies cited in the comment (Nowacek et al., 
2004 and Kastelein et al., 2012 and 2015) showed there were behavioral 
responses to sources below the 160 dB threshold, but also acknowledge 
the importance of context in these responses. For example, Nowacek et 
al., 2004 reported the behavior of five out of six North Atlantic right 
whales was disrupted at RLs of only 133-148 dB re 1 [micro]Pa 
(returning to normal behavior within minutes) when exposed to an alert 
signal. However, the authors also reported that none of the whales 
responded to noise from transiting vessels or playbacks of ship noise 
even though the RLs were at least as strong, and contained similar 
frequencies, to those of the alert signal. The authors state that a 
possible explanation for whales responded to the alert signal and did 
not respond to vessel noise is due to the whales having been habituated 
to vessel noise, while the alert signal was a novel sound. In addition, 
the authors noted differences between the characteristics of the vessel 
noise and alert signal which may also have played a part in the 
differences in responses to the two noise types. Therefore, it was 
concluded that the signal itself, as opposed to the RL, was responsible 
for the response. DeRuiter et al. (2012) also indicate that variability 
of responses to acoustic stimuli depends not only on the species 
receiving the sound and the sound source, but also on the social, 
behavioral, or environmental contexts of exposure. Finally, Gong et al. 
(2014) highlighted that behavioral responses depend on many contextual 
factors, including range to source, RL above background noise, novelty 
of the signal, and differences in behavioral state. Similarly, 
Kastelein et al., 2015 (cited in the comment) examined behavioral 
responses of a harbor porpoise to sonar signals in a quiet pool, but 
stated behavioral responses of harbor porpoises at sea would vary with 
context such as social situation, sound propagation, and background 
noise levels.
    NMFS uses 160 dB (rms) as the exposure level for estimating Level B 
harassment takes and is currently considered the best available 
science, while acknowledging that the 160 db rms step-function approach 
is a simplistic approach. However, there appears to be a misconception 
regarding the concept of the 160 dB threshold. While it is correct that 
in practice it works as a step-function, i.e., animals exposed to 
received levels above the threshold are considered to be ``taken'' and 
those exposed to levels below the threshold are not, it is in fact 
intended as a sort of mid-point of likely behavioral responses (which 
are extremely complex depending on many factors including species, 
noise source, individual experience, and behavioral context). What this 
means is that, conceptually, the function recognizes that some animals 
exposed to levels below the threshold will in fact react in ways that 
are appropriately considered take, while others that are exposed to 
levels above the threshold will not. Use of the 160-dB threshold allows 
for a simplistic quantitative estimate of take, while we can 
qualitatively address the variation in responses across different 
received levels in our discussion and analysis.
    Overall, we reiterate the lack of scientific consensus regarding 
what criteria might be more appropriate. Defining sound levels that 
disrupt behavioral patterns is difficult because responses depend on 
the context in which the animal receives the sound, including an 
animal's behavioral mode when it hears sounds (e.g., feeding, resting, 
or migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al., 2007; Ellison et al., 2012; 
Bain and Williams, 2006). Further, we note that the sounds sources and 
the equipment used in the specified activities are outside (higher 
than) of the most sensitive range of mysticete hearing.
    There is currently no agreement on these complex issues, and NMFS 
followed the practice at the time of submission and review of this 
application in assessing the likelihood of disruption of behavioral 
patterns by using the 160 dB threshold. This threshold has remained in 
use in part because of the practical need to use a relatively simple 
threshold based on available information that is both predictable and 
measurable for most activities. We note that the seminal review 
presented by Southall et al. (2007) did not suggest any specific new 
criteria due to lack of convergence in the data. NMFS is currently 
evaluating available information towards development of guidance for 
assessing the effects of anthropogenic sound on marine mammal behavior. 
However, undertaking a process to derive defensible exposure-response 
relationships is complex (e.g., NMFS previously attempted such an 
approach, but is currently re-evaluating the approach based on input 
collected during peer review of NMFS (2016)). A recent systematic 
review by Gomez et al. (2016) was unable to derive criteria expressing 
these types of exposure-response relationships based on currently 
available data.
    NMFS acknowledges that there may be methods of assessing likely 
behavioral response to acoustic stimuli that better capture the 
variation and context-dependency of those responses than the simple 160 
dB step-function used here, there is no agreement on what that method 
should be or how more complicated methods may be implemented by 
applicants. NMFS is committed to continuing its work in developing 
updated guidance with regard to acoustic thresholds, but pending 
additional consideration and process is reliant upon an established 
threshold that is reasonably reflective of available science.
    (ii) The ENGOs contended that NMFS did not use the best available 
scientific information on habitat use of the Lease Areas, including 
areas that are increasingly important foraging sited. The ENGOs 
referenced articles by Kraus et al. (2016) and Leiter et al. (2017) 
which examined right whale occurrence in offshore wind energy areas 
near

[[Page 52473]]

Massachusetts and Rhode Island. To identify areas with statistically 
higher animal clustering than surrounding regions, a hot spot analysis 
was performed. Several hot spots were identified within the Lease 
Areas. However, the right whale densities in the study area ranged from 
0.0008 (Winter 2014) to 0.0035 (Spring 2012) animals per km\2\. The 
densities from these references are generally lower than those used in 
our own analysis which ranged from 0.00379 (Lease area OCS-A0487) to 
0.00759 (ECR corridors) animals per km\2\. The densities used by NMFS 
from Roberts et al. (2016; 2017; 2018) are more conservative or 
protective than those measured in the referenced right whale hot spot 
papers.
    (iii) Given the geographic and temporal extent of the survey area 
as well as continuous 24-hour operations, the ENGOs question the 
effectiveness of the mitigation measures proposed to be authorized. 
They specifically recommended that seasonal restrictions should be 
established and consideration should be given species for which a UME 
has been declared. NMFS is requiring [Oslash]rsted to comply with 
seasonal restrictions limiting the number of vessels that can operate 
concurrently in the Lease Areas and the area north of that (higher 
density areas for right whales) during the higher density months of the 
year. Please refer to the response to Comment 19 for additional detail. 
Furthermore, we have established a 500-m shutdown zone for right whales 
which is precautionary considering the Level B harassment isopleth for 
the largest source utilized in the specified activities for this IHA is 
was initially estimated at 178-m. Further, actual isopleths are no 
greater than 141 m for one omnidirectional HRG device (Applied 
Acoustics Dura-Spark 400 System) and are considerably less for a number 
of other HRG devices employing downward facing beams at various angles. 
We determined that the Level B harassment isopleths are smaller than 
178 m (maximum of 141 m) for the entire survey area. After accounting 
for these smaller zones the calculated right whale exposures decreased 
from 100 to 47 animals. At these distances, monitoring by PSOs is 
expected to be highly effective. Given these factors, we are confident 
in our decision to authorize 10 takes by Level B harassment. 
Additionally, similar mitigation measures have been required in several 
previous HRG survey IHAs and have been successfully implemented.
    (iv) The commenters disagreed with NMFS' assumption that marine 
mammals move away from sound sources. The ENGOs claimed that studies 
have not found avoidance behavior to be generalizable among species and 
contexts, and even though avoidance may itself constitute take under 
the MMPA. Importantly, the commenters mistakenly seem to believe that 
the NMFS' does not consider avoidance as a take, and that the concept 
of avoidance is used as a mechanism to reduce overall take--this is not 
the case. Avoidance of loud sounds is a well-documented behavioral 
response, and NMFS often accordingly accounts for this avoidance by 
reducing the number of injurious exposures, which would occur in very 
close proximity to the source and necessitate a longer duration of 
exposure. However, when Level A harassment takes are reduced in this 
manner, they are changed to Level B harassment takes, in recognition of 
the fact that this avoidance or other behavioral responses occurring as 
a result of these exposures are still take. NMFS does not reduce the 
overall amount of take as a result of avoidance.
    (v) For additional discussion, NMFS directs the reader to the 
Potential Effects section. Observed responses of wild marine mammals to 
loud pulsed sound sources (typically airguns or acoustic harassment 
devices) have been varied but often consist of avoidance behavior or 
other behavioral changes suggesting discomfort (Morton and Symonds, 
2002; see also Richardson et al., 1995; Nowacek et al., 2007). 
Avoidance responses have more commonly been reported for baleen whales. 
Avoidance responses to airgun sounds at received levels of 160-170 dB 
have been reported for migrating gray whales (Malme et al., 1983), 
bowhead whales (Richardson et al., 1986), and migrating humpback whales 
(McCauley et al., 2000). Fin whales moved away from a 10-day seismic 
survey in the Mediterranean and were spatially displaced for at least 
14 days after the seismic airgun shooting period (Castellote et al., 
2012). Harbor porpoises have been reported to exhibit an avoidance 
response to the impulsive sound of pile driving at distances of 20 km 
or more and for up to 3 days (Tougaard et al., 2009; Thompson et al., 
2010; Brandt et al., 2011). Avoidance may be short-term, with animals 
returning to the area once the noise has ceased (e.g., Bowles et al., 
1994; Goold, 1996; Stone et al., 2000; Morton and Symonds, 2002; Gailey 
et al., 2007). Longer-term displacement is possible in an affected 
region if habituation to the presence of the sound does not occur 
(e.g., Bejder et al., 2006; Teilmann et al., 2006). However, long-term 
displacement is not expected to occur as a result of this HRG survey. 
While there is no direct evidence that noise from HRG surveys will 
result in movement away from the sound source, the studies above would 
indicate that at least some cetacean species engage in avoidance 
behavior when exposed to underwater noise at certain levels and 
frequencies. As described above, however, avoidance behavior is likely 
dependent on additional contextual factors that are not well-understood 
at this time.
    (vi) The ENGOs felt that that the monitoring protocols prescribed 
by NMFS are under-protective while noting that the protocols are less 
protective than those required as part of previous IHA authorizations 
covering HRG surveys. NMFS believes that implementation of the required 
monitoring protocols are adequate to ensure the least practicable 
adverse impact on the effected species or stocks and their habitat and, 
further, as we have described, we have determined that the number of 
animals taken will be small and that potential impacts to any stocks 
will be negligible. While some previously issued IHAs have required the 
use of PAM, NMFS described why we do not believe this is necessary in 
our response to Comment 25. Previous IHAs did require a 500-m right 
whale exclusion zone, a 200-m exclusion zone for listed whale species, 
25-m zone for harbor porpoises and no exclusion zone for non-listed 
species. The IHA issued to [Oslash]rsted also has a 500-m right whale 
exclusion zone. However, it also has a 100-m exclusion zone for all 
other listed and non-listed marine mammal species, including harbor 
porpoise. While the previous IHAs offered slightly increased protection 
for listed whale species (200 m vs 100 m), the current IHA offers 
increased protection for all other non-listed species (0 m vs 100 m) 
including harbor porpoise (25 m vs 100 m). Importantly, the previous 
IHA had a significantly larger Level B harassment zone (447 m), 
resulting in a much larger area within which marine mammals might be 
harassed outside of the exclusion zone. Given this information it is 
not clear how the previous IHAs can be categorized as being more 
protective than the current IHA.
    As described above, the number of right whales that could actually 
experience Level B harassment is smaller than what is projected 
assuming a 178-m isopleth. The HRG device with the largest 
omnidirectional isopleth (141 m) is the Applied Acoustics Dura-Spark 
400 System. Much of the remaining HRG equipment uses focused beams with 
further reduces the calculated

[[Page 52474]]

Level B isopleths since these distances were derived assuming that all 
sound sources were omnidirectional. When 141-m isopleth associated with 
the Applied Acoustics Dura-Spark 400 System is taken into consideration 
(versus the 178 m considered in the proposed IHA), the calculated take 
of right whales is reduced from 100 to 47 exposures.
    The 500-m shutdown zone for right whales is highly conservative. 
When the directionality of the sound source is considered, the largest 
Level B harassment isopleth for this IHA is 141 m with much of 
remaining directional HRG equipment having behavioral disturbance zones 
that are considerably smaller. At these reduced distances, PSOs should 
be able to successfully monitor for right whales and other species, 
even during night operations with the assistance of night vision and 
infra-red devices. As noted in the response to Comment 18, visual 
observation by PSOs is generally effective in detecting larger marine 
mammal species, including right whales, especially in shallower waters.
    Given the low occurrence of right whale observations as depicted in 
the recent marine mammal monitoring report (0 confirmed sightings) over 
an extended period (376 days), the substantially reduced Level B 
harassment zone sizes and associated exposure estimates, the seasonal 
reduction in the number of survey vessels permitted to operate 
concurrently in high density areas (3), as well as the expected 
efficacy of mitigation and monitoring measures, a reduction in the 
calculated exposure estimates of 47 right whales (initially 100 
exposures as described previously) to 10 is justifiable.

Changes From Proposed to Final Authorization

    NMFS has made several minor changes to the mitigation and 
monitoring measures since the publication of the proposed IHA which are 
listed below:
     NMFS has removed several genera (i.e., Lagenodelphis, 
Lissodelphis, Steno) from the list of species for which the shutdown 
requirement is waived. The removed species do not occur in New England 
waters.
     NMFS had identified a 100-m exclusion zone for large 
cetaceans (i.e., humpback whale, sperm whale, minke whale, pilot whale, 
Risso's dolphin) in the proposed IHA while in the final IHA the 100-m 
shutdown zone has been revised to include all marine mammals. NMFS 
inadvertently excluded revised language from text of the proposed IHA.
     NMFS is requiring [Oslash]rsted to restrict concurrent 
operation of survey vessels to a maximum of three from March through 
June within the three lease areas and in ECR areas north up to, but not 
including, coastal and bay waters. This change was made in 
consideration of a public comment.
     The final IHA states that if an animal is sighted within 
or approaching the pre-clearance zones the applicant must not use HRG 
equipment until the animals is observed leaving the zone or a period of 
15 minutes has passed with no further sightings of small cetaceans or 
seals. The proposed IHA indicated that the 15 minute waiting period was 
only applicable to small cetaceans. Seals have reportedly been observed 
approaching or in close proximity to survey vessels. Therefore, this 
language has been added to provide more specific guidance to PSOs.
     The proposed IHA indicated that the shutdown requirement 
is waived for several small delphinids of specified genera if they 
enter into the exclusion zone. In the final IHA this measure has been 
clarified and now states that if a delphinid from one of the specified 
genera is visually detected approaching the vessel (i.e., to bow ride) 
or towed survey equipment, shutdown is not required. Furthermore, if 
there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived), PSOs must use best 
professional judgment in making the decision to call for a shutdown. If 
delphinids from the above genera are observed within or entering the 
relevant EZ but do not approach the vessel or towed survey equipment, 
shutdown is required. This revision emphasizes that the shutdown waiver 
only applies to specified delphinids when they are observed approaching 
a vessel.
     The proposed IHA indicated that a dedicated ASV PSO must 
be stationed on the bridge of the survey vessel and monitor the real-
time picture from the thermal/HD camera installed on the front of the 
ASV, when it is in use. However, the proposed bridge monitoring screen 
may interfere with night vision capabilities of the captain and other 
crew working on the bridge. Therefore, as part of the final IHA the 
dedicated ASV PSO will monitor real-time video during nighttime 
operations and will usually be stationed near the ASV operator. During 
daytime surveys the dedicated ASV will be located on the survey vessel 
in a position that provides a clear, unobstructed view of the ASV's 
exclusion and monitoring zones.
     In both the draft and final IHA, NMFS requires that 
independent observers must be utilized. In the final IHA, NMFS added 
that non-independent observers may be approved, on a case-by-case 
basis, for limited, specific duties in support of approved, independent 
PSOs. On smaller vessels engaged in shallow water surveys, limited 
space aboard the vessel may not allow for two or more PSOs. In that 
case, trained non-independent observers may take over if the lead PSOs 
needs to take a brief break (e.g., bathroom).

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 1 will potentially occur 
in the project area and will potentially be taken as a result of the 
planned project. Table 1 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 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

[[Page 52475]]

NMFS' U.S. Atlantic Ocean SARs (e.g., Hayes et al., 2019). All values 
presented in Table 1 are the most recent available at the time of 
publication and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.

                                               Table 1--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.  North Atlantic.........  E/D; Y              2,288 (0.28; 1,815)...        3.6        0.8
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;                 557        406
                                                                                                             55,690;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.....  W North Atlantic.......  -; N                27,131 (0.19; 23,158).      1,389      5,688
    Harbor seal.....................  Phoca vitulina.........  W North Atlantic.......  -; N                75,834 (0.15; 66,884).        345        333
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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.

    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, which we have authorized. A detailed 
description of the of the species likely to be affected by planned HRG 
survey activities, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (84 FR 
36054; July 26, 2019); since that time, we are not aware of any changes 
in the status of these species and stocks; therefore, detailed 
descriptions are not provided here. Please refer to that Federal 
Register notice for these descriptions.

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

    The effects of underwater noise from [Oslash]rsted's survey 
activities have the potential to result in take of marine mammals by 
harassment in the vicinity of the survey area. The Federal Register 
notice for the proposed IHA (84 FR 36054; July 26, 2019) included a 
discussion of the effects of anthropogenic noise on marine mammals and 
their habitat, and that information is not repeated here. No instances 
of serious injury or mortality are expected as a result of the planned 
activities.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which 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

[[Page 52476]]

activity and the anticipated effectiveness of the mitigation measures 
(i.e., shutdown--discussed in detail below in Mitigation section), 
Level A harassment is neither anticipated nor authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take 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. [Oslash]rsted's planned 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 2 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.

                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [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 planned for use in [Oslash]rsted'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

[[Page 52477]]

animal in a straight line at a constant speed.
    [Oslash]rsted conducted field verification tests on different types 
of HRG equipment within the planned 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 3. 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, [Oslash]rsted 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. 
[Oslash]rsted 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. [Oslash]rsted planned to apply this differential (-17 dB) to other 
HRG equipment in the medium penetration SBP (sparker) category with an 
output of approximately 800 joules. [Oslash]rsted 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 
3 shows the field verified equipment SSV results as well as applicable 
non-verified equipment broken out by equipment category.

Table 3--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        0.1 to 5.............  211 dBPeak; 205   195 dBPeak; 173   Not used for any
 Triple Plate Boomer (700J).                            dBRMS.            dBRMS.            other equipment.
Applied Acoustics S-Boom        0.250 to 8 kHz.......  228 dBPeak; 208   215 dBPeak; 198   Not used for any
 Triple Plate Boomer (1000J).                           dBRMS.            dBRMS.            other equipment.
----------------------------------------------------------------------------------------------------------------
\a\ Gardline 2016a, 2017.
\b\ RPS 2018.
\c\ MAI 2018a.
\d\ Subacoustech 2018.


[[Page 52478]]

    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 [Oslash]rsted's 
planned use of differentials to determine Level A and Level B 
harassment isopleths or take estimates.
    As noted above, much of the HRG equipment planned for use during 
[Oslash]rsted'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 
planned HRG equipment categories that might result in harassment of 
marine mammals. Inputs to the User Spreadsheet are shown in Table 4. 
The source levels used in Table 4 are from field verified values shown 
in Table 3. 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 4--Inputs to the User Spreadsheet
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                            USBL            Shallow penetration  SBP- Shallow penetration  SBP-      Parametric  SBP         Medium penetration      Medium penetration  SBP--
                                 --------------------------           chirp                     chirp          --------------------------       SBP--sparker                   boomer
                                                           ----------------------------------------------------                          -------------------------------------------------------
      Spreadsheet tab used         D: Mobile source:  Non-                                                       D: Mobile source:  Non-     F: Mobile source:
                                  impulsive,  intermittent   D: Mobile source:  Non-   D: Mobile source:  Non-  impulsive,  intermittent         Impulsive,        F: Mobile source:  Impulsive,
                                                            impulsive,  intermittent  impulsive,  intermittent                                  intermittent                intermittent
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
HRG Equipment...................  Sonardyne Ranger 2......  GeoPulse 5430 A Sub-      EdgeTech 512............  Innomar SES 2000 Medium   GeoMarine Geo-Source     Applied Acoustics S-Boom
                                                             bottom Profiler.                                    100.                      800 J.                   Triple Plate Boomer
                                                                                                                                                                    (1,000j).
Source Level (dB RMS SPL).......  166.....................  173.....................  177 *...................  187.....................  212 Pk; 189 RMS........  209 Pk; 203 RMS *.
Weighting Factor Adjustment       26......................  4.5.....................  3.......................  42......................  2......................  0.6.
 (kHz).
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 5--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...............  .........
----------------------------------------------------------------------------------------------------------------

[[Page 52479]]

 
                                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 5, 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 6. 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 Fratantonio (2016). Table 6 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 6 also shows 
field-verified SLs and associated Level B harassment isopleths for 
equipment categories that lack relevant Crocker & Fratantonio (2016) 
measurements. Additionally, Table 6 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 6--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.

[[Page 52480]]

 
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 IIITTV 170.  ..............  N/A.
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  155 @20 m.
GeoMarine Geo-Source 800tip a.....              86  144 @200 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.
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 required 
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 planned 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) under the assumption that sound 
emitted from the device is omnidirectional . Therefore,

[[Page 52481]]

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 7, multiplied by 666 
days.

                   Table 7--Survey Segment Distances and Level B harassment Isopleth and Zone
----------------------------------------------------------------------------------------------------------------
                                              Number of         Estimated           Level
             Survey segment                 active survey    distances  per      harassment      Calculated  ZOI
                                             vessel days        day  (km)       isopeth  (m)     per day (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 planned 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 8.

                                                 Table 8--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\2\)                    km\2\)                    km\2\)                    km\2\)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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. 2016b, 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 EZ which substantially exceeds the distance to the level B 
harassment isopleth (178 m). However, [Oslash]rsted 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 
[Oslash]rsted will implement a shutdown zone at least 1.5 times the 
predicted Level B threshold distance (see below) for that largest 
source (and significantly 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.
    Note that the 178-m Level B harassment isopleth associated with the 
Acoustics S-Boom Boomer was utilized to calculate take for the proposed 
IHA.

[[Page 52482]]

This is highly conservative as it was assumed in the proposed IHA that 
sound emitted by all HRG equipment is omnidirectional. However, The 
Applied Acoustics S-Boom Boomer actually features a defined downward 
focused beam width angle of 80 degrees. When this beam width is taken 
into consideration the Level B harassment isopleth is 64 m when the 
survey vessel is operating in waters with a maximum depth of 77 m. 
Therefore, the largest omnidirectional Level B harassment isopleth is 
associated with the Applied Acoustics Dura-Spark 400 System, which has 
a 141-m isopleth for Level B harassment. This device will be used for a 
maximum of 134 days out of 666 vessel days (~20 percent). We determined 
that the largest actual Level B harassment isopleth is more accurately 
estimated at a maximum of 141 m, and will be used on only 20 percent of 
vessel days. The next largest Level B isopleth is the GeoMarine Geo-
Source 800tip which has a Level B harassment isopleth of 86 m. This 
device will be used for a maximum of 125 days. The remaining 273 days 
will utilize various HRG devices with Level B harassment isopleths 
ranging 63 m (Innomar SES-2000 Medium 100 Parametric Sub-Bottom 
Profiler) to 6 m (EdgeTech 424 sub-bottom profiler). When take is 
calculated by incorporating isopleths of 141 m or less, total 
calculated take of right whales (without consideration of mitigation) 
by Level B harassment is reduced from 100 to 47 takes.
    Additionally, sightings of right whales have been uncommon during 
previous HRG surveys. Bay State Wind submitted a marine mammal 
monitoring report HRG survey on July 19, 2019 described PSO 
observations and takes in Lease Area OCS-A500, which is part of the 
survey area covered under this IHA as well as along several ECR 
corridors closer to shore. Over 376 vessel days, three separate survey 
ships recorded a total of 496 marine mammal detections between May 11, 
2018 and March 14, 2019. NMFS acknowledges that this monitoring span 
excludes a portion of the higher-density period defined by NMFS for 
this IHA (March-June). Nevertheless, there were no confirmed 
observations of right whales on any of the survey ships during the 
entire survey period. There were a number of unidentifiable whales 
reported, and it is possible that some of these unidentified animals 
may have been right whales. However, the lack of confirmed observations 
indicates that right whale sightings are not common in this region. In 
summary, given the low observation rate, expected efficacy of the 
required mitigation measures, and our revised calculated take numbers, 
we believe that the authorization of ten right whale takes by Level B 
harassment is reasonable.

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.
    The required mitigation measures outlined in this section are based 
on protocols and procedures that are expected to reduce the number or 
intensity of takes and have been successfully and practicably 
implemented in the past (DONG Energy, 2016, ESS, 2013; Dominion, 2013 
and 2014). [Oslash]rsted is required to abide by the following 
measures, which have been modified slightly from the proposed IHA as 
described in the Changes section.
    [Oslash]rsted 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

    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 all marine mammals (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. Animals 
observed entering into the Level B harassment zone will be recorded as 
Level B takes.
    If a marine mammal is detected approaching or entering the 
exclusion zones during the HRG survey, the vessel 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

    [Oslash]rsted 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

[[Page 52483]]

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/seals, 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/seals 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/seals 
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, Lagenorhynchus, Stenella, and Tursiops. 
Specifically if a delphinid(s) from the specified genera is visually 
detected approaching the vessel (i.e., to bow ride) or towed survey 
equipment, shutdown is not required. If there is uncertainty regarding 
identification of a marine mammal species (i.e., whether the observed 
marine mammal(s) belongs to one of the genera for which shutdown is 
waived), PSOs must use best professional judgment in making the 
decision to call for a shutdown. However, if delphinids from the above 
genera are observed within or entering the relevant EZ but do not 
approach the vessel or towed survey equipment, shutdown is required. 
Additionally, shutdown is required if a delphinid is detected in the 
exclusion zone and belongs to a genus other than those specified.

Vessel Strike Avoidance

    [Oslash]rsted 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 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.

[[Page 52484]]

Seasonal Operating Restrictions and Requirements

    [Oslash]rsted will limit to three the number surveys that will 
operate concurrently from March through June within the identified 
lease areas (OCS-A 0486, 0487, and 0500) and ECR areas north of the 
lease areas up to, but not including, coastal and bay waters. 
[Oslash]rsted plans to operate either a single vessel, two vessels 
concurrently or, for short periods, no more than three survey vessels 
concurrently in the areas described above during the March-June 
timeframe when right whale densities are greatest. This practice will 
help to reduce both the number and intensity of right whale takes.
    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, [Oslash]rsted 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 planned measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammals species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
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 
planned 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.

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. PSOs must 
be independent observers (i.e., not construction personnel). However, 
non-independent observers may be approved by NMFS, on a case-by-case 
basis, for limited, specific duties in support of approved, independent 
PSOs. On smaller vessels engaged in shallow water surveys, limited 
space aboard the vessel may not allow for 2 or more PSOs. In that case, 
trained non-independent observers may take over if the lead PSOs needs 
to take a brief break (e.g. bathroom). 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 verifying 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.

[[Page 52485]]

    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. During day operations the 
ASV will be kept in sight of the mother vessel at all times (within 800 
m) and the dedicated ASV PSO will have a clear, unobstructed view of 
the ASV's exclusion and monitoring zones. PSOs will adjust their 
positions appropriately to ensure adequate coverage of the entire 
exclusion and monitoring zones around the respective sound sources. 
While conducting survey operations at night, the dedicated ASV operator 
will view live video feed from the dual thermal/HD camera mounted on 
the ASV. Images from the cameras can be captured for review and to 
assist in verifying species identification. 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.
    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.

Reporting Measures

    [Oslash]rsted 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), [Oslash]rsted 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 [Oslash]rsted to 
minimize reoccurrence of such an event in the future. [Oslash]rsted 
would not resume activities until notified by NMFS.
    In the event that [Oslash]rsted 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), [Oslash]rsted 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 [Oslash]rsted 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), [Oslash]rsted 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. [Oslash]rsted would provide photographs or video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS. [Oslash]rsted 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,

[[Page 52486]]

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, masking, non-
auditory physical effects, and vessel strike are not expected to occur.
    The majority of impacts to marine mammals are expected to be short-
term disruption of behavioral patterns, primarily in the form of 
avoidance or potential interruption of foraging. Marine mammal feeding 
behavior is not likely to be significantly impacted. Prey species are 
mobile, and are broadly distributed throughout the survey area and the 
footprint of the activity is small; 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.
    Marine mammal habitat may experience limited physical 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.

ESA-Listed Marine Mammal Species

    ESA-listed species for which takes are authorized 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 mitigation and no serious injury or mortality is 
authorized. As discussed in the Potential Effects section, non-auditory 
physical effects and vessel strike are not expected to occur. 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 planned survey is not 
anticipated to affect the fitness or reproductive success of individual 
animals. Since impacts to individual survivorship and fecundity are 
unlikely, the planned 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.
    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. NMFS has 
rigorously assessed potential impacts to right whales from this survey. 
We have established a 500-m shutdown zone for right whales which is 
highly precautionary considering the Level B harassment isopleth for 
the largest source utilized in the specified activities for this IHA 
was initially estimated at 178-m for the Applied Acoustics S-Boom 
Boomer. However, after accounting for beam width the maximum isopleth 
for this equipment is actually no greater than 64 m. We determined that 
the largest omnidirectional Level B harassment isopleth is more 
accurately estimated at a maximum of 141 m, and will be used on only 20 
percent of vessel days. The next largest Level B isopleth is the 
GeoMarine Geo-Source 800tip which has a Level B harassment isopleth of 
86 m. This device will be used for a maximum of 125 days. The remaining 
273 days will utilize various HRG devices with Level B harassment 
isopleths ranging 63 m (Innomar SES-2000 Medium 100 Parametric Sub-
Bottom Profiler) to 6 m (EdgeTech 424 sub-bottom profiler). When these 
smaller isopleths are taken into account the calculated take decreases 
from 100 to 47. With these smaller zones, monitoring by PSOs is 
expected to be highly effective. NMFS is also requiring Orsted to limit 
the number of survey vessels operating concurrently to no more than 
three in high-density areas (Lease Areas OCS-A 0486, 0487, 0500 and ECR 
areas to the north up to, but not including, coastal and bay waters) 
during high-density periods (March-June). This will reduce both the 
number and intensity of right whale takes. Additionally, the absence of 
right whale sightings detailed in a recent marine mammal monitoring 
report from Lease Area OCS-A 0500 and adjacent ECR corridors suggests 
that right whales are not common. Given these factors, we are confident 
in our decision to authorize 10 takes by Level B harassment. Due to the 
length of the survey and continuous night operations, it is conceivable 
that a limited number of right whales could enter into the Level B 
harassment zone without being observed. Although such an occurrence is 
not expected, any potential impacts to right whales would consist of, 
at most, low-level, short-term behavioral harassment in a limited 
number of animals and would have a negligible impact on the stock.

Biologically Important Areas (BIA)

    The planned 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 planned survey 
is sufficiently small that fin whale feeding opportunities would not be 
reduced appreciably. Any fin whales temporarily displaced from the 
planned 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 or 
interruption of foraging bouts would be expected to be temporary in 
nature. Therefore, we do not expect fin whale feeding to be negatively 
impacted by the planned survey.
    The planned 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 planned 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 planned 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 authorized 
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.'' UMEs are ongoing and 
under investigation for four species relevant to HRG survey area, 
including humpback whales, North Atlantic right whales, minke

[[Page 52487]]

whales, and pinnipeds. Specific information for each ongoing UME is 
provided below.
    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 planned 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 planned 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. Accordingly, [Oslash]rsted did 
not request, and NMFS is not proposing to authorize, take of marine 
mammals by serious injury, or mortality.
    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. No Level A harassment is anticipated 
or authorized.
    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 (at the scale and 
intensity anticipated here) are considered to be of low severity and 
with no lasting biological consequences. Since both the source and the 
marine mammals are mobile, only a smaller 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 more severe behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated;
     Any foraging interruptions are expected to be short term 
and unlikely to be cause significantly impacts;
     Impacts on marine mammal habitat and species that serve as 
prey species for marine mammals are expected to be minimal and the 
alternate areas of similar habitat value for marine mammals are readily 
available;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
     Survey activities would occur in such a comparatively 
small portion of the biologically important area for north Atlantic 
right whale migration, 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 take of the species, resulting in a conservative 
estimate of 10 takes, in the form of 10 short-term exposures, which 
would not be expected to affect the reproduction or survival of any 
individuals, much less the stock. 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
     Planned mitigation measures, including visual monitoring 
and shutdowns, are expected to minimize the intensity of potential 
impacts to marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
[Oslash]rsted's planned 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 planned activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our action (i.e., the issuance of an incidental 
harassment authorization) with respect to potential impacts on the 
human environment. Accordingly, NMFS

[[Page 52488]]

prepared an EA and analyzed the potential impacts to marine mammals 
that would result from the project. A FONSI was signed in May 2019. A 
copy of the EA and FONSI is available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

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.
    The NMFS Office of Protected Resources is authorizing the 
incidental take fin, sei, sperm, and North Atlantic right whales which 
are listed under the ESA. Under section 7 of the ESA, BOEM consulted 
with NMFS GARFO 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. NMFS GARFO 
issued a Biological Opinion concluding that these activities may 
adversely affect but are not likely to jeopardize the continued 
existence of fin, sei, sperm, and North Atlantic right whales. Upon 
request from the NMFS Office of Protected Resources, the NMFS GARFO 
will issue an amended incidental take statement associated with this 
Biological Opinion to include the takes of the ESA-listed whale species 
authorized through this IHA.

Authorization

    NMFS has issued an IHA to [Oslash]rsted for HRG survey activities 
effective one year from the date of issuance, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: September 26, 2019.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2019-21458 Filed 10-1-19; 8:45 am]
 BILLING CODE 3510-22-P