[Federal Register Volume 85, Number 243 (Thursday, December 17, 2020)]
[Notices]
[Pages 81879-81886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27761]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA716]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off of Coastal Virginia

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

ACTION: Issuance of a modified incidental harassment authorization; 
request for comments.

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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 a modified incidental harassment authorization 
(IHA) to Dominion Energy Virginia (Dominion) to incidentally harass 
marine mammals incidental to marine site characterization surveys 
conducted in the areas of the Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS) 
Offshore Virginia (Lease No. OCS-A-0483) as well as in coastal waters 
where an export cable corridor will be established in support of the 
Coastal Virginia Offshore Wind

[[Page 81880]]

Commercial (CVOW Commercial) Project.

DATES: This modified IHA is valid from the date of issuance through 
August 27, 2021.

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

SUPPLEMENTARY INFORMATION:

Background

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

History of Request

    On February 7, 2020, NMFS received a request from Dominion for an 
IHA to take marine mammals incidental to marine site characterization 
surveys in the areas of the Commercial Lease of Submerged Lands for 
Renewable Energy Development on the OCS Offshore Virginia (Lease No. 
OCS-A-0483) as well as in coastal waters where an export cable corridor 
will be established in support of the offshore wind project. Dominion's 
planned marine site characterization surveys include high-resolution 
geophysical (HRG) and geotechnical survey activities. Geophysical and 
shallow geotechnical survey activities are anticipated to be supported 
by up to four vessels. The vessels will transit a combined estimated 
total of 121.54 kilometers (km) of survey lines per day. Dominion's 
request was for incidental take of small numbers of nine marine mammal 
species by Level B harassment only. The application was deemed adequate 
and complete on May 12, 2020. We published a notice of proposed IHA and 
request for comments in the Federal Register on June 17, 2020 (85 FR 
36562). We subsequently published the final notice of our issuance of 
the IHA in the Federal Register on September 8, 2020 (85 FR 55415), 
with effective dates from August 28, 2020, to August 27, 2021. The 
specified activities were expected to result in the take by Level B 
harassment of 9 species (10 stocks) of marine mammals including 
bottlenose dolphin (Tursiops truncatus), pilot whale (Globicephala 
spp.), common dolphin (Delphinus delphis), Atlantic white sided dolphin 
(Lagenorhynchus acutus), Atlantic spotted dolphin (Stenella frontalis), 
Risso's dolphin (Grampus griseus), harbor porpoise (Phocoena phocoena), 
harbor seal (Phoca vitulina), and gray seal (Halichoerus grypus).
    On September 29, 2020, NMFS received a request from Dominion for a 
modification to the IHA that was issued on August 28, 2020 (85 FR 
55415; September 8, 2020). Since the issuance of the initial IHA, 
Dominion has been recording large pods of Atlantic spotted dolphin 
within the Level B harassment zone such that they were approaching the 
authorized take limit for this species. Dominion determined that 
without an increase in authorized take of spotted dolphins they would 
be forced to repeatedly shut down whenever animals entered into 
specified Level B harassment zones. This would likely prolong the 
duration of survey and add increased costs to the project.
    Therefore, Dominion requested a modification of the IHA to increase 
authorized take of spotted dolphin by Level B harassment. NMFS 
published the notice of the proposed IHA modification in the Federal 
Register on November 12, 2020 (85 FR 71881). The mitigation, 
monitoring, and reporting measures remain the same as prescribed in the 
initial IHA and no additional take is authorized for species other than 
spotted dolphin. Moreover, the IHA would still expire on August 27, 
2021.

Description of the Specified Activity and Anticipated Impacts

    The modified IHA includes the same HRG and geotechnical surveys in 
the same locations that were described in the initial IHA. The 
mitigation, monitoring, and reporting measures remain the same as 
prescribed in the initial IHA. NMFS refers the reader to the documents 
related to the initial IHA issued on August 28, 2020, for more detailed 
description of the project activities. These previous documents include 
the notice of proposed IHA and request for comments (85 FR 36562; June 
17, 2020), notice of our issuance of the initial IHA in the Federal 
Register (85 FR 55415; September 8, 2020), and notice of proposed IHA 
modification in the Federal Register (85 FR 71881; November 12, 2020).

Detailed Description of the Action

    A detailed description of the survey activities is found in these 
previous documents. The location, timing, and nature of the activities, 
including the types of HRG equipment planned for use, daily trackline 
distances and number of survey vessels (four) are identical to those 
described in the previous notices.

Public Comments

    A notice of proposed IHA modification was published in the Federal 
Register on November 12, 2020 (85 FR 71881). During the 15-day public 
comment period, NMFS received comments from the Southern Environmental 
Law Center (SELC), which submitted comments on behalf of the 
Conservation Law Foundation, Defenders of Wildlife, Natural Resources 
Defense Council, Whale and Dolphin Conservation, Sierra Club Virginia 
Chapter, Assateague Coastal Trust, Inland Ocean Coalition, the 
International Marine Mammal Project of Earth Island Institute, and 
NY4WHALES. NMFS has posted the comments online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. A summary of the 
comments as well as NMFS' responses are below.
    Comment 1: SELC indicated that NMFS's interpretation of small 
numbers is contrary to the purpose of the MMPA

[[Page 81881]]

and that the agency failed to consider the unique conservation status 
of individual populations. Instead of applying a 30% ceiling for all 
species, SELC recommended that NMFS revisit its small numbers 
interpretation to consider whether the specific take percentage for 
Atlantic spotted dolphin will ensure that population levels are 
maintained at or restored to healthy population numbers.
    Response: SELC's suggestion would import biological considerations 
into the term ``small numbers,'' which NMFS has determined are more 
properly considered in a ``negligible impact'' evaluation. Note that 
MMPA does not define ``small numbers.'' NMFS's and the U.S. Fish and 
Wildlife Service's 1989 implementing regulations defined small numbers 
as a portion of a marine mammal species or stock whose taking would 
have a negligible impact on that species or stock. This definition was 
invalidated in Natural Resources Defense Council v. Evans, 279 
F.Supp.2d 1129 (2003) (N.D. Cal. 2003), based on the court's 
determination that the regulatory definition of small numbers was 
improperly conflated with the regulatory definition of ``negligible 
impact,'' which rendered the small numbers standard superfluous. As the 
court observed, ``the plain language indicates that small numbers is a 
separate requirement from negligible impact.'' Since that time, NMFS 
has not applied the definition found in its regulations. Rather, 
consistent with Congress' pronouncement that small numbers is not a 
concept that can be expressed in absolute terms (House Committee on 
Merchant Marine and Fisheries Report No. 97-228 (September 16, 1981)), 
NMFS makes its small numbers findings based on an analysis of whether 
the number of individuals authorized to be taken annually from a 
specified activity is small relative to the stock or population size. 
The Ninth Circuit has upheld a similar approach. See Center for 
Biological Diversity v. Salazar, No. 10-35123, 2012 WL 3570667 (9th 
Cir. Aug. 21, 2012). However, we have not historically indicated what 
we believe the upper limit of small numbers is.
    To maintain an interpretation of small numbers as a proportion of a 
species or stock that does not conflate with negligible impact, we use 
the following framework. A plain reading of ``small'' implies as 
corollary that there also could be ``medium'' or ``large'' numbers of 
animals from the species or stock taken. We therefore use a simple 
approach that establishes equal bins corresponding to small, medium, 
and large proportions of the population abundance.
    NMFS's practice for making small numbers determinations is to 
compare the number of individuals estimated and authorized to be taken 
(often using estimates of total instances of take, without regard to 
whether individuals are exposed more than once) against the best 
available abundance estimate for that species or stock. We note, 
however, that although NMFS's implementing regulations require 
applications for incidental take to include an estimate of the marine 
mammals to be taken, there is nothing in section 101(a)(5)(D) (or the 
similar provision in section 101(a)(5)(A) that requires NMFS to 
quantify or estimate numbers of marine mammals to be taken for purposes 
of evaluating whether the number is small. (See CBD v. Salazar.) While 
it can be challenging to predict the numbers of individual marine 
mammals that will be taken by an activity (again, many models calculate 
instances of take and are unable to account for repeated exposures of 
individuals), in some cases we are able to generate a reasonable 
estimate utilizing a combination of quantitative tools and qualitative 
information. When it is possible to predict with relative confidence 
the number of individual marine mammals of each species or stock that 
are likely to be taken, the small numbers determination should be based 
directly upon whether or not these estimates exceed one third of the 
stock abundance. In other words, consistent with past practice, when 
the estimated number of individual animals taken (which may or may not 
be assumed as equal to the total number of takes, depending on the 
available information) is up to, but not greater than, one third of the 
species or stock abundance, NMFS will determine that the numbers of 
marine mammals taken of a species or stock are small.
    In contrast, a negligible impact finding is based on the lack of 
likely adverse effects on annual rates of recruitment or survival 
(i.e., population-level effects). An estimate of the number of takes 
alone is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be taken through harassment, NMFS considers 
other factors, such as the likely nature of any responses (e.g., 
intensity, duration), the context of any responses (e.g., critical 
reproductive time or location, migration), as well as effects on 
habitat, and the likely effectiveness of the mitigation. We also assess 
the number, intensity, and context of estimated takes by evaluating 
this information relative to population status.
    Given the definitions present above, establishment of a small 
numbers threshold based on a stock-specific context is unnecessarily 
duplicative of the required negligible impact finding.
    Comment 2: SELC stated that NMFS' updated negligible impact 
analysis underestimates the potential impacts of HRG surveys on small 
cetaceans like the Atlantic spotted dolphin. The MMPA authorizes NMFS 
to issue an IHA only if the agency finds that the authorized harassment 
caused by a ``specified activity'' will have a ``negligible impact'' on 
marine mammals. SELC stated that NMFS' negligible impact analysis is 
inadequate given the increased level of take that the agency proposed. 
SELC referenced several scientific research papers which indicated that 
Atlantic spotted dolphin is a particularly acoustically sensitive 
species, has the potential to be displaced, shift their behavioral 
state and stop or alter in response to a variety of anthropogenic 
noises, with potentially adverse energetic effects even from minor 
changes.
    Response: Most of the scientific papers referenced by SELC describe 
the responses of various cetacean species to underwater noise 
associated with the use of seismic airguns, which are among the loudest 
anthropogenic sounds introduced into the marine environment. The HRG 
equipment used by Dominion radiates out less energy than seismic 
airguns and also operates in smaller areas. Therefore, the size of the 
area impacted by sound is much smaller. None of the references cited by 
SELC investigated potential impacts of HRG equipment to cetaceans. It 
should not be assumed that potential impacts to marine mammals from 
seismic airguns and from HRG equipment are similar, given the 
differences between the devices.
    Even with the increase in authorized take numbers, the impacts of 
these lower severity exposures associated with HRG equipment are not 
expected to accrue to the degree that the fitness of any individuals is 
impacted, and, therefore no impacts on annual rates of recruitment or 
survival will result. Furthermore, the authorized take amount of 
spotted dolphin would be of small numbers relative to the population 
size (less than 5 percent).
    Comment 3: SELC reiterated that NMFS's use of the 160 decibel (dB) 
threshold for behavioral harassment is not supported by the best 
available scientific information and results in an inaccurate 
negligible impact analysis.

[[Page 81882]]

Note that NMFS addressed this comment in the Federal Register notice of 
issue of the initial IHA (85 FR 55415; September 8, 2020).
    Response: NMFS acknowledges that the 160-dB root mean-square (rms) 
step-function approach is simplistic, and that an approach reflecting a 
more complex probabilistic function may more effectively represent the 
known variation in responses at different levels due to differences in 
the receivers, the context of the exposure, and other factors. We 
recognize the potential for Level B harassment at exposures to received 
levels (RLs) below 160 dB rms, and conversely the potential that 
animals exposed to RLs above 160 dB rms will not respond in ways 
constituting behavioral harassment (e.g., Malme et al., 1983, 1984, 
1985, 1988; McCauley et al., 1998, 2000a, 2000b; Barkaszi et al., 2012; 
Stone, 2015a; Gailey et al., 2016; Barkaszi and Kelly, 2018). While in 
practice the 160-dB threshold works as a step-function, i.e., animals 
exposed to RLs above the threshold are considered to be ``taken'' and 
those exposed to levels below the threshold are not, it represents a 
sort of mid-point of likely behavioral responses (which are extremely 
complex depending on many factors including species, noise source, 
individual experience, and behavioral context). What this means is 
that, conceptually, the function recognizes that some animals exposed 
to levels below the threshold will in fact react in ways that are 
appropriately considered take, while others that are exposed to levels 
above the threshold will not. Use of the 160-dB threshold allows for a 
simplistic quantitative estimate of take, while we can qualitatively 
address the variation in responses across different RLs in our 
discussion and analysis.
    As behavioral responses to sound depend on the context in which an 
animal receives the sound, including the animal's behavioral mode when 
it hears sounds, prior experience, additional biological factors, and 
other contextual factors, defining sound levels that disrupt behavioral 
patterns is extremely difficult. Even experts have not previously been 
able to suggest specific new criteria due to these difficulties (e.g., 
Southall et al. 2007; Gomez et al., 2016). NMFS acknowledges the 
limitations of the current system and is in the process of developing 
an updated approach to more accurately predict under what circumstances 
take is likely to result from sound exposure.
    Comment 4: SELC recommended that HRG surveys should commence, with 
ramp-up, during daylight hours only, to maximize the chance that marine 
mammals are detected and confirmed clear of the exclusion zone.
    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 very small estimated Level 
A harassment zones. Any potential impacts to marine mammals authorized 
for take would be limited to short-term behavioral responses. 
Restricting surveys in the manner suggested by the commenters may 
reduce marine mammal exposures by some degree in the short term, but 
would not result in any significant reduction in either intensity or 
duration of noise exposure. 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 and increase the risk of a vessel strike; thus the commenters 
have not demonstrated that such a requirement would result in a net 
benefit. Restricting the applicant to ramp-up 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 
potential effectiveness of the recommended measure and its 
practicability for the applicant, NMFS has determined that restricting 
survey start-ups to daylight hours when visibility is unimpeded is not 
warranted or practicable in this case. Note that NMFS addressed this 
comment in the Federal Register notice of issue of the initial IHA (85 
FR 55415; September 8, 2020).
    Comment 5: SELC recommended that a standard 500-meter exclusion 
zone be established for all marine mammal species around survey 
vessels.
    Response: NMFS has determined that, with the exception of right 
whales, a 500-m exclusion zone is not warranted. The largest calculated 
Level B harassment distance for all marine mammals is calculated to be 
100 m. We note that a 500-m exclusion zone would exceed the modeled 
distance to the largest Level B harassment isopleth distance (100 m) by 
a factor of five. Thus, NMFS is not requiring shutdown if marine 
mammals are sighted within 500 m of survey vessels. NMFS addressed this 
comment previously in the Federal Register notice of issue of the 
initial IHA (85 FR 55415; September 8, 2020).
    Comment 6: SELC recommended that combination of visual monitoring--
by four protected species observers adhering to ``two-on/two-off'' 
schedule--and passive acoustic monitoring (PAM) should be used at all 
times that survey work is underway, and, for efforts that continue into 
the nighttime, night vision or infrared technology should also be used.
    Response: NMFS does not agree with the commenters that a minimum of 
four protected species observers (PSOs) should be required. The 
relatively small size of the exclusion means that a single PSO 
stationed at the highest vantage point and engaged in general 360-
degree scanning during daylight hours is able to effectively observe 
the necessary area. Additionally, PSOs must be on duty 30 minutes prior 
to and during nighttime ramp-ups for HRG surveys. Dominion has also 
committed to employing a minimum of two NMFS-approved PSOs when HRG 
equipment is in use at night.
    There are several 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 for Dominion's 
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 100 m). This reflects the fact that the 
source level is comparatively low and the intensity of any resulting 
impacts would also be low. Further, inasmuch as PAM will only detect a 
portion of any animals exposed within a zone (see below), 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 in small impact 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. In 
addition, the ability of PAM to detect baleen whale vocalizations is 
further limited due to its deployment from the

[[Page 81883]]

stern of a vessel, which puts the PAM hydrophones in proximity to 
propeller noise and low frequency engine noise, which can mask the low 
frequency sounds emitted by baleen whales, including North Atlantic 
right whales.
    We also note that the effects to all marine mammals, including 
spotted dolphins, 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; no injury is expected or authorized. In 
consideration of the limited additional benefit anticipated by adding 
this detection method 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. 
Note that the initial IHA contained a requirement, retained in the 
modified IHA, that night-vision equipment (i.e., night-vision goggles 
and infrared technology) must be available for use for PSOs. NMFS 
previously addressed this comment in the Federal Register notice of 
issue of the initial IHA (85 FR 55415; September 8, 2020).
    Comment 7: SELC reiterated some of the recommendations they 
submitted in response to our initial Notice of proposed IHA published 
in Federal Register on June 17, 2020 (85 FR 36537) which focused on the 
need for stronger mitigation measures for North Atlantic right whale.
    Response: Comments submitted by SELC pertaining to the North 
Atlantic right whale are outside the scope of this action, which only 
addresses increased take of dolphins and, further, were already 
addressed in previously in the Federal Register notice of issue of the 
initial IHA (85 FR 55415; September 8, 2020).
    Comment 8: SELC recommended that all vessels traveling to and from 
the project area maintain a speed of 10 knots (18.5 km/hour) or less 
throughout the survey period.
    Response: NMFS does not concur with this measure. NMFS has analyzed 
the potential for ship strike resulting from Dominion's activity and 
has determined that the mitigation measures specific to ship strike 
avoidance are sufficient to avoid the potential for ship strike. These 
include: A requirement that all vessel operators comply with 10 knot 
(18.5 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, any mother/calf pairs, pods, or 
large assemblages of non-delphinoid cetaceans are observed within 100 m 
of an underway vessel; a requirement that all survey vessels maintain a 
separation distance of 500-m or greater from any sighted North Atlantic 
right whale; a requirement that, if underway, vessels must steer a 
course away from any sighted North Atlantic right whale at 10 knots or 
less until the 500-m minimum separation distance has been established; 
and a requirement that, if a North Atlantic right whale is sighted in a 
vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. We have 
determined that the ship strike avoidance measures are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. Furthermore, no documented vessel strikes have occurred 
for any HRG surveys which were issued IHAs from NMFS. NMFS addressed 
this comment previously in the Federal Register notice of issue of the 
initial IHA (85 FR 55415; September 8, 2020).
    Comment 10: SELC recommended that NMFS consider activating Dynamic 
Management Areas (DMAs) whenever a single North Atlantic right whale is 
sighted or acoustically detected neat the project area, not just an 
aggregation of three or more whales.
    Response: DMAs are a component of the 2008 NOAA Ship Strike Rule to 
minimize lethal ship strikes of North Atlantic right whales. Note that 
the trigger of three or more whales is taken from a NOAA Northeast 
Fisheries Science Center (NEFSC) analysis of sightings data from Cape 
Cod Bay and Stellwagen Bank from 1980 to 1996 (Clapham & Pace 2001). 
This analysis found that an initial sighting of three or more North 
Atlantic right whales was a reasonably good indicator that whales would 
persist in the area, and the average duration of the whale's presence 
based on these sightings data was two weeks.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to this 
modified IHA as well. In addition, NMFS has reviewed recent Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and recent scientific literature, and determined that no new 
information affects our original analysis of impacts under the initial 
IHA.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the initial IHA, which remains applicable to the issuance of 
this modified IHA. There is no new information on potential effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notice of IHA for the 
initial authorization (85 FR 55415; September 8, 2020). The HRG 
equipment that may result in take, as well as the source levels, marine 
mammal stocks taken, marine mammal density data and the methods of take 
estimation applicable to this authorization remain unchanged from the 
previously issued IHA. The number of authorized takes is also identical 
with the exception of spotted dolphin.
    During the one month period from the effective date of the initial 
IHA (August 28, 2020) through September 29, 2020, a total of 19 spotted 
dolphins had been observed within the Level B harassment zone distances 
and recorded as takes. This was largely due to a single pod of 15 
dolphins sighted in the zone. Another 24 dolphins were observed over 
three survey days but they were not located in the Level B harassment 
zone. Prior to the issuance of the initial IHA, Dominion operated only 
during daylight hours under a Letter of Concurrence (LoC) issued by 
NMFS. As such, Dominion committed to shutting down whenever a marine 
mammal approached or entered a Level B harassment zone in order to 
avoid all incidental take. In the weeks prior to the issuance of the 
initial IHA, Dominion had observed pods containing up to 17 individuals 
in the Level B harassment zone. However, these pods were not recorded 
as incidental takes since mitigation measures were employed, i.e., the 
acoustic source was shut down and the animals were not exposed to 
source levels associated with harassment. The estimated take in the 
initial IHA was based on the best available density data from Roberts 
et al. (2016, 2017, 2018), however, the multiple occurrences of the 
large pod in the vicinity of the survey was unexpected and not 
reflected in the take estimate. Table 1 shows spotted dolphin detection 
events when Dominion was operating under both the LoC (before August 
28, 2020) as well as during the initial IHA (on or after August 28, 
2020).

[[Page 81884]]



           Table 1--Atlantic Spotted Dolphin Observations During Dominion Energy HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of
                                                                      Date of         animals      Level B takes
                           Vessel name                               detection      observed in     accumulated
                                                                                     the group
----------------------------------------------------------------------------------------------------------------
Sarah Bordelon..................................................       9/16/2020              15              15
Marcelle Bordelon...............................................        9/9/2020               4               4
Marcelle Bordelon...............................................        9/7/2020               6  ..............
Sarah Bordelon..................................................        9/4/2020               7  ..............
Sarah Bordelon..................................................        9/4/2020              11  ..............
Marcelle Bordelon...............................................       8/23/2020               5  ..............
Sarah Bordelon..................................................       8/17/2020              17  ..............
----------------------------------------------------------------------------------------------------------------

    Given that large pods of spotted dolphin were recorded on multiple 
occasions, Dominion became concerned that the authorized number of 
takes by Level B harassment would be exceeded, necessitating the 
frequent shutdown of HRG survey equipment to avoid additional take of 
this species. On October 3, 2020, Dominion reached the authorized take 
amount for spotted dolphins. Since that time, they have been shutting 
down whenever spotted dolphins are sighted approaching or entering the 
harassment zone. Dominion requested and NMFS has authorized additional 
take of this species to conservatively allow 20 authorized takes per 
day. NMFS concurs that this take amount is reasonable in case observed 
dolphin pods are larger than what has been recorded to date. While NMFS 
does not expect that larger spotted dolphin pods would occur every day, 
it cannot be ruled out. With approximately 120 survey days remaining, 
NMFS has authorized increased take by Level B harassment from 27 to 
2,427 ((20 animals/day * 120 survey days) + initial 27 authorized 
takes). This represents 4.38 percent of the western North Atlantic 
stock of spotted dolphin. Take by Level A harassment was not requested, 
and has not been authorized by NMFS (or anticipated).
    The total numbers of incidental takes by Level B harassment, 
including the authorized update in spotted dolphin takes, and as a 
percentage of population, is shown in Table 2 below.

 Table 2--Total Numbers of Authorized Takes by Level B Harassment and as
                       a Percentage of Population
------------------------------------------------------------------------
                                                      Totals
                                         -------------------------------
                                                           Instances of
                 Species                       Take           take as
                                           authorization   percentage of
                                             (number)     population \1\
------------------------------------------------------------------------
Short-finned pilot whale................              12            0.06
Bottlenose dolphin (Offshore)...........             511            0.81
Bottlenose dolphin (Southern Migratory               224             6.5
 Coastal)...............................
Common dolphin..........................              68            0.08
Atlantic white-sided dolphin............              44            0.12
Spotted dolphin (adjusted)..............           2,427            4.38
Risso's dolphin.........................               6            0.08
Harbor porpoise.........................              39            0.09
Harbor seal \2\.........................              35            0.02
Gray Seal \2\...........................  ..............            0.06
------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best
  available abundance estimate as shown in Table 2 in Federal Register
  final notice of issuance of the IHA (85 FR 55415; September 8, 2020).
  In most cases the best available abundance estimate is provided by
  Roberts et al. (2016, 2017, 2018), when available, to maintain
  consistency with density estimates derived from Roberts et al. (2016,
  2017, 2018. For bottlenose dolphins, Roberts et al. (2016, 2017, 2018)
  provides only a single abundance estimate and does not provide
  abundance estimates at the stock or species level (respectively), so
  abundance estimates used to estimate percentage of stock taken for
  bottlenose dolphins are derived from NMFS SARs (Hayes et al. 2019).
\2\ Pinniped density values reported as ``seals'' and not species-
  specific.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included in this 
modified IHA are identical to those included in the Federal Register 
notice announcing the initial IHA and the discussion of the least 
practicable adverse impact included in that document remains accurate 
(85 FR 55415; September 8, 2020).
    Establishment of Exclusion Zones (EZs)--Marine mammal EZs must be 
established around the HRG survey equipment and monitored by protected 
species observers (PSOs) during HRG surveys as follows:
    <bullet> 500-m EZ is required for North Atlantic right whales;
    <bullet> During use of the GeoMarine Dual 400 Sparker 800J, a 100-m 
EZ is required for all other marine mammals except delphinid(s) from 
the genera Delphinus, Lagenorhynchus, Stenella or Tursiops and seals; 
and
    <bullet> When only the Triple Plate Boomer 1000J is in use, a 25-m 
EZ is required for all other marine mammals except delphinid(s) from 
the genera Delphinus, Lagenorhynchus, Stenella or Tursiops and seals; a 
200-m buffer zone is required for all marine mammals except those 
species otherwise excluded (i.e., North Atlantic right whale).
    If a marine mammal is detected approaching or entering the EZs 
during the survey, the vessel operator must adhere to the shutdown 
procedures described below. In addition to the EZs described above, 
PSOs must visually monitor a 200-m buffer zone for the

[[Page 81885]]

purposes of pre-clearance. During use of acoustic sources with the 
potential to result in marine mammal harassment (i.e., anytime the 
acoustic source is active, including ramp-up), occurrences of marine 
mammals within the monitoring zone (but outside the EZs) must be 
communicated to the vessel operator to prepare for potential shutdown 
of the acoustic source. The buffer zone is not applicable when the EZ 
is greater than 100 m. PSOs are also required to observe a 500-m 
monitoring zone and record the presence of all marine mammals within 
this zone.
    Visual Monitoring--Monitoring must be conducted by qualified 
protected PSOs who are trained biologists, with minimum qualifications 
described in the Federal Register notice of the issuance of the initial 
IHA (85 FR 55415; September 8, 2020). Dominion must have one PSO on 
duty during the day and has committed that a minimum of two NMFS-
approved PSOs must be on duty and conducting visual observations when 
HRG equipment is in use at night. Visual monitoring must begin no less 
than 30 minutes prior to ramp-up of HRG equipment and continue until 30 
minutes after use of the acoustic source. PSOs must establish and 
monitor the applicable EZs, Buffer Zone and Monitoring Zone as 
described above. PSOs must coordinate to ensure 360[deg] visual 
coverage around the vessel from the most appropriate observation posts, 
and must conduct observations while free from distractions and in a 
consistent, systematic, and diligent manner. PSOs are required to 
estimate distances to observed marine mammals. It is the responsibility 
of the Lead PSO on duty to communicate the presence of marine mammals 
as well as to communicate action(s) that are necessary to ensure 
mitigation and monitoring requirements are implemented as appropriate.
    Pre-Clearance of the Exclusion Zones--Prior to initiating HRG 
survey activities, Dominion must implement a 30-minute pre-clearance 
period. During pre-clearance monitoring (i.e., before ramp-up of HRG 
equipment begins), the Buffer Zone also acts as an extension of the 
100-m EZ in that observations of marine mammals within the 200-m Buffer 
Zone would also preclude HRG operations from beginning. During this 
period, PSOs must ensure that no marine mammals are observed within 200 
m of the survey equipment (500 m in the case of North Atlantic right 
whales). HRG equipment must not start up until this 200-m zone (or, 
500-m zone in the case of North Atlantic right whales) is clear of 
marine mammals for at least 30 minutes. The vessel operator must notify 
a designated PSO of the proposed start of HRG survey equipment as 
agreed upon with the lead PSO; the notification time must not be less 
than 30 minutes prior to the planned initiation of HRG equipment in 
order to allow the PSOs time to monitor the EZs and Buffer Zone for the 
30 minutes of pre-clearance.
    If a marine mammal is observed within the relevant EZs or Buffer 
Zone during the pre-clearance period, initiation of HRG survey 
equipment must not begin until the animal(s) has been observed exiting 
the respective EZ or Buffer Zone, or, until an additional time period 
has elapsed with no further sighting (i.e., minimum 15 minutes for 
porpoises, and 30 minutes for all other species). The pre-clearance 
requirement includes small delphinoids. PSOs must also continue to 
monitor the zone for 30 minutes after survey equipment is shut down or 
survey activity has concluded.
    Ramp-Up of Survey Equipment--When technically feasible, a ramp-up 
procedure must be used for geophysical survey equipment capable of 
adjusting energy levels at the start or re-start of survey activities. 
The ramp-up procedure must 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 detect the presence of the 
survey and vacate the area prior to the commencement of survey 
equipment operation at full power. Ramp-up of the survey equipment must 
not begin until the relevant EZs and Buffer Zone has been cleared by 
the PSOs, as described above. HRG equipment must be initiated at their 
lowest power output and would be incrementally increased to full power. 
If any marine mammals are detected within the EZs or Buffer Zone prior 
to or during ramp-up, the HRG equipment must be shut down (as described 
below).
    Shutdown Procedures--If an HRG source is active and a marine mammal 
is observed within or entering a relevant EZ (as described above) an 
immediate shutdown of the HRG survey equipment is required. When 
shutdown is called for by a PSO, the acoustic source must be 
immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty has the authority to delay the start of 
survey operations or to call for shutdown of the acoustic source if a 
marine mammal is detected within the applicable EZ. The vessel operator 
must establish and maintain clear lines of communication directly 
between PSOs on duty and crew controlling the HRG source(s) to ensure 
that shutdown commands are conveyed swiftly while allowing PSOs to 
maintain watch. Subsequent restart of the HRG equipment must only occur 
after the marine mammal has either been observed exiting the relevant 
EZ, or, until an additional time period has elapsed with no further 
sighting of the animal within the relevant EZ.
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable EZ (i.e., the animal is not required to fully 
exit the Buffer Zone where applicable) or, following a clearance period 
of 15 minutes for small odontocetes and seals and 30 minutes for all 
other species with no further observation of the marine mammal(s) 
within the relevant EZ. If the HRG equipment shuts down for brief 
periods (i.e., less than 30 minutes) for reasons other than mitigation 
(e.g., mechanical or electronic failure) the equipment may be re-
activated as soon as is practicable at full operational level, without 
30 minutes of pre-clearance, only if PSOs have maintained constant 
visual observation during the shutdown and no visual detections of 
marine mammals occurred within the applicable EZs and Buffer Zone 
during that time. For a shutdown of 30 minutes or longer, or if visual 
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
    The shutdown requirement is waived for certain genera of small 
delphinids (i.e., Delphinus, Lagenorhynchus, Stenella (which includes 
Atlantic spotted dolphins), or Tursiops) under certain circumstances. 
If a delphinid(s) from these genera is visually detected within the EZ 
shutdown would not be required. If there is uncertainty regarding 
identification of a marine mammal species (i.e., whether the observed 
marine mammal(s) belongs to one of the delphinid genera for which 
shutdown is waived), PSOs must use best professional judgment in making 
the decision to call for a shutdown.
    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 
area encompassing the Level B harassment isopleth (100 m or 25 m), 
shutdown must occur.
    Vessel Strike Avoidance--Dominion must comply with vessel strike 
avoidance measures as described in the Federal Register notice of the 
issuance of the initial IHA (85 FR 55415; September 8, 2020).
    Seasonal Operating Requirements--Dominion will conduct HRG survey

[[Page 81886]]

activities in the vicinity of the North Atlantic right whale Mid-
Atlantic SMA near Norfolk and the mouth of the Chesapeake Bay. 
Activities conducted prior to May 1 must comply with the seasonal 
mandatory speed restriction period for this SMA (November 1 through 
April 30) for any survey work or transit within this area.
    Throughout all phases of the survey activities, Dominion must 
monitor NOAA Fisheries North Atlantic right whale reporting systems for 
the establishment of a DMA. If NMFS establishes a DMA in the Lease Area 
or cable route corridor being surveyed, within 24 hours of the 
establishment of the DMA, Dominion is required to work with NMFS to 
shut down and/or alter activities to avoid the DMA.
    Training--Project-specific training is required for all vessel crew 
prior to the start of survey activities. Confirmation of the training 
and understanding of the requirements must be documented on a training 
course log sheet. Signing the log sheet will certify that the crew 
members understand and will comply with the necessary requirements 
throughout the survey activities.
    Reporting--PSOs must record specific information on the sighting 
forms as described in the Federal Register notice of the issuance of 
the initial IHA (85 FR 55415; September 8, 2020). Within 90 days after 
completion of survey activities, Dominion must provide NMFS with a 
monitoring report which includes summaries of recorded takes and 
estimates of the number of marine mammals that may have been harassed.
    In the event of a ship strike or discovery of an injured or dead 
marine mammal, Dominion must report the incident to the Office of 
Protected Resources, NMFS and to the New England/Mid-Atlantic Regional 
Stranding Coordinator as soon as feasible. The report must include the 
information listed in the Federal Register notice of the issuance of 
the initial IHA (85 FR 55415; September 8, 2020).
    Based on our evaluation of the applicant's measures in 
consideration of the increased estimated take for spotted dolphins, 
NMFS has re-affirmed the determination that the required mitigation 
measures provide the means effecting the least practicable impact on 
spotted dolphins and their habitat.

Determinations

    Dominion's HRG survey activities and the mitigation, monitoring, 
and reporting requirements are unchanged from those covered in the 
initial IHA. The effects of the activity, taking into consideration the 
mitigation and related monitoring measures, remain unchanged from those 
stated in the initial IHA, notwithstanding the increase to the 
authorized amount of spotted dolphin take. Specifically, the Level B 
harassment authorized for spotted dolphins is expected to be of low 
severity, predominantly in the form of avoidance of the sound source 
and potential occasional interruption of foraging. With approximately 
120 survey days remaining, NMFS has increased authorized spotted 
dolphin take by Level B harassment to 2,427. Even in consideration of 
the increased estimated numbers of take by Level B harassment, the 
impacts of these lower severity exposures are not expected to accrue to 
the degree that the fitness of any individuals is impacted, and, 
therefore no impacts on annual rates of recruitment or survival will 
result. Further, and separately, the authorized take amount of spotted 
dolphin would be of small numbers of spotted dolphins relative to the 
population size (less than 5 percent), as take that is less than one 
third of the species or stock abundance is considered by NMFS to be 
small numbers. In conclusion, there is no new information suggesting 
that our effects analysis or negligible impact finding for Atlantic 
spotted dolphins should change.
    Based on the information contained here and in the referenced 
documents, NMFS has reaffirmed the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; (4) Dominion's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action, and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the modification of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of the modified IHA qualifies to be categorically 
excluded from further NEPA review.

Authorization

    NMFS has issued a modified IHA to Dominion for conducting marine 
site characterization surveys in the areas of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Offshore Virginia (Lease No. OCS-A-0483) as well as 
in coastal waters where an export cable corridor will be established in 
support of the CVOW Commercial Project effective from the date of 
issuance until August 27, 2021.

    Dated: December 14, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-27761 Filed 12-16-20; 8:45 am]
BILLING CODE 3510-22-P