Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys off of Delaware, 18943-18962 [2021-07419]

Download as PDF Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions. Notification to Interested Parties This five-year sunset review and notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4). Dated: April 6, 2021. Christian Marsh, Acting Assistant Secretary for Enforcement and Compliance. [FR Doc. 2021–07450 Filed 4–9–21; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XB007] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys off of Delaware National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; Issuance of an Incidental Harassment Authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Skipjack Offshore Energy, LLC (Skipjack) to incidentally harass, by Level B harassment only, marine mammals during marine site characterization surveys offshore of Delaware in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS–A 0519) and along potential submarine cable routes to a landfall location in Delaware. DATES: This Authorization is effective for a period of one year, from April 5, 2021 through April 4, 2022. FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the applications khammond on DSKJM1Z7X2PROD with NOTICES SUMMARY: VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at: www.fisheries.noaa.gov/ national/marine-mammal-protection/ incidental-take-authorizations-otherenergy-activities-renewable. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: Background The MMPA prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other ‘‘means of effecting the least practicable adverse impact’’ on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as ‘‘mitigation’’); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. Summary of Request On August 12, 2020, NMFS received a request from Skipjack for an IHA to take marine mammals incidental to marine site characterization surveys offshore of Delaware in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS–A 0519) and along potential submarine PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 18943 cable routes to a landfall location in Delaware. Revised versions of the application were received on September 21, 2020 and November 5, 2020. The application was deemed adequate and complete on December 12, 2020. Skipjack’s request is for take of a small number of 16 species of marine mammals by Level B harassment only. Neither Skipjack nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. NMFS previously issued an IHA to Skipjack for similar work in the same geographic area on December 3, 2019 (84 FR 66156) with effectives dates from November 26, 2019 through November 25, 2020. Skipjack complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHA and given the similarity in activities and location, relevant information regarding their previous marine mammal monitoring results may be found in the Estimated Take section. Description of the Specified Activity Skipjack plans to conduct marine site characterization surveys, including high-resolution geophysical (HRG) surveys, in the area of OCS–A 0519 (Lease Area) and along potential submarine cable routes to landfall locations in Delaware over approximately 200 days. The purpose of the marine site characterization surveys are to obtain a baseline assessment of seabed (geophysical, geotechnical, and geohazard), ecological, and archeological conditions within the footprint of offshore wind facility development. Underwater sound resulting from Skipjack’s planned activities, specifically certain acoustic sources planned for use during surveys, has the potential to result in incidental take of marine mammals in the form of behavioral harassment (i.e., Level B harassment only). Impulsive sources (e.g., sparker systems) would be utilized for 50 survey days while the nonimpulsive sources (e.g., CHIRP subbottom profilers (SBPs)) would be used for the remaining 150 days. The survey activities planned by Skipjack are described in detail in the notice of proposed IHA (86 FR 11239; February 24, 2021). The HRG survey equipment that may be used by Skipjack are shown in Table 1. E:\FR\FM\12APN1.SGM 12APN1 18944 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices TABLE 1—SUMMARY OF REPRESENTATIVE HRG SURVEY EQUIPMENT Equipment Operating frequency (kHz) Acoustic source type SLrms (dB re 1 μPa m) SL0-pk (dB re 1 μPa m) Pulse duration (width) (millisecond) Repetition rate (Hz) Beamwidth (degrees) CF= Crocker and Fratantonio (2016) MAN = Manufacturer Non-impulsive, Non-parametric, Shallow Sub-bottom Profilers (CHIRP Sonars) ET 216 (2000DS or 3200 top unit). ET 424 .................................. ET 512 .................................. GeoPulse 5430A .................. Teledyne Benthos Chirp III— TTV 170. Non-impulsive, mobile, intermittent. Non-impulsive, mobile, intermittent. Non-impulsive, mobile, intermittent. Non-impulsive, mobile, intermittent. Non-impulsive, mobile, intermittent. 2–16 2–8 195 .................... 20 6 24 MAN. 4–24 176 .................... 3.4 2 71 CF. 0.7–12 179 .................... 9 8 80 CF. 2–17 196 .................... 50 10 55 MAN. 2–7 197 .................... 60 15 100 MAN. Impulsive, Medium Sub-bottom Profilers (Sparkers & Boomers) AA, Dura-spark UHD (400 tips, 500 J). AA, Dura-spark UHD (400+400). GeoMarine, Geo-Source dual 400 tip sparker (800 J). GeoMarine Geo-Source 200 tip sparker (400 J). GeoMarine Geo-Source 200– 400 tip sparker (400 J). AA, triple plate S-Boom (700–1,000 J). Impulsive, mobile 0.3–1.2 203 211 1.1 4 Omni CF. Impulsive, mobile 0.3–1.2 203 211 1.1 4 Omni Impulsive, mobile 0.4–5 203 211 1.1 2 Omni Impulsive, mobile 0.3–1.2 203 211 1.1 4 Omni Impulsive, mobile 0.3–1.2 203 211 1.1 4 Omni Impulsive, mobile 0.1–5 205 211 0.6 4 80 CF (AA Dura-spark UHD Proxy). CF (AA Dura-spark UHD Proxy). CF (AA Dura-spark UHD Proxy). CF (AA Dura-spark UHD Proxy). CF. As described above, a detailed description of Skipjack’s planned surveys is provided in the Federal Register notice for the proposed IHA (86 FR 11239; February 24, 2021). Since that time, no changes have been made to the planned survey activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity. Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting below). khammond on DSKJM1Z7X2PROD with NOTICES Comments and Responses A notice of NMFS’s proposal to issue an IHA to Skipjack was published in the Federal Register on February 24, 2021 (86 FR 11239). During the 30-day comment period, NMFS received comments from: (1) A group of environmental non-governmental organizations (ENGOs) including the Natural Resources Defense Council, Conservation Law Foundation, National Wildlife Federation, Defenders of Wildlife, Southern Environmental Law Center, Wildlife Conservation Society, Surfrider Foundation, Mass Audubon, Friends of the Earth, International Fund for Animal Welfare, NY4WHALES, WDC Whale and Dolphin Conservation, Marine Mammal Alliance Nantucket, VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 Gotham Whale, All Our Energy, Seatuck Environmental Association, Inland Ocean Coalition, Nassau Hiking & Outdoor Club, and Connecticut Audubon Society; and (2) the Delaware Department of Resources and Environmental Control (DNREC). NMFS has posted the comments online at: www.fisheries.noaa.gov/ national/marine-mammal-protection/ incidental-take-authorizations-otherenergy-activities-renewable. Please see the letters for full detail and rationale for the comments. Comment 1: The ENGOs recommended that NMFS incorporate additional data sources into calculations of marine mammal density and take and that NMFS must ensure all available data are used to ensure that any potential shifts in North Atlantic right whale habitat usage are reflected in estimations of marine mammal density and take. The ENGOs asserted in general that the density models used by NMFS do not fully reflect the abundance, distribution, and density of marine mammals for the U.S. East Coast and therefore result in an underestimate of take. Response: At the outset of their letter, the ENGOs note that the comments reflect overarching concerns regarding NMFS’ IHAs for marine site characterization survey (including HRG PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 survey) activities required for offshore wind energy development, as well as their intention that the comments be considered in relation to all authorizations associated with marine site characterization activities for offshore wind energy off the U.S. East Coast. The comments provided in the letter apparently focus concern on available data regarding the Massachusetts and Rhode Island and Massachusetts Wind Energy Areas, and on North Atlantic right whale habitat usage within those areas. As such, the specific comments pertaining to those data and right whale habitat usage within those areas are not germane to this specific action, i.e., issuance of an IHA associated with HRG survey activity off of Delaware. We address the general comments regarding sufficiency of the available data on marine mammal occurrence below. Habitat-based density models produced by the Duke University Marine Geospatial Ecology Lab (MGEL) (Roberts et al. 2016, 2017, 2018, 2020) represent the best available scientific information concerning marine mammal occurrence within the U.S. Atlantic Ocean. Density models were originally developed for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016); more information, including the model results and supplementary information for each E:\FR\FM\12APN1.SGM 12APN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices of those models, is available at seamap.env.duke.edu/models/Duke-ECGOM-2015/. These models provided key improvements over previously available information, by incorporating additional aerial and shipboard survey data from NMFS and from other organizations collected over the period 1992–2014, incorporating 60 percent more shipboard and 500 percent more aerial survey hours than did previously available models; controlling for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting; and modeling density from an expanded set of eight physiographic and 16 dynamic oceanographic and biological covariates. In subsequent years, certain models have been updated on the basis of additional data as well as methodological improvements. In addition, a new density model for seals was produced as part of the 2017–18 round of model updates. Of particular note, Roberts et al. (2020) further updated density model results for North Atlantic right whales by incorporating additional sighting data and implementing three major changes: Increasing spatial resolution, generating monthly estimates on three time periods of survey data, and dividing the study area into five discrete regions. This most recent update— model version 9 for North Atlantic right whales—was undertaken with the following objectives (Roberts et al., 2020): • To account for recent changes to right whale distributions, the model should be based on survey data that extend through 2018, or later if possible. In addition to updates from existing collaborators, data should be solicited from two survey programs not used in prior model versions: Æ Aerial surveys of the Massachusetts and Rhode Island Wind Energy Areas led by New England Aquarium (Kraus et al., 2016), spanning 2011–2015 and 2017–2018. Æ Recent surveys of New York waters, either traditional aerial surveys initiated by the New York State Department of Environmental Conservation in 2017, or digital aerial surveys initiated by the New York State Energy Research and Development Authority in 2016, or both. • To reflect a view in the right whale research community that spatiotemporal patterns in right whale density changed around the time the species entered a decline in approximately 2010, consider basing the new model only on recent years, including contrasting ‘‘before’’ and ‘‘after’’ models that might illustrate shifts in density, as well as a model VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 spanning both periods, and specifically consider which model would best represent right whale density in the near future. • To facilitate better application of the model to near-shore management questions, extend the spatial extent of the model farther in-shore, particularly north of New York. • Increase the resolution of the model beyond 10 kilometers (km), if possible. All of these objectives were met in developing the most recent update to the North Atlantic right whale density model. The commenters do not cite this most recent report, and the comments suggest that the aforementioned data collected by the New England Aquarium is not reflected in the model. Therefore, it is unclear whether the commenters are aware of the most recently available data, which is used herein. As noted above, NMFS has determined that the Roberts et al. suite of density models represent the best available scientific information, and we specifically note that the most recent version of the North Atlantic right whale model may address some of the specific concerns provided by the commenters. However, NMFS acknowledges that there will always be additional data that is not reflected in the models and that may inform our analyses, whether because the data were not made available to the model authors or because the data is more recent than the latest model version for a specific taxon. NMFS will review any recommended data sources to evaluate their applicability in a quantitative sense (e.g., to an estimate of take numbers) and, separately, to ensure that relevant information is considered qualitatively when assessing the impacts of the specified activity on the affected species or stocks and their habitat. NMFS will continue to use the best available scientific information, and we welcome future input 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 U.S. Atlantic waters. The ENGOs cited several additional sources of information that are not reflected in currently available density models, including sightings databases and passive acoustic monitoring (PAM) efforts. However, no specific recommendations were made with regard to use of this information in informing the take estimates. Rather, the commenters reference a disparate array of data sources (some which are indeed reflected in the most recent models) and suggest that NMFS should ‘‘collate and PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 18945 integrate these and more recent data sets to more accurately reflect marine mammal presence for future IHAs and other work.’’ NMFS would welcome in the future constructive suggestions as to how these objectives might be more effectively accomplished. NMFS used the best scientific information available at the time the analyses for the proposed IHA were conducted, and has considered all available data, including sources referenced by the commenters, in reaching its determinations in support of issuance of the IHA requested by Skipjack. Comment 2: The ENGOs noted that the Roberts et al. model does not differentiate between species of pilot whale or seal or between stocks of bottlenose dolphin. The ENGOs express concern that, as a result, NMFS may not conduct the appropriate species-or stock-specific negligible impact analysis. The ENGOs also imply that use of these models may produce inaccurate take numbers by stating that ‘‘[m]iscalculation of take levels based on incomplete data could have serious implications for the future conservation of these species and stocks.’’ Response: The MMPA requires that species- or stock-specific negligible impact determinations be made, and NMFS has done so. In this case, NMFS has authorized take numbers specific to each affected species or stock. As a general matter, NMFS is unaware of any available density data which differentiates between species of pilot whales or seals, or stocks of bottlenose dolphins. However, lack of such data does not preclude the requisite speciesor stock-specific findings. In the event that an amount of take is authorized at the guild or species level only, e.g., for pilot whales or bottlenose dolphins, respectively, NMFS may adequately evaluate the effects of the activity by conservatively assuming (for example) that all takes authorized for the guild or species would accrue to each potentially affected species or stock. In this case, NMFS has apportioned the overall take number for bottlenose dolphins according to stock, as described in the Estimated Take section and, for pilot whales, has assigned take on the basis of an assumed group size of 10 for each potentially affected species. NMFS does not agree that use of these models is likely to result in miscalculation of take levels, and the commenters do not provide support for this statement. Comment 3: The ENGOs assert that NMFS has not acknowledged the use of areas south of Nantucket and Martha’s Vineyard as important habitat for foraging and social behavior for North Atlantic right whales, but rather that E:\FR\FM\12APN1.SGM 12APN1 khammond on DSKJM1Z7X2PROD with NOTICES 18946 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices NMFS believes the areas are important solely as a migratory pathway. The commenters also asserted that NMFS is overly reliant on the description of biologically important areas (BIA) provided in LaBrecque et al. (2015), stating that ‘‘NMFS should not rely on the North Atlantic right whale migratory corridor BIA as the sole indicator of habitat importance for the species.’’ Response: The specified activity associated with the IHA addressed herein is located off of Delaware. Therefore, this comment is not relevant to issuance of this IHA. However, as a general matter, NMFS disagrees with the commenters’ assertion. Although NMFS has in other notices discussed at length the use of the referenced area as a migratory pathway (and recognition of such use through the area’s description as a BIA for right whales), we have also acknowledged the more recent data and its implications for the use of the referenced area (see, e.g., 85 FR 63508; December 7, 2018; 86 FR 11930; March 1, 2021). Similarly, NMFS does not agree with the assertion that our understanding of important habitat for marine mammals stems solely from existing, described BIAs. NMFS concurs with the statement that BIAs are not comprehensive and are intended to be periodically reviewed and updated and we routinely review newly available information to inform our understanding of important marine mammal habitat. In this case, the specified geographical region does not include important habitat other than that described as being the migratory pathway for right whales. Comment 4: The ENGOs commented that the waters off Cape Hatteras, North Carolina, have high marine mammal biodiversity and that marine mammals occur at unusually high densities off Cape Hatteras compared to other areas along the East Coast. The ENGOs asserted that this area demands special attention from NMFS. Response: NMFS concurs with the commenters regarding the importance of deepwater areas off of Cape Hatteras. However, the specific activity associated with the IHA addressed herein does not occur off of Cape Hatteras and, in general, the site characterization surveys conducted in support of wind energy development that are the subject of the ENGO comment letter occur in shallow water (not the area of high biodiversity and density referenced by commenters). When appropriate, NMFS has accorded special attention to the development of additional mitigation for activities conducted in that location (e.g., 83 FR 63268; December 7, 2018). NMFS uses the best available scientific information VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 when analyzing potential impacts to marine mammals and in developing prescribed mitigation sufficient to meet the MMPA’s ‘‘least practicable adverse impact’’ standard, and has done so in this case. Comment 5: The ENGOs asserted that NMFS must analyze cumulative impacts to North Atlantic right whales and other marine mammal species and stocks and ensure appropriate mitigation of these cumulative impacts. The commenters express particular concern about the cumulative impacts of survey activities off Rhode Island and Massachusetts on North Atlantic right whales. They further recommended that NMFS develop programmatic incidental take regulations applicable to site characterization activities. Response: Neither the MMPA nor NMFS’ codified implementing regulations call for consideration of other unrelated activities and their impacts on populations. The preamble for NMFS’ implementing regulations (54 FR 40338; September 29, 1989) states in response to comments that the impacts from other past and ongoing anthropogenic activities are to be incorporated into the negligible impact analysis via their impacts on the baseline. Consistent with that direction, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline, e.g., as reflected in the density/ distribution and status of the species, population size and growth rate, and other relevant stressors. The 1989 implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There NMFS stated that such effects are not considered in making findings under section 101(a)(5) concerning negligible impact. In this case, both this IHA, as well as other IHAs currently in effect or proposed within the specified geographic region, are appropriately considered an unrelated activity relative to the others. The IHAs are unrelated in the sense that they are discrete actions under section 101(a)(5)(D), issued to discrete applicants. Section 101(a)(5)(D) of the MMPA requires NMFS to make a determination that the take incidental to a ‘‘specified activity’’ will have a negligible impact on the affected species or stocks of marine mammals. NMFS’ implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals. 50 CFR 216.104(a)(1). Thus, the PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 ‘‘specified activity’’ for which incidental take coverage is being sought under section 101(a)(5)(D) is generally defined and described by the applicant. Here, Skipjack was the applicant for the IHA, and we are responding to the specified activity as described in that application (and making the necessary findings on that basis). Through the response to public comments in the 1989 implementing regulations, we also indicated (1) that NMFS would consider cumulative effects that are reasonably foreseeable when preparing a NEPA analysis, and (2) that reasonably foreseeable cumulative effects would also be considered under section 7 of the ESA for ESA-listed species. In this case, cumulative impacts have been adequately addressed under NEPA in prior environmental analyses that form the basis for NMFS’ determination that this action is appropriately categorically excluded from further NEPA analysis. Regarding activities in the Mid- and South Atlantic region, in 2018 NMFS signed a Record of Decision that (1) adopted the Bureau of Ocean Energy Management’s 2014 Final Programmatic Environmental Impact Statement that evaluated the direct, indirect, and cumulative impacts of geological and geophysical survey activities on the Mid- and South Atlantic Outer Continental Shelf to support NMFS’ analysis associated with issuance of incidental take authorizations pursuant to sections 101(a)(5)(A) or (D) of the MMPA and the regulations governing the taking and importing of marine mammals (50 CFR part 216), and (2) in accordance with 40 CFR 1505.2, announced and explained the basis for our decision to review and potentially issue incidental take authorizations under the MMPA on a case-by-case basis, if appropriate. Separately, NMFS has previously written Environmental Assessments (EA) that addressed cumulative impacts related to substantially similar activities, in similar locations, e.g., 2019 Orsted EA for survey activities offshore southern New England; 2019 Avangrid EA for survey activities offshore North Carolina and Virginia; 2018 Deepwater Wind EA for survey activities offshore Delaware, Massachusetts, and Rhode Island. Separately, cumulative effects were analyzed as required through NMFS’ required intra-agency consultation under section 7 of the ESA, which determined that NMFS’ action of issuing the IHA is not likely to adversely affect listed marine mammals or their critical habitat. Finally, the ENGOs suggested that NMFS should promulgate programmatic E:\FR\FM\12APN1.SGM 12APN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices incidental take regulations for site characterization activities. Although NMFS is open to this approach, we have not received a request for such regulations. The ENGOs do not explain their apparent position that NMFS may advance regulations absent a requester. Comment 6: The ENGOs state that NMFS should not adjust estimated take numbers for large whales on the basis of assumed efficacy of mitigation requirements, and assert that NMFS’ assumptions regarding effectiveness of mitigation requirements are unfounded. Response: In this case, NMFS did not propose to adjust downward any estimated take number based on proposed mitigation measures, and has not done so in the issued IHA. Therefore, the comment is not relevant to this specific action. Generally, NMFS does not agree with the apparent contention that it is never appropriate to reduce estimated take numbers based on anticipated implementation and effectiveness of mitigation measures, and will continue to evaluate the appropriateness of doing so on a casespecific basis. While we acknowledge the commenters’ concerns regarding unfounded assumptions concerning the effectiveness of mitigation requirements in reducing actual take, it is important to also acknowledge the circumstances of a particular action. In most cases, the maximum estimated Level B harassment zone associated with commonly-used acoustic sources is approximately 150 meters (m), whereas the typicallyrequired shutdown zone for North Atlantic right whales is 500 m. For North Atlantic right whales, NMFS expects that this requirement will indeed be effective in reducing actual take below the estimated amount, which typically does not account for the beneficial effects of mitigation. Comment 7: The ENGOs state that NMFS must require mitigation measures that meet the least practicable adverse impact standard, imply that the requirements prescribed by NMFS have not met that standard, and recommend various measures that the commenters state NMFS should require. The ENGOs first state that NMFS should prohibit site assessment and characterization activities involving equipment with noise levels that the commenters assert could cause injury or harassment to North Atlantic right whales during periods of highest risk, which the commenters define as times of highest relative density of animals during their migration, and times when mother-calf pairs, pregnant females, surface active groups, or aggregations of three or more whales are, or are VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 expected to be, present. The commenters additionally state that NMFS should require that work commence only during daylight hours and good visibility conditions to maximize the probability that marine mammals are detected and confirmed clear of the exclusion zone before activities begin. If the activity is halted or delayed because of documented or suspected North Atlantic right whale presence in the area, the commenters state that NMFS should require operators to wait until daylight hours and good visibility conditions to recommence. Response: NMFS acknowledges the limitations inherent in detection of marine mammals at night. However, no injury is expected to result even in the absence of mitigation, given the characteristics of the sources planned for use (supported by the very small estimated Level A harassment zones). The ENGOs do not provide any support for the apparent contention that injury is a potential outcome of these activities. Regarding Level B harassment, any potential impacts would be limited to short-term behavioral responses, as described in greater detail herein. The commenters establish that the status of North Atlantic right whales in particular is precarious. NMFS agrees in general with the discussion of this status provided by the commenters. NMFS also agrees with the commenters that certain recommended mitigation requirements, e.g., avoiding impacts in places and times of greatest importance to marine mammals, limiting operations to times of greatest visibility, would be effective in reducing impacts. However, the commenters fail entirely to establish that Skipjack’s specified site assessment and characterization survey activities— or site assessment and characterization survey activities in general—would have impacts on North Atlantic right whales (or any other species) such that operational limitations would be warranted. In fact, NMFS considers this category of survey operations to be near de minimis, with the potential for Level A harassment for any species to be discountable and the severity of Level B harassment (and, therefore, the impacts of the take event on the affected individual), if any, to be low. In that context, there is no need for more restrictive mitigation requirements, and the commenters offer no justification to the contrary. 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 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 18947 reduction in either intensity or duration of noise exposure. Vessels would also potentially be on the water for an extended time introducing noise into the marine environment. 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. Furthermore, restricting the applicant to begin operations 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 and, subsequently, 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 consideration of the likely effects of the activity on marine mammals absent mitigation, potential unintended consequences of the measures as proposed by the commenters, and practicability of the recommended measures for the applicant, NMFS has determined that restricting operations as recommended is not warranted or practicable in this case. Comment 8: The ENGOs recommended that NMFS establish an exclusion zone (EZ) of 1,000-m around each vessel conducting activities with noise levels that they assert could result in injury or harassment to North Atlantic right whales, and a minimum EZ of 500 m for all other large whale species and strategic stocks of small cetaceans. Response: NMFS disagrees with this recommendation, and has determined that the EZs included here are sufficiently protective. We note that the 500-m EZ for North Atlantic right whales exceeds the modeled distance to the largest Level B harassment isopleth distance (141 m) by a factor of more than three. The commenters do not provide any justification for the contention that the existing EZs are insufficient, and do not provide any rationale for their recommended alternatives (other than that they are larger). Comment 9: The ENGOs stated that NMFS’ requirements related to visual monitoring are inadequate. The commenters specifically noted their belief that a requirement for one Protected Species Observer (PSO) to be E:\FR\FM\12APN1.SGM 12APN1 khammond on DSKJM1Z7X2PROD with NOTICES 18948 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices on duty during daylight hours is insufficient, and recommended that NMFS require the use of infrared equipment to support visual monitoring by PSOs during periods of darkness. DNREC also recommended that infrared equipment be used to support visual monitoring by PSOs during periods of darkness. Response: NMFS typically requires that a single PSO must be stationed at the highest vantage point and engaged in general 360-degree scanning during daylight hours only. Although NMFS acknowledges that the single PSO cannot reasonably maintain observation of the entire 360-degree area around the vessel, it is reasonable to assume that the single PSO engaged in continual scanning of such a small area (i.e., 500m EZ, which is greater than the maximum 141-m harassment zone) will be successful in detecting marine mammals that are available for detection at the surface. The monitoring reports submitted to NMFS have demonstrated that PSOs active only during daylight operations are able to detect marine mammals and implement appropriate mitigation measures. As far as visual monitoring at night, we have not historically required visual monitoring at night because available information demonstrated that such monitoring should not be considered effective. However, as night vision technology has continued to improve, NMFS has adapted its practice, and two PSOs are required to be on duty at night. Moreover, NMFS has included a requirement in the final IHA that nightvision equipment (i.e., night-vision goggles and/or infrared technology) must be available for use. Regarding specific technology cited by the ENGOs, NMFS appreciates the suggestion and agrees that relatively new detection platforms have shown promising results. Following review of the ENGO’s letter, we considered these and other supplemental platforms as suggested. However, to our knowledge, there is no clear guidance available for operators regarding characteristics of effective systems, and the detection systems cited by the commenters are typically extremely expensive, and are therefore considered impracticable for use in most surveys. The commenters do not provide specific suggestions with regard to recommended systems or characteristics of systems. NMFS does not generally consider requirements to use systems such as those cited by the commenters to currently be practicable. Comment 10: The ENGOs recommended that NMFS should require PAM at all times, both day and night, to maximize the probability of VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 detection for North Atlantic right whales, and other species and stocks. DNREC echoed this recommendation. Response: The foremost concern expressed by the ENGOs in making the recommendation to require use of PAM is with regard to North Atlantic right whales. However, the commenters do not explain why they expect that PAM would be effective in detecting vocalizing mysticetes. It is generally well-accepted fact that, even in the absence of additional acoustic sources, using a towed passive acoustic sensor to detect baleen whales (including right whales) is not typically effective because the noise from the vessel, the flow noise, and the cable noise are in the same frequency band and will mask the vast majority of baleen whale calls. Vessels produce low-frequency noise, primarily through propeller cavitation, with main energy in the 5–300 Hertz (Hz) frequency range. Source levels range from about 140 to 195 dB re 1 mPa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on factors such as ship type, load, and speed, and ship hull and propeller design. Studies of vessel noise show that it appears to increase background noise levels in the 71–224 Hz range by 10–13 dB (Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems employ hydrophones towed in streamer cables approximately 500 m behind a vessel. Noise from water flow around the cables and from strumming of the cables themselves is also low-frequency and typically masks signals in the same range. Experienced PAM operators participating in a recent workshop (Thode et al., 2017) emphasized that a PAM operation could easily report no acoustic encounters, depending on species present, simply because background noise levels rendered any acoustic detection impossible. The same workshop report stated that a typical eight-element array towed 500 m behind a vessel could be expected to detect delphinids, sperm whales, and beaked whales at the required range, but not baleen whales, due to expected background noise levels (including seismic noise, vessel noise, and flow noise). There are several additional reasons why we do not agree that use of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances, its utility in further reducing impact during HRG survey activities is limited. First, for this activity, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 141 m)—this reflects the PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 fact that, to start with, the source level is comparatively low and the intensity of any resulting impacts would be lower level and, further, it means that inasmuch as PAM will only detect a portion of any animals exposed within a zone, the overall probability of PAM detecting an animal in the harassment zone is low—together these factors support the limited value of PAM for use in reducing take with smaller zones. PAM is only capable of detecting animals that are actively vocalizing, while many marine mammal species vocalize infrequently or during certain activities, which means that only a subset of the animals within the range of the PAM would be detected (and potentially have reduced impacts). Additionally, localization and range detection can be challenging under certain scenarios. For example, odontocetes are fast moving and often travel in large or dispersed groups which makes localization difficult. Given that the effects to marine mammals from the types of surveys authorized in this IHA are expected to be limited to low level behavioral harassment even in the absence of mitigation, the limited additional benefit anticipated by adding this detection method (especially for right whales and other low frequency cetaceans, species for which PAM has limited efficacy), and the cost and impracticability of implementing a fulltime PAM program, we have determined the current requirements for visual monitoring are sufficient to ensure the least practicable adverse impact on the affected species or stocks and their habitat. Comment 11: The ENGOs recommended that NMFS require applicants to use the lowest practicable source level. Response: Wind energy developers selected the equipment necessary during HRG surveys to achieve their objectives. As part of the analysis for all HRG IHAs, NMFS evaluated the effects expected as a result of use of this equipment, made the necessary findings, and imposed mitigation requirements sufficient to achieve the least practicable adverse impact on the affected species and stocks of marine mammals. It is not within NMFS’ purview to make judgments regarding what constitutes the ‘‘lowest practicable source level’’ for an operator’s survey objectives. Comment 12: The ENGOs recommended that NMFS require all offshore wind energy related project vessels operating within or transiting to/ from survey areas, regardless of size, to E:\FR\FM\12APN1.SGM 12APN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices observe a 10-knot speed restriction during the entire survey period. Response: NMFS does not concur with these measures. NMFS has analyzed the potential for ship strike resulting from various HRG activities 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 km/hour) or less speed restrictions in any established dynamic management area (DMA) or seasonal management area (SMA); a requirement that all vessel operators reduce vessel speed to 10 knots (18.5 km/hour) or less when any large whale, mother/calf pairs, pods, or large assemblages of non-delphinid 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; a requirement that all vessels must maintain a minimum separation distance of 100 m from sperm whales and all other baleen whales; and a requirement that all vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an understanding that at times this may not be possible (e.g., for animals that approach the vessel). 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. Furthermore, no documented vessel strikes have occurred for any marine site characterization survey activities which were issued IHAs from NMFS. Comment 13: The ENGOs recommend that NMFS work with relevant experts and stakeholders towards developing a robust and effective near real-time monitoring and mitigation system for North Atlantic right whales and other endangered and protected species (e.g., fin, sei, minke, and humpback whales) during offshore wind energy development. Response: NMFS is generally supportive of this concept. A network of near real-time baleen whale monitoring devices are active or have been tested in portions of New England and Canadian waters. These systems employ various digital acoustic monitoring instruments which have been placed on autonomous VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 platforms including slocum gliders, wave gliders, profiling floats and moored buoys. Systems that have proven to be successful will likely see increased use as operational tools for many whale monitoring and mitigation applications. The ENGOs cited the NMFS publication ‘‘Technical Memorandum NMFS-OPR-64: North Atlantic Right Whale Monitoring and Surveillance: Report and Recommendations of the National Marine Fisheries Service’s Expert Working Group’’ which is available at: https://www.fisheries.noaa.gov/ resource/document/north-atlantic-rightwhale-monitoring-and-surveillancereport-and-recommendations. This report summarizes a workshop NMFS convened to address objectives related to monitoring North Atlantic right whales and presents the Expert Working Group’s recommendations for a comprehensive monitoring strategy to guide future analyses and data collection. Among the numerous recommendations found in the report, the Expert Working Group encouraged the widespread deployment of autobuoys to provide near real-time detections of North Atlantic right whale calls that visual survey teams can then respond to for collection of identification photographs or biological samples. Comment 14: The ENGOs state that NMFS must not issue Renewal IHAs, and assert that the process is contrary to statutory requirements. 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. As noted above, the Comments and Responses 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 Comments and Responses section) is limited to another year of identical or nearly identical activities in the same location (as described in the Description of Specified Activity section) or the same activities 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. While there will be additional documents submitted with a Renewal PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 18949 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, in order to verify that effects from the activities do not indicate impacts of a scale or nature not previously analyzed. The additional 15-day public comment period provides the public an opportunity to review these few documents, provide any additional pertinent information and comment on whether they think the criteria for a Renewal have been met. Between the initial 30-day comment period on these same activities and the additional 15 days, the total comment period for a Renewal is 45 days. Comment 15: The ENGOs expressed concern about past instances where NMFS has modified issued IHAs in response to preliminary monitoring data indicating that certain species of marine mammal were being encountered more frequently than anticipated. Response: No modifications are included as part of this action and, therefore, this comment is not relevant to this IHA. Changes From the Proposed IHA to Final IHA NMFS has revised the final IHA to include a section requiring that nightvision equipment (i.e., night-vision goggles and/or infrared technology) must be available for use during nighttime monitoring. NMFS has also included language in the IHA stating that all vessels, regardless of size, must observe a 10-knot speed restriction in specific areas designated by NMFS for the protection of North Atlantic right whales from vessel strikes including SMAs and DMAs when in effect and that all vessels greater than or equal to 19.8 m in overall length operating from November 1 through April 30 will operate at speeds of 10 knots or less while transiting to and from Project Area. E:\FR\FM\12APN1.SGM 12APN1 18950 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices The language above was included in the text of the notice of proposed IHA but inadvertently omitted from the draft IHA. There were no other changes from the proposed IHA to the final IHA. 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’s Stock Assessment Reports (SARs; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (https:// www.fisheries.noaa.gov/find-species). Table 2 lists all species or stocks for which take is expected and authorized for this action, and 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, NMFS follows Committee on Taxonomy (2020). 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’s SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or Project Area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’s U.S. Atlantic SARs. All values presented in Table 2 are the most recent available at the time of publication and are available in the 2019 Atlantic and Gulf of Mexico Marine Mammal SARs (Hayes et al., 2020), available online at: www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessment-reportsregion and draft 2020 Atlantic and Gulf of Mexico Marine Mammal SARs available online at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/draftmarine-mammal-stock-assessmentreports. TABLE 2—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE AFFECTED BY SKIPJACK’S ACTIVITY Common name Scientific name Stock I ESA/ MMPA status; strategic (Y/N) 1 Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR I Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Balaenidae: North Atlantic right whale Family Balaenopteridae (rorquals): Humpback whale ............ Fin whale ........................ Sei whale ........................ Minke whale ................... Eubalaena glacialis .............. Western North Atlantic ......... E/D; Y 412 (0; 408; 2018) ............... 0.8 18.6 Megaptera novaeangliae ...... Balaenoptera physalus ......... Balaenoptera borealis .......... Gulf of Maine ........................ Western North Atlantic ......... Nova Scotia .......................... -/-; Y E/D; Y E/D; Y 22 11 6.2 58 2.35 1.2 Balaenoptera acutorostrata .. Canadian East Coast ........... -/-; N 1,393 (0; 1,375; 2016) ......... 6,802 (0.24; 5,573; 2016) .... 6,292 (1.015; 3,098; see SAR). 21,968 (0.31; 17,002; 2016) 170 10.6 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) khammond on DSKJM1Z7X2PROD with NOTICES Family Physeteridae: Sperm whale .................. Family Delphinidae: Long-finned pilot whale .. Physeter macrocephalus ...... NA ........................................ E; Y 4,349 (0.28;3,451; See SAR) 3.9 0 Globicephala melas .............. Western North Atlantic ......... -/-; N 30,627; See 306 21 Short finned pilot whale Globicephala macrorhynchus Western North Atlantic ......... -/-;Y 23,637; See 236 160 Bottlenose dolphin .......... Tursiops truncatus ................ -/-; N -/-;Y 39,215 (0.30; SAR). 28,924 (0.24; SAR). 62,851 (0.23; SAR). 6,639 (0.41,4 51,914; See 519 48 28 12.2–21.5 1,452 399 544 26 320 303 0 54.3 851 217 1,389 5,410 Common dolphin ............ Delphinus delphis ................. Western North Atlantic Offshore. W.N.A. Northern Migratory Coastal. Western North Atlantic ......... Atlantic white-sided dolphin. Atlantic spotted dolphin .. Risso’s dolphin ............... Lagenorhynchus acutus ....... Western North Atlantic ......... -/-; N Stenella frontalis ................... Grampus griseus .................. Western North Atlantic ......... Western North Atlantic ......... -/-; N -/-; N Phocoena phocoena ............ Gulf of Maine/Bay of Fundy -/-; N Family Phocoenidae (porpoises): Harbor porpoise ............. -/-; N ,759, 2016) .... 172,897 (0.21; 145, 216; 2016). 93,233 (0.71; 54,443; See SAR). 39,921 (0.27; 32,032; 2012) 35,493 (0.19; 30,289; See SAR). 95,543 (0.31; 74,034; See SAR). Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals): Gray seal 4 ...................... VerDate Sep<11>2014 Halichoerus grypus .............. 21:37 Apr 09, 2021 Jkt 253001 PO 00000 Western North Atlantic ......... Frm 00015 Fmt 4703 Sfmt 4703 -/-; N 27,131 (0.19; 23,158, 2016) E:\FR\FM\12APN1.SGM 12APN1 18951 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices TABLE 2—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE AFFECTED BY SKIPJACK’S ACTIVITY—Continued Common name Harbor seal ..................... ESA/ MMPA status; strategic (Y/N) 1 Scientific name Stock Phoca vitulina ....................... Western North Atlantic ......... I-/-; N Stock abundance (CV, Nmin, most recent abundance survey) 2 I75,834 (0.15; 66,884, 2018) I Annual M/SI 3 PBR 2,006 I 350 1 ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-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 Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 451,431. As indicated above, all 16 species (with 17 managed stocks) in Table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur and has been authorized by NMFS. A detailed description of the of the species likely to be affected by Skipjack’s surveys, 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 notice of proposed IHA (86 FR 11239; February 24, 2021); 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 notice for these descriptions. Please also refer to NMFS’ website (www.fisheries.noaa.gov/find-species) for generalized species accounts. khammond on DSKJM1Z7X2PROD with NOTICES Potential Effects of Specified Activities on Marine Mammals and Their Habitat The underwater noise from Skipjack’s survey activities has the potential to result in behavioral harassment of marine mammals in the vicinity of the survey area. The notice of proposed IHA (86 FR 11239; February 24, 2021) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from Skipjack’s survey activities on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of proposed IHA (86 FR 11239; February 24, 2021). Estimated Take This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS’ consideration of VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 ‘‘small numbers’’ and the negligible impact determination. Level B harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Authorized takes are by Level B harassment only. Based on the nature of the activity, even in the absence of mitigation, Level A harassment is neither anticipated nor authorized. The anticipated effectiveness of the required mitigation measures (i.e., exclusion zones and shutdown measures), discussed in detail below in Mitigation section, serves to strengthen the position that Level A harassment is not expected. 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) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 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 NMFS recommends the use of 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., 2012). 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 NMFS considers Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 mPa (rms) for continuous (e.g., vibratory piledriving, drilling) and above 160 dB re 1 mPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. Skipjack’s planned activity includes the use of intermittent sources (HRG equipment) and therefore the 160 dB re 1 mPa (rms) is applicable. E:\FR\FM\12APN1.SGM 12APN1 18952 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices Level A harassment for non-explosive sources—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or nonimpulsive). Skipjack’s planned activity includes the use of impulsive (e.g., sparkers and boomers) and nonimpulsive (e.g., CHIRP) sources. These thresholds are provided in Table 3 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.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-acoustic-technicalguidance. TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset acoustic thresholds * (received level) Hearing group Impulsive Low-Frequency (LF) Cetaceans ...................................... Mid-Frequency (MF) Cetaceans ...................................... High-Frequency (HF) Cetaceans ..................................... Phocid Pinnipeds (PW) (Underwater) ............................. Otariid Pinnipeds (OW) (Underwater) ............................. Cell Cell Cell Cell Cell 1: 3: 5: 7: 9: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,LF,24h: 183 dB ......................... LE,MF,24h: 185 dB ........................ LE,HF,24h: 155 dB ........................ LE,PW,24h: 185 dB ....................... LE,OW,24h: 203 dB ....................... Cell Cell Cell Cell Cell 2: LE,LF,24h: 199 dB. 4: LE,MF,24h: 198 dB. 6: LE,HF,24h: 173 dB. 8: LE,PW,24h: 201 dB. 10: LE,OW,24h: 219 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 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 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. khammond on DSKJM1Z7X2PROD with NOTICES Ensonified Area Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient. NMFS has developed a user-friendly methodology for determining the rms sound pressure level (SPLrms) at the 160dB isopleth for the purposes of estimating the extent of Level B harassment isopleths associated with HRG survey equipment (NMFS, 2020). This methodology incorporates frequency and some directionality to refine estimated ensonified zones. For sources that operate with different beam widths, the maximum beam width was used (see Table 1). The lowest frequency of the source was used when calculating the absorption coefficient (Table 1). NMFS considers the data provided by Crocker and Fratantonio (2016) to represent the best available information on source levels associated with HRG equipment and, therefore, recommends that source levels provided by Crocker and Fratantonio (2016) be incorporated in the method described above to estimate isopleth distances to the Level A and Level B harassment thresholds. In cases when the source level for a specific type of HRG equipment is not provided in Crocker and Fratantonio (2016), NMFS recommends that either VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 the source levels provided by the manufacturer be used, or, in instances where source levels provided by the manufacturer are unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) be used instead. Table 1 shows the HRG equipment types that may be used during the planned surveys and the sound levels associated with those HRG equipment types. Results of modeling using the methodology described above indicated that, of the HRG survey equipment planned for use by Skipjack that has the potential to result in Level B harassment of marine mammals, sound produced by the Applied Acoustics Dura-Spark UHD sparkers and GeoMarine Geo-Source sparker would propagate furthest to the Level B harassment threshold (141 m; Table 6). As described above, only a portion of Skipjack’s survey activity days will employ sparkers or boomers; therefore, for the purposes of the exposure analysis, it was assumed that sparkers would be the dominant acoustic source for 50 of the total 200 survey activity days. For the remaining 150 survey days, the TB Chirp III (48 m) was assumed to be the dominant source. Thus, the distances to the isopleths corresponding to the threshold for Level B harassment for sparkers (141 m) and the TB Chirp III (48m) were used as the basis of the take calculation for all marine mammals 25 percent and 75 percent of survey activity days, PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 respectively. This is a conservative approach, as the actual sources used on individual survey days may produce smaller harassment distances. When the NMFS Technical Guidance was first published in 2016, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, NMFS developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. NMFS notes that because of some of the assumptions included in the methods used for these tools, it is anticipated that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment 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 HRG equipment, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed. Inputs used in the User Spreadsheet are shown in Table 4 E:\FR\FM\12APN1.SGM 12APN1 18953 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices and Table 5 and the resulting isopleths are reported in Table 6. TABLE 4—USER SPREADSHEET INPUTS FOR NON-IMPULSIVE, NON-PARAMETRIC, SHALLOW SUB-BOTTOM PROFILERS [CHIRP Sonars] Device EdgeTech 216 Edgetech 424 Edgetech 512 GeoPulse 5430 Teledyne Chirp III Spreadsheet tab used D1) Mobile source; non-impulsive, intermittent D1) Mobile source; non-impulsive, intermittent D1) Mobile source; non-impulsive, intermittent D1) Mobile source; non-impulsive, intermittent D1) Mobile source; non-impulsive, intermittent 2; 16; 16; 6.2 .............. 4; 24; 24; 6.2 .............. 1.7; 12; 12; 6.2 ........... 2; 17; 17; 6.2 .............. 2; 7; 7; 6.2. 195 .............................. 2.057 ........................... 0.02 ............................. 0.17 ............................. 176 .............................. 2.057 ........................... 0.0034 ......................... 0.5 ............................... 179 .............................. 2.057 ........................... 0.009 ........................... 0.125 ........................... 196 .............................. 2.057 ........................... 0.05 ............................. 0.1 ............................... 197. 2.057. 0.06. 0.07. Frequency used for Weighting Factor Adjustment (kHz) 1 2. Source Level (RMS SPL) ..................... Source Velocity (m/sec) ....................... Pulse Duration (sec) ............................ 1/Repetition rate (sec) .......................... 1 Values for WFA represented = (LFC; MFC; HFC; PPW). 2 WFAs were selected in the User Spreadsheet for each marine mammal hearing group based on estimated hearing sensitivities of each group and the operational frequency of the source. TABLE 5—USER SPREADSHEET INPUTS FOR IMPULSIVE, MEDIUM SUB-BOTTOM PROFILERS [Sparkers & Boomers] GeoMarine, geo-source dual 400 tip sparker (800 J) 1 GeoMarine geo-source 200 tip sparker (400 J) 1 GeoMarine geo-source 200–400 tip sparker (400 J) 1 F1) Mobile source: impulsive, intermittent F1) Mobile source: impulsive, intermittent F1) Mobile source: impulsive, intermittent 1 ......................... 1.5 .................... 1 ....................... 1 ....................... 3.4. 203; 211 ............. 2.057 .................. 0.0011 ................ 0.25 .................... 203; 211 ........... 2.057 ................ 0.0011 .............. 0.25 .................. 203; 211 ........... 2.057 ................ 0.0011 .............. 0.25 .................. 203; 211 ........... 2.057 ................ 0.0011 .............. 0.25 .................. 205; 211. 2.057. 0.0006. 0.25. Device AA, Dura-spark UHD (400 tips, 500 J) 1 AA, Dura-spark UHD (400+400) 1 Spreadsheet tab used F1) Mobile source: impulsive, intermittent F1) Mobile source: impulsive, intermittent Frequency used for Weighting Factor Adjustment (kHz) *. Source Level (RMS SPL; PK SPL) .... Source Velocity (m/sec) ..................... Pulse Duration (sec) .......................... 1/Repetition rate (sec) ........................ 1 .................................. 203; 211 ..................... 2.057 ........................... 0.0011 ......................... 0.25 ............................. AA, triple plate S boom (700–1,000 J) 2 F1) Mobile source: impulsive, intermittent 1 The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems planned for the survey. The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when manufacturer or other reliable measurements are not available. 2 Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP–D700 and CSP–N). The CSP–D700 power source was used in the 700 J measurements but not in the 1,000 J measurements. The CSP–N source was measured for both 700 J and 1,000 J operations but resulted in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S Boom. TABLE 6—MODELED RADIAL DISTANCES FROM HRG SURVEY EQUIPMENT TO ISOPLETHS CORRESPONDING TO LEVEL B HARASSMENT THRESHOLDS Distance to Level B harassment threshold (m) Source khammond on DSKJM1Z7X2PROD with NOTICES (SPLrms threshold) Non-impulsive, Non-parametric, Shallow SBPs: ET 216 CHIRP ........................................................................................................................................................................ ET 424 CHIRP ........................................................................................................................................................................ ET 512i CHIRP ....................................................................................................................................................................... GeoPulse 5430 ....................................................................................................................................................................... TB CHIRP III ........................................................................................................................................................................... Impulsive, Medium SBPs: AA Triple plate S-Boom (700/1,000 J) ................................................................................................................................... AA, Dura-spark UHD (500 J/400 tip) ..................................................................................................................................... AA, Dura-spark UHD 400+400 ............................................................................................................................................... GeoMarine, Geo-Source dual 400 tip sparker ....................................................................................................................... GeoMarine, Geo-Source 200 tip sparker ............................................................................................................................... GeoMarine, Geo-Source 200–400 tip sparker ....................................................................................................................... Isopleth distances to Level A harassment thresholds for all types of HRG equipment and all marine mammal VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 functional hearing groups were modeled using the NMFS User Spreadsheet and NMFS Technical Guidance (2018). The PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 9 4 6 21 48 34 141 141 141 141 141 dual criteria (peak SPL and SELcum) were applied to all HRG sources using the modeling methodology as described E:\FR\FM\12APN1.SGM 12APN1 18954 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices above, and the isopleth distances for each functional hearing group were then carried forward in the exposure analysis. Modeled distances to isopleths corresponding to the Level A harassment thresholds are very small for all marine mammals and stocks (<5 m) with the exception of HF cetaceans (36.5 m from GeoPulse 5430). Note that the modeled distances to isopleths corresponding to the Level A harassment threshold are also assumed to be conservative. Level A harassment would also be more likely to occur at close approach to the sound source or as a result of longer duration exposure to the sound source. In regards to the one HF cetacean that is likely to occur in Skipjack’s Project Area, the harbor porpoise, it is a notoriously shy species which is known to avoid vessels. Harbor porpoise would also be expected to avoid a sound source prior to that source reaching a level that would result in injury (Level A harassment). Given the factors above, Level A harassment of marine mammals is neither anticipated nor authorized, even in the absence of mitigation measures. However, the required mitigation measures—including shutdown measures and a 100 m exclusion zone for all marine mammals including the harbor porpoise—are expected to even further minimize the potential for close approach or longer duration exposure to active HRG acoustic sources. Those mitigation measures in addition to the very small size of Level A harassment zones, strengthens NMFS’ determination that the potential for any marine mammals to be taken by Level A harassment is considered so low as to be discountable. Skipjack did not request and NMFS has not authorized the take by Level A harassment of any marine mammals. Marine Mammal Occurrence In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. The habitat-based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) represent the best available information regarding marine mammal densities in the planned survey area. The density data presented by Roberts et al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-transect survey data from NMFS and other organizations and incorporates data from 8 physiographic and 16 dynamic oceanographic and biological covariates, and controls for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting. These density models were originally developed for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In subsequent years, certain models have been updated based on additional data as well as certain methodological improvements. More information is available online at seamap.env.duke.edu/models/Duke-ECGOM-2015/. Marine mammal density estimates in the survey area (animals/ kilmeters squared (km2)) were obtained using the most recent model results for all taxa (Roberts et al., 2016, 2017, 2018, 2020). The updated models incorporate additional sighting data, including sightings from the NOAA Atlantic Marine Assessment Program for Protected Species (AMAPPS) surveys (e.g., NEFSC & SEFSC, 2011, 2012, 2014a, 2014b, 2015, 2016). For the exposure analysis, density data from Roberts et al. (2016, 2017, 2018, 2020) were mapped using a geographic information system (GIS). Density grid cells that included any portion of the planned survey area were selected for all survey months. Densities from each of the selected density blocks were averaged for each month available to provide monthly density estimates for each species (when available based on the temporal resolution of the model products), along with the average annual density (Table 7). TABLE 7—ESTIMATED MONTHLY AND AVERAGE ANNUAL DENSITY (ANIMALS/km¥2) OF POTENTIALLY AFFECTED MARINE MAMMALS WITHIN THE PROJECT AREA BASED ON MONTHLY HABITAT DENSITY MODELS [Roberts et al. 2016; Roberts, 2018, 2020] Species khammond on DSKJM1Z7X2PROD with NOTICES Low-Frequency Cetaceans: Fin whale ................................................... Sei whale ................................................... Minke whale ............................................... Humpback whale ....................................... North Atlantic right whale .......................... Mid-Frequency Cetaceans: Sperm whale .............................................. Atlantic white-sided dolphin ....................... Atlantic spotted dolphin ............................. Common bottlenose dolphin (Offshore) 1 .. Common bottlenose dolphin (Migratory) 1 Short-finned pilot whale 2 ........................... Long-finned pilot whale 2 ........................... Risso’s dolphin ........................................... Common dolphin ........................................ High-Frequency Cetaceans: Harbor porpoise ......................................... Pinnipeds 3: Gray seal ................................................... Harbor seal ................................................ Jan Feb Mar Apr May Jun Jul 0.0010 0.0000 0.0002 0.0013 0.0037 0.0008 0.0000 0.0002 0.0006 0.0042 0.0015 0.0000 0.0002 0.0006 0.0043 0.0020 0.0000 0.0009 0.0005 0.0028 0.0017 0.0000 0.0010 0.0005 0.0002 0.0012 0.0000 0.0005 0.0004 0.0000 0.0000 0.0017 0.0017 0.0134 0.0317 0.0003 0.0003 0.0000 0.0071 0.0000 0.0009 0.0017 0.0088 0.0271 0.0003 0.0003 0.0000 0.0035 0.0000 0.0012 0.0017 0.0125 0.0444 0.0003 0.0003 0.0000 0.0040 0.0000 0.0028 0.0017 0.0193 0.0910 0.0003 0.0003 0.0000 0.0092 0.0000 0.0035 0.0017 0.1224 0.5921 0.0003 0.0003 0.0000 0.0167 0.0261 0.0247 0.0225 0.0095 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 Average annual density (km¥2) Aug Sep Oct Nov Dec 0.0005 0.0000 0.0001 0.0001 0.0000 0.0004 0.0000 0.0000 0.0001 0.0000 0.0011 0.0000 0.0001 0.0002 0.0000 0.0014 0.0000 0.0003 0.0004 0.0000 0.0010 0.0000 0.0001 0.0004 0.0003 0.0009 0.0000 0.0001 0.0014 0.0020 0.0011 0.0000 0.0003 0.0005 0.0015 0.0001 0.0022 0.0017 0.1138 0.4623 0.0003 0.0003 0.0000 0.0110 0.0001 0.0006 0.0017 0.1361 0.5903 0.0003 0.0003 0.0000 0.0125 0.0001 0.0003 0.0017 0.1663 0.6439 0.0003 0.0003 0.0000 0.0143 0.0000 0.0008 0.0017 0.0800 0.2388 0.0003 0.0003 0.0000 0.0109 0.0001 0.0026 0.0017 0.0713 0.2015 0.0003 0.0003 0.0000 0.0109 0.0000 0.0036 0.0017 0.0524 0.1335 0.0003 0.0003 0.0000 0.0200 0.0000 0.0034 0.0017 0.0201 0.0459 0.0003 0.0003 0.0000 0.0152 0.0000 0.0020 0.0017 0.0680 0.2585 0.0003 0.0003 0.0000 0.0113 0.0031 0.0000 0.0000 0.0000 0.0000 0.0005 0.0153 0.0535 0.0129 0.0003 0.0003 0.0007 0.0007 0.0007 0.0007 0.0007 0.0007 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0004 0.0004 1 Bottlenose dolphin stocks were delineated based on the 20-m isobath as identified in NMFS 2017 SAR; all density blocks falling inland of the 20-m depth contour were assumed to belong to the migratory coastal stock, and those beyond this depth were assumed to belong to the offshore stock. 2 Roberts (2018) only provides density estimates for ‘‘generic’’ pilot whales. It is assumed that each species has density levels that are equivalent to the generic pilot whale Density levels. 3 Seal densities are not given by individual months or species, instead, seasons are divided as summer (June, July, August) and Winter (September–May) and applied to ‘‘generic’’ seals; as a result, reported seasonal densities for spring and fall are the same and are not provided for each species (Roberts 2018). Densities were evenly split between both species. Take Calculation and Estimation Here NMFS describes how the information provided above is brought together to produce a quantitative take estimate. In order to estimate the VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to Level B harassment PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 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 E:\FR\FM\12APN1.SGM 12APN1 18955 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices harassment thresholds. The area estimated to be ensonified to relevant thresholds in a single day 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 mean annual density of a given marine mammal species. This value is then multiplied by the number of planned vessel days. The estimated potential daily active survey distance of 70 km was used as the estimated areal coverage over a 24hour period. This distance accounts for the vessel traveling at roughly 4 knots and only for periods during which equipment <180 kHz is in operation. A vessel traveling 4 knots can cover approximately 110 km per day; however, based on data from 2017, 2018, and 2019 surveys, survey coverage over a 24-hour period is closer to 70 km per day. For daylight only vessels, the distance is reduced to 35 km per day. To maintain the potential for 24-hour surveys, the Level B harassment ZOIs provided in Table 8 were calculated for each source based on the Level B harassment threshold distances in Table 6 with a 24-hour (70 km) operational period. TABLE 8—CALCULATED ZONE OF INFLUENCE (ZOI) ENCOMPASSING LEVEL B THRESHOLDS FOR EACH SOUND SOURCE OR COMPARABLE SOUND SOURCE CATEGORY Source Level B ZOI (km2) Hearing group All ET 216 CHIRP ................................................................................................................................................................................... ET 424 CHIRP ................................................................................................................................................................................... ET 512i CHIRP .................................................................................................................................................................................. GeoPulse 5430 .................................................................................................................................................................................. TB CHIRP III ...................................................................................................................................................................................... AA Triple plate S-Boom (700–1,000 J) ............................................................................................................................................. AA, Dura-spark UHD ......................................................................................................................................................................... AA, Dura-spark UHD 400+400 .......................................................................................................................................................... GeoMarine, Geo-Source dual 400 tip Sparker .................................................................................................................................. 1.3 0.6 0.8 2.9 6.7 4.8 19.8 19.8 19.8 AA = Applied Acoustics; CHIRP = Compressed High-Intensity Radiated Pulse; ET = EdgeTech; HF = high-frequency; J = joules; LF = low-frequency; MF = mid-frequency; PW = phocid pinnipeds in water; SBP = sub-bottom profiler; TB = Teledyne Benthos; UHD = ultra-high definition. Level B exposures were estimated by multiplying the average annual density of each species (Table 7) (Roberts et al., 2016; Roberts, 2018) by the daily ZOI that was estimated to be ensonified to an SPLrms exceeding 160 dB re 1 mPa (Table 8), times the number of operating days expected for the survey in each area assessed. As described previously, it was assumed that that sparker systems with 141-m Level B harassment isopleths would operate for 50 survey days and the non-sparker TB CHIRP III with 48-m Level B harassment isopleth would operate for the remaining 150 survey days. The results of these calculations are shown in Table 9. TABLE 9—SUMMARY OF TAKE NUMBERS AUTHORIZED BY NMFS khammond on DSKJM1Z7X2PROD with NOTICES Species Abundance Low-Frequency Cetaceans: Fin whale .............................................................................................................................. Sei whale .............................................................................................................................. Minke whale .......................................................................................................................... Humpback whale .................................................................................................................. North Atlantic right whale ..................................................................................................... Mid-Frequency Cetaceans: Sperm whale 3 ...................................................................................................................... Atlantic white-sided dolphin .................................................................................................. Atlantic spotted dolphin ........................................................................................................ Common bottlenose dolphin 2: Offshore Stock ............................................................................................................... Migratory Stock ............................................................................................................. Pilot Whales 3: Short-finned pilot whale ................................................................................................. Long-finned pilot whale ................................................................................................. Risso’s dolphin ..................................................................................................................... Common dolphin .................................................................................................................. High-Frequency Cetaceans: Harbor porpoise ........................................................................................................................... Pinnipeds: Seals 4: Gray seal ....................................................................................................................... Harbor seal .................................................................................................................... Level B takes1 Max percent population 7,418 6,292 24,202 1,396 428 2 0 (1) 0 (2) 2 3 0.03 0.02 0.01 0.14 0.70 4,349 93,233 39,921 0 (3) 4 4 (2,000) 0.07 0.00 5.00 62,851 6,639 135 516 0.21 7.77 (10) (10) (30) (70) 0.03 0.03 0.08 0.04 95,543 22 0.03 27,131 75,834 0 (10) 0 (10) 0.04 0.01 28,924 39,215 35,493 178,825 1 Parenthesis 0 0 0 24 denote changes from calculated take estimates. et al. (2016) does not provide density estimates for individual stocks of common bottlenose dolphins; therefore, stock densities were delineated using the 20-m isobath. 2 Roberts VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\12APN1.SGM 12APN1 18956 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices khammond on DSKJM1Z7X2PROD with NOTICES 3 Roberts (2018) only provides density estimates for ‘‘generic’’ pilot whales and seals; therefore, an equal potential for takes has been assumed either for species or stocks within the larger group. 4 Roberts (2018) only provides density estimates for ‘‘generic’’ seals; therefore, densities were split evenly between the two species. No takes were calculated for the sei whale, minke whale, sperm whale, short- and long-finned pilot whale, or Risso’s dolphin. However, based on anticipated species distributions and data from previous surveys conducted in the DE WEA, it is possible that these species could be encountered. Therefore, Skipjack based its take requests on estimated group sizes for these species (1 for sei whales, 2 for minke whales, 3 for sperm whales, 10 for short- and long-finned pilot whales, and 30 for Risso’s dolphins). For species with no modeled exposures, requested takes for HRG surveys are based on mean group sizes derived from the following references: • Sei whale: Kenney and VignessRaposa, 2010; • Minke whale: Kenney and VignessRaposa, 2020; • Sperm whale: Barkaszi and Kelly, 2018; • Short- and long-finned pilot whales: Kenney and Vigness-Raposa, 2010; and • Risso’s dolphin: Barkaszi and Kelly, 2018. NMFS concurred with this approach and based its authorized takes of these species on Skipjack’s requests. Additionally, the number of takes authorized in Table 9 for Atlantic whitesided dolphin, bottlenose dolphin, and harbor porpoise are equivalent to the numbers requested by Skipjack. Roberts et al. (2018) produced density models for all seals and did not differentiate by seal species. The take calculation methodology as described above resulted in close to zero takes. The marine mammal monitoring report associated with the previous IHA issued to Skipjack in this survey area (84 FR 66156; December 3, 2019) did not record any takes of seals. However, the planned survey area includes a portion of Delaware Bay which is not covered by Roberts et al. (2018) and was not included as part of the previous IHA. Therefore, Skipjack did not request take of any harbor or gray seals. However, since seals are known to occur in the Bay, mostly during winter months, NMFS is conservatively authorizing 10 takes of each species by Level B harassment of both harbor and gray seals. Skipjack had requested 4 takes of spotted dolphin and 24 takes of common dolphin by Level B harassment. However, recent HRG surveys in the Mid-Atlantic area off the coast of Virginia have recorded VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 unexpectedly large numbers of both Atlantic spotted dolphin and common dolphin. These events have led NMFS to modify another offshore wind energy company’s existing IHA (85 FR 81879; December 17, 2020) in order to accommodate larger take numbers. The spotted dolphins had been recorded at a rate of up 15 per day while common dolphins were recorded at a rate of 62 animals in a single week. Note that there were many days in which there were no sightings of spotted dolphins and that all of the 62 common dolphin sightings occurred during a single week. The previous Skipjack marine mammal monitoring report from this area recorded up to 8 common dolphins over 23 days of active surveying (0.35 animals/day). Given this data, NMFS will assume that 0.35 common dolphins could be exposed within the Level B harassment zone per day over 200 days resulting in the 70 authorized takes of common dolphin by Level B harassment. NMFS will also assume that there could be up to 10 exposures of spotted dolphin per day resulting in the 2000 authorized takes by Level B harassment. Note that Skipjack submitted a marine mammal monitoring report under the previous IHA covering the period of June 4, 2020 through June 26, 2020. Over the 23-day monitoring period there were 110 sightings consisting of 112 individual animals. Only three bottlenose dolphins were recorded as occurring within estimated Level B harassment zones which is well below the 1,465 takes that were authorized. However, due to a range of factors only 23 actual survey days occurred out of 200 that were planned. Mitigation In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 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, NMFS carefully considers two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and; (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations. Mitigation for Marine Mammals and Their Habitat NMFS requires the following mitigation measures be implemented during Skipjack’s planned marine site characterization surveys. Marine Mammal Exclusion Zones and Harassment Zones Marine mammal EZs would be established around the HRG survey equipment and monitored by PSOs: • 500 m EZ for North Atlantic right whales during use of all acoustic sources; • 100 m EZ for all marine mammals, with certain exceptions specified below, during operation of impulsive acoustic sources (boomer and/or sparker). If a marine mammal is detected approaching or entering the EZs during the HRG survey, the vessel operator would adhere to the shutdown procedures described below to minimize noise impacts on the animals. These stated requirements will be included in the site-specific training to be provided to the survey team. Pre-Clearance of the Exclusion Zones Skipjack would implement a 30minute pre-clearance period of the EZ prior to the initiation of ramp-up of E:\FR\FM\12APN1.SGM 12APN1 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices HRG equipment. During this period, the exclusion zone will be monitored by the PSOs, using the appropriate visual technology. Ramp-up may not be initiated if any marine mammal(s) is within its respective EZ. If a marine mammal is observed within an EZ during the pre-clearance period, rampup may not begin until the animal(s) has been observed exiting its respective EZ or until an additional time period has elapsed with no further sighting (i.e., 15 minutes for small odontocetes and seals, and 30 minutes for all other species). khammond on DSKJM1Z7X2PROD with NOTICES Ramp-Up of Survey Equipment When technically feasible, a ramp-up procedure would be used for HRG survey equipment capable of adjusting energy levels at the start or restart of survey activities. The ramp-up procedure would be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to vacate the area prior to the commencement of survey equipment operation at full power. 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 EZ. Ramp-up will continue if the animal has been observed exiting its respective EZ or until an additional time period has elapsed with no further sighting (i.e., 15 minutes for small odontocetes and seals and 30 minutes for all other species). Activation of survey equipment through ramp-up procedures may not occur when visual observation of the pre-clearance zone is not expected to be effective (i.e., during inclement conditions such as heavy rain or fog). Shutdown Procedures An immediate shutdown of the impulsive HRG survey equipment would be required if a marine mammal is sighted entering or within its respective EZ. The vessel operator must comply immediately with any call for shutdown by the Lead PSO. Any disagreement between the Lead PSO and vessel operator should be discussed only after shutdown has occurred. Subsequent restart of the survey equipment can be initiated if the animal has been observed exiting its respective EZ or until an additional time period has elapsed (i.e., 30 minutes for all other species). VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 If a species for which authorization has not been granted, or, a species for which authorization has been granted but the authorized number of takes have been met, approaches or is observed within the Level B harassment zone (48 m, non-impulsive; 141 m impulsive), shutdown would occur. If the acoustic source is shut down for reasons other than mitigation (e.g., mechanical difficulty) for less than 30 minutes, it may be activated again without ramp-up if PSOs have maintained constant observation and no detections of any marine mammal have occurred within the respective EZs. If the acoustic source is shut down for a period longer than 30 minutes and PSOs have maintained constant observation, then pre-clearance and ramp-up procedures will be initiated as described in the previous section. The shutdown requirement would be waived for small delphinids of the following genera: Delphinus, Lagenorhynchus, Stenella, and Tursiops and seals. Specifically, if a delphinid from the specified genera or a pinniped is visually detected approaching the vessel (i.e., to bow ride) or towed equipment, shutdown is not required. Furthermore, if there is uncertainty regarding identification of a marine mammal species (i.e., whether the observed marine mammal(s) belongs to one of the delphinid genera for which shutdown is waived), PSOs must use best professional judgement in making the decision to call for a shutdown. Additionally, shutdown is required if a delphinid or pinniped detected in the exclusion zone and belongs to a genus other than those specified. Vessel Strike Avoidance Skipjack 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 sitespecific training on marine mammals sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures would include the following, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk: • Vessel operators and crews must maintain a vigilant watch for all protected species and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any protected species. A visual observer aboard the vessel must monitor a vessel strike avoidance zone based on the PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 18957 appropriate separation distance around the vessel (distances stated below). Visual observers monitoring the vessel strike avoidance zone may be thirdparty observers (i.e., PSOs) or crew members, but crew members responsible for these duties must be provided sufficient training to (1) distinguish protected species from other phenomena and (2) broadly to identify a marine mammal as a right whale, other whale (defined in this context as sperm whales or baleen whales other than right whales), or other marine mammal. • All vessels (e.g., source vessels, chase vessels, supply vessels), regardless of size, must observe a 10knot speed restriction in specific areas designated by NMFS for the protection of North Atlantic right whales from vessel strikes including SMAs and DMAs when in effect; • All vessels greater than or equal to 19.8 m in overall length operating from November 1 through April 30 will operate at speeds of 10 knots or less while transiting to and from Project Area; • All vessels must reduce their speed to 10 knots or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel. • All vessels must maintain a minimum separation distance of 500 m from right whales. If a whale is observed but cannot be confirmed as a species other than a right whale, the vessel operator must assume that it is a right whale and take appropriate action. • All vessels must maintain a minimum separation distance of 100 m from sperm whales and all other baleen whales. • All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an understanding that at times this may not be possible (e.g., for animals that approach the vessel). • When marine mammals are sighted while a vessel is underway, the vessel shall take action as necessary to avoid violating the relevant separation distance (e.g., attempt to remain parallel to the animal’s course, avoid excessive speed or abrupt changes in direction until the animal has left the area). If marine mammals are sighted within the relevant separation distance, the vessel must reduce speed and shift the engine to neutral, not engaging the engines until animals are clear of the area. This does not apply to any vessel towing gear or any vessel that is navigationally constrained. • These requirements do not apply in any case where compliance would E:\FR\FM\12APN1.SGM 12APN1 18958 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply. khammond on DSKJM1Z7X2PROD with NOTICES Seasonal Operating Requirements Members of the monitoring team will consult NMFS North Atlantic right whale reporting system and Whale Alert, as able, for the presence of North Atlantic right whales throughout survey operations, and for the establishment of a DMA. If NMFS should establish a DMA in the Lease Areas during the survey, the vessels will abide by speed restrictions in the DMA. Project-specific training will be conducted for all vessel crew prior to the start of a survey and during any changes in crew such that all survey personnel are fully aware and understand the mitigation, monitoring, and reporting requirements. Prior to implementation with vessel crews, the training program will be provided to NMFS for review and approval. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew member understands and will comply with the necessary requirements throughout the survey activities. Based on our evaluation of the applicant’s proposed measures, as well as other measures considered by NMFS, NMFS has determined that the required mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the 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 VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 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 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. Skipjack would employ independent, dedicated, trained PSOs, meaning that the PSOs must (1) be employed by a third-party observer provider, (2) have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and (3) have successfully completed an approved PSO training course appropriate for their designated task. On a case-by-case basis, non-independent observers may be approved by NMFS for limited, specific duties in support of approved, independent PSOs on smaller vessels with limited crew capacity operating in nearshore waters. The PSOs will be responsible for monitoring the waters surrounding each survey vessel to the farthest extent permitted by sighting conditions, including exclusion zones, during all PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 HRG survey operations. PSOs will visually monitor and identify marine mammals, including those approaching or entering the established exclusion zones during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate. During all HRG survey operations (e.g., any day on which use of an HRG source is planned to occur), a minimum of one PSO must be on duty during daylight operations on each survey vessel, conducting visual observations at all times on all active survey vessels during daylight hours (i.e., from 30 minutes prior to sunrise through 30 minutes following sunset). Two PSOs will be on watch during nighttime operations. The PSO(s) would ensure 360° visual coverage around the vessel from the most appropriate observation posts and would conduct visual observations using binoculars and/or night vision goggles and the naked eye while free from distractions and in a consistent, systematic, and diligent manner. PSOs may be on watch for a maximum of four consecutive hours followed by a break of at least two hours between watches and may conduct a maximum of 12 hours of observation per 24-hour period. In cases where multiple vessels are surveying concurrently, any observations of marine mammals would be communicated to PSOs on all nearby survey vessels. PSOs must be equipped with binoculars and have the ability to estimate distance and bearing to detect marine mammals, particularly in proximity to exclusion zones. Reticulated binoculars must also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine mammals. During nighttime operations, night-vision goggles with thermal clip-ons and infrared technology would be used. Position data would be recorded using hand-held or vessel GPS units for each sighting. During good conditions (e.g., daylight hours; Beaufort sea state (BSS) 3 or less), to the maximum extent practicable, PSOs would also conduct observations when the acoustic source is not operating for comparison of sighting rates and behavior with and without use of the active acoustic sources. Any observations of marine mammals by crew members aboard any vessel associated with the survey would be relayed to the PSO team. E:\FR\FM\12APN1.SGM 12APN1 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices khammond on DSKJM1Z7X2PROD with NOTICES Data on all PSO observations would be recorded based on standard PSO collection requirements. This would include dates, times, and locations of survey operations; dates and times of observations, location and weather; details of marine mammal sightings (e.g., species, numbers, behavior); and details of any observed marine mammal behavior that occurs (e.g., noted behavioral disturbances). Reporting Measures Within 90 days after completion of survey activities or expiration of this IHA, whichever comes sooner, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, summarizes the number of marine mammals observed during survey activities (by species, when known), summarizes the mitigation actions taken during surveys (including what type of mitigation and the species and number of animals that prompted the mitigation action, when known), and provides an interpretation of the results and effectiveness of all mitigation and monitoring. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. All draft and final marine mammal and acoustic monitoring reports must be submitted to PR.ITP.MonitoringReports@noaa.gov and ITP.Pauline@noaa.gov. The report must contain at minimum, the following: • PSO names and affiliations • Dates of departures and returns to port with port name • Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort • Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts • Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change • Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon • Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (e.g., vessel traffic, equipment malfunctions) • Survey activity information, such as type of survey equipment in operation, VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 acoustic source power output while in operation, and any other notes of significance (i.e., pre-clearance survey, ramp-up, shutdown, end of operations, etc.) If a marine mammal is sighted, the following information should be recorded: • Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform); • PSO who sighted the animal; • Time of sighting; • Vessel location at time of sighting; • Water depth; • Direction of vessel’s travel (compass direction); • Direction of animal’s travel relative to the vessel; • Pace of the animal; • Estimated distance to the animal and its heading relative to vessel at initial sighting; • Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified); also note the composition of the group if there is a mix of species; • Estimated number of animals (high/ low/best); • Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.); • Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics); • Detailed behavior observations (e.g., number of blows, number of surfaces, breaching, spyhopping, diving, feeding, traveling; as explicit and detailed as possible; note any observed changes in behavior); • Animal’s closest point of approach and/or closest distance from the center point of the acoustic source; • Platform activity at time of sighting (e.g., deploying, recovering, testing, data acquisition, other); • Description of any actions implemented in response to the sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, etc.) and time and location of the action. If a North Atlantic right whale is observed at any time by PSOs or personnel on any project vessels, during surveys or during vessel transit, Skipjack must immediately report sighting information to the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 755–6622. North Atlantic right whale sightings in any location may also be reported to the U.S. Coast Guard via channel 16. In the event that Skipjack personnel discover an injured or dead marine mammal, Skipjack would report the PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 18959 incident to the NMFS Office of Protected Resources (OPR) and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would include the following information: • Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); • Species identification (if known) or description of the animal(s) involved; • Condition of the animal(s) (including carcass condition if the animal is dead); • Observed behaviors of the animal(s), if alive; • If available, photographs or video footage of the animal(s); and • General circumstances under which the animal was discovered. In the unanticipated event of a ship strike of a marine mammal by any vessel involved in the activities covered by the IHA, Skipjack would report the incident to the NMFS OPR and the NMFS New England/Mid-Atlantic Stranding Coordinator as soon as feasible. The report would include the following information: • Time, date, and location (latitude/ longitude) of the incident; • Species identification (if known) or description of the animal(s) involved; • Vessel’s speed during and leading up to the incident; • Vessel’s course/heading and what operations were being conducted (if applicable); • Status of all sound sources in use; • Description of avoidance measures/ requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike; • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) immediately preceding the strike; • Estimated size and length of animal that was struck; • Description of the behavior of the marine mammal immediately preceding and following the strike; • If available, description of the presence and behavior of any other marine mammals immediately preceding the strike; • Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, disappeared); and • To the extent practicable, photographs or video footage of the animal(s). E:\FR\FM\12APN1.SGM 12APN1 khammond on DSKJM1Z7X2PROD with NOTICES 18960 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. NMFS also assesses the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). To avoid repetition, our analysis applies to all the species listed in Table 9, given that NMFS expects the anticipated effects of the planned survey to be similar in nature. Where there are meaningful differences between species or stocks—as is the case of the North Atlantic right whale—they are included as separate subsections below. NMFS does not anticipate that serious injury or mortality would occur as a result from HRG surveys, even in the absence of mitigation, and no serious injury or mortality is authorized. As discussed in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section, non-auditory physical effects and vessel strike are not expected to occur. NMFS expects that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity was occurring), reactions that are considered to be of low severity and with no lasting VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 biological consequences (e.g., Southall et al., 2007). Even repeated Level B harassment of some small subset of an overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. As described previously due to the nature of the operations, Level A harassment is not expected even in the absence of mitigation. The small size of the Level A harassment zones and the required shutdown zones for certain activities further bolster this conclusion. In addition to being temporary, the maximum expected harassment zone around a survey vessel is 141 m; 75 percent of survey days would include activity with a reduced acoustic harassment zone of 48 m per vessel, producing expected effects of particularly low severity. Therefore, the ensonified area surrounding each vessel is relatively small compared to the overall distribution of the animals in the area and their use of the habitat. Feeding behavior is not likely to be significantly impacted as prey species are mobile and are broadly distributed throughout the survey area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance and the availability of similar habitat and resources in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or longterm consequences for individual marine mammals or their populations. There are no rookeries, mating or calving grounds known to be biologically important to marine mammals within the planned survey area and there are no feeding areas known to be biologically important to marine mammals within the planned survey area. There is no designated critical habitat for any ESA-listed marine mammals in the planned survey area. North Atlantic Right Whales The status of the North Atlantic right whale population is of heightened concern and, therefore, merits additional analysis. As noted previously, elevated North Atlantic right whale mortalities began in June 2017 and there is an active unusual mortality event (UME). Overall, findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of right whales. PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 The planned survey area overlaps a migratory corridor Biologically Important Area (BIA) for North Atlantic right whales (effective March–April and November–December) that extends from Massachusetts to Florida (LeBrecque et al., 2015). Off the coast of Delaware, this migratory BIA extends from the coast to beyond the shelf break. Due to the fact that that the planned survey activities are temporary and the spatial extent of sound produced by the survey would be very small relative to the spatial extent of the available migratory habitat in the BIA, right whale migration is not expected to be impacted by the survey. Given the relatively small size of the ensonified area, it is unlikely that prey availability would be adversely affected by HRG survey operations. Required vessel strike avoidance measures will also decrease risk of ship strike during migration; no ship strike is expected to occur during Skipjack’s planned activities. Additionally, only very limited take by Level B harassment of North Atlantic right whales has been requested or is authorized by NMFS as HRG survey operations are required to maintain a 500-m EZ and shutdown if a North Atlantic right whale is sighted at or within the EZ. The 500-m shutdown zone for right whales is conservative, considering the Level B harassment isopleth for the most impactful acoustic source (i.e., GeoMarine Geo-Source 400 tip sparker) is estimated to be 141 m, and thereby minimizes the potential for behavioral harassment of this species. As noted previously, Level A harassment is not expected due to the small PTS zones associated with HRG equipment types planned for use. NMFS does not anticipate North Atlantic right whales takes that would result from Skipjack’s planned activities would impact annual rates of recruitment or survival. Thus, any takes that occur would not result in population level impacts. Other Marine Mammal Species With Active UMEs As noted previously, there are several active UMEs occurring in the vicinity of Skipjack’s planned survey area. Elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or distinct E:\FR\FM\12APN1.SGM 12APN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices population segment remains stable at approximately 12,000 individuals. Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest numbers in Massachusetts, Maine, and New York. This event does not provide cause for concern regarding population level impacts, as the likely population abundance is greater than 20,000 whales. 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. The UME does not yet provide cause for concern regarding population-level impacts to any of these stocks. For harbor seals, the population abundance is over 75,000 and annual M/SI (350) is well below PBR (2,006) (Hayes et al., 2020). The population abundance for gray seals in the United States is over 27,000, with an estimated abundance, including seals in Canada, of approximately 505,000. In addition, the abundance of gray seals is likely increasing in the U.S. Atlantic Economic Exclusion Zone as well as in Canada (Hayes et al., 2020). The required mitigation measures are expected to reduce the number and/or severity of authorized takes for all species listed in Table 9, including those with active UME’s to the level of least practicable adverse impact. In particular they would provide animals the opportunity to move away from the sound source throughout the survey area before HRG survey equipment reaches full energy, thus preventing them from being exposed to sound levels that have the potential to cause injury (Level A harassment) or more severe Level B harassment. No Level A harassment is anticipated, even in the absence of mitigation measures, or authorized. NMFS expects that takes would be in the form of short-term Level B behavioral harassment by way of brief startling reactions and/or temporary vacating of the area, or decreased foraging (if such activity was occurring)—reactions that (at the scale and intensity anticipated here) are considered to be of low severity, with no lasting biological consequences. Since both the sources and marine mammals are mobile, animals would only be exposed briefly to a small ensonified area that might result in take. VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 Additionally, required mitigation measures would further reduce exposure to sound that could result in more severe behavioral harassment. In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: • No mortality or serious injury is anticipated or authorized; • No Level A harassment (PTS) is anticipated, even in the absence of mitigation measures, or authorized; • Foraging success is not likely to be significantly impacted as effects on species that serve as prey species for marine mammals from the survey are expected to be minimal; • The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the planned survey to avoid exposure to sounds from the activity; • Take is anticipated to be primarily Level B behavioral harassment consisting of brief startling reactions and/or temporary avoidance of the survey area; • While the survey area is within areas noted as a migratory BIA for North Atlantic right whales, the activities would occur in such a comparatively small area such that any avoidance of the survey area due to activities would not affect migration. In addition, mitigation measures to shutdown at 500 m to minimize potential for Level B behavioral harassment would limit any take of the species. • The required mitigation measures, including visual monitoring and shutdowns, are expected to minimize potential impacts to marine mammals. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 18961 most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. NMFS has authorized incidental take of 16 marine mammal species (with 17 managed stocks.) The total amount of takes authorized is less than eight percent for one stock (bottlenose dolphin northern coastal migratory stock) and less than one percent of all other species and stocks, which NMFS finds are small numbers of marine mammals relative to the estimated overall population abundances for those stocks. See Table 9. 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. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. 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 evaluate our proposed action (i.e., the promulgation of regulations and subsequent issuance of incidental take authorization) and alternatives with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 of the Companion Manual for NAO 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the planned E:\FR\FM\12APN1.SGM 12APN1 18962 Federal Register / Vol. 86, No. 68 / Monday, April 12, 2021 / Notices action qualifies to be categorically excluded from further NEPA review. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Endangered Species Act Section 7(a)(2) of the Endangered Species Act of 1973 (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 NMFS Greater Atlantic Regional Fisheries Office (GARFO), whenever we propose to authorize take for endangered or threatened species. The NMFS Office of Protected Resources is authorizing the incidental take of four species of marine mammals which are listed under the ESA: Fin, sei, sperm, and North Atlantic right whales. We requested initiation of consultation under section 7 of the ESA with NMFS GARFO on March 5, 2021, for the issuance of this IHA. On April 2, 2021, NMFS GARFO concurred with our determination that our issuance of the IHA to Skipjack is not likely to adversely affect the North Atlantic right, fin, sei, and sperm whale or the critical habitat of any ESA-listed species or result in the take of any marine mammals in violation of the ESA. Authorization khammond on DSKJM1Z7X2PROD with NOTICES NMFS has issued an IHA to Skipjack for the potential harassment of small numbers of 16 marine mammal species incidental to the conducting marine site characterization surveys offshore of Delaware in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS–A 0519) and along potential submarine cable routes to a landfall location in Delaware provided the previously mentioned mitigation, monitoring and reporting requirements are followed. Dated: April 6, 2021. Catherine Marzin, Acting Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2021–07419 Filed 4–9–21; 8:45 am] BILLING CODE 3510–22–P VerDate Sep<11>2014 21:37 Apr 09, 2021 Jkt 253001 [RTID 0648–XB013] New England Fishery Management Council; Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. AGENCY: The New England Fishery Management Council’s is convening an ad-hoc social science sub-panel of its Scientific and Statistical Committee (SSC) via webinar to conduct a peer review of Northeast Multispecies and Atlantic Scallops Specifications via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate. DATES: This webinar will be held on Wednesday, April 28, 2021, beginning at 9 a.m. Webinar registration URL information: https:// attendee.gotowebinar.com/register/ 4051555626669408784. Call in information: Phone: +1 (914) 614–3221; Access Code: 429–619–243. ADDRESSES: Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492. SUPPLEMENTARY INFORMATION: SUMMARY: Agenda The SSC Social Science Subpanel will meet to receive presentations on Groundfish Framework Adjustment 59 and Scallop Framework Adjustment 32 social and economic impact analyses. The presentations and discussion will be part of the Subpanel’s review of social and economic impact analyses for Council actions that adjust fishery specifications. There will be opportunities for public input and comment. Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 under section 305(c) of the MagnusonStevens Act, provided the public has been notified of the Council’s intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date. Authority: 16 U.S.C. 1801 et seq. Dated: April 7, 2021. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2021–07416 Filed 4–9–21; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XA984] Caribbean Fishery Management Council; Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. AGENCY: The Caribbean Fishery Management Council (CFMC) will hold the 173rd public meeting (virtual) to address the items contained in the tentative agenda included in the SUPPLEMENTARY INFORMATION. DATES: The 173rd CFMC public meeting (virtual) will be held on April 27, 2021, from 9 a.m. to 5 p.m., and on April 28, 2021, from 8:45 a.m. to 3:30 p.m. The meeting will be at AST (U.S. Caribbean time, presently same as EST). ADDRESSES: You may join the 173rd CFMC public meeting (virtual) via Zoom, from a computer, tablet or smartphone by entering the following address: Join Zoom Meeting https://us02web.zoom.us/j/ 83060685915?pwd= VmVsc1orSUtKck8xYk1 XOXNDY1ErZz09 Meeting ID: 830 6068 5915 Passcode: 995658 One tap mobile +17879451488,,83060685915# SUMMARY: E:\FR\FM\12APN1.SGM 12APN1

Agencies

[Federal Register Volume 86, Number 68 (Monday, April 12, 2021)]
[Notices]
[Pages 18943-18962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07419]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB007]

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys off of Delaware

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

ACTION: Notice; Issuance of an Incidental Harassment Authorization.

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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Skipjack Offshore Energy, LLC (Skipjack) to incidentally harass, by
Level B harassment only, marine mammals during marine site
characterization surveys offshore of Delaware in the area of the
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS-A 0519) and along potential submarine
cable routes to a landfall location in Delaware.

DATES: This Authorization is effective for a period of one year, from
April 5, 2021 through April 4, 2022.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the applications
and supporting documents, as well as a list of the references cited in
this document, may be obtained by visiting the internet at:
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of
problems accessing these documents, please call the contact listed
above.

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

On August 12, 2020, NMFS received a request from Skipjack for an
IHA to take marine mammals incidental to marine site characterization
surveys offshore of Delaware in the area of the Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0519) and along potential submarine cable
routes to a landfall location in Delaware. Revised versions of the
application were received on September 21, 2020 and November 5, 2020.
The application was deemed adequate and complete on December 12, 2020.
Skipjack's request is for take of a small number of 16 species of
marine mammals by Level B harassment only. Neither Skipjack nor NMFS
expects serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.
NMFS previously issued an IHA to Skipjack for similar work in the
same geographic area on December 3, 2019 (84 FR 66156) with effectives
dates from November 26, 2019 through November 25, 2020. Skipjack
complied with all the requirements (e.g., mitigation, monitoring, and
reporting) of the previous IHA and given the similarity in activities
and location, relevant information regarding their previous marine
mammal monitoring results may be found in the Estimated Take section.

Description of the Specified Activity

Skipjack plans to conduct marine site characterization surveys,
including high-resolution geophysical (HRG) surveys, in the area of
OCS-A 0519 (Lease Area) and along potential submarine cable routes to
landfall locations in Delaware over approximately 200 days. The purpose
of the marine site characterization surveys are to obtain a baseline
assessment of seabed (geophysical, geotechnical, and geohazard),
ecological, and archeological conditions within the footprint of
offshore wind facility development. Underwater sound resulting from
Skipjack's planned activities, specifically certain acoustic sources
planned for use during surveys, has the potential to result in
incidental take of marine mammals in the form of behavioral harassment
(i.e., Level B harassment only). Impulsive sources (e.g., sparker
systems) would be utilized for 50 survey days while the non-impulsive
sources (e.g., CHIRP sub-bottom profilers (SBPs)) would be used for the
remaining 150 days. The survey activities planned by Skipjack are
described in detail in the notice of proposed IHA (86 FR 11239;
February 24, 2021). The HRG survey equipment that may be used by
Skipjack are shown in Table 1.

[[Page 18944]]

Table 1--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
SLrms (dB SL0-pk (dB
Acoustic source Operating re 1 re 1 Pulse duration Repetition Beamwidth CF= Crocker and
Equipment type frequency [micro]Pa [micro]Pa (width) rate (Hz) (degrees) Fratantonio (2016)
(kHz) m) m) (millisecond) MAN = Manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-impulsive, Non-parametric, Shallow Sub-bottom Profilers (CHIRP Sonars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top Non-impulsive, 2-16 195 ........... 20 6 24 MAN.
unit). mobile, 2-8
intermittent.
ET 424......................... Non-impulsive, 4-24 176 ........... 3.4 2 71 CF.
mobile,
intermittent.
ET 512......................... Non-impulsive, 0.7-12 179 ........... 9 8 80 CF.
mobile,
intermittent.
GeoPulse 5430A................. Non-impulsive, 2-17 196 ........... 50 10 55 MAN.
mobile,
intermittent.
Teledyne Benthos Chirp III--TTV Non-impulsive, 2-7 197 ........... 60 15 100 MAN.
170. mobile,
intermittent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impulsive, Medium Sub-bottom Profilers (Sparkers & Boomers)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AA, Dura-spark UHD (400 tips, Impulsive, mobile. 0.3-1.2 203 211 1.1 4 Omni CF.
500 J).
AA, Dura-spark UHD (400+400)... Impulsive, mobile. 0.3-1.2 203 211 1.1 4 Omni CF (AA Dura-spark
UHD Proxy).
GeoMarine, Geo-Source dual 400 Impulsive, mobile. 0.4-5 203 211 1.1 2 Omni CF (AA Dura-spark
tip sparker (800 J). UHD Proxy).
GeoMarine Geo-Source 200 tip Impulsive, mobile. 0.3-1.2 203 211 1.1 4 Omni CF (AA Dura-spark
sparker (400 J). UHD Proxy).
GeoMarine Geo-Source 200-400 Impulsive, mobile. 0.3-1.2 203 211 1.1 4 Omni CF (AA Dura-spark
tip sparker (400 J). UHD Proxy).
AA, triple plate S-Boom (700- Impulsive, mobile. 0.1-5 205 211 0.6 4 80 CF.
1,000 J).
--------------------------------------------------------------------------------------------------------------------------------------------------------

As described above, a detailed description of Skipjack's planned
surveys is provided in the Federal Register notice for the proposed IHA
(86 FR 11239; February 24, 2021). Since that time, no changes have been
made to the planned survey activities. Therefore, a detailed
description is not provided here. Please refer to that Federal Register
notice for the description of the specific activity. Mitigation,
monitoring, and reporting measures are described in detail later in
this document (please see Mitigation and Monitoring and Reporting
below).

Comments and Responses

A notice of NMFS's proposal to issue an IHA to Skipjack was
published in the Federal Register on February 24, 2021 (86 FR 11239).
During the 30-day comment period, NMFS received comments from: (1) A
group of environmental non-governmental organizations (ENGOs) including
the Natural Resources Defense Council, Conservation Law Foundation,
National Wildlife Federation, Defenders of Wildlife, Southern
Environmental Law Center, Wildlife Conservation Society, Surfrider
Foundation, Mass Audubon, Friends of the Earth, International Fund for
Animal Welfare, NY4WHALES, WDC Whale and Dolphin Conservation, Marine
Mammal Alliance Nantucket, Gotham Whale, All Our Energy, Seatuck
Environmental Association, Inland Ocean Coalition, Nassau Hiking &
Outdoor Club, and Connecticut Audubon Society; and (2) the Delaware
Department of Resources and Environmental Control (DNREC).
NMFS has posted the comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Please see the letters for full detail and
rationale for the comments.
Comment 1: The ENGOs recommended that NMFS incorporate additional
data sources into calculations of marine mammal density and take and
that NMFS must ensure all available data are used to ensure that any
potential shifts in North Atlantic right whale habitat usage are
reflected in estimations of marine mammal density and take. The ENGOs
asserted in general that the density models used by NMFS do not fully
reflect the abundance, distribution, and density of marine mammals for
the U.S. East Coast and therefore result in an underestimate of take.
Response: At the outset of their letter, the ENGOs note that the
comments reflect overarching concerns regarding NMFS' IHAs for marine
site characterization survey (including HRG survey) activities required
for offshore wind energy development, as well as their intention that
the comments be considered in relation to all authorizations associated
with marine site characterization activities for offshore wind energy
off the U.S. East Coast. The comments provided in the letter apparently
focus concern on available data regarding the Massachusetts and Rhode
Island and Massachusetts Wind Energy Areas, and on North Atlantic right
whale habitat usage within those areas. As such, the specific comments
pertaining to those data and right whale habitat usage within those
areas are not germane to this specific action, i.e., issuance of an IHA
associated with HRG survey activity off of Delaware. We address the
general comments regarding sufficiency of the available data on marine
mammal occurrence below.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Lab (MGEL) (Roberts et al. 2016, 2017, 2018, 2020)
represent the best available scientific information concerning marine
mammal occurrence within the U.S. Atlantic Ocean. Density models were
originally developed for all cetacean taxa in the U.S. Atlantic
(Roberts et al., 2016); more information, including the model results
and supplementary information for each

[[Page 18945]]

of those models, is available at seamap.env.duke.edu/models/Duke-EC-GOM-2015/. These models provided key improvements over previously
available information, by incorporating additional aerial and shipboard
survey data from NMFS and from other organizations collected over the
period 1992-2014, incorporating 60 percent more shipboard and 500
percent more aerial survey hours than did previously available models;
controlling for the influence of sea state, group size, availability
bias, and perception bias on the probability of making a sighting; and
modeling density from an expanded set of eight physiographic and 16
dynamic oceanographic and biological covariates. In subsequent years,
certain models have been updated on the basis of additional data as
well as methodological improvements. In addition, a new density model
for seals was produced as part of the 2017-18 round of model updates.
Of particular note, Roberts et al. (2020) further updated density
model results for North Atlantic right whales by incorporating
additional sighting data and implementing three major changes:
Increasing spatial resolution, generating monthly estimates on three
time periods of survey data, and dividing the study area into five
discrete regions. This most recent update--model version 9 for North
Atlantic right whales--was undertaken with the following objectives
(Roberts et al., 2020):
To account for recent changes to right whale
distributions, the model should be based on survey data that extend
through 2018, or later if possible. In addition to updates from
existing collaborators, data should be solicited from two survey
programs not used in prior model versions:
[cir] Aerial surveys of the Massachusetts and Rhode Island Wind
Energy Areas led by New England Aquarium (Kraus et al., 2016), spanning
2011-2015 and 2017-2018.
[cir] Recent surveys of New York waters, either traditional aerial
surveys initiated by the New York State Department of Environmental
Conservation in 2017, or digital aerial surveys initiated by the New
York State Energy Research and Development Authority in 2016, or both.
To reflect a view in the right whale research community
that spatiotemporal patterns in right whale density changed around the
time the species entered a decline in approximately 2010, consider
basing the new model only on recent years, including contrasting
``before'' and ``after'' models that might illustrate shifts in
density, as well as a model spanning both periods, and specifically
consider which model would best represent right whale density in the
near future.
To facilitate better application of the model to near-
shore management questions, extend the spatial extent of the model
farther in-shore, particularly north of New York.
Increase the resolution of the model beyond 10 kilometers
(km), if possible.
All of these objectives were met in developing the most recent
update to the North Atlantic right whale density model. The commenters
do not cite this most recent report, and the comments suggest that the
aforementioned data collected by the New England Aquarium is not
reflected in the model. Therefore, it is unclear whether the commenters
are aware of the most recently available data, which is used herein.
As noted above, NMFS has determined that the Roberts et al. suite
of density models represent the best available scientific information,
and we specifically note that the most recent version of the North
Atlantic right whale model may address some of the specific concerns
provided by the commenters. However, NMFS acknowledges that there will
always be additional data that is not reflected in the models and that
may inform our analyses, whether because the data were not made
available to the model authors or because the data is more recent than
the latest model version for a specific taxon. NMFS will review any
recommended data sources to evaluate their applicability in a
quantitative sense (e.g., to an estimate of take numbers) and,
separately, to ensure that relevant information is considered
qualitatively when assessing the impacts of the specified activity on
the affected species or stocks and their habitat. NMFS will continue to
use the best available scientific information, and we welcome future
input 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 U.S. Atlantic
waters.
The ENGOs cited several additional sources of information that are
not reflected in currently available density models, including
sightings databases and passive acoustic monitoring (PAM) efforts.
However, no specific recommendations were made with regard to use of
this information in informing the take estimates. Rather, the
commenters reference a disparate array of data sources (some which are
indeed reflected in the most recent models) and suggest that NMFS
should ``collate and integrate these and more recent data sets to more
accurately reflect marine mammal presence for future IHAs and other
work.'' NMFS would welcome in the future constructive suggestions as to
how these objectives might be more effectively accomplished. NMFS used
the best scientific information available at the time the analyses for
the proposed IHA were conducted, and has considered all available data,
including sources referenced by the commenters, in reaching its
determinations in support of issuance of the IHA requested by Skipjack.
Comment 2: The ENGOs noted that the Roberts et al. model does not
differentiate between species of pilot whale or seal or between stocks
of bottlenose dolphin. The ENGOs express concern that, as a result,
NMFS may not conduct the appropriate species-or stock-specific
negligible impact analysis. The ENGOs also imply that use of these
models may produce inaccurate take numbers by stating that
``[m]iscalculation of take levels based on incomplete data could have
serious implications for the future conservation of these species and
stocks.''
Response: The MMPA requires that species- or stock-specific
negligible impact determinations be made, and NMFS has done so. In this
case, NMFS has authorized take numbers specific to each affected
species or stock. As a general matter, NMFS is unaware of any available
density data which differentiates between species of pilot whales or
seals, or stocks of bottlenose dolphins. However, lack of such data
does not preclude the requisite species- or stock-specific findings. In
the event that an amount of take is authorized at the guild or species
level only, e.g., for pilot whales or bottlenose dolphins,
respectively, NMFS may adequately evaluate the effects of the activity
by conservatively assuming (for example) that all takes authorized for
the guild or species would accrue to each potentially affected species
or stock. In this case, NMFS has apportioned the overall take number
for bottlenose dolphins according to stock, as described in the
Estimated Take section and, for pilot whales, has assigned take on the
basis of an assumed group size of 10 for each potentially affected
species. NMFS does not agree that use of these models is likely to
result in miscalculation of take levels, and the commenters do not
provide support for this statement.
Comment 3: The ENGOs assert that NMFS has not acknowledged the use
of areas south of Nantucket and Martha's Vineyard as important habitat
for foraging and social behavior for North Atlantic right whales, but
rather that

[[Page 18946]]

NMFS believes the areas are important solely as a migratory pathway.
The commenters also asserted that NMFS is overly reliant on the
description of biologically important areas (BIA) provided in LaBrecque
et al. (2015), stating that ``NMFS should not rely on the North
Atlantic right whale migratory corridor BIA as the sole indicator of
habitat importance for the species.''
Response: The specified activity associated with the IHA addressed
herein is located off of Delaware. Therefore, this comment is not
relevant to issuance of this IHA. However, as a general matter, NMFS
disagrees with the commenters' assertion. Although NMFS has in other
notices discussed at length the use of the referenced area as a
migratory pathway (and recognition of such use through the area's
description as a BIA for right whales), we have also acknowledged the
more recent data and its implications for the use of the referenced
area (see, e.g., 85 FR 63508; December 7, 2018; 86 FR 11930; March 1,
2021). Similarly, NMFS does not agree with the assertion that our
understanding of important habitat for marine mammals stems solely from
existing, described BIAs. NMFS concurs with the statement that BIAs are
not comprehensive and are intended to be periodically reviewed and
updated and we routinely review newly available information to inform
our understanding of important marine mammal habitat. In this case, the
specified geographical region does not include important habitat other
than that described as being the migratory pathway for right whales.
Comment 4: The ENGOs commented that the waters off Cape Hatteras,
North Carolina, have high marine mammal biodiversity and that marine
mammals occur at unusually high densities off Cape Hatteras compared to
other areas along the East Coast. The ENGOs asserted that this area
demands special attention from NMFS.
Response: NMFS concurs with the commenters regarding the importance
of deepwater areas off of Cape Hatteras. However, the specific activity
associated with the IHA addressed herein does not occur off of Cape
Hatteras and, in general, the site characterization surveys conducted
in support of wind energy development that are the subject of the ENGO
comment letter occur in shallow water (not the area of high
biodiversity and density referenced by commenters). When appropriate,
NMFS has accorded special attention to the development of additional
mitigation for activities conducted in that location (e.g., 83 FR
63268; December 7, 2018). NMFS uses the best available scientific
information when analyzing potential impacts to marine mammals and in
developing prescribed mitigation sufficient to meet the MMPA's ``least
practicable adverse impact'' standard, and has done so in this case.
Comment 5: The ENGOs asserted that NMFS must analyze cumulative
impacts to North Atlantic right whales and other marine mammal species
and stocks and ensure appropriate mitigation of these cumulative
impacts. The commenters express particular concern about the cumulative
impacts of survey activities off Rhode Island and Massachusetts on
North Atlantic right whales. They further recommended that NMFS develop
programmatic incidental take regulations applicable to site
characterization activities.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 implementing regulations also addressed public
comments regarding cumulative effects from future, unrelated
activities. There NMFS stated that such effects are not considered in
making findings under section 101(a)(5) concerning negligible impact.
In this case, both this IHA, as well as other IHAs currently in effect
or proposed within the specified geographic region, are appropriately
considered an unrelated activity relative to the others. The IHAs are
unrelated in the sense that they are discrete actions under section
101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Skipjack was the applicant for the IHA, and we are
responding to the specified activity as described in that application
(and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, we also indicated (1) that NMFS would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the ESA for ESA-listed species. In this
case, cumulative impacts have been adequately addressed under NEPA in
prior environmental analyses that form the basis for NMFS'
determination that this action is appropriately categorically excluded
from further NEPA analysis. Regarding activities in the Mid- and South
Atlantic region, in 2018 NMFS signed a Record of Decision that (1)
adopted the Bureau of Ocean Energy Management's 2014 Final Programmatic
Environmental Impact Statement that evaluated the direct, indirect, and
cumulative impacts of geological and geophysical survey activities on
the Mid- and South Atlantic Outer Continental Shelf to support NMFS'
analysis associated with issuance of incidental take authorizations
pursuant to sections 101(a)(5)(A) or (D) of the MMPA and the
regulations governing the taking and importing of marine mammals (50
CFR part 216), and (2) in accordance with 40 CFR 1505.2, announced and
explained the basis for our decision to review and potentially issue
incidental take authorizations under the MMPA on a case-by-case basis,
if appropriate. Separately, NMFS has previously written Environmental
Assessments (EA) that addressed cumulative impacts related to
substantially similar activities, in similar locations, e.g., 2019
Orsted EA for survey activities offshore southern New England; 2019
Avangrid EA for survey activities offshore North Carolina and Virginia;
2018 Deepwater Wind EA for survey activities offshore Delaware,
Massachusetts, and Rhode Island.
Separately, cumulative effects were analyzed as required through
NMFS' required intra-agency consultation under section 7 of the ESA,
which determined that NMFS' action of issuing the IHA is not likely to
adversely affect listed marine mammals or their critical habitat.
Finally, the ENGOs suggested that NMFS should promulgate
programmatic

[[Page 18947]]

incidental take regulations for site characterization activities.
Although NMFS is open to this approach, we have not received a request
for such regulations. The ENGOs do not explain their apparent position
that NMFS may advance regulations absent a requester.
Comment 6: The ENGOs state that NMFS should not adjust estimated
take numbers for large whales on the basis of assumed efficacy of
mitigation requirements, and assert that NMFS' assumptions regarding
effectiveness of mitigation requirements are unfounded.
Response: In this case, NMFS did not propose to adjust downward any
estimated take number based on proposed mitigation measures, and has
not done so in the issued IHA. Therefore, the comment is not relevant
to this specific action. Generally, NMFS does not agree with the
apparent contention that it is never appropriate to reduce estimated
take numbers based on anticipated implementation and effectiveness of
mitigation measures, and will continue to evaluate the appropriateness
of doing so on a case-specific basis.
While we acknowledge the commenters' concerns regarding unfounded
assumptions concerning the effectiveness of mitigation requirements in
reducing actual take, it is important to also acknowledge the
circumstances of a particular action. In most cases, the maximum
estimated Level B harassment zone associated with commonly-used
acoustic sources is approximately 150 meters (m), whereas the
typically-required shutdown zone for North Atlantic right whales is 500
m. For North Atlantic right whales, NMFS expects that this requirement
will indeed be effective in reducing actual take below the estimated
amount, which typically does not account for the beneficial effects of
mitigation.
Comment 7: The ENGOs state that NMFS must require mitigation
measures that meet the least practicable adverse impact standard, imply
that the requirements prescribed by NMFS have not met that standard,
and recommend various measures that the commenters state NMFS should
require.
The ENGOs first state that NMFS should prohibit site assessment and
characterization activities involving equipment with noise levels that
the commenters assert could cause injury or harassment to North
Atlantic right whales during periods of highest risk, which the
commenters define as times of highest relative density of animals
during their migration, and times when mother-calf pairs, pregnant
females, surface active groups, or aggregations of three or more whales
are, or are expected to be, present. The commenters additionally state
that NMFS should require that work commence only during daylight hours
and good visibility conditions to maximize the probability that marine
mammals are detected and confirmed clear of the exclusion zone before
activities begin. If the activity is halted or delayed because of
documented or suspected North Atlantic right whale presence in the
area, the commenters state that NMFS should require operators to wait
until daylight hours and good visibility conditions to recommence.
Response: NMFS acknowledges the limitations inherent in detection
of marine mammals at night. However, no injury is expected to result
even in the absence of mitigation, given the characteristics of the
sources planned for use (supported by the very small estimated Level A
harassment zones). The ENGOs do not provide any support for the
apparent contention that injury is a potential outcome of these
activities. Regarding Level B harassment, any potential impacts would
be limited to short-term behavioral responses, as described in greater
detail herein. The commenters establish that the status of North
Atlantic right whales in particular is precarious. NMFS agrees in
general with the discussion of this status provided by the commenters.
NMFS also agrees with the commenters that certain recommended
mitigation requirements, e.g., avoiding impacts in places and times of
greatest importance to marine mammals, limiting operations to times of
greatest visibility, would be effective in reducing impacts. However,
the commenters fail entirely to establish that Skipjack's specified
site assessment and characterization survey activities--or site
assessment and characterization survey activities in general--would
have impacts on North Atlantic right whales (or any other species) such
that operational limitations would be warranted. In fact, NMFS
considers this category of survey operations to be near de minimis,
with the potential for Level A harassment for any species to be
discountable and the severity of Level B harassment (and, therefore,
the impacts of the take event on the affected individual), if any, to
be low. In that context, there is no need for more restrictive
mitigation requirements, and the commenters offer no justification to
the contrary.
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. Vessels would also potentially be on the
water for an extended time introducing noise into the marine
environment. 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. Furthermore, restricting the applicant to
begin operations 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 and, subsequently, 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
consideration of the likely effects of the activity on marine mammals
absent mitigation, potential unintended consequences of the measures as
proposed by the commenters, and practicability of the recommended
measures for the applicant, NMFS has determined that restricting
operations as recommended is not warranted or practicable in this case.
Comment 8: The ENGOs recommended that NMFS establish an exclusion
zone (EZ) of 1,000-m around each vessel conducting activities with
noise levels that they assert could result in injury or harassment to
North Atlantic right whales, and a minimum EZ of 500 m for all other
large whale species and strategic stocks of small cetaceans.
Response: NMFS disagrees with this recommendation, and has
determined that the EZs included here are sufficiently protective. We
note that the 500-m EZ for North Atlantic right whales exceeds the
modeled distance to the largest Level B harassment isopleth distance
(141 m) by a factor of more than three. The commenters do not provide
any justification for the contention that the existing EZs are
insufficient, and do not provide any rationale for their recommended
alternatives (other than that they are larger).
Comment 9: The ENGOs stated that NMFS' requirements related to
visual monitoring are inadequate. The commenters specifically noted
their belief that a requirement for one Protected Species Observer
(PSO) to be

[[Page 18948]]

on duty during daylight hours is insufficient, and recommended that
NMFS require the use of infrared equipment to support visual monitoring
by PSOs during periods of darkness. DNREC also recommended that
infrared equipment be used to support visual monitoring by PSOs during
periods of darkness.
Response: NMFS typically requires that a single PSO must be
stationed at the highest vantage point and engaged in general 360-
degree scanning during daylight hours only. Although NMFS acknowledges
that the single PSO cannot reasonably maintain observation of the
entire 360-degree area around the vessel, it is reasonable to assume
that the single PSO engaged in continual scanning of such a small area
(i.e., 500-m EZ, which is greater than the maximum 141-m harassment
zone) will be successful in detecting marine mammals that are available
for detection at the surface. The monitoring reports submitted to NMFS
have demonstrated that PSOs active only during daylight operations are
able to detect marine mammals and implement appropriate mitigation
measures. As far as visual monitoring at night, we have not
historically required visual monitoring at night because available
information demonstrated that such monitoring should not be considered
effective. However, as night vision technology has continued to
improve, NMFS has adapted its practice, and two PSOs are required to be
on duty at night. Moreover, NMFS has included a requirement in the
final IHA that night-vision equipment (i.e., night-vision goggles and/
or infrared technology) must be available for use.
Regarding specific technology cited by the ENGOs, NMFS appreciates
the suggestion and agrees that relatively new detection platforms have
shown promising results. Following review of the ENGO's letter, we
considered these and other supplemental platforms as suggested.
However, to our knowledge, there is no clear guidance available for
operators regarding characteristics of effective systems, and the
detection systems cited by the commenters are typically extremely
expensive, and are therefore considered impracticable for use in most
surveys. The commenters do not provide specific suggestions with regard
to recommended systems or characteristics of systems. NMFS does not
generally consider requirements to use systems such as those cited by
the commenters to currently be practicable.
Comment 10: The ENGOs recommended that NMFS should require PAM at
all times, both day and night, to maximize the probability of detection
for North Atlantic right whales, and other species and stocks. DNREC
echoed this recommendation.
Response: The foremost concern expressed by the ENGOs in making the
recommendation to require use of PAM is with regard to North Atlantic
right whales. However, the commenters do not explain why they expect
that PAM would be effective in detecting vocalizing mysticetes. It is
generally well-accepted fact that, even in the absence of additional
acoustic sources, using a towed passive acoustic sensor to detect
baleen whales (including right whales) is not typically effective
because the noise from the vessel, the flow noise, and the cable noise
are in the same frequency band and will mask the vast majority of
baleen whale calls. Vessels produce low-frequency noise, primarily
through propeller cavitation, with main energy in the 5-300 Hertz (Hz)
frequency range. Source levels range from about 140 to 195 dB re 1
[mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on
factors such as ship type, load, and speed, and ship hull and propeller
design. Studies of vessel noise show that it appears to increase
background noise levels in the 71-224 Hz range by 10-13 dB (Hatch et
al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems
employ hydrophones towed in streamer cables approximately 500 m behind
a vessel. Noise from water flow around the cables and from strumming of
the cables themselves is also low-frequency and typically masks signals
in the same range. Experienced PAM operators participating in a recent
workshop (Thode et al., 2017) emphasized that a PAM operation could
easily report no acoustic encounters, depending on species present,
simply because background noise levels rendered any acoustic detection
impossible. The same workshop report stated that a typical eight-
element array towed 500 m behind a vessel could be expected to detect
delphinids, sperm whales, and beaked whales at the required range, but
not baleen whales, due to expected background noise levels (including
seismic noise, vessel noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 141 m)--this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low--together these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for right whales and other low frequency cetaceans, species
for which PAM has limited efficacy), and the cost and impracticability
of implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
habitat.
Comment 11: The ENGOs recommended that NMFS require applicants to
use the lowest practicable source level.
Response: Wind energy developers selected the equipment necessary
during HRG surveys to achieve their objectives. As part of the analysis
for all HRG IHAs, NMFS evaluated the effects expected as a result of
use of this equipment, made the necessary findings, and imposed
mitigation requirements sufficient to achieve the least practicable
adverse impact on the affected species and stocks of marine mammals. It
is not within NMFS' purview to make judgments regarding what
constitutes the ``lowest practicable source level'' for an operator's
survey objectives.
Comment 12: The ENGOs recommended that NMFS require all offshore
wind energy related project vessels operating within or transiting to/
from survey areas, regardless of size, to

[[Page 18949]]

observe a 10-knot speed restriction during the entire survey period.
Response: NMFS does not concur with these measures. NMFS has
analyzed the potential for ship strike resulting from various HRG
activities 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 km/hour) or less speed restrictions in any
established dynamic management area (DMA) or seasonal management area
(SMA); a requirement that all vessel operators reduce vessel speed to
10 knots (18.5 km/hour) or less when any large whale, mother/calf
pairs, pods, or large assemblages of non-delphinid 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; a requirement that all
vessels must maintain a minimum separation distance of 100 m from sperm
whales and all other baleen whales; and a requirement that all vessels
must, to the maximum extent practicable, attempt to maintain a minimum
separation distance of 50 m from all other marine mammals, with an
understanding that at times this may not be possible (e.g., for animals
that approach the vessel). 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. Furthermore, no
documented vessel strikes have occurred for any marine site
characterization survey activities which were issued IHAs from NMFS.
Comment 13: The ENGOs recommend that NMFS work with relevant
experts and stakeholders towards developing a robust and effective near
real-time monitoring and mitigation system for North Atlantic right
whales and other endangered and protected species (e.g., fin, sei,
minke, and humpback whales) during offshore wind energy development.
Response: NMFS is generally supportive of this concept. A network
of near real-time baleen whale monitoring devices are active or have
been tested in portions of New England and Canadian waters. These
systems employ various digital acoustic monitoring instruments which
have been placed on autonomous platforms including slocum gliders, wave
gliders, profiling floats and moored buoys. Systems that have proven to
be successful will likely see increased use as operational tools for
many whale monitoring and mitigation applications. The ENGOs cited the
NMFS publication ``Technical Memorandum NMFS[hyphen]OPR[hyphen]64:
North Atlantic Right Whale Monitoring and Surveillance: Report and
Recommendations of the National Marine Fisheries Service's Expert
Working Group'' which is available at: https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations. This report summarizes a
workshop NMFS convened to address objectives related to monitoring
North Atlantic right whales and presents the Expert Working Group's
recommendations for a comprehensive monitoring strategy to guide future
analyses and data collection. Among the numerous recommendations found
in the report, the Expert Working Group encouraged the widespread
deployment of auto-buoys to provide near real-time detections of North
Atlantic right whale calls that visual survey teams can then respond to
for collection of identification photographs or biological samples.
Comment 14: The ENGOs state that NMFS must not issue Renewal IHAs,
and assert that the process is contrary to statutory requirements.
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. As noted above, the Comments and Responses
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 Comments and
Responses section) is limited to another year of identical or nearly
identical activities in the same location (as described in the
Description of Specified Activity section) or the same activities 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.
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, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period provides the public an opportunity to review these few
documents, provide any additional pertinent information and comment on
whether they think the criteria for a Renewal have been met. Between
the initial 30-day comment period on these same activities and the
additional 15 days, the total comment period for a Renewal is 45 days.
Comment 15: The ENGOs expressed concern about past instances where
NMFS has modified issued IHAs in response to preliminary monitoring
data indicating that certain species of marine mammal were being
encountered more frequently than anticipated.
Response: No modifications are included as part of this action and,
therefore, this comment is not relevant to this IHA.

Changes From the Proposed IHA to Final IHA

NMFS has revised the final IHA to include a section requiring that
night-vision equipment (i.e., night-vision goggles and/or infrared
technology) must be available for use during nighttime monitoring. NMFS
has also included language in the IHA stating that all vessels,
regardless of size, must observe a 10-knot speed restriction in
specific areas designated by NMFS for the protection of North Atlantic
right whales from vessel strikes including SMAs and DMAs when in effect
and that all vessels greater than or equal to 19.8 m in overall length
operating from November 1 through April 30 will operate at speeds of 10
knots or less while transiting to and from Project Area.

[[Page 18950]]

The language above was included in the text of the notice of
proposed IHA but inadvertently omitted from the draft IHA. There were
no other changes from the proposed IHA to the final IHA.

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's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (https://www.fisheries.noaa.gov/find-species).
Table 2 lists all species or stocks for which take is expected and
authorized for this action, and 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, NMFS
follows Committee on Taxonomy (2020). 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's SARs). While no mortality is anticipated or authorized here, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or Project Area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic SARs. All values presented in Table 2 are the most
recent available at the time of publication and are available in the
2019 Atlantic and Gulf of Mexico Marine Mammal SARs (Hayes et al.,
2020), available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region and
draft 2020 Atlantic and Gulf of Mexico Marine Mammal SARs available
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

Table 2--Marine Mammal Species Likely To Occur Near the Project Area That May Be Affected by Skipjack's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/SI
\1\ abundance survey) \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale..... Eubalaena glacialis... Western North Atlantic E/D; Y 412 (0; 408; 2018).... 0.8 18.6
Family Balaenopteridae (rorquals):
Humpback whale................. Megaptera novaeangliae Gulf of Maine......... -/-; Y 1,393 (0; 1,375; 2016) 22 58
Fin whale...................... Balaenoptera physalus. Western North Atlantic E/D; Y 6,802 (0.24; 5,573; 11 2.35
2016).
Sei whale...................... Balaenoptera borealis. Nova Scotia........... E/D; Y 6,292 (1.015; 3,098; 6.2 1.2
see SAR).
Minke whale.................... Balaenoptera Canadian East Coast... -/-; N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale.................... Physeter macrocephalus NA.................... E; Y 4,349 (0.28;3,451; See 3.9 0
SAR).
Family Delphinidae:
Long-finned pilot whale........ Globicephala melas.... Western North Atlantic -/-; N 39,215 (0.30; 30,627; 306 21
See SAR).
Short finned pilot whale....... Globicephala Western North Atlantic -/-;Y 28,924 (0.24; 23,637; 236 160
macrorhynchus. See SAR).
Bottlenose dolphin............. Tursiops truncatus.... Western North Atlantic -/-; N 62,851 (0.23; 51,914; 519 28
Offshore. -/-;Y See SAR). 48 12.2-21.5
W.N.A. Northern 6,639 (0.41,4 ,759,
Migratory Coastal. 2016).
Common dolphin................. Delphinus delphis..... Western North Atlantic -/-; N 172,897 (0.21; 145, 1,452 399
216; 2016).
Atlantic white-sided dolphin... Lagenorhynchus acutus. Western North Atlantic -/-; N 93,233 (0.71; 54,443; 544 26
See SAR).
Atlantic spotted dolphin....... Stenella frontalis.... Western North Atlantic -/-; N 39,921 (0.27; 32,032; 320 0
2012).
Risso's dolphin................ Grampus griseus....... Western North Atlantic -/-; N 35,493 (0.19; 30,289; 303 54.3
See SAR).
Family Phocoenidae (porpoises):
Harbor porpoise................ Phocoena phocoena..... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 851 217
Fundy. See SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \4\.................. Halichoerus grypus.... Western North Atlantic -/-; N 27,131 (0.19; 23,158, 1,389 5,410
2016).

[[Page 18951]]

Harbor seal.................... Phoca vitulina........ Western North Atlantic -/-; N 75,834 (0.15; 66,884, 2,006 350
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: 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 Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a
minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 451,431.

As indicated above, all 16 species (with 17 managed stocks) in
Table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur and has been authorized
by NMFS.
A detailed description of the of the species likely to be affected
by Skipjack's surveys, 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 notice of proposed IHA (86 FR 11239; February 24,
2021); 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 notice for these descriptions.
Please also refer to NMFS' website (www.fisheries.noaa.gov/find-species) for generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

The underwater noise from Skipjack's survey activities has the
potential to result in behavioral harassment of marine mammals in the
vicinity of the survey area. The notice of proposed IHA (86 FR 11239;
February 24, 2021) included a discussion of the effects of
anthropogenic noise on marine mammals and the potential effects of
underwater noise from Skipjack's survey activities on marine mammals
and their habitat. That information and analysis is incorporated by
reference into this final IHA determination and is not repeated here;
please refer to the notice of proposed IHA (86 FR 11239; February 24,
2021).

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.
Level B harassment is the only type of take expected to result from
these activities. Except with respect to certain activities not
pertinent here, section 3(18) of the MMPA defines ``harassment'' as any
act of pursuit, torment, or annoyance, which (i) has the potential to
injure a marine mammal or marine mammal stock in the wild (Level A
harassment); or (ii) has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only. Based on the
nature of the activity, even in the absence of mitigation, Level A
harassment is neither anticipated nor authorized. The anticipated
effectiveness of the required mitigation measures (i.e., exclusion
zones and shutdown measures), discussed in detail below in Mitigation
section, serves to strengthen the position that Level A harassment is
not expected.
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)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the take estimate.

Acoustic Thresholds

NMFS recommends the use of 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., 2012). 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 NMFS considers 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. Skipjack's planned activity includes
the use of intermittent sources (HRG equipment) and therefore the 160
dB re 1 [mu]Pa (rms) is applicable.

[[Page 18952]]

Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). Skipjack's planned activity includes the
use of impulsive (e.g., sparkers and boomers) and non-impulsive (e.g.,
CHIRP) sources.
These thresholds are provided in Table 3 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.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

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

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
NMFS has developed a user-friendly methodology for determining the
rms sound pressure level (SPLrms) at the 160-dB isopleth for
the purposes of estimating the extent of Level B harassment isopleths
associated with HRG survey equipment (NMFS, 2020). This methodology
incorporates frequency and some directionality to refine estimated
ensonified zones. For sources that operate with different beam widths,
the maximum beam width was used (see Table 1). The lowest frequency of
the source was used when calculating the absorption coefficient (Table
1).
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to the Level A
and Level B harassment thresholds. In cases when the source level for a
specific type of HRG equipment is not provided in Crocker and
Fratantonio (2016), NMFS recommends that either the source levels
provided by the manufacturer be used, or, in instances where source
levels provided by the manufacturer are unavailable or unreliable, a
proxy from Crocker and Fratantonio (2016) be used instead. Table 1
shows the HRG equipment types that may be used during the planned
surveys and the sound levels associated with those HRG equipment types.
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment planned for use by Skipjack that has
the potential to result in Level B harassment of marine mammals, sound
produced by the Applied Acoustics Dura-Spark UHD sparkers and GeoMarine
Geo-Source sparker would propagate furthest to the Level B harassment
threshold (141 m; Table 6). As described above, only a portion of
Skipjack's survey activity days will employ sparkers or boomers;
therefore, for the purposes of the exposure analysis, it was assumed
that sparkers would be the dominant acoustic source for 50 of the total
200 survey activity days. For the remaining 150 survey days, the TB
Chirp III (48 m) was assumed to be the dominant source. Thus, the
distances to the isopleths corresponding to the threshold for Level B
harassment for sparkers (141 m) and the TB Chirp III (48m) were used as
the basis of the take calculation for all marine mammals 25 percent and
75 percent of survey activity days, respectively. This is a
conservative approach, as the actual sources used on individual survey
days may produce smaller harassment distances.
When the NMFS Technical Guidance was first published in 2016, in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, NMFS developed a User Spreadsheet that includes
tools to help predict a simple isopleth that can be used in conjunction
with marine mammal density or occurrence to help predict takes. NMFS
notes that because of some of the assumptions included in the methods
used for these tools, it is anticipated that isopleths produced are
typically going to be overestimates of some degree, which may result in
some degree of overestimate of Level A harassment 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 HRG equipment, the User Spreadsheet predicts the closest
distance at which a stationary animal would not incur PTS if the sound
source traveled by the animal in a straight line at a constant speed.
Inputs used in the User Spreadsheet are shown in Table 4

[[Page 18953]]

and Table 5 and the resulting isopleths are reported in Table 6.

Table 4--User Spreadsheet Inputs for Non-Impulsive, Non-Parametric, Shallow Sub-Bottom Profilers
[CHIRP Sonars]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Device EdgeTech 216 Edgetech 424 Edgetech 512 GeoPulse 5430 Teledyne Chirp III
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
D1) Mobile source; non- D1) Mobile source; non- D1) Mobile source; non- D1) Mobile source; non- D1) Mobile source; non-
Spreadsheet tab used impulsive, intermittent impulsive, intermittent impulsive, intermittent impulsive, intermittent impulsive, intermittent
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Frequency used for Weighting 2; 16; 16; 6.2................ 4; 24; 24; 6.2................ 1.7; 12; 12; 6.2.............. 2; 17; 17; 6.2............... 2; 7; 7; 6.2.
Factor Adjustment (kHz) 1 2.
Source Level (RMS SPL)............ 195........................... 176........................... 179........................... 196.......................... 197.
Source Velocity (m/sec)........... 2.057......................... 2.057......................... 2.057......................... 2.057........................ 2.057.
Pulse Duration (sec).............. 0.02.......................... 0.0034........................ 0.009......................... 0.05......................... 0.06.
1/Repetition rate (sec)........... 0.17.......................... 0.5........................... 0.125......................... 0.1.......................... 0.07.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Values for WFA represented = (LFC; MFC; HFC; PPW).
\2\ WFAs were selected in the User Spreadsheet for each marine mammal hearing group based on estimated hearing sensitivities of each group and the operational frequency of the source.

Table 5--User Spreadsheet Inputs for Impulsive, Medium Sub-Bottom Profilers
[Sparkers & Boomers]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Device AA, Dura-spark UHD (400 tips, AA, Dura-spark UHD GeoMarine, geo-source GeoMarine geo-source GeoMarine geo-source AA, triple plate S boom (700-
---------------------------------- 500 J) \1\ (400+400) \1\ dual 400 tip sparker 200 tip sparker (400 200-400 tip sparker 1,000 J) \2\
-------------------------------------------------------- (800 J) \1\ J) \1\ (400 J) \1\ ------------------------------
------------------------------------------------------------------------
Spreadsheet tab used F1) Mobile source: impulsive, F1) Mobile source: F1) Mobile source: F1) Mobile source: F1) Mobile source: F1) Mobile source: impulsive,
intermittent impulsive, intermittent impulsive, impulsive, impulsive, intermittent
intermittent intermittent intermittent
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Frequency used for Weighting 1............................ 1...................... 1.5................... 1..................... 1..................... 3.4.
Factor Adjustment (kHz) *.
Source Level (RMS SPL; PK SPL)... 203; 211..................... 203; 211............... 203; 211.............. 203; 211.............. 203; 211.............. 205; 211.
Source Velocity (m/sec).......... 2.057........................ 2.057.................. 2.057................. 2.057................. 2.057................. 2.057.
Pulse Duration (sec)............. 0.0011....................... 0.0011................. 0.0011................ 0.0011................ 0.0011................ 0.0006.
1/Repetition rate (sec).......... 0.25......................... 0.25................... 0.25.................. 0.25.................. 0.25.................. 0.25.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems planned for the survey. The data provided in Crocker and
Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when manufacturer or other reliable measurements are not
available.
\2\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was used in the 700 J measurements but not in
the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted in a lower SL; therefore, the single maximum SL value was used for both operational
levels of the S Boom.

Table 6--Modeled Radial Distances From HRG Survey Equipment to Isopleths
Corresponding to Level B Harassment Thresholds
------------------------------------------------------------------------
Distance to Level
B harassment
threshold (m)
Source ------------------
(SPLrms
threshold)
------------------------------------------------------------------------
Non-impulsive, Non-parametric, Shallow SBPs:
ET 216 CHIRP..................................... 9
ET 424 CHIRP..................................... 4
ET 512i CHIRP.................................... 6
GeoPulse 5430.................................... 21
TB CHIRP III..................................... 48
Impulsive, Medium SBPs:
AA Triple plate S-Boom (700/1,000 J)............. 34
AA, Dura-spark UHD (500 J/400 tip)............... 141
AA, Dura-spark UHD 400+400....................... 141
GeoMarine, Geo-Source dual 400 tip sparker....... 141
GeoMarine, Geo-Source 200 tip sparker............ 141
GeoMarine, Geo-Source 200-400 tip sparker........ 141
------------------------------------------------------------------------

Isopleth distances to Level A harassment thresholds for all types
of HRG equipment and all marine mammal functional hearing groups were
modeled using the NMFS User Spreadsheet and NMFS Technical Guidance
(2018). The dual criteria (peak SPL and SELcum) were applied
to all HRG sources using the modeling methodology as described

[[Page 18954]]

above, and the isopleth distances for each functional hearing group
were then carried forward in the exposure analysis. Modeled distances
to isopleths corresponding to the Level A harassment thresholds are
very small for all marine mammals and stocks (<5 m) with the exception
of HF cetaceans (36.5 m from GeoPulse 5430). Note that the modeled
distances to isopleths corresponding to the Level A harassment
threshold are also assumed to be conservative. Level A harassment would
also be more likely to occur at close approach to the sound source or
as a result of longer duration exposure to the sound source. In regards
to the one HF cetacean that is likely to occur in Skipjack's Project
Area, the harbor porpoise, it is a notoriously shy species which is
known to avoid vessels. Harbor porpoise would also be expected to avoid
a sound source prior to that source reaching a level that would result
in injury (Level A harassment).
Given the factors above, Level A harassment of marine mammals is
neither anticipated nor authorized, even in the absence of mitigation
measures. However, the required mitigation measures--including shutdown
measures and a 100 m exclusion zone for all marine mammals including
the harbor porpoise--are expected to even further minimize the
potential for close approach or longer duration exposure to active HRG
acoustic sources. Those mitigation measures in addition to the very
small size of Level A harassment zones, strengthens NMFS' determination
that the potential for any marine mammals to be taken by Level A
harassment is considered so low as to be discountable. Skipjack did not
request and NMFS has not authorized the take by Level A harassment of
any marine mammals.

Marine Mammal Occurrence

In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
The habitat-based density models produced by the Duke University
Marine Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018,
2020) represent the best available information regarding marine mammal
densities in the planned survey area. The density data presented by
Roberts et al. (2016, 2017, 2018, 2020) incorporates aerial and
shipboard line-transect survey data from NMFS and other organizations
and incorporates data from 8 physiographic and 16 dynamic oceanographic
and biological covariates, and controls for the influence of sea state,
group size, availability bias, and perception bias on the probability
of making a sighting. These density models were originally developed
for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/.
Marine mammal density estimates in the survey area (animals/kilmeters
squared (km\2\)) were obtained using the most recent model results for
all taxa (Roberts et al., 2016, 2017, 2018, 2020). The updated models
incorporate additional sighting data, including sightings from the NOAA
Atlantic Marine Assessment Program for Protected Species (AMAPPS)
surveys (e.g., NEFSC & SEFSC, 2011, 2012, 2014a, 2014b, 2015, 2016).
For the exposure analysis, density data from Roberts et al. (2016,
2017, 2018, 2020) were mapped using a geographic information system
(GIS). Density grid cells that included any portion of the planned
survey area were selected for all survey months.
Densities from each of the selected density blocks were averaged
for each month available to provide monthly density estimates for each
species (when available based on the temporal resolution of the model
products), along with the average annual density (Table 7).

Table 7--Estimated Monthly and Average Annual Density (Animals/km-2) of Potentially Affected Marine Mammals Within the Project Area Based on Monthly Habitat Density Models
[Roberts et al. 2016; Roberts, 2018, 2020]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average
annual
Species Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec density
(km-2)

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Low-Frequency Cetaceans:
Fin whale................................................ 0.0010 0.0008 0.0015 0.0020 0.0017 0.0012 0.0005 0.0004 0.0011 0.0014 0.0010 0.0009 0.0011
Sei whale................................................ 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
Minke whale.............................................. 0.0002 0.0002 0.0002 0.0009 0.0010 0.0005 0.0001 0.0000 0.0001 0.0003 0.0001 0.0001 0.0003
Humpback whale........................................... 0.0013 0.0006 0.0006 0.0005 0.0005 0.0004 0.0001 0.0001 0.0002 0.0004 0.0004 0.0014 0.0005
North Atlantic right whale............................... 0.0037 0.0042 0.0043 0.0028 0.0002 0.0000 0.0000 0.0000 0.0000 0.0000 0.0003 0.0020 0.0015
Mid-Frequency Cetaceans:
Sperm whale.............................................. 0.0000 0.0000 0.0000 0.0000 0.0000 0.0001 0.0001 0.0001 0.0000 0.0001 0.0000 0.0000 0.0000
Atlantic white-sided dolphin............................. 0.0017 0.0009 0.0012 0.0028 0.0035 0.0022 0.0006 0.0003 0.0008 0.0026 0.0036 0.0034 0.0020
Atlantic spotted dolphin................................. 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017 0.0017
Common bottlenose dolphin (Offshore) \1\................. 0.0134 0.0088 0.0125 0.0193 0.1224 0.1138 0.1361 0.1663 0.0800 0.0713 0.0524 0.0201 0.0680
Common bottlenose dolphin (Migratory) \1\................ 0.0317 0.0271 0.0444 0.0910 0.5921 0.4623 0.5903 0.6439 0.2388 0.2015 0.1335 0.0459 0.2585
Short-finned pilot whale \2\............................. 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003
Long-finned pilot whale \2\.............................. 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003 0.0003
Risso's dolphin.......................................... 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
Common dolphin........................................... 0.0071 0.0035 0.0040 0.0092 0.0167 0.0110 0.0125 0.0143 0.0109 0.0109 0.0200 0.0152 0.0113
High-Frequency Cetaceans:
Harbor porpoise.......................................... 0.0261 0.0247 0.0225 0.0095 0.0031 0.0000 0.0000 0.0000 0.0000 0.0005 0.0153 0.0535 0.0129
Pinnipeds \3\:
Gray seal................................................ 0.0003 0.0003 0.0003 0.0003 0.0003 0.0007 0.0007 0.0007 0.0003 0.0003 0.0003 0.0003 0.0004
Harbor seal.............................................. 0.0003 0.0003 0.0003 0.0003 0.0003 0.0007 0.0007 0.0007 0.0003 0.0003 0.0003 0.0003 0.0004
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Bottlenose dolphin stocks were delineated based on the 20-m isobath as identified in NMFS 2017 SAR; all density blocks falling inland of the 20-m depth contour were assumed to belong to
the migratory coastal stock, and those beyond this depth were assumed to belong to the offshore stock.
\2\ Roberts (2018) only provides density estimates for ``generic'' pilot whales. It is assumed that each species has density levels that are equivalent to the generic pilot whale Density
levels.
\3\ Seal densities are not given by individual months or species, instead, seasons are divided as summer (June, July, August) and Winter (September-May) and applied to ``generic'' seals; as a
result, reported seasonal densities for spring and fall are the same and are not provided for each species (Roberts 2018). Densities were evenly split between both species.

Take Calculation and Estimation

Here NMFS describes how the information provided above is brought
together to produce a quantitative take estimate. In order to estimate
the number of marine mammals predicted to be exposed to sound levels
that would result in harassment, radial distances to predicted
isopleths corresponding to Level B harassment thresholds are
calculated, as described above. Those distances are then used to
calculate the area(s) around the HRG survey equipment predicted to be
ensonified to sound levels that exceed

[[Page 18955]]

harassment thresholds. The area estimated to be ensonified to relevant
thresholds in a single day 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 mean annual density of a given marine mammal
species. This value is then multiplied by the number of planned vessel
days.
The estimated potential daily active survey distance of 70 km was
used as the estimated areal coverage over a 24-hour period. This
distance accounts for the vessel traveling at roughly 4 knots and only
for periods during which equipment <180 kHz is in operation. A vessel
traveling 4 knots can cover approximately 110 km per day; however,
based on data from 2017, 2018, and 2019 surveys, survey coverage over a
24-hour period is closer to 70 km per day. For daylight only vessels,
the distance is reduced to 35 km per day. To maintain the potential for
24-hour surveys, the Level B harassment ZOIs provided in Table 8 were
calculated for each source based on the Level B harassment threshold
distances in Table 6 with a 24-hour (70 km) operational period.

Table 8--Calculated Zone of Influence (ZOI) Encompassing Level B
Thresholds for Each Sound Source or Comparable Sound Source Category
------------------------------------------------------------------------
Source Level B ZOI
-------------------------------------------------------- (km\2\)
----------------
Hearing group All
------------------------------------------------------------------------
ET 216 CHIRP........................................... 1.3
ET 424 CHIRP........................................... 0.6
ET 512i CHIRP.......................................... 0.8
GeoPulse 5430.......................................... 2.9
TB CHIRP III........................................... 6.7
AA Triple plate S-Boom (700-1,000 J)................... 4.8
AA, Dura-spark UHD..................................... 19.8
AA, Dura-spark UHD 400+400............................. 19.8
GeoMarine, Geo-Source dual 400 tip Sparker............. 19.8
------------------------------------------------------------------------
AA = Applied Acoustics; CHIRP = Compressed High-Intensity Radiated
Pulse; ET = EdgeTech; HF = high-frequency; J = joules; LF = low-
frequency; MF = mid-frequency; PW = phocid pinnipeds in water; SBP =
sub-bottom profiler; TB = Teledyne Benthos; UHD = ultra-high
definition.

Level B exposures were estimated by multiplying the average annual
density of each species (Table 7) (Roberts et al., 2016; Roberts, 2018)
by the daily ZOI that was estimated to be ensonified to an
SPLrms exceeding 160 dB re 1 [micro]Pa (Table 8), times the
number of operating days expected for the survey in each area assessed.
As described previously, it was assumed that that sparker systems with
141-m Level B harassment isopleths would operate for 50 survey days and
the non-sparker TB CHIRP III with 48-m Level B harassment isopleth
would operate for the remaining 150 survey days. The results of these
calculations are shown in Table 9.

Table 9--Summary of Take Numbers Authorized by NMFS
----------------------------------------------------------------------------------------------------------------
Level B Max percent
Species Abundance takes\1\ population
----------------------------------------------------------------------------------------------------------------
Low-Frequency Cetaceans:
Fin whale................................................... 7,418 2 0.03
Sei whale................................................... 6,292 0 (1) 0.02
Minke whale................................................. 24,202 0 (2) 0.01
Humpback whale.............................................. 1,396 2 0.14
North Atlantic right whale.................................. 428 3 0.70
Mid-Frequency Cetaceans:
Sperm whale \3\............................................. 4,349 0 (3) 0.07
Atlantic white-sided dolphin................................ 93,233 4 0.00
Atlantic spotted dolphin.................................... 39,921 4 (2,000) 5.00
Common bottlenose dolphin \2\:
Offshore Stock.......................................... 62,851 135 0.21
Migratory Stock......................................... 6,639 516 7.77
Pilot Whales \3\:
Short-finned pilot whale................................ 28,924 0 (10) 0.03
Long-finned pilot whale................................. 39,215 0 (10) 0.03
Risso's dolphin............................................. 35,493 0 (30) 0.08
Common dolphin.............................................. 178,825 24 (70) 0.04
High-Frequency Cetaceans:
Harbor porpoise................................................. 95,543 22 0.03
Pinnipeds:
Seals \4\:
Gray seal............................................... 27,131 0 (10) 0.04
Harbor seal............................................. 75,834 0 (10) 0.01
----------------------------------------------------------------------------------------------------------------
\1\ Parenthesis denote changes from calculated take estimates.
\2\ Roberts et al. (2016) does not provide density estimates for individual stocks of common bottlenose
dolphins; therefore, stock densities were delineated using the 20-m isobath.

[[Page 18956]]

\3\ Roberts (2018) only provides density estimates for ``generic'' pilot whales and seals; therefore, an equal
potential for takes has been assumed either for species or stocks within the larger group.
\4\ Roberts (2018) only provides density estimates for ``generic'' seals; therefore, densities were split evenly
between the two species.

No takes were calculated for the sei whale, minke whale, sperm
whale, short- and long-finned pilot whale, or Risso's dolphin. However,
based on anticipated species distributions and data from previous
surveys conducted in the DE WEA, it is possible that these species
could be encountered. Therefore, Skipjack based its take requests on
estimated group sizes for these species (1 for sei whales, 2 for minke
whales, 3 for sperm whales, 10 for short- and long-finned pilot whales,
and 30 for Risso's dolphins). For species with no modeled exposures,
requested takes for HRG surveys are based on mean group sizes derived
from the following references:
Sei whale: Kenney and Vigness-Raposa, 2010;
Minke whale: Kenney and Vigness-Raposa, 2020;
Sperm whale: Barkaszi and Kelly, 2018;
Short- and long-finned pilot whales: Kenney and Vigness-
Raposa, 2010; and
Risso's dolphin: Barkaszi and Kelly, 2018.
NMFS concurred with this approach and based its authorized takes of
these species on Skipjack's requests. Additionally, the number of takes
authorized in Table 9 for Atlantic white-sided dolphin, bottlenose
dolphin, and harbor porpoise are equivalent to the numbers requested by
Skipjack.
Roberts et al. (2018) produced density models for all seals and did
not differentiate by seal species. The take calculation methodology as
described above resulted in close to zero takes. The marine mammal
monitoring report associated with the previous IHA issued to Skipjack
in this survey area (84 FR 66156; December 3, 2019) did not record any
takes of seals. However, the planned survey area includes a portion of
Delaware Bay which is not covered by Roberts et al. (2018) and was not
included as part of the previous IHA. Therefore, Skipjack did not
request take of any harbor or gray seals. However, since seals are
known to occur in the Bay, mostly during winter months, NMFS is
conservatively authorizing 10 takes of each species by Level B
harassment of both harbor and gray seals.
Skipjack had requested 4 takes of spotted dolphin and 24 takes of
common dolphin by Level B harassment. However, recent HRG surveys in
the Mid-Atlantic area off the coast of Virginia have recorded
unexpectedly large numbers of both Atlantic spotted dolphin and common
dolphin. These events have led NMFS to modify another offshore wind
energy company's existing IHA (85 FR 81879; December 17, 2020) in order
to accommodate larger take numbers. The spotted dolphins had been
recorded at a rate of up 15 per day while common dolphins were recorded
at a rate of 62 animals in a single week. Note that there were many
days in which there were no sightings of spotted dolphins and that all
of the 62 common dolphin sightings occurred during a single week. The
previous Skipjack marine mammal monitoring report from this area
recorded up to 8 common dolphins over 23 days of active surveying (0.35
animals/day). Given this data, NMFS will assume that 0.35 common
dolphins could be exposed within the Level B harassment zone per day
over 200 days resulting in the 70 authorized takes of common dolphin by
Level B harassment. NMFS will also assume that there could be up to 10
exposures of spotted dolphin per day resulting in the 2000 authorized
takes by Level B harassment.
Note that Skipjack submitted a marine mammal monitoring report
under the previous IHA covering the period of June 4, 2020 through June
26, 2020. Over the 23-day monitoring period there were 110 sightings
consisting of 112 individual animals. Only three bottlenose dolphins
were recorded as occurring within estimated Level B harassment zones
which is well below the 1,465 takes that were authorized. However, due
to a range of factors only 23 actual survey days occurred out of 200
that were planned.

Mitigation

In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
carefully considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations.

Mitigation for Marine Mammals and Their Habitat

NMFS requires the following mitigation measures be implemented
during Skipjack's planned marine site characterization surveys.

Marine Mammal Exclusion Zones and Harassment Zones

Marine mammal EZs would be established around the HRG survey
equipment and monitored by PSOs:
500 m EZ for North Atlantic right whales during use of all
acoustic sources;
100 m EZ for all marine mammals, with certain exceptions
specified below, during operation of impulsive acoustic sources (boomer
and/or sparker).
If a marine mammal is detected approaching or entering the EZs
during the HRG survey, the vessel operator would adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
These stated requirements will be included in the site-specific
training to be provided to the survey team.

Pre-Clearance of the Exclusion Zones

Skipjack would implement a 30-minute pre-clearance period of the EZ
prior to the initiation of ramp-up of

[[Page 18957]]

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

Ramp-Up of Survey Equipment

When technically feasible, a ramp-up procedure would be used for
HRG survey equipment capable of adjusting energy levels at the start or
restart of survey activities. The ramp-up procedure would be used at
the beginning of HRG survey activities in order to provide additional
protection to marine mammals near the survey area by allowing them to
vacate the area prior to the commencement of survey equipment operation
at full power.
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 EZ. Ramp-up will continue if the animal has been observed
exiting its respective EZ or until an additional time period has
elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and seals and 30 minutes for all other species).
Activation of survey equipment through ramp-up procedures may not
occur when visual observation of the pre-clearance zone is not expected
to be effective (i.e., during inclement conditions such as heavy rain
or fog).

Shutdown Procedures

An immediate shutdown of the impulsive HRG survey equipment would
be required if a marine mammal is sighted entering or within its
respective EZ. The vessel operator must comply immediately with any
call for shutdown by the Lead PSO. Any disagreement between the Lead
PSO and vessel operator should be discussed only after shutdown has
occurred. Subsequent restart of the survey equipment can be initiated
if the animal has been observed exiting its respective EZ or until an
additional time period has elapsed (i.e., 30 minutes for all other
species).
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (48 m, non-impulsive; 141 m impulsive),
shutdown would occur.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again without ramp-up if PSOs have maintained constant
observation and no detections of any marine mammal have occurred within
the respective EZs. If the acoustic source is shut down for a period
longer than 30 minutes and PSOs have maintained constant observation,
then pre-clearance and ramp-up procedures will be initiated as
described in the previous section.
The shutdown requirement would be waived for small delphinids of
the following genera: Delphinus, Lagenorhynchus, Stenella, and Tursiops
and seals. Specifically, if a delphinid from the specified genera or a
pinniped is visually detected approaching the vessel (i.e., to bow
ride) or towed equipment, shutdown is not required. Furthermore, if
there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived), PSOs must use best
professional judgement in making the decision to call for a shutdown.
Additionally, shutdown is required if a delphinid or pinniped detected
in the exclusion zone and belongs to a genus other than those
specified.

Vessel Strike Avoidance

Skipjack 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 mammals sighting/reporting and vessel strike avoidance
measures. Vessel strike avoidance measures would include the following,
except under circumstances when complying with these requirements would
put the safety of the vessel or crew at risk:
Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena and (2) broadly to
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal.
All vessels (e.g., source vessels, chase vessels, supply
vessels), regardless of size, must observe a 10-knot speed restriction
in specific areas designated by NMFS for the protection of North
Atlantic right whales from vessel strikes including SMAs and DMAs when
in effect;
All vessels greater than or equal to 19.8 m in overall
length operating from November 1 through April 30 will operate at
speeds of 10 knots or less while transiting to and from Project Area;
All vessels must reduce their speed to 10 knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel.
All vessels must maintain a minimum separation distance of
500 m from right whales. If a whale is observed but cannot be confirmed
as a species other than a right whale, the vessel operator must assume
that it is a right whale and take appropriate action.
All vessels must maintain a minimum separation distance of
100 m from sperm whales and all other baleen whales.
All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel).
When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear or any vessel that is navigationally constrained.
These requirements do not apply in any case where
compliance would

[[Page 18958]]

create an imminent and serious threat to a person or vessel or to the
extent that a vessel is restricted in its ability to maneuver and,
because of the restriction, cannot comply.

Seasonal Operating Requirements

Members of the monitoring team will consult NMFS North Atlantic
right whale reporting system and Whale Alert, as able, for the presence
of North Atlantic right whales throughout survey operations, and for
the establishment of a DMA. If NMFS should establish a DMA in the Lease
Areas during the survey, the vessels will abide by speed restrictions
in the DMA.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means of effecting the least
practicable impact on marine mammal species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance.

Monitoring and Reporting

In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
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 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. Skipjack would employ
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be
employed by a third-party observer provider, (2) have no tasks other
than to conduct observational effort, collect data, and communicate
with and instruct relevant vessel crew with regard to the presence of
marine mammals and mitigation requirements (including brief alerts
regarding maritime hazards), and (3) have successfully completed an
approved PSO training course appropriate for their designated task. On
a case-by-case basis, non-independent observers may be approved by NMFS
for limited, specific duties in support of approved, independent PSOs
on smaller vessels with limited crew capacity operating in nearshore
waters.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including exclusion zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established exclusion zones
during survey activities. It will be the responsibility of the Lead PSO
on duty to communicate the presence of marine mammals as well as to
communicate the action(s) that are necessary to ensure mitigation and
monitoring requirements are implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) would ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and would conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
four consecutive hours followed by a break of at least two hours
between watches and may conduct a maximum of 12 hours of observation
per 24-hour period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals would be communicated
to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to exclusion zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs would also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey would be relayed
to the PSO team.

[[Page 18959]]

Data on all PSO observations would be recorded based on standard
PSO collection requirements. This would include dates, times, and
locations of survey operations; dates and times of observations,
location and weather; details of marine mammal sightings (e.g.,
species, numbers, behavior); and details of any observed marine mammal
behavior that occurs (e.g., noted behavioral disturbances).

Reporting Measures

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

[[Page 18960]]

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. NMFS also assesses the number, intensity, and
context of estimated takes by evaluating this information relative to
population status. Consistent with the 1989 preamble for NMFS's
implementing regulations (54 FR 40338; September 29, 1989), the impacts
from other past and ongoing anthropogenic activities are incorporated
into this analysis via their impacts on the environmental baseline
(e.g., as reflected in the regulatory status of the species, population
size and growth rate where known, ongoing sources of human-caused
mortality, or ambient noise levels).
To avoid repetition, our analysis applies to all the species listed
in Table 9, given that NMFS expects the anticipated effects of the
planned survey to be similar in nature. Where there are meaningful
differences between species or stocks--as is the case of the North
Atlantic right whale--they are included as separate subsections below.
NMFS does not anticipate that serious injury or mortality would occur
as a result from HRG surveys, even in the absence of mitigation, and no
serious injury or mortality is authorized. As discussed in the
Potential Effects of Specified Activities on Marine Mammals and their
Habitat section, non-auditory physical effects and vessel strike are
not expected to occur. NMFS expects that all potential takes would be
in the form of short-term Level B behavioral harassment in the form of
temporary avoidance of the area or decreased foraging (if such activity
was occurring), reactions that are considered to be of low severity and
with no lasting biological consequences (e.g., Southall et al., 2007).
Even repeated Level B harassment of some small subset of an overall
stock is unlikely to result in any significant realized decrease in
viability for the affected individuals, and thus would not result in
any adverse impact to the stock as a whole. As described previously due
to the nature of the operations, Level A harassment is not expected
even in the absence of mitigation. The small size of the Level A
harassment zones and the required shutdown zones for certain activities
further bolster this conclusion.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m; 75 percent of survey days would
include activity with a reduced acoustic harassment zone of 48 m per
vessel, producing expected effects of particularly low severity.
Therefore, the ensonified area surrounding each vessel is relatively
small compared to the overall distribution of the animals in the area
and their use of the habitat. Feeding behavior is not likely to be
significantly impacted as prey species are mobile and are broadly
distributed throughout the survey area; therefore, marine mammals that
may be temporarily displaced during survey activities are expected to
be able to resume foraging once they have moved away from areas with
disturbing levels of underwater noise. Because of the temporary nature
of the disturbance and the availability of similar habitat and
resources in the surrounding area, the impacts to marine mammals and
the food sources that they utilize are not expected to cause
significant or long-term consequences for individual marine mammals or
their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the planned survey area
and there are no feeding areas known to be biologically important to
marine mammals within the planned survey area. There is no designated
critical habitat for any ESA-listed marine mammals in the planned
survey area.

North Atlantic Right Whales

The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits additional analysis. As noted
previously, elevated North Atlantic right whale mortalities began in
June 2017 and there is an active unusual mortality event (UME).
Overall, findings support human interactions, specifically vessel
strikes and entanglements, as the cause of death for the majority of
right whales. The planned survey area overlaps a migratory corridor
Biologically Important Area (BIA) for North Atlantic right whales
(effective March-April and November-December) that extends from
Massachusetts to Florida (LeBrecque et al., 2015). Off the coast of
Delaware, this migratory BIA extends from the coast to beyond the shelf
break. Due to the fact that that the planned survey activities are
temporary and the spatial extent of sound produced by the survey would
be very small relative to the spatial extent of the available migratory
habitat in the BIA, right whale migration is not expected to be
impacted by the survey. Given the relatively small size of the
ensonified area, it is unlikely that prey availability would be
adversely affected by HRG survey operations. Required vessel strike
avoidance measures will also decrease risk of ship strike during
migration; no ship strike is expected to occur during Skipjack's
planned activities. Additionally, only very limited take by Level B
harassment of North Atlantic right whales has been requested or is
authorized by NMFS as HRG survey operations are required to maintain a
500-m EZ and shutdown if a North Atlantic right whale is sighted at or
within the EZ. The 500-m shutdown zone for right whales is
conservative, considering the Level B harassment isopleth for the most
impactful acoustic source (i.e., GeoMarine Geo-Source 400 tip sparker)
is estimated to be 141 m, and thereby minimizes the potential for
behavioral harassment of this species. As noted previously, Level A
harassment is not expected due to the small PTS zones associated with
HRG equipment types planned for use. NMFS does not anticipate North
Atlantic right whales takes that would result from Skipjack's planned
activities would impact annual rates of recruitment or survival. Thus,
any takes that occur would not result in population level impacts.

Other Marine Mammal Species With Active UMEs

As noted previously, there are several active UMEs occurring in the
vicinity of Skipjack's planned survey area. Elevated humpback whale
mortalities have occurred along the Atlantic coast from Maine through
Florida since January 2016. Of the cases examined, approximately half
had evidence of human interaction (ship strike or entanglement). The
UME does not yet provide cause for concern regarding population-level
impacts. Despite the UME, the relevant population of humpback whales
(the West Indies breeding population, or distinct

[[Page 18961]]

population segment remains stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
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. The UME does not yet provide cause for concern
regarding population-level impacts to any of these stocks. For harbor
seals, the population abundance is over 75,000 and annual M/SI (350) is
well below PBR (2,006) (Hayes et al., 2020). The population abundance
for gray seals in the United States is over 27,000, with an estimated
abundance, including seals in Canada, of approximately 505,000. In
addition, the abundance of gray seals is likely increasing in the U.S.
Atlantic Economic Exclusion Zone as well as in Canada (Hayes et al.,
2020).
The required mitigation measures are expected to reduce the number
and/or severity of authorized takes for all species listed in Table 9,
including those with active UME's to the level of least practicable
adverse impact. In particular they would provide animals the
opportunity to move away from the sound source throughout the survey
area before HRG survey equipment reaches full energy, thus preventing
them from being exposed to sound levels that have the potential to
cause injury (Level A harassment) or more severe Level B harassment. No
Level A harassment is anticipated, even in the absence of mitigation
measures, or authorized.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
No mortality or serious injury is anticipated or
authorized;
No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or authorized;
Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the survey area during
the planned survey to avoid exposure to sounds from the activity;
Take is anticipated to be primarily Level B behavioral
harassment consisting of brief startling reactions and/or temporary
avoidance of the survey area;
While the survey area is within areas noted as a migratory
BIA for North Atlantic right whales, the activities would occur in such
a comparatively small area such that any avoidance of the survey area
due to activities would not affect migration. In addition, mitigation
measures to shutdown at 500 m to minimize potential for Level B
behavioral harassment would limit any take of the species.
The required mitigation measures, including visual
monitoring and shutdowns, are expected to minimize potential impacts to
marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the required monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the planned activity will have a negligible impact on all affected
marine mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
NMFS has authorized incidental take of 16 marine mammal species
(with 17 managed stocks.) The total amount of takes authorized is less
than eight percent for one stock (bottlenose dolphin northern coastal
migratory stock) and less than one percent of all other species and
stocks, which NMFS finds are small numbers of marine mammals relative
to the estimated overall population abundances for those stocks. See
Table 9. 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.

Unmitigable Adverse Impact Analysis and Determination

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

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 evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the planned

[[Page 18962]]

action qualifies to be categorically excluded from further NEPA review.

Endangered Species Act

Section 7(a)(2) of the Endangered Species Act of 1973 (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 NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we propose to authorize
take for endangered or threatened species.
The NMFS Office of Protected Resources is authorizing the
incidental take of four species of marine mammals which are listed
under the ESA: Fin, sei, sperm, and North Atlantic right whales. We
requested initiation of consultation under section 7 of the ESA with
NMFS GARFO on March 5, 2021, for the issuance of this IHA. On April 2,
2021, NMFS GARFO concurred with our determination that our issuance of
the IHA to Skipjack is not likely to adversely affect the North
Atlantic right, fin, sei, and sperm whale or the critical habitat of
any ESA-listed species or result in the take of any marine mammals in
violation of the ESA.

Authorization

NMFS has issued an IHA to Skipjack for the potential harassment of
small numbers of 16 marine mammal species incidental to the conducting
marine site characterization surveys offshore of Delaware in the area
of the Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf (OCS-A 0519) and along
potential submarine cable routes to a landfall location in Delaware
provided the previously mentioned mitigation, monitoring and reporting
requirements are followed.

Dated: April 6, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-07419 Filed 4-9-21; 8:45 am]
BILLING CODE 3510-22-P

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