[Federal Register Volume 83, Number 120 (Thursday, June 21, 2018)]
[Notices]
[Pages 28808-28824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13279]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF984


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys off of Rhode Island and Massachusetts

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

ACTION: Notice; Issuance of an Incidental Harassment Authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Deepwater Wind New England, LLC (DWW), for authorization to take marine 
mammals incidental to marine site characterization surveys off the 
coast of Rhode Island and Massachusetts in the area of the Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0486) and along potential submarine cable 
routes to a landfall location in Rhode Island, Massachusetts or New 
York.

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

FOR FURTHER INFORMATION CONTACT: Jordan Carduner, 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

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

[[Page 28809]]

or attempt to harass, hunt, capture, or kill any marine mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On January 3, 2018, NMFS received a request from DWW for an IHA to 
take marine mammals incidental to marine site characterization surveys 
off the coast of Massachusetts and Rhode Island in the area of the 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS-A 0486) and along potential submarine 
cable routes to a landfall location in either Rhode Island, 
Massachusetts or New York. A revised application was received on April 
18, 2018. NMFS deemed that request to be adequate and complete. DWW's 
request is for take of 14 marine mammal species by Level B harassment. 
Neither DWW nor NMFS expects serious injury or mortality to result from 
this activity and the activity is expected to last no more than one 
year, therefore, an IHA is appropriate.

Description of the Proposed Activity

Overview

    DWW proposes to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) and geotechnical surveys, 
in the area of the Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf #OCS-A 0486 (Lease 
Area) and along potential submarine cable routes to landfall locations 
in either Rhode Island, Massachusetts or Long Island, New York. The 
purpose of the marine site characterization surveys are to obtain a 
baseline assessment of seabed/sub-surface soil conditions in the Lease 
Area and cable route corridors to support the siting of potential 
future offshore wind projects. Underwater sound resulting from DWW's 
proposed site characterization surveys has the potential to result in 
incidental take of marine mammals in the form of behavioral harassment.
    DWW's survey activities would occur in the Northwest Atlantic Ocean 
within Federal waters. Surveys would occur within the Bureau of Ocean 
Energy Management (BOEM) Rhode Island-Massachusetts Wind Energy Area 
(RI-MA WEA) which is located east of Long Island, New York and south of 
Rhode Island and Massachusetts (see Figure 1 in the IHA application). 
Water depths in the Lease Area range from 26 to 48 meters (m) (85 to 
157 feet (ft)). For the purpose of this IHA the Lease Area and 
submarine cable corridor are collectively termed the Project Area. 
Surveys would occur from approximately June 15, 2018 through December 
31, 2018. The estimated duration of the geophysical survey is expected 
to be up to 200 days and the estimated duration of the geotechnical 
survey is expected to be up to 100 days.
    Geotechnical surveys would entail the use of core penetration 
testing, deep boring cores and vibracores. Geotechnical surveys are not 
expected to result in the take of marine mammals, as described in the 
Federal Register notice of the proposed IHA (83 FR 19711; May 4, 2018) 
and are not analyzed further in this document. Geophysical surveys 
would entail the use of a multibeam depth sounder, shallow penetration 
sub-bottom profiler (chirp), medium penetration sub-bottom profiler 
(boomer and sparker or bubble gun), sidescan sonar and marine 
magnetometer. The deployment of geophysical survey equipment, including 
the equipment planned for use during DWW's planned activity, produces 
sound in the marine environment that has the potential to result in 
harassment of marine mammals.
    A detailed description of the planned survey activities, including 
types of survey equipment planned for use, is provided in the Federal 
Register notice of the proposed IHA (83 FR 19711; May 4, 2018). Since 
that time, no changes have been made to the planned activities. 
Therefore, a detailed description is not repeated here. We note, 
however, that one type of survey equipment was described incorrectly in 
the proposed IHA: The frequencies listed for the Edgetech 4125 sidescan 
sonar were incorrectly listed as 105 and 410 kilohertz (kHz); correct 
frequencies for the Edgetech 4125 are 400/900 kHz or 600/1600 kHz. 
Please refer to the Federal Register notice of the proposed IHA (83 FR 
19711; May 4, 2018) for a detailed description of the specific 
activity.

Comments and Responses

    NMFS published a notice of proposed IHA in the Federal Register on 
May 4, 2018 (83 FR 19711). During the 30-day public comment period, 
NMFS received comment letters from the Marine Mammal Commission 
(Commission) and from a group of non-governmental organizations (NGOs) 
including Natural Resources Defense Council, the National Wildlife 
Federation, the Conservation Law Foundation, Defenders of Wildlife, 
Southern Environmental Law Center, Surfrider Foundation, Sierra Club, 
and the International Fund for Animal Welfare. NMFS has posted the 
comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The following is a summary of the public comments received 
and NMFS' responses.
    Comment 1: The Commission expressed concern that the method used to 
estimate the numbers of takes, which summed fractions of takes for each 
species across project days, does not account for and negates the 
intent of NMFS' 24 hour reset policy and recommended that NMFS share 
the rounding criteria with the Commission in a timely manner.
    NMFS Response: NMFS appreciates the Commission's ongoing concern in 
this matter. Calculating predicted takes is not an exact science, and 
there are arguments for taking different mathematical approaches in 
different situations and for making qualitative adjustments in other 
situations. We believe, however, that the methodology used for take 
calculation in this IHA remains appropriate and is not at odds with the 
24 hour reset policy the Commission references. We look forward to 
continued discussion with the Commission on this matter and will share 
draft guidance on this issue as soon as possible with the Commission.
    Comment 2: The Commission recommended that, until behavioral 
thresholds are updated, NMFS require applicants to use the 120-decibel 
(dB) re 1 micropascal ([mu]Pa), rather than 160-dB re 1[mu]Pa, 
threshold for acoustic, non-impulsive sources (e.g., sub-bottom 
profilers/chirps, echosounders, and other sonars including side-scan 
and fish-finding).
    NMFS Response: Certain sub-bottom profiling systems are 
appropriately considered to be impulsive sources (e.g., boomers, 
sparkers); therefore, the threshold of 160-dB re 1[mu]Pa will continue 
to be used for those sources. Other source types referenced by the 
Commission (e.g., chirp sub-bottom profilers, echosounders, and other 
sonars including side-scan and fish-finding) produce signals that are 
not necessarily strictly impulsive; however, NMFS finds that the 160-dB 
root mean

[[Page 28810]]

square (rms) threshold is most appropriate for use in evaluating 
potential behavioral impacts to marine mammals because the temporal 
characteristics (i.e., intermittency) of these sources are better 
captured by this threshold. The 120-dB threshold is associated with 
continuous sources and was derived based on studies examining 
behavioral responses to drilling and dredging. Continuous sounds are 
those whose sound pressure level remains above that of the ambient 
sound, with negligibly small fluctuations in level (NIOSH, 1998; ANSI, 
2005). Examples of sounds that NMFS would categorize as continuous are 
those associated with drilling or vibratory pile driving activities. 
Intermittent sounds are defined as sounds with interrupted levels of 
low or no sound (NIOSH, 1998). Thus, signals produced by these source 
types are not continuous but rather intermittent sounds. With regard to 
behavioral thresholds, we consider the temporal and spectral 
characteristics of signals produced by these source types to more 
closely resemble those of an impulse sound rather than a continuous 
sound. The threshold of 160-dB re 1[mu]Pa is typically associated with 
impulsive sources, which are inherently intermittent. Therefore, the 
160-dB threshold (typically associated with impulsive sources) is more 
appropriate than the 120-dB threshold (typically associated with 
continuous sources) for estimating takes by behavioral harassment 
incidental to use of such sources.
    Comment 3: The Commission requested clarification regarding certain 
issues associated with NMFS' notice that one-year renewals could be 
issued in certain limited circumstances and expressed concern that the 
process would bypass the public notice and comment requirements. The 
Commission also suggested that NMFS should discuss the possibility of 
renewals through a more general route, such as a rulemaking, instead of 
notice in a specific authorization. The Commission further recommended 
that if NMFS did not pursue a more general route, that the agency 
provide the Commission and the public with a legal analysis supporting 
our conclusion that this process is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA.
    NMFS Response: The process of issuing a renewal IHA does not bypass 
the public notice and comment requirements of the MMPA. The notice of 
the proposed IHA expressly notifies the public that under certain, 
limited conditions an applicant could seek a renewal IHA for an 
additional year. The notice describes the conditions under which such a 
renewal request could be considered and expressly seeks public comment 
in the event such a renewal is sought. Importantly, such renewals would 
be limited to circumstances where: The activities are identical or 
nearly identical to those analyzed in the proposed IHA; monitoring does 
not indicate impacts that were not previously analyzed and authorized; 
and, the mitigation and monitoring requirements remain the same, all of 
which allow the public to comment on the appropriateness and effects of 
a renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as they are for 
all IHAs. The option for issuing renewal IHAs has been in NMFS's 
incidental take regulations since 1996. We will provide any additional 
information to the Commission and consider posting a description of the 
renewal process on our website before any renewal is issued utilizing 
this process.
    Comment 4: The Commission recommended that NMFS increase the number 
of common dolphin takes and sperm whale takes, based on an assumption 
that the number proposed for authorization is insufficient for DWW's 
proposed survey, and that NMFS authorize at least 20 Level B harassment 
takes of Risso's dolphins, based on observations of Risso's dolphins 
during HRG surveys conducted by Deepwater Wind in the RI-MA WEA in 2017 
(AIS Inc., 2017). The Commission further recommended that NMFS better 
evaluate the numbers of Level A and B harassment takes it plans to 
propose.
    NMFS Response: NMFS considered the Commission's recommendations 
with regard to take numbers authorized for common dolphins, sperm 
whales and Risso's dolphins. The Commission noted that five sperm 
whales were observed during HRG surveys conducted by Deepwater Wind in 
the RI-MA WEA in 2017 and two were taken by Level B harassment, and 
expressed concern that the 2018 survey may be forced to shut down upon 
visual detection of sperm whales if the number of authorized takes of 
sperm whales is exceeded. However, results of the monitoring report 
from the 2017 IHA indicate that the majority of sperm whale detections 
during the 2017 survey were via passive acoustic monitoring (PAM), with 
only one confirmed visual detection which was outside the Level B zone 
at a distance of approximately 1,400 m from the vessel; both ``takes'' 
reported in the monitoring report were not based on visual detections 
but were instead based on acoustic detections that were localized 
within the Level B harassment zone (AIS Inc., 2017). However, for the 
IHA issued for 2017 surveys and for this IHA, NMFS does not consider 
animals detected acoustically but not confirmed visually by PSOs to 
have been taken by harassment. As the number of sperm whale takes in 
this IHA were based on the best available density data (e.g., Roberts 
et al. (2016)), and as shutdown of survey equipment based on PAM 
detection alone is not required for sperm whales in this IHA, we have 
concluded the number of sperm whale takes authorized is appropriate. 
The Commission noted that common dolphins were the most regularly 
observed marine mammal species during Deepwater Wind's 2017 HRG surveys 
in the RI-MA WEA, with 2,677 common dolphins observed (AIS Inc., 2017) 
and expressed concern that the 2018 survey may be forced to shut down 
upon visual detection of common dolphins if the number of authorized 
takes of common dolphins is exceeded. NMFS agrees that common dolphins 
are likely to be prevalent during DWW's survey activities; however, we 
note that while 2,677 common dolphins were observed during 2017 
surveys, 346 common dolphins were taken by Level B harassment (AIS 
Inc., 2017). NMFS is authorizing nearly 3 times the number of takes of 
common dolphins in this IHA (910) compared to the number of takes of 
common dolphins that occurred during 2017 surveys (346). As the number 
of common dolphin takes in this IHA were based on the best available 
density data (e.g., Roberts et al. (2016)) and as this IHA authorizes 
nearly 3 times as many takes by Level B harassment of common dolphins 
compared to the number taken during Deepwater Wind's HRG surveys in 
2017 (NMFS, 2017), we have concluded the number of common dolphin takes 
authorized is appropriate. The Commission noted that the monitoring 
report from the 2017 IHA issued to Deepwater Wind for HRG surveys in 
the RI-MA WEA indicated that eight Risso's dolphins were observed at 
400 m from the source during Deepwater Wind's 2017 surveys and that the 
vessel had to avoid the Risso's dolphins to prevent unauthorized takes 
(AIS Inc., 2017). We

[[Page 28811]]

agree with the Commission that, based on monitoring data from the 2017 
IHA issued to Deepwater Wind for HRG surveys in the RI-MA WEA (AIS 
Inc., 2017), the planned survey may encounter Risso's dolphins, and, 
thus authorization for the take of Risso's dolphins is warranted in 
this IHA. We have therefore authorized takes of Risso's dolphins in 
this IHA (Table 6). NMFS carefully evaluates the number of Level A and 
Level B harassment takes it proposes to authorize, as illustrated by 
the Level of analysis incorporated in our notices of proposed IHAs, and 
we will continue to do so.
    Comment 5: The NGOs expressed concern regarding the marine mammal 
density estimates used to calculate take. Specifically, the commenters 
stated the estimates derived from models presented in Roberts et al. 
(2016) may underrepresent density and seasonal presence of large whales 
in the survey area, and recommended that NMFS consider additional data 
sources in density modeling in future analyses of estimated take, 
including initial data from state monitoring efforts, existing passive 
acoustic monitoring data, opportunistic marine mammal sightings data, 
and other data sources.
    NMFS Response: NMFS has determined that the data provided by 
Roberts et al. (2016) represents the best available information 
concerning marine mammal density in the survey area and has used it 
accordingly. NMFS has considered other available information, including 
that cited by the commenters, and determined that it does not 
contradict the information provided by Roberts et al. (2016). The 
information discussed by the commenters does not provide data in a 
format that is directly usable in an acoustic exposure analysis, and 
the commenters make no useful recommendation regarding how to do so. We 
will review the data sources recommended by the commenters and will 
consider their suitability for inclusion in future analyses, as 
requested by the commenters.
    Comment 6: Regarding mitigation measures, the NGOs recommended NMFS 
impose a restriction on site assessment and characterization activities 
that have the potential to harass the North Atlantic right whale from 
November 1st to May 14th.
    NMFS Response: In evaluating how mitigation may or may not be 
appropriate to ensure the least practicable adverse impact on species 
or stocks and their habitat, we carefully consider two primary factors: 
(1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat; and 
(2) the practicability of the measures for applicant implementation, 
which may consider such things as relative cost and impact on 
operations.
    DWW determined the planned duration of the survey based on their 
data acquisition needs, which are largely driven by the Bureau of Ocean 
Energy Management's (BOEM) data acquisition requirements prior to 
required submission of a construction and operations plan (COP). Any 
effort on the part of NMFS to restrict the months during which the 
survey could operate would likely have the effect of forcing the 
applicant to conduct additional months of surveys the following year, 
resulting in increased costs incurred by the applicant and additional 
time on the water with associated additional production of underwater 
noise which could have further potential impacts to marine mammals. 
Thus the time and area restrictions recommended by the commenters would 
not be practicable for the applicant to implement and would to some 
degree offset the benefit of the recommended measure. In addition, our 
analysis of the potential impacts of the survey on right whales does 
not indicate that such closures are warranted, as potential impacts to 
right whales from the survey activities would be limited to short-term 
behavioral responses; no marine mammal injury is expected as a result 
of the survey, nor is injury authorized in the IHA. We also note that 
the majority of the survey is already scheduled to occur outside the 
time frame recommended for closure by the commenters; the survey is 
planned to occur from June 15 through December 31, while the commenters 
recommend a seasonal closure from November 1 through May 14. Thus, in 
consideration of the limited potential benefits of time and area 
restrictions, in concert with the impracticability and increased cost 
on the part of the applicant that would result from such restrictions, 
NMFS has determined that time and area restrictions are not warranted 
in this case. Existing mitigation measures, including exclusion zones, 
ramp-up of survey equipment, and vessel strike avoidance measures, are 
sufficiently protective to ensure the least practicable adverse impact 
on species or stocks and their habitat.
    Comment 7: Regarding mitigation measures, the NGOs recommended that 
NMFS require that geophysical surveys commence, with ramp-up, during 
daylight hours only to maximize the probability that North Atlantic 
right whales are detected and confirmed clear of the exclusion zone, 
and that, if a right whale were detected in the exclusion zone during 
nighttime hours and the survey is shut down, developers should be 
required to wait until daylight hours for ramp-up to commence.
    NMFS Response: We acknowledge the limitations inherent in detection 
of marine mammals at night. However, similar to the discussion above 
regarding time and area closures, restricting the ability of the 
applicant to ramp-up surveys only during daylight hours would have the 
potential to result in lengthy shutdowns of the survey equipment, which 
could result in the applicant failing to collect the data they have 
determined is necessary, which could result in the need to conduct 
additional surveys the following year. This would result in 
significantly increased costs incurred by the applicant. Thus the 
restriction suggested by the commenters would not be practicable for 
the applicant to implement. In addition, as described above, potential 
impacts to marine mammals from the survey activities would be limited 
to short-term behavioral responses. Restricting surveys in the manner 
suggested by the commenters may reduce marine mammal exposures by some 
degree in the short term, but would not result in any significant 
reduction in either intensity or duration of noise exposure. No injury 
is expected to result even in the absence of mitigation, given the very 
small estimated Level A harassment zones. In the event that NMFS 
imposed the restriction suggested by the commenters, potentially 
resulting in a second season of surveys required for the applicant, 
vessels would be on the water introducing noise into the marine 
environment for an extended period of time. Therefore, in addition to 
practicability concerns for the applicant, the restrictions recommended 
by the commenters could result in the surveys spending increased time 
on the water, which may result in greater overall exposure to sound for 
marine mammals; thus the commenters have failed to demonstrate that 
such a requirement would result in a net benefit for affected marine 
mammals. Therefore, in consideration of potential effectiveness of the 
recommended measure and its practicability for the applicant, NMFS has 
determined that restricting survey start-ups to daylight hours is not 
warranted in this case.
    However, in recognition of the concerns raised by the commenters, 
we have added a mitigation requirement to the IHA that shutdown of 
geophysical survey equipment is required upon

[[Page 28812]]

confirmed PAM detection of a North Atlantic right whale at night, even 
in the absence of visual confirmation, except in cases where the 
acoustic detection can be localized and the right whale can be 
confirmed as being beyond the 500 m exclusion zone (EZ); equipment may 
be re-started no sooner than 30 minutes after the last confirmed 
acoustic detection.
    Comment 8: The NGOs recommended that NMFS require a 500 m EZ for 
marine mammals (with the exception of dolphins that voluntarily 
approach the vessel). Additionally, the NGOs recommended that protected 
species observers (PSOs) monitor to an extended 1,000 m EZ for North 
Atlantic right whales.
    NMFS Response: Regarding the recommendation for a 1,000 m EZ 
specifically for North Atlantic right whales, we have determined that 
the 500 m EZ, as required in the IHA, is sufficiently protective. We 
note that the 500 m EZ exceeds the modeled distance to the Level B 
harassment isopleth (447 m), thus for North Atlantic right whales 
detected by PSOs this EZ would be expected to effectively minimize 
potential instances of injury and harassment.
    Regarding the commenters' recommendation to require a 500 m EZ for 
all marine mammals (except dolphins that approach the vessel) we have 
determined the EZs as currently required in the IHA (described in 
Mitigation Measures, below) are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. The 
EZs would prevent all potential instances of marine mammal injury 
(though in this instance, injury would not be an expected outcome even 
in the absence of mitigation due to very small predicted isopleths 
corresponding to the Level A harassment threshold (Table 5) and would 
further prevent some instances of behavioral harassment, as well as 
limiting the intensity and/or duration of behavioral harassment that 
does occur. As NMFS has determined the EZs currently required in the 
IHA to be sufficiently protective, we do not think expanded EZs, beyond 
what is required in the IHA, are warranted.
    Comment 9: The NGOs recommended that a combination of visual 
monitoring by PSOs and PAM should be required 24 hours per day.
    NMFS Response: The PAM requirement has been included in the IHA 
because PAM was proposed by the applicant, and PAM is required in BOEM 
lease stipulations. We do not think the use of PAM is necessarily 
warranted for surveys using the sound sources proposed for use by DWW, 
due to relatively small areas that are expected to be ensonified to the 
Level A harassment threshold (Table 5). As we are not convinced that 
PAM is necessarily warranted for this type of survey, we do not think a 
requirement to expand the use of PAM to 24 hours a day during the 
survey is warranted. Expanding the PAM requirement to 24 hours a day 
may also result in increased costs on the part of the applicant. When 
the potential benefits of a 24 hour PAM requirement are considered in 
concert with the potential increased costs on the part of the applicant 
that would result from such a requirement, we determined a requirement 
for 24 hour PAM operation is not warranted in this case. Given the 
effects to marine mammals from the types of surveys authorized in this 
IHA are expected to be limited to behavioral harassment even in the 
absence of mitigation, we have determined the current requirements for 
visual and acoustic monitoring are sufficient to ensure the EZs and 
Watch Zone are adequately monitored for this particular activity.
    Comment 10: The NGOs recommended that NMFS require a 10 knot speed 
restriction on all project-related vessels transiting to/from the 
survey area from November 1 through April 30 in New York state waters 
and the adjacent Block Island Seasonal Management Area (SMA) for North 
Atlantic right whales, and from February 1 to May 14 in Rhode Island 
and Massachusetts state waters outside of the Block Island SMA, and 
that all project vessels operating within the survey area should be 
required to maintain a speed of 10 knots or less during the entire 
survey period.
    NMFS Response: NMFS has analyzed the potential for ship strike 
resulting from DWW's activity and has determined that the mitigation 
measures specific to ship strike avoidance are sufficient to avoid the 
potential for ship strike. These include: A requirement that all vessel 
operators comply with 10 knot (18.5 kilometer (km)/hour) or less speed 
restrictions in any SMA or Dynamic Management Area (DMA); a requirement 
that all vessel operators reduce vessel speed to 10 knots (18.5 km/
hour) or less when any large whale, any mother/calf pairs, pods, or 
large assemblages of non-delphinoid cetaceans are observed within 100 m 
of an underway vessel; a requirement that all survey vessels maintain a 
separation distance of 500 m or greater from any sighted North Atlantic 
right whale; a requirement that, if underway, vessels must steer a 
course away from any sighted North Atlantic right whale at 10 knots or 
less until the 500 m minimum separation distance has been established; 
and a requirement that, if a North Atlantic right whale is sighted in a 
vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Additional 
measures to prevent the potential for ship strike are discussed in more 
detail below (see the Mitigation section). We have determined that the 
ship strike avoidance measures are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. We 
also note that vessel strike during surveys is extremely unlikely based 
on the low vessel speed; the survey vessel would maintain a speed of 
approximately 4 knots (7.4 km/hour) while transiting survey lines.
    Comment 11: The NGOs recommended that NMFS account for the 
potential for indirect ship strike risk resulting from habitat 
displacement in our analyses.
    NMFS Response: NMFS determined that habitat displacement was not an 
expected outcome of the specified activity, therefore an analysis of 
potential impacts to marine mammals from habitat displacement is not 
warranted in this case.
    Comment 12: The NGOs recommended that NMFS consider any existing 
siting and acoustic data and any new information that improves our 
understanding of marine mammal distribution and habitat use in the 
region in order to inform seasonal restrictions and mitigation measures 
in time for the November 2018 North Atlantic right whale migration 
period.
    NMFS Response: We base our analyses on the best available 
information to inform mitigation measures in incidental take 
authorizations, and will continue to do so. Beyond a broad 
recommendation, the commenters have not provided us with any specific 
recommendations regarding data sources to consider, but we welcome 
future input, outside the comment period for this particular IHA, from 
interested parties on data sources that may be of use in analyzing the 
potential presence and movement patterns of North Atlantic right 
whales.
    Comment 13: The NGOs recommended that NMFS encourage offshore wind 
developers to partner with scientists to collect data that would 
increase the understanding of the effectiveness of night vision and 
infra-red technologies off Rhode Island, Massachusetts, and the broader 
region, with a view towards greater reliance on these technologies to 
commence surveys during nighttime hours in the future.

[[Page 28813]]

    NMFS Response: NMFS agrees with the NGOs that improved data on 
relative effectiveness of night vision and infra-red technologies would 
be beneficial and could help to inform future efforts at detection of 
marine mammals during nighttime activities. The commenters have not 
provided us with any specific recommendations to evaluate beyond a 
broad recommendation. However, we will encourage coordination and 
communication between offshore wind developers and researchers on 
effectiveness of night vision and infra-red technologies, to the extent 
possible. In recognition of the commenters' concerns, we have also 
added a requirement that the final report submitted to NMFS must 
include an assessment of the effectiveness of night vision equipment 
used during nighttime surveys, including comparisons of relative 
effectiveness among the different types of night vision equipment used.

Description of Marine Mammals in the Area of Specified Activity

    Sections 3 and 4 of DWW's IHA application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially affected 
species. Additional information regarding population trends and threats 
may be found in NMFS' Stock Assessment Reports (SAR; 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region) and more general information about 
these species (e.g., physical and behavioral descriptions) may be found 
on NMFS' website (www.fisheries.noaa.gov/species-directory). All 
species that could potentially occur in the proposed survey area are 
included in Table 5 of the IHA application. However, the temporal and/
or spatial occurrence of several species listed in Table 5 of the IHA 
application is such that take of these species is not expected to 
occur, and they are not discussed further beyond the explanation 
provided here. Take of these species is not anticipated either because 
they have very low densities in the project area, are known to occur 
further offshore than the project area, or are considered very unlikely 
to occur in the project area during the proposed survey due to the 
species' seasonal occurrence in the area.
    Table 2 lists all species with expected potential for occurrence in 
the survey area and with the potential to be taken as a result of the 
proposed survey 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, we follow 
Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs). While no mortality is anticipated or authorized here, PBR is 
included here as a gross indicator of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
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' U.S. Atlantic SARs (e.g., Hayes et al., 2018). All values 
presented in Table 2 are the most recent available at the time of 
publication and are available in the 2017 draft Atlantic SARs (Hayes et 
al., 2018).

            Table 1--Marine Mammals Known To Occur in the Survey Area That May Be Affected by Deepwater Wind New England's Survey Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Stock abundance
                                                             NMFS MMPA and ESA  (CV,Nmin, most recent     Predicted                    Occurrence and
            Common name                       Stock          status; strategic  abundance survey) \2\   abundance (CV)   PBR \4\     seasonality in the
                                                                 (Y/N) \1\                                   \3\                        survey area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Toothed whales (Odontoceti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter                North Atlantic........  E; Y               2,288 (0.28; 1,815; n/    5,353 (0.12)        3.6  Rare.
 macrocephalus).                                                                 a).
Long-finned pilot whale              W North Atlantic......  -; Y               5,636 (0.63; 3,464; n/      \5\ 18,977         35  Rare.
 (Globicephala melas).                                                           a).                            (0.11)
Atlantic white-sided dolphin         W North Atlantic......  -; N               48,819 (0.61; 30,403;    37,180 (0.07)        304  Rare.
 (Lagenorhynchus acutus).                                                        n/a).
Atlantic spotted dolphin (Stenella   W North Atlantic......  -; N               44,715 (0.43; 31,610;    55,436 (0.32)        316  Rare.
 frontalis).                                                                     n/a).
Bottlenose dolphin (Tursiops         W North Atlantic,       -; N               77,532 (0.40; 56,053;       \5\ 97,476        561  Common year round.
 truncatus).                          Offshore.                                  2011).                         (0.06)
Common dolphin \6\ (Delphinus        W North Atlantic......  -; N               173,486 (0.55;           86,098 (0.12)        557  Common year round.
 delphis).                                                                       55,690; 2011).
Risso's dolphin (Grampus griseus)..  W North Atlantic......  -; N               18,250 (0.46; 12,619;     7,732 (0.09)        126  Rare.
                                                                                 2011).
Harbor porpoise (Phocoena phocoena)  Gulf of Maine/Bay of    -; N               79,833 (0.32; 61,415;  * 45,089 (0.12)        706  Common year round.
                                      Fundy.                                     2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 28814]]

 
                                                                Baleen whales (Mysticeti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale           W North Atlantic......  E; Y               458 (0; 455; n/a)....     * 535 (0.45)        1.4  Year round in
 (Eubalaena glacialis).                                                                                                             continental shelf
                                                                                                                                    and slope waters,
                                                                                                                                    occur seasonally to
                                                                                                                                    forage.
Humpback whale \7\ (Megaptera        Gulf of Maine.........  -; N               823 (0.42; 239; n/a).   * 1,637 (0.07)        3.7  Common year round.
 novaeangliae).
Fin whale \6\ (Balaenoptera          W North Atlantic......  E; Y               3,522 (0.27; 1,234; n/    4,633 (0.08)        2.5  Year round in
 physalus).                                                                      a).                                                continental shelf
                                                                                                                                    and slope waters,
                                                                                                                                    occur seasonally to
                                                                                                                                    forage.
Sei whale (Balaenoptera borealis)..  Nova Scotia...........  E; Y               357 (0.52; 236; n/a).     * 717 (0.30)        0.5  Year round in
                                                                                                                                    continental shelf
                                                                                                                                    and slope waters,
                                                                                                                                    occur seasonally to
                                                                                                                                    forage.
Minke whale \6\ (Balaenoptera        Canadian East Coast...  -; N               20,741 (0.3; 1,425; n/  * 2,112 (0.05)        162  Year round in
 acutorostrata).                                                                 a).                                                continental shelf
                                                                                                                                    and slope waters,
                                                                                                                                    occur seasonally to
                                                                                                                                    forage.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Earless seals (Phocidae)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal \8\ (Halichoerus grypus).  W North Atlantic......  -; N               27,131 (0.10; 25,908;  ...............      1,554  Rare.
                                                                                 n/a).
Harbor seal (Phoca vitulina).......  W North Atlantic......  -; N               75,834 (0.15; 66,884;  ...............      2,006  Common year round.
                                                                                 2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 (see
  footnote 3) 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\ Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at:
  www.nmfs.noaa.gov/pr/sars. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For
  certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in
  the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here
  are from the 2017 draft Atlantic SARs.
\3\ This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016).
  These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we
  provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all
  pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported development of
  either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance.
\4\ Potential biological removal, 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 size (OSP).
\5\ Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly,
  the habitat-based cetacean density models produced by Roberts et al. (2016) are based in part on available observational data which, in some cases, is
  limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016) produced density models to genus level for Globicephala spp. and
  produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks.
\6\ Abundance as reported in the 2007 Canadian Trans-North Atlantic Sighting Survey (TNASS), which provided full coverage of the Atlantic Canadian coast
  (Lawson and Gosselin, 2009). Abundance estimates from TNASS were corrected for perception and availability bias, when possible. In general, where the
  TNASS survey effort provided superior coverage of a stock's range (as compared with NOAA shipboard survey effort), the resulting abundance estimate is
  considered more accurate than the current NMFS abundance estimate (derived from survey effort with inferior coverage of the stock range). NMFS stock
  abundance estimate for the common dolphin is 70,184. NMFS stock abundance estimate for the fin whale is 1,618.
\7\ 2017 U.S. Atlantic draft SAR for the Gulf of Maine feeding population lists a current abundance estimate of 335 individuals; this estimate was
  revised from the previous estimate of 823 individuals. However, the newer estimate is based on a single aerial line-transect survey in the Gulf of
  Maine. The 2017 U.S. Atlantic draft SAR notes that that previous estimate was based on a minimum number alive calculation which is generally more
  accurate than one derived from line-transect survey (Hayes et al., 2017), and that the abundance estimate was revised solely because the previous
  estimate was greater than 8 years old. Therefore, the previous estimate of 823 is more accurate, and we note that even that estimate is defined on the
  basis of feeding location alone (i.e., Gulf of Maine).
\8\ NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.

    Four marine mammal species that are listed under the Endangered 
Species Act (ESA) may be present in the survey area and are included in 
the take request: The North Atlantic right whale, fin whale, sei whale, 
and sperm whale.
    Though marine mammal species other than those listed in Table 1 are 
known to occur in the Northwest Atlantic

[[Page 28815]]

Ocean, the temporal and/or spatial occurrence of several of these 
species is such that take of these species is not expected to occur, 
and they are therefore not discussed further beyond the explanation 
provided here. Take of these species is not anticipated either because 
they have very low densities in the project area (e.g., blue whale, 
Clymene dolphin, pantropical spotted dolphin, striped dolphin, spinner 
dolphin, killer whale, false killer whale, pygmy killer whale,), or, 
they are known to occur further offshore than the project area (e.g., 
beaked whales, short-finned pilot whale, rough toothed dolphin, Kogia 
spp.).
    For the majority of species potentially present in the specific 
geographic region, NMFS has designated only a single generic stock 
(e.g., ``western North Atlantic'') for management purposes. This 
includes the ``Canadian east coast'' stock of minke whales, which 
includes all minke whales found in U.S. waters. For humpback and sei 
whales, NMFS defines stocks on the basis of feeding locations, i.e., 
Gulf of Maine and Nova Scotia, respectively. However, our reference to 
humpback whales and sei whales in this document refers to any 
individuals of the species that are found in the specific geographic 
region.
    A detailed description of the species and stocks likely to be 
affected by DWW's survey, including brief introductions to the species 
and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice of the 
proposed IHA (83 FR 19711; May 4, 2018); since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not repeated here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' website (www.fisheries.noaa.gov/species-directory) for 
generalized species accounts.
    Information concerning marine mammal hearing, including marine 
mammal functional hearing groups, was provided in the Federal Register 
notice of the proposed IHA (83 FR 19711; May 4, 2018), therefore that 
information is not repeated here. Please refer to that Federal Register 
notice for this information. For further information about marine 
mammal functional hearing groups and associated frequency ranges, 
please see NMFS (2016) for a review of available information. Fifteen 
marine mammal species (thirteen cetacean and two pinniped (both phocid) 
species) have the reasonable potential to co-occur with the survey 
activities. Please refer to Table 1. Of the cetacean species that may 
be present, five are classified as low-frequency cetaceans (i.e., all 
mysticete species), seven are classified as mid-frequency cetaceans 
(i.e., all delphinid species and the sperm whale), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from DWW's geophysical survey 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the survey area. The Federal Register 
notice of the proposed IHA (83 FR 19711; May 4, 2018) included a 
discussion of the effects of anthropogenic noise on marine mammals and 
their habitat, therefore that information is not repeated here; please 
refer to that Federal Register notice for that information. No 
instances of hearing threshold shifts, injury, serious injury, or 
mortality are expected as a result of the planned activities.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, the MMPA defines ``harassment'' as any act of pursuit, torment, 
or annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes are by Level B harassment, as use of the HRG 
equipment has the potential to result in disruption of behavioral 
patterns for individual marine mammals. NMFS has determined take by 
Level A harassment is not an expected outcome of the proposed activity 
and thus we do not authorize the take of any marine mammals by Level A 
harassment. This is discussed in greater detail below. As described 
previously, no mortality or serious injury is anticipated or authorized 
for this activity. Below we describe how the take is estimated for this 
project.
    Described in the most basic way, 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. Below, we describe these 
components in more detail and present the take estimate.

Acoustic Thresholds

    NMFS uses 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 permanent threshold shift (PTS) of some degree (equated to 
Level A harassment).
    Level B Harassment--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 
sound source (e.g., frequency, predictability, duty cycle); the 
environment (e.g., bathymetry); and the receiving animals (hearing, 
motivation, experience, demography, behavioral context); therefore can 
be difficult to predict (Southall et al., 2007, Ellison et al. 2012). 
NMFS uses a generalized acoustic threshold based on received level to 
estimate the onset of Level B (behavioral) harassment. NMFS predicts 
that marine mammals may be behaviorally harassed when exposed to 
underwater anthropogenic noise above received levels 160 dB re 1 [mu]Pa 
(rms) for non-explosive impulsive (e.g., seismic HRG equipment) or 
intermittent (e.g., scientific sonar) sources. DWW's activity includes 
the use of impulsive sources. Therefore, the 160 dB re 1 [mu]Pa (rms) 
criteria is applicable for analysis of Level B harassment.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2016) 
identifies dual criteria to assess auditory injury (Level A harassment) 
to five different marine mammal groups (based on hearing sensitivity) 
as a result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). The Technical Guidance identifies the 
received levels, or thresholds, above which individual marine mammals 
are predicted to experience changes in their hearing sensitivity for 
all underwater

[[Page 28816]]

anthropogenic sound sources, reflects the best available science, and 
better predicts the potential for auditory injury than does NMFS' 
historical criteria.
    These thresholds were developed by compiling and synthesizing the 
best available science and soliciting input multiple times from both 
the public and peer reviewers to inform the final product, and are 
provided in Table 2 below. The references, analysis, and methodology 
used in the development of the thresholds are described in NMFS 2016 
Technical Guidance, which may be accessed at: www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. As described above, DWW's activity includes 
the use of intermittent and impulsive sources.

 Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
                            in Marine Mammals
------------------------------------------------------------------------
                                           PTS onset thresholds
          Hearing group          ---------------------------------------
                                      Impulsive *        Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Lpk,flat: 219 dB;   LE,LF,24h: 199 dB.
                                   LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans....  Lpk,flat: 230 dB;   LE,MF,24h: 198 dB.
                                   LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans...  Lpk,flat: 202 dB;   LE,HF,24h: 173 dB.
                                   LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW)             Lpk,flat: 218 dB;   LE,PW,24h: 201 dB.
 (Underwater).                     LE,PW,24h: 185 dB.
------------------------------------------------------------------------
Note: * Dual metric acoustic thresholds for impulsive sounds: Use
  whichever results in the largest isopleth for calculating PTS onset.
  If a non-impulsive sound has the potential of exceeding the peak sound
  pressure level thresholds associated with impulsive sounds, these
  thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and
  cumulative sound exposure level (LE) has a reference value of
  1[mu]Pa2s. 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 estimating the area ensonified above the 
acoustic thresholds.
    The survey would entail the use of HRG survey equipment. The 
distance to the isopleth corresponding to the threshold for Level B 
harassment was calculated for all HRG survey equipment with the 
potential to result in harassment of marine mammals using the spherical 
transmission loss (TL) equation: TL = 20log<INF>10</INF>. Results of 
modeling indicated that, of the HRG survey equipment planned for use 
that has the potential to result in harassment of marine mammals, the 
AA Dura-Spark would be expected to produce sound that would propagate 
the furthest in the water (Table 3); therefore, for the purposes of the 
take calculation, it was assumed the AA Dura-Spark would be active 
during the entirety of the survey. Thus the distance to the isopleth 
corresponding to the threshold for Level B harassment for the AA Dura-
Spark (estimated at 447 m; Table 3) was used as the basis of the Level 
B take calculation for all marine mammals.

Table 3--Modeled Radial Distances From HRG Survey Equipment to Isopleths
              Corresponding to Level B Harassment Threshold
------------------------------------------------------------------------
                                                  Radial distance (m) to
                                                    level B harassment
                   HRG system                     threshold (160 dB re 1
                                                         [mu]Pa)
------------------------------------------------------------------------
TB Chirp.......................................                    70.79
EdgeTech Chirp.................................                     6.31
AA Boomer......................................                     5.62
AA S-Boom......................................                   141.25
Bubble Gun.....................................                     63.1
800J Spark.....................................                   141.25
AA Dura Spark..................................                   446.69
------------------------------------------------------------------------

    Predicted distances to Level A harassment isopleths, which vary 
based on marine mammal functional hearing groups (Table 4), were also 
calculated. The updated acoustic thresholds for impulsive sounds (such 
as HRG survey equipment) contained in the Technical Guidance (NMFS, 
2016) were presented as dual metric acoustic thresholds using both 
cumulative sound exposure level (SEL<INF>cum</INF>) and peak sound 
pressure level metrics. As dual metrics, NMFS considers onset of PTS 
(Level A harassment) to have occurred when either one of the two 
metrics is exceeded (i.e., metric resulting in the largest isopleth).
    The SEL<INF>cum</INF> metric considers both level and duration of 
exposure, as well as auditory weighting functions by marine mammal 
hearing group. In recognition of the fact that calculating Level A 
harassment ensonified areas could be more technically challenging to 
predict due to the duration component and the use of weighting 
functions in the new SEL<INF>cum</INF> thresholds, NMFS developed an 
optional User Spreadsheet that includes tools to help predict a simple 
isopleth that can be used in conjunction with marine mammal density or 
occurrence to facilitate the estimation of take numbers. DWW used the 
NMFS optional User Spreadsheet to calculate distances to Level A 
harassment isopleths based on SEL<INF>cum</INF>. To calculate distances 
to the Level A harassment isopleths based on peak pressure, the

[[Page 28817]]

spherical spreading loss model was used (similar to the method used to 
calculate Level B isopleths as described above).
    Modeling of distances to isopleths corresponding to Level A 
harassment was performed for all types of HRG equipment planned for use 
with the potential to result in harassment of marine mammals. Of the 
HRG equipment types modeled, the AA Dura Spark resulted in the largest 
distances to isopleths corresponding to Level A harassment for all 
marine mammal functional hearing groups; therefore, to be conservative, 
the isopleths modeled for the AA Dura Spark were used to estimate 
potential Level A take. Based on a conservative assumption that the AA 
Dura Spark would be operated at 1,000 joules during the survey, a peak 
source level of 223 dB re 1[mu]Pa was used for modeling Level A 
harassment isopleths based on peak pressure (Crocker & Fratantonio, 
2016). Inputs to the NMFS optional User Spreadsheet for the AA Dura 
Spark are shown in Table 4. Modeled distances to isopleths 
corresponding to Level A harassment thresholds for the AA Dura Spark 
are shown in Table 5 (modeled distances to Level A harassment isopleths 
for all other types of HRG equipment planned for use are shown in Table 
6 of the IHA application). As described above, NMFS considers onset of 
PTS (Level A harassment) to have occurred when either one of the two 
metrics is exceeded (i.e., metric resulting in the largest isopleth). 
In this case, modeled distances to isopleths corresponding to the Level 
A harassment threshold are greater based on the peak SPL metric than 
the SEL<INF>cum</INF> metric for all marine mammal functional hearing 
groups (Table 5).

  Table 4--Inputs to the NMFS Optional User Spreadsheet for the AA Dura
                                  Spark
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Source Level (rms SPL) \1\......................  213 dB re 1[mu]Pa
Source Level (peak) \1\.........................  223 dB re 1[mu]Pa
Weighting Factor Adjustment (kHz) \1\...........  3.2
Source Velocity (meters/second).................  2.07
Pulse Duration (seconds)........................  0.0021
1/Repetition rate (seconds).....................  2.42
Duty Cycle......................................  0.00
------------------------------------------------------------------------
\1\ Derived from Crocker & Fratantonio (2016), based on operation at
  1,000 joules.


 Table 5--Modeled Radial Distances to Isopleths Corresponding to Level A
                          Harassment Thresholds
------------------------------------------------------------------------
                               Radial distance (m)   Radial distance (m)
  Functional hearing group         to Level A            to Level A
     (Level A harassment      harassment threshold  harassment threshold
         thresholds)                (SELcum)           (Peak SPLflat)
------------------------------------------------------------------------
Low frequency cetaceans.....                   1.3                   1.6
(Lpk,flat: 219 dB;
 LE,LF,24h: 183 dB).........
Mid frequency cetaceans.....                   0.0                   0.5
(Lpk,flat: 230 dB;
 LE,MF,24h: 185 dB).........
High frequency cetaceans....                   8.6                  11.2
(Lpk,flat: 202 dB;
 LE,HF,24h: 155 dB).........
Phocid Pinnipeds                               0.7                   1.8
 (Underwater)...............
(Lpk,flat: 218 dB;
 LE,HF,24h: 185 dB).........
------------------------------------------------------------------------

    Due to the small estimated distances to Level A harassment 
thresholds for all marine mammal functional hearing groups, based on 
both SEL<INF>cum</INF> and peak SPL (Table 5), and in consideration of 
the mitigation measures (see the Mitigation section for more detail), 
NMFS has determined that the likelihood of Level A take of marine 
mammals occurring as a result of the planned survey is so low as to be 
discountable.
    We note that because of some of the assumptions included in the 
methods used, isopleths produced may be overestimates to some degree. 
Most of the acoustic sources planned for use in DWW's survey (including 
the AA Dura Spark) do not radiate sound equally in all directions but 
were designed instead to focus acoustic energy directly toward the sea 
floor. Therefore, the acoustic energy produced by these sources is not 
received equally in all directions around the source but is instead 
concentrated along some narrower plane depending on the beamwidth of 
the source. However, the calculated distances to isopleths do not 
account for this directionality of the sound source and are therefore 
conservative. Two types of geophysical survey equipment planned for use 
in the planned survey are omni-directional, however the modeled 
distances to isopleths corresponding to the Level B harassment 
threshold for these sources are smaller than that for the Dura Spark, 
and the Dura Spark was used to conservatively estimate take for the 
duration of the survey. For mobile sources, such as the planned survey, 
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.

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 best available scientific information was considered in 
calculating marine mammal exposure estimates (the basis for estimating 
take). For cetacean species, densities calculated by Roberts et al. 
(2016) were used. The density data presented by Roberts et al. (2016) 
incorporates aerial and shipboard line-transect survey data from NMFS 
and from other organizations collected over the period 1992-2014. 
Roberts et al. (2016) modeled density from 8 physiographic and 16 
dynamic oceanographic and biological covariates, and controlled for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. NMFS considers the models 
produced

[[Page 28818]]

by Roberts et al. (2016) to be the best available source of data 
regarding cetacean densities for this project. More information, 
including the model results and supplementary information for each 
model, is available online at: seamap.env.duke.edu/models/Duke-EC-GOM-2015/.
    For the purposes of the take calculations, density data from 
Roberts et al. (2016) were mapped using a geographic information system 
(GIS), using density data for the months June through December. Mean 
density per month for each species within the survey area was 
calculated by selecting 13 random raster cells selected from 100 square 
kilometers (km\2\) raster cells that were inside, or adjacent to, the 
RI-MA WEA (see Figure 1 in the IHA application). Estimates provided by 
the models are based on a grid cell size of 100 km\2\; therefore, model 
grid cell values were then divided by 100 to determine animals per 
km\2\.
    Systematic, offshore, at-sea survey data for pinnipeds are more 
limited than those for cetaceans. The best available information 
concerning pinniped densities in the planned survey area is the U.S. 
Navy's Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 2007). 
These density models utilized vessel-based and aerial survey data 
collected by NMFS from 1998-2005 during broad-scale abundance studies. 
Modeling methodology is detailed in DoN (2007). For the purposes of the 
take calculations, NODEs Density Estimates (DoN, 2007) as reported for 
the summer and fall seasons were used to estimate harbor seal and gray 
seal densities.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to harassment thresholds 
are calculated, as described above. Those distances are then used to 
calculate the area(s) around the HRG survey equipment predicted to be 
ensonified to sound levels that exceed harassment thresholds. The area 
estimated to be ensonified to relevant thresholds in a single day of 
the survey is then calculated, based on areas predicted to be 
ensonified around the HRG survey equipment and the estimated trackline 
distance traveled per day by the survey vessel. DWW estimates a maximum 
daily track line distance of 110 km per day during HRG surveys. Based 
on the maximum estimated distance to the Level B harassment threshold 
of 447 m (Table 3) and the maximum estimated daily track line distance 
of 110 km, an area of 98.9 km\2\ would be ensonified to the Level B 
harassment threshold per day during HRG surveys.
    The number of marine mammals expected to be incidentally taken per 
day is then calculated by estimating the number of each species 
predicted to occur within the daily ensonified area, using estimated 
marine mammal densities as described above. Estimated numbers of each 
species taken per day are then multiplied by the number of survey days 
(i.e., 200), and the product is then rounded, to generate an estimate 
of the total number of each species expected to be taken over the 
duration of the survey (Table 6).
    The applicant estimated a total of 11 takes by Level A harassment 
of harbor porpoises, 5 takes by Level A harassment of harbor seals, and 
7 takes by Level A harassment of gray seals would occur, in the absence 
of mitigation. However, as described above, due to the very small 
estimated distances to Level A harassment thresholds (Table 5), and in 
consideration of the mitigation measures, the likelihood of the planned 
survey resulting in take in the form of Level A harassment is 
considered so low as to be discountable; therefore, we do not authorize 
take of any marine mammals by Level A harassment. Although there are no 
exclusion zones (EZs) required for pinnipeds, the estimated distance to 
the isopleth corresponding to the Level A harassment threshold for 
pinnipeds is less than 2 m (Table 6); therefore, we determined the 
likelihood of an animal being taken within this proximity of the survey 
equipment to be so low as to be discountable. Authorized take numbers 
are shown in Table 6.

                Table 6--Total Numbers of Potential Incidental Take of Marine Mammals Authorized and Takes as a Percentage of Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Total
                                                                                                                               Total        authorized
                         Species                          Density (#/100   Level A takes     Estimated     Level B takes    authorized      takes as a
                                                              km\2\)        authorized     Level B takes    authorized         takes       percentage of
                                                                                                                                          population \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..............................         0.01706               0               3               3               3             0.6
Humpback whale..........................................         0.14439               0              29              29              29             1.8
Fin whale \2\...........................................         0.21353               0              42              42              42             1.2
Sei whale \3\...........................................           0.005               0               1               2               2             0.3
Minke whale \2\.........................................         0.04745               0               9               9               9            <0.1
Sperm whale.............................................         0.00665               0               1               1               1            <0.1
Long-finned pilot whale \3\.............................         0.15364               0              30              32              32             0.2
Bottlenose dolphin......................................         1.60936               0             318             318             318             0.3
Atlantic Spotted dolphin \3\............................         0.00886               0               2              50              50             0.1
Common dolphin \2\......................................         4.59986               0             910             910             910             0.5
Atlantic white-sided dolphin............................          1.8036               0             357             357             357             1.0
Risso's dolphin \4\.....................................               0               0               0              30              30             0.4
Harbor porpoise \5\.....................................         2.53125               0             501             501             501             1.1
Harbor seal.............................................         6.49533               0           1,285           1,285           1,285             1.7
Gray seal \4\...........................................         14.1160               0           2,792           2,792           2,792            10.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Estimates of total takes as a percentage of population are based on marine mammal abundance estimates provided by Roberts et al. (2016), when
  available, except where noted otherwise, to maintain consistency with density estimates which are derived from data provided by Roberts et al. (2016).
  In cases where abundances are not provided by Roberts et al. (2016), total takes as a percentage of population are based on abundance estimates in the
  NMFS Atlantic SARs (Hayes et al., 2018).

[[Page 28819]]

 
\2\ Estimates of total takes as a percentage of population are based on marine mammal abundance estimates as reported in the 2007 TNASS (Lawson and
  Gosselin, 2009) (Table 2). Abundance estimates from TNASS were corrected for perception and availability bias, when possible. In general, where the
  TNASS survey effort provided superior coverage of a stock's range (as compared with NOAA shipboard survey effort), the resulting abundance estimate is
  considered more accurate than abundance estimates based on NMFS surveys.
\3\ The number of authorized takes (Level B harassment only) for these species has been increased from the estimated take to mean group size. Source for
  sei whale group size estimate is: Schilling et al. (1992). Source for long-finned pilot whale group size estimate is: Augusto et al. (2017). Source
  for Atlantic spotted dolphin group size estimate is: Jefferson et al. (2008). Source for Risso's dolphin group size estimate is: Baird and Stacey
  (1991).
\4\ Take estimate for these species has been revised from the proposed IHA. See text below for further information.
\5\ The density estimate in the IHA application is incorrectly shown as 0.0225781 animals/km\2\. The correct density estimate is reflected in Table 6.

    Species with Take Estimates Less than Mean Group Size: Using the 
approach described above to estimate take, the take estimates for the 
sei whale, long-finned pilot whale, Risso's dolphin and Atlantic 
spotted dolphin were less than the average group sizes estimated for 
these species (Table 6). However, information on the social structures 
and life histories of these species indicates these species are often 
encountered in groups. The results of take calculations support the 
likelihood that the survey is expected to encounter and to incidentally 
take these species, and we believe it is likely that these species may 
be encountered in groups. Therefore it is reasonable to conservatively 
assume that one group of each of these species will be taken during the 
planned survey. We authorize the take of the average group size for 
these species and stocks to account for the possibility that the 
planned survey encounters a group of any of these species or stocks 
(Table 6). Note that the take estimate for the sperm whale was not 
increased to average group size because, based on water depths in the 
survey area (26 to 48 m (52 to 92 ft)), it is very unlikely that groups 
of sperm whales, which tend to occur at greater depths, would be 
encountered by the survey.
    We note that the IHA authorizes take of Risso's dolphins, though 
authorization for the take of Risso's dolphins was not proposed in the 
Federal Register notice of the proposed IHA (83 FR 19711; May 4, 2018). 
Though density estimates for Risso's dolphins in the survey area 
indicate they would not be expected in the survey area, based on public 
comments and a review of monitoring data from a previous IHA issued for 
a similar activity in 2017 (NMFS, 2017) we have determined that take 
authorization for Risso's dolphins is warranted. The monitoring report 
from the IHA issued to Deepwater Wind in 2017 for HRG surveys in the 
RI-MA WEA indicates that a single group of Risso's dolphins was 
observed by PSOs (though not taken by Level A or Level B harassment) 
during that survey (AIS Inc., 2017). As the activities authorized 
through this IHA are similar to those conducted by DWW in 2017 (i.e., 
HRG surveys conducted within the RI-MA WEA) NMFS has determined the 
planned survey may encounter Risso's dolphins and thus it is 
appropriate to authorize the take of Risso's dolphins. As take modeling 
based on density estimates (e.g., Roberts et. al (2016)) indicated no 
Risso's dolphins would be taken by the survey, but we have determined 
take authorization for Risso's dolphins is warranted and Risso's 
dolphins may be encountered in groups, we have authorized the take of a 
group of Risso's dolphins, based on mean group size for the species 
(Table 6). We also note that the take estimate for gray seals has been 
revised from the number proposed for authorization. In the Federal 
Register notice of the proposed IHA (83 FR 19711; May 4, 2018), the 
take number proposed for gray seals was based on an incorrect density 
estimate. The average density of gray seals in the survey area was 
reported as 0.0941067 per km\2\; however the correct density is 0.14116 
per km\2\. The correct density has been used to re-calculate the 
authorized number of gray seal takes (Table 6).

Mitigation

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

Mitigation Measures

    Based on the applicant's request, which includes requirements 
relating to the BOEM lease stipulations associated with ESA-listed 
marine mammals, and specific information regarding the zones ensonified 
above NMFS thresholds, NMFS is requiring the following mitigation 
measures during the marine site characterization surveys.

Marine Mammal Exclusion and Watch Zone

    Marine mammal exclusion zones (EZ) will be established around the 
HRG survey equipment and monitored by protected species observers (PSO) 
during HRG surveys as follows:
    <bullet> 500 m EZ for North Atlantic right whales;
    <bullet> 200 m EZ for all other ESA-listed cetaceans (including fin 
whale, sei whale and sperm whale); and
    <bullet> 25 m EZ for harbor porpoises.
    The applicant proposed a 500 m EZ for North Atlantic right whales 
and 200 m EZ for all other marine mammals; however, for non-ESA-listed 
marine mammals, based on estimated distances to isopleths corresponding 
with Level A harassment thresholds (Table 5), we determined EZs for 
species other than those described above were not warranted. If HRG 
survey equipment is shut down (as described below) due to

[[Page 28820]]

a marine mammal being observed within or approaching the relevant EZs, 
ramp up of survey equipment may not commence until the animal(s) has 
been observed exiting the relevant EZ, or until an additional time 
period has elapsed with no further sighting of the animal (e.g., 15 
minutes for harbor porpoises and 30 minutes for all large whale 
species). In addition to the EZs described above, PSOs will visually 
monitor and record the presence of all marine mammals within a 500 m 
Watch Zone. Marine mammals observed by PSOs within 447 m of geophysical 
survey equipment will be documented as taken by Level B harassment.

Visual Monitoring

    As per the BOEM lease, visual and acoustic monitoring of the 
established exclusion and monitoring zones will be performed by 
qualified and NMFS-approved PSOs. 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. PSOs will 
be equipped with binoculars and would estimate distances to marine 
mammals located in proximity to the vessel and/or exclusion zone using 
range finders. Reticulated binoculars will also be available to PSOs 
for use as appropriate based on conditions and visibility to support 
the siting and monitoring of marine species. Position data will be 
recorded using hand-held or vessel GPS units for each sighting. 
Observations will take place from the highest available vantage point 
on the survey vessel. During surveys conducted at night, night-vision 
equipment with infrared light-emitting diodes spotlights and/or 
infrared video monitoring will be available for PSO use, and passive 
acoustic monitoring (described below) will be used.

Pre-Clearance of the Exclusion Zone

    Prior to initiating HRG survey activities, DWW will implement a 30-
minute pre-clearance period. During this period, the PSOs will ensure 
that no North Atlantic right whales are observed within 500 m of 
geophysical survey equipment, and that no other marine mammal species 
are observed within 200 m of geophysical survey equipment. Surveys may 
not begin until these zones have been clear of the relevant marine 
mammal species for 30 minutes. This pre-clearance requirement would 
include small delphinoids that approach the vessel (e.g., bow ride). 
PSOs would also continue to monitor the zone for 30 minutes after 
survey equipment is shut down or survey activity has concluded.

Passive Acoustic Monitoring

    As proposed by the applicant and required by BOEM lease 
stipulations, PAM will be used to support monitoring during night time 
operations to provide for optimal acquisition of species detections at 
night. The PAM system will consist of an array of hydrophones with both 
broadband (sampling mid-range frequencies of 2 kHz to 200 kHz) and at 
least one low-frequency hydrophone (sampling range frequencies of 75 
hertz (Hz) to 30 kHz). The PAM operator(s) will monitor acoustic 
signals in real time both aurally (using headphones) and visually (via 
sound analysis software). PAM operators will communicate nighttime 
detections to the lead PSO on duty who will ensure the implementation 
of the appropriate mitigation measure.
    Shutdown of geophysical survey equipment is required upon confirmed 
PAM detection of a North Atlantic right whale at night, even in the 
absence of visual confirmation, except in cases where the acoustic 
detection can be localized and the right whale can be confirmed as 
being beyond the 500 m EZ; equipment may be re-started no sooner than 
30 minutes after the last confirmed acoustic detection. However, aside 
from the required shutdown for right whales as described above, PAM 
detection alone would not trigger a requirement for any mitigation 
action to be taken upon acoustic detection of marine mammals, per BOEM 
requirements.

Ramp-Up of Survey Equipment

    As proposed by the applicant, where technically feasible, a ramp-up 
procedure will be used for geophysical survey equipment capable of 
adjusting energy levels at the start or re-start of survey activities. 
The ramp-up procedure will be used at the beginning of HRG survey 
activities in order to provide additional protection to marine mammals 
near the survey area by allowing them to detect the presence of the 
survey and vacate the area prior to the commencement of survey 
equipment use at full energy. Ramp-up of the survey equipment will not 
begin until the relevant EZs have been cleared by the PSOs, as 
described above. Systems will be initiated at their lowest power output 
and will be incrementally increased to full power. If any marine 
mammals are detected within the EZ prior to or during the ramp-up, HRG 
equipment will be shut down (as described below).

Shutdown Procedures

    If a marine mammal is observed within or approaching the relevant 
EZ (as described above) an immediate shutdown of the survey equipment 
is required. Subsequent restart of the survey equipment may only occur 
after the animal(s) has either been observed exiting the relevant EZ or 
until an additional time period has elapsed with no further sighting of 
the animal (e.g., 15 minutes for harbor porpoises and 30 minutes for 
North Atlantic right, fin, sei and sperm whales).
    In addition, shutdown of geophysical survey equipment is required 
upon confirmed PAM detection of a North Atlantic right whale at night, 
even in the absence of visual confirmation, except in cases where the 
acoustic detection can be localized and the right whale can be 
confirmed as being beyond the 500 m EZ; equipment may be re-started no 
sooner than 30 minutes after the last confirmed acoustic detection.
    As required in the BOEM lease, if the HRG equipment shuts down for 
reasons other than mitigation (i.e., mechanical or electronic failure) 
resulting in the cessation of the survey equipment for a period greater 
than 20 minutes, a 30 minute pre-clearance period (as described above) 
will precede the restart of the HRG survey equipment. If the pause is 
less than 20 minutes, the equipment may be restarted as soon as 
practicable at its full operational level only if visual surveys were 
continued diligently throughout the silent period and the EZs remained 
clear of marine mammals during that entire period. If visual surveys 
were not continued diligently during the pause of 20 minutes or less, a 
30-minute pre-clearance period (as described above) will precede the 
re-start of the HRG survey equipment. Following a shutdown, HRG survey 
equipment may be restarted following pre-clearance of the zones as 
described above.
    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 an EZ 
or within the area encompassing the Level B harassment isopleth (450 
m), shutdown will occur.

Vessel Strike Avoidance

    Vessel strike avoidance measures will include, but are not limited 
to, the following, as required in the BOEM lease, except under 
circumstances when complying with these requirements would put the 
safety of the vessel or crew at risk:
    <bullet> All vessel operators and crew will maintain vigilant watch 
for cetaceans

[[Page 28821]]

and pinnipeds, and slow down or stop their vessel to avoid striking 
these protected species;
    <bullet> All survey vessels greater than or equal to 65 ft (19.8 m) 
in overall length will comply with 10 knot (18.5 km/hr) or less speed 
restriction in any SMA per the NOAA ship strike reduction rule (73 FR 
60173; October 10, 2008);
    <bullet> All vessel operators will reduce vessel speed to 10 knots 
(18.5 km/hr) or less when any large whale, any mother/calf pairs, or 
large assemblages of non-delphinoid cetaceans are observed near (within 
100 m (330 ft)) an underway vessel;
    <bullet> All survey vessels will maintain a separation distance of 
500 m (1640 ft) or greater from any sighted North Atlantic right whale;
    <bullet> If underway, vessels must steer a course away from any 
sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less 
until the 500 m (1640 ft) minimum separation distance has been 
established. If a North Atlantic right whale is sighted in a vessel's 
path, or within 500 m (330 ft) to an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Engines will 
not be engaged until the North Atlantic right whale has moved outside 
of the vessel's path and beyond 500 m. If stationary, the vessel must 
not engage engines until the North Atlantic right whale has moved 
beyond 500 m;
    <bullet> All vessels will maintain a separation distance of 100 m 
(330 ft) or greater from any sighted non-delphinoid cetacean. If 
sighted, the vessel underway must reduce speed and shift the engine to 
neutral, and must not engage the engines until the non-delphinoid 
cetacean has moved outside of the vessel's path and beyond 100 m. If a 
survey vessel is stationary, the vessel will not engage engines until 
the non-delphinoid cetacean has moved out of the vessel's path and 
beyond 100 m;
    <bullet> All vessels will maintain a separation distance of 50 m 
(164 ft) or greater from any sighted delphinoid cetacean. Any vessel 
underway remain parallel to a sighted delphinoid cetacean's course 
whenever possible, and avoid excessive speed or abrupt changes in 
direction. Any vessel underway reduces vessel speed to 10 knots (18.5 
km/hr) or less when pods (including mother/calf pairs) or large 
assemblages of delphinoid cetaceans are observed. Vessels may not 
adjust course and speed until the delphinoid cetaceans have moved 
beyond 50 m and/or the abeam of the underway vessel;
    <bullet> All vessels will maintain a separation distance of 50 m 
(164 ft) or greater from any sighted pinniped; and
    <bullet> All vessels underway will not divert or alter course in 
order to approach any whale, delphinoid cetacean, or pinniped. Any 
vessel underway will avoid excessive speed or abrupt changes in 
direction to avoid injury to the sighted cetacean or pinniped.
    DWW will ensure that vessel operators and crew maintain a vigilant 
watch for cetaceans and pinnipeds by slowing down or stopping the 
vessel to avoid striking marine mammals. Project-specific training will 
be conducted for all vessel crew prior to the start of the site 
characterization survey activities. Confirmation of the training and 
understanding of the requirements will be documented on a training 
course log sheet. Signing the log sheet will certify that the crew 
members understand and will comply with the necessary requirements 
throughout the survey activities.

Seasonal Operating Requirements

    The northern section of the survey area partially overlaps with a 
portion of a North Atlantic right whale SMA which occurs east of Long 
Island, New York, and south of Massachusetts and Rhode Island. This SMA 
is active from November 1 through April 30 of each year. Survey vessels 
that are >65 ft in length would be required to adhere to the mandatory 
vessel speed restrictions (<10 kn) when operating within the SMA during 
times when the SMA is active. In addition, between watch shifts, 
members of the monitoring team would consult NMFS' North Atlantic right 
whale reporting systems for the presence of North Atlantic right whales 
throughout survey operations. Members of the monitoring team would 
monitor the NMFS North Atlantic right whale reporting systems for the 
establishment of a Dynamic Management Area (DMA). If NMFS should 
establish a DMA in the survey area, within 24 hours of the 
establishment of the DMA DWW would coordinate with NMFS to shut down 
and/or alter the survey activities as needed to avoid right whales to 
the extent possible.
    The mitigation measures are designed to avoid the already low 
potential for injury in addition to some Level B harassment, and to 
minimize the potential for vessel strikes. There are no known marine 
mammal rookeries or mating grounds in the survey area that would 
otherwise potentially warrant increased mitigation measures for marine 
mammals or their habitat (or both). The planned survey would occur in 
an area that has been identified as a biologically important area for 
migration for North Atlantic right whales. However, given the small 
spatial extent of the survey area relative to the substantially larger 
spatial extent of the right whale migratory area, the survey is not 
expected to appreciably reduce migratory habitat nor to negatively 
impact the migration of North Atlantic right whales, thus mitigation to 
address the survey's occurrence in North Atlantic right whale migratory 
habitat is not warranted. The survey area would partially overlap 
spatially with a biologically important feeding area for fin whales. 
However, the fin whale feeding area is sufficiently large (2,933 
km\2\), and the acoustic footprint of the planned survey is 
sufficiently small (<100 km\2\ estimated to be ensonified to the Level 
B harassment threshold per day), that the survey is not expected to 
appreciably reduce fin whale feeding habitat nor to negatively impact 
the feeding of fin whales, thus mitigation to address the survey's 
occurrence in fin whale feeding habitat is not warranted. Further, we 
believe the mitigation measures are practicable for the applicant to 
implement.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that the mitigation measures provide the means of 
effecting the least practicable impact on the affected 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 
survey 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:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> Nature, scope, or context of likely marine mammal exposure 
to potential

[[Page 28822]]

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);
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    <bullet> How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
    <bullet> Mitigation and monitoring effectiveness.

Monitoring Measures

    As described above, visual monitoring of the EZs and monitoring 
zone will be performed by qualified and NMFS-approved PSOs. PSO 
Qualifications will include completion of a PSO training course and 
documented field experience conducting similar surveys. As proposed by 
the applicant and required by BOEM, an observer team comprising a 
minimum of four NMFS-approved PSOs and a minimum of two certified PAM 
operator(s), operating in shifts, will be employed by DWW during the 
planned surveys. PSOs and PAM operators will work in shifts such that 
no one monitor will work more than 4 consecutive hours without a 2 hour 
break or longer than 12 hours during any 24 hour period. During 
daylight hours the PSOs will rotate in shifts of one on and three off, 
while during nighttime operations PSOs will work in pairs. The PAM 
operators will also be on call as necessary during daytime operations 
should visual observations become impaired. Each PSO will monitor 360 
degrees of the field of vision.
    Also as described above, PSOs will be equipped with binoculars and 
have the ability to estimate distances to marine mammals located in 
proximity to the vessel and/or exclusion zone using range finders. 
Reticulated binoculars will also be available to PSOs for use as 
appropriate based on conditions and visibility to support the sighting 
and monitoring of marine species. During night operations, PAM and 
night-vision equipment with infrared light-emitting diode spotlights 
and/or infrared video monitoring will be used to increase the ability 
to detect marine mammals. Position data will be recorded using hand-
held or vessel global positioning system (GPS) units for each sighting. 
Observations will take place from the highest available vantage point 
on the survey vessel. General 360-degree scanning will occur during the 
monitoring periods, and target scanning by the PSO will occur when 
alerted of a marine mammal presence.
    Data on all PAM/PSO observations will be recorded, including dates, 
times, and locations of survey operations; time of observation, 
location and weather; details of marine mammal sightings (e.g., 
species, numbers, behavior); and details of any observed taking (e.g., 
behavioral disturbances or injury/mortality).

Reporting Measures

    Within 90 days after completion of survey activities, 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 estimated to have 
been taken 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.
    In addition to the final technical report, DWW will provide the 
reports described below as necessary during survey activities. In the 
unanticipated event that DWW's survey activities lead to an injury 
(Level A harassment) or mortality (e.g., ship-strike, gear interaction, 
and/or entanglement) of a marine mammal, DWW would immediately cease 
the specified activities and report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources and 
the NMFS Greater Atlantic Stranding Coordinator. The report would 
include the following information:
    <bullet> Time, date, and location (latitude/longitude) of the 
incident;
    <bullet> Name and type of vessel involved;
    <bullet> Vessel's speed during and leading up to the incident;
    <bullet> Description of the incident;
    <bullet> Status of all sound source use in the 24 hours preceding 
the incident;
    <bullet> Water depth;
    <bullet> Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    <bullet> Description of all marine mammal observations in the 24 
hours preceding the incident;
    <bullet> Species identification or description of the animal(s) 
involved;
    <bullet> Fate of the animal(s); and
    <bullet> Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the event. NMFS would work with DWW to minimize 
reoccurrence of such an event in the future. DWW would not resume 
activities until notified by NMFS.
    In the event that DWW discovers an injured or dead marine mammal 
and determines that the cause of the injury or death is unknown and the 
death is relatively recent (i.e., in less than a moderate state of 
decomposition), DWW would immediately report the incident to the Chief 
of the Permits and Conservation Division, Office of Protected Resources 
and the NMFS Greater Atlantic Stranding Coordinator. The report would 
include the same information identified in the paragraph above. 
Activities would be able to continue while NMFS reviews the 
circumstances of the incident. NMFS would work with DWW to determine if 
modifications in the activities are appropriate.
    In the event that DWW discovers an injured or dead marine mammal 
and determines that the injury or death is not associated with or 
related to the activities authorized in the IHA (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, or 
scavenger damage), DWW would report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, and 
the NMFS Greater Atlantic Regional Stranding Coordinator, within 24 
hours of the discovery. DWW would provide photographs or video footage 
(if available) or other documentation of the stranded animal sighting 
to NMFS. DWW may continue its operations under such a case.

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.

[[Page 28823]]

A negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 6, given that NMFS expects the anticipated effects of the 
planned survey to be similar in nature.
    NMFS does not anticipate that injury or mortality would occur as a 
result of DWW's planned survey, even in the absence of mitigation. Thus 
the IHA does not authorize any injury or mortality. As discussed in the 
Potential Effects section, non-auditory physical effects and vessel 
strike are not expected to occur.
    We expect that 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 were occurring), 
reactions that are considered to be of low severity and with no lasting 
biological consequences (e.g., Southall et al., 2007). Potential 
impacts to marine mammal habitat were discussed in the Federal Register 
notice of the proposed IHA (83 FR 19711; May 4, 2018) (see Potential 
Effects of the Specified Activity on Marine Mammals and their Habitat). 
Marine mammal habitat may be impacted by elevated sound levels, but 
these impacts would be temporary. In addition to being temporary and 
short in overall duration, the acoustic footprint of the planned survey 
is small relative to the overall distribution of the animals in the 
area and their use of the area. Feeding behavior is not likely to be 
significantly impacted. Prey species are mobile and are broadly 
distributed throughout the project 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 or mating grounds known to be biologically 
important to marine mammals within the planned survey area. As 
described above, the survey area would overlap spatially and temporally 
with a biologically important feeding area for fin whales. The 
important fin whale feeding area occurs from March through October and 
stretches from an area south of Montauk Point to south of Martha's 
Vineyard. However, the fin whale feeding area is sufficiently large 
(2,933 km\2\), and the acoustic footprint of the planned survey is 
sufficiently small (<100 km\2\ estimated to be ensonified to the Level 
B harassment threshold per day), that fin whale feeding habitat would 
not be reduced appreciably. Any fin whales temporarily displaced from 
the survey area would be expected to have sufficient remaining feeding 
habitat available to them, and would not be prevented from feeding in 
other areas within the biologically important feeding habitat. In 
addition, any displacement of fin whales from the survey area would be 
expected to be temporary in nature. Therefore, we do not expect fin 
whale feeding to be negatively impacted by the planned survey. There 
are no feeding areas known to be biologically important to marine 
mammals within the project area with the exception of the 
aforementioned feeding area for fin whales. There is no designated 
critical habitat for any ESA-listed marine mammals in the survey area.
    The survey area is within a biologically important migratory area 
for North Atlantic right whales (effective March-April and November-
December) that extends from Massachusetts to Florida (LaBrecque, et 
al., 2015). Off the south coast of Massachusetts and Rhode Island, this 
biologically important migratory area extends from the coast to beyond 
the shelf break. Due to the fact that that the survey is temporary and 
short in overall duration, and the fact that the spatial acoustic 
footprint of the planned survey is very small relative to the spatial 
extent of the available migratory habitat in the area, right whale 
migration is not expected to be impacted by the planned survey.
    The mitigation measures are expected to reduce the number and/or 
severity of takes by (1) giving animals the opportunity to move away 
from the sound source before HRG survey equipment reaches full energy; 
(2) preventing animals from being exposed to sound levels that may 
otherwise result in injury. Additional vessel strike avoidance 
requirements will further mitigate potential impacts to marine mammals 
during vessel transit to and within the survey area.
    NMFS concludes that exposures to marine mammal species and stocks 
due to DWW's survey would result in only short-term (temporary and 
short in duration) effects to individuals exposed. Marine mammals may 
temporarily avoid the immediate area, but are not expected to 
permanently abandon the area. Major shifts in habitat use, 
distribution, or foraging success are not expected. NMFS does not 
anticipate the authorized take estimates to impact annual rates of 
recruitment or survival.
    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:
    <bullet> No mortality, serious injury, or Level A harassment is 
anticipated or authorized;
    <bullet> The anticipated impacts of the activity on marine mammals 
would be temporary behavioral changes due to avoidance of the area 
around the survey vessel;
    <bullet> 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;
    <bullet> The project area does not contain areas of significance 
for mating or calving;
    <bullet> Effects on species that serve as prey species for marine 
mammals from the survey would be temporary and would not be expected to 
reduce the availability of prey or to affect marine mammal feeding;
    <bullet> The mitigation measures, including visual and acoustic 
monitoring, exclusion zones, and shutdown measures, 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

[[Page 28824]]

and their habitat, and taking into consideration the implementation of 
the monitoring and mitigation measures, NMFS finds that the total 
marine mammal take from the specified 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 Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    The numbers of marine mammals that we authorize to be taken, for 
all species and stocks, would be considered small relative to the 
relevant stocks or populations (less than 11 percent of each species 
and stock). See Table 6. Based on the analysis contained herein of the 
proposed activity (including the 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.

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

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 issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment. Accordingly, NMFS prepared an Environmental 
Assessment (EA) and analyzed the potential impacts to marine mammals 
that would result from the project, as well as from a similar project 
proposed by Garden State Offshore Energy (a subsidiary of Deepwater 
Wind) off the coast of Delaware. A Finding of No Significant Impact 
(FONSI) was signed on June 13, 2018. A copy of the EA and FONSI is 
available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Authorization

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

    Dated: June 15, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-13279 Filed 6-20-18; 8:45 am]
 BILLING CODE 3510-22-P