[Federal Register Volume 83, Number 153 (Wednesday, August 8, 2018)]
[Notices]
[Pages 39062-39075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16885]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG108


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Unexploded Ordnance Investigation 
Survey off the Coast of Virginia

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 
Virginia Electric and Power Company d/b/a Dominion Energy Virginia 
(Dominion) for the take marine mammals, by harassment, incidental to 
high-resolution geophysical (HRG) surveys associated with unexploded 
ordnance investigation activities off the coast of Virginia in the area 
of the Research Lease of Submerged Lands for Renewable Energy 
Activities on the Outer Continental Shelf Offshore Virginia (OCS-A 
0497) and coastal waters where one or more cable route corridors will 
be established (the Survey Area).

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

FOR FURTHER INFORMATION CONTACT: Dale Youngkin, 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, 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 March 7, 2018, NMFS received a request from Dominion for an IHA 
to take marine mammals incidental to high resolution geophysical (HRG) 
surveys off the coast of Virginia. The purpose of these surveys are to 
acquire data regarding the potential presence of UXO within the 
proposed construction and operational footprints of the Coastal 
Virginia Offshore Wind (CVOW) Project Area in the Lease Area and export 
cable route construction corridor (Survey Area). A revised application 
was received on April 26, 2018. NMFS deemed that request to be adequate 
and complete. Dominion's request is for take of nine marine mammal 
species by Level B harassment. Neither Dominion nor NMFS expects 
injury, 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.

[[Page 39063]]

Description of the Proposed Activity

Overview

    Dominion proposes to conduct marine site characterization surveys 
including HRG surveys to search for UXO in the marine environment of 
the approximately 2,135-acre Lease Area located offshore of Virginia 
(see Figure 1-1 in the IHA application). Additionally, an export cable 
route will be established between the Lease Area and Virginia Beach, 
identified as the Export Cable Route Area (see Figure 1 in the IHA 
application). See the IHA application for further information. The 
survey area consists of two 1-kilometer (km) X 1-km turbine position 
locations, a 2 km by 300 meter (m) Inter-array cable route connecting 
the two turbine position locations, and a 43-km X 300 m Export Corridor 
Route. For the purpose of this IHA, the survey area is designated as 
the Lease Area and cable route corridors. Water depths across the Lease 
Area are estimated to range from approximately 8 to 40 m (26 to 131 
feet (ft)) while the cable route corridors will extend to shallow water 
areas near landfall locations. Surveys would begin no earlier than 
August 1, 2018 and are anticipated to last for up to three months.
    The purpose of the marine site characterization surveys are to 
acquire data regarding the potential presence of UXO within the 
proposed construction and operational footprints of the CVOW Project 
Area (i.e., export cable construction corridor, inter-array cable area, 
and wind turbine positions) in accordance with the Bureau of Ocean 
Energy Management (BOEM) guidelines for archaeology surveys as well as 
geophysical activities. No removal of ordnance would be conducted as a 
part of the activities. Underwater sound resulting from Dominion's 
proposed HRG surveys for UXO have the potential to result in incidental 
take of marine mammals in the form of harassment.

Dates and Duration

    Surveys will last for approximately three months and are 
anticipated to commence no earlier than August 1, 2018. This schedule 
is based on 24-hour operations and includes potential down time due to 
inclement weather. Based on 24-hour operations, the estimated duration 
of the HRG survey activities would be approximately 60 days for the 
export cable route corridor and approximately 15 days each for the 
inter-array cable route and wind turbine positions.

Specific Geographic Region

    Dominion's survey activities will occur in the approximately 2,135-
acre Research Lease Area located off the coast of Virginia (see Figure 
1 in the IHA application). Additionally, a cable route corridor would 
be surveyed between the Lease Area and the coast of Virginia. The cable 
route corridor to be surveyed is anticipated to be 300 m wide and 43 km 
long. The wind turbine positions to be surveyed are twoapproximately 1 
km X 1 km square areas connected by an inter-array cable route that is 
300 m wide and 2 km in length.
    A detailed description of the planned survey activities, including 
types of survey equipment planned for use, is provided in the Federal 
Register notice for the proposed IHA (83 FR 26968; June 11, 2018). 
Since that time, no changes have been made to the planned activities 
and a detailed description is not repeated here. Please refer to that 
Federal Register notice for the description of the specific activity.

Comments and Responses

    NMFS published a notice of proposed IHA in the Federal Register on 
June 11, 2018 (83 FR 26968). During the 30-day public comment period, 
NMFS received one comment letter, which was from the Marine Mammal 
Commission (Commission). No other public comments were received. NMFS 
has posted the comment letter received online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The following is 
a summary of the Commission comments received and NMFS's responses.
    Comment 1: The Commission notes that impulsive thresholds, rather 
than non-impulsive thresholds, were incorrectly used to model Level A 
harassment zones for the ultra-short baseline positioning system (UBPS) 
and sub-bottom profiler (SBP) sources, which resulted in overly 
conservative Level A harassment zones. The Commission states that NMFS 
should not permit applicants to arbitrarily choose which thresholds to 
use, and should prohibit applicants from using impulsive thresholds for 
non-impulsive sources.
    NMFS Response: NMFS appreciates the input from the Commission. We 
acknowledge the error, and have corrected it in this final notice 
(refer to Table 4) and IHA, and will ensure it does not happen again. 
Take by Level A harassment was not proposed for authorization based on 
the fact that it is not considered likely to occur, even based on the 
larger (more conservative) isopleths associated with the impulsive 
threshold. The use of the non-impulsive threshold does not change our 
findings or determinations under the MMPA.
    Comment 2: The Commission recommends that NMFS revise the extent of 
the Level A harassment zones for the Geo-Source sparker based on both 
the SPL<INF>pk</INF> and SEL<INF>cum</INF> thresholds and for the 
GeoPulse SBP based on the SEL<INF>cum</INF> threshold.
    NMFS Response: As stated above, the thresholds have been revised 
and are presented in Table 4 of this notice.
    Comment 3: The Commission continues to recommend 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, behavioral harassment threshold for acoustic, non-impulsive 
sources (e.g., sub-bottom profilers/chirps, echosounders, and other 
sonars including side-scan and fish-finding).
    NMFS Response: As NMFS has said on numerous other responses to this 
recommendation, 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 
produce signals that are not necessarily strictly impulsive; however, 
NMFS finds that the 160-dB root mean 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

[[Page 39064]]

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 4: The Commission commented that harbor seals have been 
occurring in the Virginia area earlier in fall months. The Commission 
recommends that NMFS include at least five harbor seal takes and one 
gray seal take in the Final IHA to account for their potential 
occurrence in the project area.
    NMFS Response: NMFS has included the takes of five harbor seals and 
one gray seal, as recommended by the Commission.
    Comment 5: The Commission noted concerns with density information 
and take calculations and recommended the following: NMFS should (1) 
clarify why various densities were revised and ensure all are correct; 
(2) report densities and ensonified areas out to three significant 
digits to ensure takes were calculated properly; (3) include takes for 
Risso's dolphins based on average group size, noting that Dominion 
estimated 0.59 takes for this species, but did not request take while 
estimating ``similarly low numbers'' for pilot whales and requesting 
take for this species based on group size.
    NMFS Response: The densities were not revised and remain the same 
as were included in the notice for the proposed IHA (83 FR 26968, June 
11, 2018), with the exception of adding three decimal places, as 
requested by the Commission (refer to Table 6 of this notice). The 
Commission erroneously states that 0.59 takes of Risso's dolphins were 
calculated. As shown in the notice for the proposed IHA, only 0.08 
takes of Risso's dolphins were estimated based on calculations. 
Calculations of pilot whales estimated 1.15 takes. As Risso's dolphin 
calculations are so low as to not round up to one (1) take, and the 
applicant did not request take due to the low likelihood of 
encountering this species based on take estimates and lack of sighting 
data, NMFS did not propose takes, and is not authorizing takes for this 
species. However, calculated takes for pilot whales did estimate over 
one (1) take. Therefore, takes have been authorized for this species 
and the take estimate was adjusted to account for average group size 
for this species.
    Comment 6: The Commission recommended that NMFS refrain from 
authorizing Level B harassment takes of any low frequency (LF) 
cetacean, including humpback whales and minke whales. This 
recommendation is based on the fact that the sound source used to 
calculate the Level B harassment zone (Innomar sub-bottom profiler) 
operates at frequencies which are 50 kHz beyond the best hearing 
capabilities of these species, and the sound source with the largest 
Level B harassment zone within the best hearing range of LF cetaceans 
only has a 20 m Level B harassment isopleth.
    NMFS Response: NMFS has not authorized take of any LF cetaceans, as 
recommended by the Commission.
    Comment 7: The Commission continues to express 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 an expeditious 
manner.
    NMFS Response: NMFS recently completed internal guidance on 
rounding and consideration of qualitative factors in the estimation of 
instances of take, and provided this information to the Commission. As 
discussed with the Commission, we believe 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.
    Comment 8: The Commission continues to request 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. 
The Commission also noted that NMFS had recently begun utilizing 
abbreviated notices, referencing relevant documents, to solicit public 
input and suggested that NMFS use these notices and solicit review in 
lieu of the currently proposed renewal process.
    NMFS Response: As stated in previous responses to this comment from 
the Commission, 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. Additional reference to this 
solicitation of public comment has recently been added at the beginning 
of the FR notices that consider renewals, requesting input specifically 
on the possible renewal itself. NMFS appreciates the streamlining 
achieved by the use of abbreviated FR notices and intends to continue 
using them for proposed IHAs that include minor changes from previously 
issued IHAs, but which do not satisfy the renewal requirements. 
However, we believe our proposed method for issuing renewals meets 
statutory requirements and maximizes efficiency.
    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.

Description of Marine Mammals in the Area of Specified Activity

    Sections 3 and 4 of Dominion's IHA application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially affected 
marine mammal species. Additional information regarding population 
trends and threats

[[Page 39065]]

may be found in NMFS's Stock Assessment Reports (SAR; 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (www.fisheries.noaa.gov/species-directory).
    Table 1 lists all species with expected potential for occurrence in 
the survey area and summarizes information related to the population or 
stock, including regulatory status under the MMPA and Endangered 
Species Act (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's SARs). While no mortality is 
anticipated or authorized here, PBR is included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. 2017 draft 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 SARs (Hayes et al., 
2018).

                      Table 1--Marine Mammals With Potential Occurrence in the Survey Area
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                                                     NMFS MMPA
                                                      and ESA                                    Occurrence and
          Common name                 Stock           status;     Stock abundance    PBR \3\     seasonality in
                                                   strategic (Y/   (CV,Nmin) \2\                the NW atlantic
                                                      N) \1\                                          OCS
----------------------------------------------------------------------------------------------------------------
                                           Toothed whales (Odontoceti)
----------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin    W. North Atlantic  -; N          48,819 (0.61;            304  rare.
 (Lagenorhynchus acutus).                                         30,403).
Atlantic spotted dolphin        W. North Atlantic  -; N          44,715 (0.43;            316  rare.
 (Stenella frontalis).                                            31,610).
Bottlenose dolphin (Tursiops    W. North           -; Y          3,751 (0.60;              23  Common year
 truncatus).                     Atlantic,                        2,353).                       round.
                                 Southern
                                 Migratory
                                 Coastal.
Clymene dolphin (Stenella       W. North Atlantic  -; N          Unknown (unk;          Undet  rare.
 clymene).                                                        unk; n/a).
Pantropical Spotted dolphin     W. North Atlantic  -; N          3,333 (0.91;              17  rare.
 (Stenella attenuata).                                            1,733).
Risso's dolphin (Grampus        W. North Atlantic  -; N          18,250 (0.46;            126  rare.
 griseus).                                                        12,619).
Common dolphin (Delphinus       W. North Atlantic  -; N          70,184 (0.28;            557  Common year
 delphis).                                                        55,690).                      round.
Striped dolphin (Stenella       W. North Atlantic  -; N          54,807 (0.3;             428  rare.
 coeruleoalba).                                                   42,804).
Spinner Dolphin (Stenella       W. North Atlantic  -; N          Unknown (unk;          Undet  rare.
 longirostris).                                                   unk; n/a).
Harbor porpoise (Phocoena       Gulf of Maine/Bay  -; N          79,833 (0.32;            706  Common year
 phocoena).                      of Fundy.                        61,415).                      round.
Killer whale (Orcinus orca)...  W. North Atlantic  -; N          Unknown (unk;          Undet  rare.
                                                                  unk; n/a).
False killer whale (Pseudorca   W. North Atlantic  -; Y          442 (1.06; 212)..        2.1  rare.
 crassidens).
Long-finned pilot whale         W. North Atlantic  -; Y          5,636 (0.63;              35  rare.
 (Globicephala melas).                                            3,464).
Short-finned pilot whale        W. North Atlantic  -; Y          21,515 (0.37;            159  rare.
 (Globicephala macrorhynchus).                                    15,913).
Sperm whale (Physeter           North Atlantic...  E; Y          2,288 (0.28;             3.6  Year round in
 macrocephalus).                                                  1,815).                       continental
                                                                                                shelf and slope
                                                                                                waters, occur
                                                                                                seasonally to
                                                                                                forage.
Pygmy sperm whale \4\ (Kogia    W. North Atlantic  -; N          3,785 (0.47;              26  rare.
 breviceps).                                                      2,598).
Dwarf sperm whale \4\ (Kogia    W. North Atlantic  -; N          3,785 (0.47;              26  rare.
 sima).                                                           2,598).
Cuvier's beaked whale (Ziphius  W. North Atlantic  -; N          6,532 (0.32;              50  rare.
 cavirostris).                                                    5,021).
Blainville's beaked whale \5\   W. North Atlantic  -; N          7,092 (0.54;              46  rare.
 (Mesoplodon densirostris).                                       4,632).
Gervais' beaked whale \5\       W. North Atlantic  -; N          7,092 (0.54;              46  rare.
 (Mesoplodon europaeus).                                          4,632).
True's beaked whale \5\         W. North Atlantic  -; N          7,092 (0.54;              46  rare.
 (Mesoplodon mirus).                                              4,632).
Sowerby's Beaked Whale \5\      W. North Atlantic  -; N          7,092 (0.54;              46  rare.
 (Mesoplodon bidens).                                             4,632).
Melon-headed whale              W. North Atlantic  -; N          Unknown (unk;          Undet  rare.
 (Peponocephala electra).                                         unk; n/a).
----------------------------------------------------------------------------------------------------------------
                                            Baleen whales (Mysticeti)
----------------------------------------------------------------------------------------------------------------
Minke whale (Balaenoptera       Canadian East      -; N          2,591 (0.81;              14  Year round in
 acutorostrata).                 Coast.                           1,425).                       continental
                                                                                                shelf and slope
                                                                                                waters, occur
                                                                                                seasonally to
                                                                                                forage.

[[Page 39066]]

 
Blue whale (Balaenoptera        W. North Atlantic  E; Y          Unknown (unk;            0.9  Year round in
 musculus).                                                       440).                         continental
                                                                                                shelf and slope
                                                                                                waters, occur
                                                                                                seasonally to
                                                                                                forage.
Fin whale (Balaenoptera         W. North Atlantic  E; Y          1,618 (0.33;             2.5  Year round in
 physalus).                                                       1,234).                       continental
                                                                                                shelf and slope
                                                                                                waters, occur
                                                                                                seasonally to
                                                                                                forage.
Humpback whale (Megaptera       Gulf of Maine....  -; Y          335 (0.42; 239)..        3.7  Common year round
 novaeangliae).
North Atlantic right whale      W. North Atlantic  E; Y          458 (0; 455).....        1.4  Year round in
 (Eubalaena glacialis).                                                                         continental
                                                                                                shelf and slope
                                                                                                waters, occur
                                                                                                seasonally to
                                                                                                forage.
Sei whale (Balaenoptera         Nova Scotia......  E; Y          357 (0.52; 236)..        0.5  Year round in
 borealis).                                                                                     continental
                                                                                                shelf and slope
                                                                                                waters, occur
                                                                                                seasonally to
                                                                                                forage.
----------------------------------------------------------------------------------------------------------------
                                            Earless seals (Phocidae)
----------------------------------------------------------------------------------------------------------------
Gray seal \6\ (Halichoerus      W. North Atlantic  -; N          27,131 (0.10;          1,554  Unlikely.
 grypus).                                                         25,908).
Harbor seal (Phoca vitulina)..  W. North Atlantic  -; N          75,834 (0.15;          2,006  Common year
                                                                  66,884).                      round.
Hooded seal (Cystophora         W. North Atlantic  -; N          Unknown (unk;          Undet  rare.
 cristata).                                                       unk).
Harp seal (Phoca groenlandica)  North Atlantic...  -; N          Unknown (unk;          Undet  rare.
                                                                  unk).
----------------------------------------------------------------------------------------------------------------
\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\ 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\ 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).
\4\ Abundance estimate includes both dwarf and pygmy sperm whales.
\5\ Abundance estimate includes all species of Mesoplodon in the Atlantic.
\6\ Abundance estimate applies to U.S. population only, actual abundance, including those occurring in Canada,
  is estimated at 505,000.

    All species that could potentially occur in the proposed survey 
areas are included in Table 1. However, the temporal and/or spatial 
occurrence for all but 11 of the species listed in Table 2 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 or further 
north 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. The 11 species/stocks evaluated for 
incidental take in the proposed IHA included: North Atlantic right 
whale; humpback whale; fin whale; minke whale; Atlantic white-sided 
dolphin; common dolphin; bottlenose dolphin; Atlantic spotted dolphin; 
long-finned pilot whale; short-finned pilot whale; and harbor porpoise. 
However, as discussed below, takes for harbor seals and gray seals have 
been authorized as a result of consideration of public comment on the 
proposed IHA.
    Five marine mammal species listed in Table 2 are listed under the 
ESA and are known to be present, at least seasonally, in waters of the 
mid-Atlantic (sperm whale, north Atlantic right whale, fin whale, blue 
whale, and sei whale). All of these species are highly migratory and do 
not spend extended periods of time in the localized survey area. The 
offshore waters of Virginia (including the survey area) are primarily 
used as a migration corridor for these species, particularly north 
Atlantic right whales, during seasonal movements north or south between 
feeding and breeding grounds (Knowlton et al., 2002; Firestone et al., 
2008). While fin and north Atlantic right whales have the potential to 
occur within the survey area, sperm, blue, and sei whales are more 
pelagic and/or northern species and their presence within the survey 
area is unlikely (Waring et al., 2007; 2010; 2012; 2013) and these 
species are therefore not considered further in this analysis. In 
addition, the proposed IHA (83 FR 26968, June 11, 2018) noted that, 
while stranding data exists for harbor and gray seals along the mid-
Atlantic coast south of New Jersey, their preference for colder, 
northern waters during the survey period makes their presence in the 
survey area unlikely. Winter haulout sites for harbor seals have been 
identified within the Chesapeake Bay region. However, the proposed IHA 
noted that the seals were not expected to be present during the summer 
and fall months when the survey activities are planned (Waring et al., 
2016). In addition, the proposed IHA noted that coastal Virginia 
represents the southern extent of the habitat range for gray seals, 
with few stranding records reported and sightings only occur during 
winter months as far south as New Jersey (Waring et al., 2016). 
Therefore pinniped species were not considered for take in the proposed 
IHA. However, after review of public comments received on the proposed 
IHA that stated harbor seals and gray seals have more recently been 
observed to be present in the area earlier than expected, NMFS has 
added a small number of takes for these species out of an abundance of 
caution.
    A detailed description of the species likely to be affected by 
Dominion's UXO survey activities, including brief introductions to the 
species and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (83 FR 26968; June 11, 2018); since that time, we are not 
aware of any changes in the status of these species

[[Page 39067]]

and stocks; therefore, detailed descriptions are not repeated here. 
Please refer to the Federal Register notice for the proposed IHA for 
descriptions of species. Please also refer to NMFS' website 
(www.fisheries.noaa.gov/species-directory) for generalized species 
accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The potential effects of Dominion's UXO survey activities have the 
potential to result in incidental take of marine mammals by harassment 
in the vicinity of the survey area. The Federal Register notice for the 
proposed IHA (83 FR 26968; June 11, 2018) included a discussion of the 
potential effects of Dominion's UXO survey activities on marine mammals 
and their habitat, and that information is not repeated here; please 
refer to that Federal Register notice for that information. No 
instances of 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 this IHA, which informed both NMFS' consideration of 
``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, the MMPA defines ``harassment'' as any act of pursuit, torment, 
or annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, 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 
as discussed in greater detail below. As described previously, no 
mortality or serious injury is anticipated, nor is any 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 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. 2011). 
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. Dominion's proposed 
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 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, Dominion's proposed 
activity includes the use of intermittent and impulsive sources. We 
note here that for intermittent sources such as the Geo-Source 800 
sparker and the Innomar Medium 100 sub-bottom profiler, it is more 
appropriate to consider these sources as non-impulsive for 
consideration of potential for Level A harassment but due to their 
intermittent nature they are considered impulsive for consideration of 
potential for Level B harassment.

            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:  LE,LF,24h: 199 dB.
                                            183 dB.
Mid-Frequency (MF) Cetaceans.............  Lpk,flat: 230 dB; LE,MF,24h:  LE,MF,24h: 198 dB.
                                            185 dB.
High-Frequency (HF) Cetaceans............  Lpk,flat: 202 dB; LE,HF,24h:  LE,HF,24h: 173 dB.
                                            155 dB.
Phocid Pinnipeds (PW) (Underwater).......  Lpk,flat: 218 dB; LE,PW,24h:  LE,PW,24h: 201 dB.
                                            185 dB.
Otariid Pinnipeds (OW) (Underwater)......  Lpk,flat: 232 dB; LE,OW,24h:  LE,OW,24h: 219 dB.
                                            203 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.

[[Page 39068]]

 
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 feed into estimating the area ensonified above the 
acoustic thresholds.
    The proposed 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 (see Table 1 of the 
Proposed IHA (83 FR 26968; June 11, 2018)). Of the HRG survey equipment 
planned for use that has the potential to result in harassment of 
marine mammals, acoustic modeling indicated the Innomar Medium 100 sub-
bottom profiler would be expected to produce sound that would propagate 
the furthest in water (Table 3); therefore, for the purposes of the 
take calculation, it was assumed this equipment 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 Innomar 
Medium 100 sub-bottom profiler (100 m; Table 3) was used as the basis 
of the Level B take calculation for all marine mammals. However, this 
sound source operates at frequencies that are 50 kHz beyond the best 
hearing capabilities of LF cetaceans, so there is no potential for 
behavioral harassment of these species. The sound source with the next-
largest Level B harassment threshold distance was the Geo-Source 800 
sparker and this distance is 20 m, which is well within the required 
100-m exclusion zone for large whales. Therefore, no take for LF 
cetaceans have been authorized.

  Table 3--Predicted Radial Distances (m) From HRG Sources to Isopleths
              Corresponding to Level B Harassment Threshold
------------------------------------------------------------------------
                                                              Modeled
                                                            distance to
            HRG system              HRG survey equipment  threshold (160
                                                              dB re 1
                                                              [mu]Pa)
------------------------------------------------------------------------
Pinger/Chirper....................  GeoPulse sub-bottom             <5 m
                                     profiler.
Sparker...........................  Geo-Source 800                 <20 m
                                     sparker.
Medium penetration sub-bottom       Innomar Medium 100          * <100 m
 profiler.                           sub-bottom profiler.
------------------------------------------------------------------------
* We note here that the Innomar Medium 100 sub-bottom profiler operating
  frequencies (85-115 kHz) are beyond the best hearing capabilities of
  LF cetaceans (7-35 kHz), but as this sound source provides the largest
  Level B isopleth, this information was used to calculate the zone of
  influence and estimate take for all species.

    Predicted distances to Level A harassment isopleths, which vary 
based on marine mammal functional hearing groups (Table 4), were also 
calculated by Dominion. 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 SEL<INF>cum</INF> and peak sound pressure level (SPL) 
metrics for all equipment in the notice of the proposed IHA (83 FR 
26968, June 11, 2018). 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). 
However, the Geo-Source 800 sparker and Innomar 100 sub-bottom profiler 
are more appropriately considered as non-impulsive sources, which 
considers the SEL<INF>cum</INF> metric only. This information has been 
corrected in Table 4 below, and NMFS notes that the correction results 
in smaller distances to the Level A threshold than reported in the 
proposed IHA notice and reinforces our determination that Level A 
harassment is so unlikely to occur as to be discountable. 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. Dominion used the NMFS 
optional User Spreadsheet to calculate distances to Level A harassment 
isopleths (see Appendix A of the IHA application). Modeled distances to 
isopleths corresponding to Level A harassment thresholds for the 
proposed HRG equipment and marine mammal hearing groups are shown in 
Table 4.

   Table 4--Modeled Radial Distances (m) to Isopleths Corresponding to
                      Level A Harassment Thresholds
------------------------------------------------------------------------
Functional hearing group (Level                               Lateral
    A harassment thresholds)            PTS onset          distance  (m)
------------------------------------------------------------------------
                      GeoPulse Sub-Bottom Profiler
------------------------------------------------------------------------
Low frequency cetaceans........  199 dB SELcum..........              --
Mid frequency cetaceans........  198 dB SELcum..........              --

[[Page 39069]]

 
High frequency cetaceans.......  173 dB SELcum..........              <1
Phocid Pinnipeds (Underwater)..  201 dB SELcum..........              --
------------------------------------------------------------------------
                         Geo-Source 800 Sparker
------------------------------------------------------------------------
Low frequency cetaceans........  219 dBpeak/183 dB                     5
                                  SELcum.
Mid frequency cetaceans........  230 dBpeak/185 dB                    <1
                                  SELcum.
High frequency cetaceans.......  202 dBpeak/155 dB                <1; 24
                                  SELcum.
Phocid Pinnipeds (Underwater)..  218 dBpeak/185 dB                     3
                                  SELcum.
------------------------------------------------------------------------
                 Innomar Medium 100 Sub-Bottom Profiler
------------------------------------------------------------------------
Low frequency cetaceans........  199 dB SELcum..........             N/A
Mid frequency cetaceans........  198 dB SELcum..........              --
High frequency cetaceans.......  173 dB SELcum..........              <5
Phocid Pinnipeds (Underwater)..  201 dB SELcum..........             N/A
------------------------------------------------------------------------
Note: Peak SPL is unweighted (flat weighted), whereas the cumulative SEL
  criterion is M-weighted for the given marine mammal hearing group.
-- indicates not expected to be measureable to regulatory threshold at
  any appreciable distance.
N/A indicates not applicable as the HRG sound source is outside the
  effective marine mammal hearing range.

    In this case, due to the very 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 4), and in 
consideration of the mitigation measures that must be implemented, 
including marine mammal exclusion zones to avoid Level A harassment 
(see the Mitigation section for more detail) NMFS has determined that 
the likelihood of Level A harassment take of marine mammals occurring 
as a result of the proposed survey is so low as to be discountable. 
Therefore, NMFS has not authorized Level A harassment take of any 
marine mammals in the IHA.
    We note that because of some of the assumptions included in the 
methods used, isopleths produced may be overestimates to some degree. 
The acoustic sources proposed for use in Dominion's survey 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. For example, 
in the case of the Innomar Medium 100 sub-bottom profiler, the 
beamwidth is only one degree. However, the calculated distances to 
isopleths do not account for this directionality of the sound source 
and are therefore conservative. For mobile sources, such as the 
proposed 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. In 
addition to the conservative estimation of calculated distances to 
isopleths associated with the Innomar Medium 100 sub-bottom profiler, 
calculated takes may be conservative due to the fact that this sound 
source operates at frequencies beyond the best hearing capabilities of 
LF cetaceans, but calculated takes for all species were based on the 
isopleths associated with this sound source. As discussed above, the 
Innomar Medium 100 sub-bottom profiler operates at frequencies between 
85 and 115 kHz and the best hearing range of LF cetaceans is between 7 
and 35 kHz. Therefore, we would not expect that take of LF cetaceans 
would likely occur due to the use of this equipment because it operates 
beyond their hearing capabilities. The proposed IHA (83 FR 26968, June 
11, 2018) noted takes were estimated based on these isopleths due to 
the fact that the largest distances were associated with this 
equipment. However, after consideration of public comments, NMFS has 
determined not to issue take of LF cetaceans for the following reasons: 
(1) the Innomar Medium 100 sub-bottom profiler operates at frequencies 
that are 50 kHz beyond the best hearing capabilities for these species, 
so there would be no potential for behavioral disturbance, and (2) the 
sound source with the next largest Level B harassment isopleth is the 
Geo-Source 800 Sparker, for which the distance to the Level B 
harassment threshold has been calculated to be 20 m, and this is well 
within the required 100-m exclusion zone (EZ) for large whales.

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 
conducting 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. In general, NMFS 
considers the models produced by Roberts et al. (2016) to be the best 
available source of data regarding cetacean density in the Atlantic 
Ocean. 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 within the boundary of the survey 
area for each survey segment (i.e., the Lease Area

[[Page 39070]]

survey segment and the cable route area survey segment; See Figure 1 in 
the IHA application) using a geographic information system. Monthly 
density data for all cetacean species potentially taken by the proposed 
survey was available via Roberts et al. (2016). Monthly mean density 
within the survey area, as provided in Roberts et al. (2016), were 
averaged by season (i.e., Summer (June, July, August), and Fall 
(September, October, November)) to provide seasonal density estimates. 
The highest average seasonal density as reported by Roberts et al. 
(2016), for each species, was used based on the planned survey dates of 
August through October.

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 estimated trackline 
distance traveled per day by the survey vessel. The estimated daily 
vessel track line distance was determined using the estimated average 
speed of the vessel (4 kn) multiplied by 24 (to account for the 24 hour 
operational period of the survey). Using the maximum distance to the 
regulatory threshold criteria (Tables 4 and 5) and estimated daily 
track line distance of approximately 177.8 km (110.5 mi), it was 
estimated that an area of 35.59 km\2\ (13.74 mi\2\) per day would be 
ensonified to the largest Level B harassment threshold, and 17.78 km\2\ 
(0.69 mi\2\) per day would be ensonifed to the Level A harassment 
threshold (largest threshold of 155 dB SEL<INF>cum</INF> for HF 
cetaceans was used) (Table 5).

  Table 5--Estimated Track Line Distance per Day (km) and Area (km\2\)
   Estimated To Be Ensonified to Level B Harassment Threshold per Day
------------------------------------------------------------------------
                                             Estimated       Estimated
                                               area            area
                                          ensonified  to  ensonified  to
Estimated  track line  distance  per day      Level A         Level B
                   (km)                     harassment      harassment
                                          threshold  per  threshold  per
                                           day  (km\2\)    day  (km\2\)
------------------------------------------------------------------------
177.8...................................           17.78           35.59
------------------------------------------------------------------------

    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. In this case, estimated 
marine mammal density values varied between the turbine positions, 
inter-array cable route corridor survey areas, and export cable route 
corridors; therefore, the estimated number of each species taken per 
survey day was calculated separately for the these survey areas. 
Estimated numbers of each species taken per day are then multiplied by 
the number of survey days to generate an estimate of the total number 
of each species expected to be taken over the duration of the survey. 
In this case, as the estimated number of each species taken per day 
varied depending on survey area (turbine positions, inter-array cable 
route, and export cable route corridor), the number of each species 
taken per day in each respective survey area was multiplied by the 
number of survey days anticipated in each survey area (i.e., 15 survey 
days each in the turbine position location and inter-array cable route, 
and 60 survey days in the export cable route corridor portion of the 
survey) to get a total number of takes per species in each respective 
survey area.
    As described above, due to the very small estimated distances to 
Level A harassment thresholds (based on both SEL<INF>cum</INF> and peak 
SPL; Table 4), and in consideration of the mitigation measures that 
must be implemented, the likelihood of the proposed survey resulting in 
take in the form of Level A harassment is considered so unlikely as to 
be discountable. Authorized take numbers are shown in Table 6. As 
described above, the zone of influence (ZOI) were calculated based on 
the sound source with the largest isopleths to the regulatory 
thresholds (the Innomar Medium 100 sub-bottom profiler) without 
consideration of the fact that this equipment operates beyond the best 
hearing capability of LF cetaceans, so calculated takes of these 
species are likely to be overestimates due to the fact that we would 
not necessarily expect LF cetaceans to be harassed by sound produced by 
this equipment. Additionally, as shown in Table 3, the Geo-Source 800 
Sparker has the next largest Level B harassment threshold distance of 
20 m, which is well within the required distance of 100 m for which 
vessels are required to avoid large cetaceans. Therefore, take for all 
low frequency cetaceans have been adjusted to zero.

                         Table 6--Numbers of Incidental Take of Marine Mammals Calculated and Authorized for Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Turbine positions        Export cable route      Inter-array cable route           Totals
                                                 -------------------------------------------------------------------------------------------------------
                                                      Max.                      Max.                      Max.
                     Species                        seasonal                  seasonal                  seasonal
                                                  density \a\   Calculated  density \a\   Calculated  density \a\   Calculated    Adjusted       % of
                                                   (#/100 km      takes      (#/100 km      takes      (#/100 km      takes         take      population
                                                      \2\)                      \2\)                      \2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................        0.003        0.018        0.003        0.070        0.003        0.018        b c 0        0.000
Humpback whale..................................        0.018        0.097        0.018        0.387        0.018        0.097        b c 0        0.000
Fin whale.......................................        0.107        0.570        0.107        2.279        0.107        0.570        b c 0         0.00
Minke whale.....................................        0.027        0.144        0.027        0.575        0.027        0.144        b c 0         0.39
Bottlenose dolphin--N Coastal Migratory.........       13.991       74.691       13.991      298.765       13.991       74.691    c d e 350         9.33
Bottlenose dolphin--Offshore....................       13.991       74.691       13.991      298.765       13.991       74.691    c d e 350         9.33
Atlantic spotted dolphin........................        0.899        4.800        1.231       26.289        0.899        4.800      \d\ 300         0.67
Common dolphin..................................        2.501       13.349        2.501       53.397        2.501       13.349      \d\ 400         0.57
Atlantic white-sided dolphin....................        0.389        2.076        0.389        8.305        0.389        2.076      \d\ 200         0.41

[[Page 39071]]

 
Risso's dolphin.................................        0.007        0.035        0.001         0019        0.007        0.035            0         0.00
Short-finned/long-finned pilot whale............        0.058        0.310        0.025        0.532        0.058        0.310       \f\ 15         0.27
Harbor porpoise.................................        0.272        1.452        0.230        4.915        0.272        1.452            6         0.01
Harbor seal.....................................        0.000        0.000        0.000        0.000        0.000        0.000            5        0.007
Gray seal.......................................        0.000        0.000        0.000        0.000        0.000        0.000            1        0.000
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Density values from Duke University (Roberts et al., 2016).
\b\ Mitigation (exclusion zone) will prevent take.
\c\ Take calculations based on largest Level B harassment isopleth; however, the sound source is 50 kHz beyond the best hearing sensitivity for LF
  cetaceans and the Level B harassment isopleth for the next largest source is 20 m, which is well within the required 100-m exclusion zone for large
  whales. No take has been authorized for LF cetaceans.
\d\ Calculated take has been modified to account for increases in actual sighting data to date (Smultea Environmental Sciences 2016; Gardline 2016b)
  based on similar project activities.
\e\ Take adjusted to account for possible overlap of the Western North Atlantic southern migratory coastal and offshore stocks.
\f\ Take adjusted to account for potential overlap of stocks (assume 50 percent of each).

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

    With NMFS' input during the application process, and as per the 
BOEM Lease, Dominion must implement the following mitigation measures 
during the proposed marine site characterization surveys.

Marine Mammal Exclusion and Watch Zones

    Marine mammal exclusion zones (EZ) must be established around the 
HRG survey equipment and monitored by protected species observers (PSO) 
during HRG surveys as follows:
    <bullet> 50 m (164.0 ft) EZ for harbor porpoises, which is the 
extent of the largest calculated distance to the potential for onset of 
PTS (Level A harassment);
    <bullet> 100 m (328.1 ft) EZ for ESA-listed large whales (i.e., fin 
whales), which is the largest calculated distance to the potential for 
behavioral harassment (Level B behavioral harassment), and for species 
for which authorization has not been granted, or for species for which 
authorization has been granted but the authorized number of takes have 
been met; and
    <bullet> 500 m (1,640.4 ft) EZ for North Atlantic right whales. In 
addition, PSOs must visually monitor to the extent of the Level B zone 
(100 m (328.1 ft)) for all other marine mammal species not listed 
above.

Visual Monitoring

    Visual monitoring of the established exclusion and monitoring zones 
must be performed by qualified and NMFS-approved PSOs. It must be the 
responsibility of the Lead PSO on duty to communicate the presence of 
marine mammals as well as to communicate and enforce the action(s) that 
are necessary to ensure mitigation and monitoring requirements are 
implemented as appropriate. PSOs must 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 must also be available to PSOs for use as 
appropriate based on conditions and visibility to support the siting 
and monitoring of marine species. Digital single-lens reflex camera 
equipment must be used to record sightings and verify species 
identification. During surveys conducted at night, night-vision 
equipment and infrared technology must be available for PSO use.

Pre-Clearance of the Exclusion Zone

    For all HRG survey activities, Dominion must implement a 30-minute 
pre-clearance period of the relevant EZs prior to the initiation of HRG 
survey equipment. During this period the EZs must be monitored by PSOs, 
using the appropriate visual technology for a 30-minute period. HRG 
survey equipment must not be initiated if marine mammals are observed 
within or approaching the relevant EZs during this pre-clearance 
period. If a marine mammal were observed within or approaching the 
relevant EZ during the

[[Page 39072]]

pre-clearance period, ramp-up must not begin until the animal(s) has 
been observed exiting the EZ or until an additional time period has 
elapsed with no further sighting of the animal (15 minutes for small 
delphinoid cetaceans and pinnipeds and 30 minutes for all other 
species). This pre-clearance requirement must include small cetaceans 
(dolphins and harbor porpoises) that approach the vessel (e.g., bow 
ride). PSOs must also continue to monitor the zone for 30 minutes after 
survey equipment is shut down or survey activity has concluded.

Ramp-Up of Survey Equipment

    Where technically feasible, a ramp-up procedure must be used for 
HRG survey equipment capable of adjusting energy levels at the start or 
re-start of HRG survey activities. The ramp-up procedure must be used 
at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the survey area by 
allowing them to vacate the area prior to the commencement of survey 
equipment use at full energy. A ramp-up must begin with the power of 
the smallest acoustic equipment at its lowest practical power output 
appropriate for the survey. When technically feasible the power must 
then be gradually turned up and other acoustic sources added in way 
such that the source level would increase gradually.

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 must 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 (15 minutes for harbor porpoises and 30 minutes for all 
other species).
    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) must precede the restart of 
the HRG survey equipment. If the pause is less than less than 20 
minutes, the equipment shall 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) must precede the re-start of the 
HRG survey equipment. Following a shutdown, HRG survey equipment shall 
be restarted following pre-clearance of the zones as described above.

Vessel Strike Avoidance

    Dominion must 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. Survey vessel crew members 
responsible for navigation duties must receive site-specific training 
on marine mammal sighting/reporting and vessel strike avoidance 
measures. Vessel strike avoidance measures must include, but are not 
limited to, the following, 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 must maintain vigilant watch 
for cetaceans and pinnipeds, and slow down or stop their vessel to 
avoid striking these protected species;
    <bullet> All vessel operators must comply with 10 kn (18.5 km/hr) 
or less speed restrictions in any DMA. This applies to all vessels 
operating at any time of year. In addition (if applicable, as surveys 
are not anticipated to occur during this time of year), vessels over 
19.8 m (65 ft) operating from November 1 through April 30 must operate 
at speeds of 10 kn or less;
    <bullet> All vessel operators must reduce vessel speed to 10 kn 
(18.5 km/hr) or less when any large whale, any mother/calf pairs, pods, 
or large assemblages of non-delphinoid cetaceans are observed near 
(within 100 m (330 ft)) an underway vessel;
    <bullet> All survey vessels must 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 kn (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 (1640 ft)) to an underway vessel, the underway vessel must 
reduce speed and shift the engine to neutral. Engines must 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 
100 m;
    <bullet> All vessels must 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 must not engage engines until 
the non-delphinoid cetacean has moved out of the vessel's path and 
beyond 100 m;
    <bullet> All vessels must maintain a separation distance of 100 m 
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 must not engage the engines until the non-
delphinoid cetacean has moved out of the vessel's path and beyond 100 
m.
    <bullet> Any vessel underway must remain parallel to a sighted 
delphinoid cetacean's course whenever possible, and avoid excessive 
speed or abrupt changes in direction. Any vessel underway must reduce 
vessel speed to 10 kn (18.5 km/hr) or less when pods (including mother/
calf pairs) or large assemblages of delphinoid cetaceans are observed. 
Vessels must 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 underway must not divert or alter course in 
order to approach any whale, delphinoid cetacean, or pinniped. Any 
vessel underway must avoid excessive speed or abrupt changes in 
direction to avoid injury to the sighted cetacean or pinniped; and
    <bullet> All vessels must maintain a separation distance of 50 m 
(164 ft) or greater from any sighted pinniped.

Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team must consult 
NMFS' North Atlantic right whale reporting systems for the presence of 
North Atlantic right whales throughout survey operations. The proposed 
survey activities will occur in the vicinity of the Right Whale Mid-
Atlantic SMA located at the mouth of the Chesapeake Bay. The proposed 
survey start date in August, 2018 and would last for up to three 
months. Therefore, it is possible that the HRG survey activities would 
occur outside of the seasonal mandatory speed restriction period for 
this SMA (November 1 through April 30). Members of the monitoring team 
must monitor the NMFS North Atlantic right

[[Page 39073]]

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 Dominion must work with NMFS 
to shut down and/or alter the survey activities as needed to avoid 
right whales to the extent possible.
    These 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 feeding areas, 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 proposed 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 
additional mitigation to address the proposed survey's occurrence in 
North Atlantic right whale migratory habitat is not warranted. Further, 
these mitigation measures are practicable for the applicant to 
implement.
    Based on our evaluation of the mitigation measures, NMFS has 
determined that the 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 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    <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 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 must be performed by qualified and NMFS-approved PSOs. Observer 
qualifications must include direct field experience on a marine mammal 
observation vessel and/or aerial surveys and completion of a PSO 
training program, as appropriate. An observer team comprising a minimum 
of four NMFS-approved PSOs operating in shifts, must be employed by 
Dominion during the proposed surveys. PSOs must work in shifts such 
that no one monitor must 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 must rotate in shifts of one on and three off, 
while during nighttime operations PSOs must work in pairs. During ramp-
up procedures, two PSOs must be required. Each PSO must monitor 360 
degrees of the field of vision.
    Also as described above, PSOs must 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 must also be available to PSOs for use as 
appropriate based on conditions and visibility to support the siting 
and monitoring of marine species. Digital single-lens reflex camera 
equipment must be used to record sightings and verify species 
identification. During night operations, night-vision equipment, and 
infrared technology must be used to increase the ability to detect 
marine mammals. Position data must be recorded using hand-held or 
vessel global positioning system (GPS) units for each sighting. 
Observations must take place from the highest available vantage point 
on the survey vessel. General 360-degree scanning must occur during the 
monitoring periods, and target scanning by the PSO must occur when 
alerted of a marine mammal presence.
    Data on all PSO observations must be recorded based on standard PSO 
collection requirements. This must include dates and locations of 
survey operations; time of observation, location and weather; details 
of the sightings (e.g., species, age classification (if known), 
numbers, behavior); and details of any observed ``taking'' (behavioral 
disturbances). The data sheet must be provided to NMFS for review and 
approval prior to the start of survey activities. In addition, prior to 
initiation of survey work, all crew members must undergo environmental 
training, a component of which must focus on the procedures for 
sighting and protection of marine mammals. A briefing must also be 
conducted between the survey supervisors and crews, the PSOs, and 
Dominion. The purpose of the briefing must be to establish 
responsibilities of each party, define the chains of command, discuss 
communication procedures, provide an overview of monitoring purposes, 
and review operational procedures.

Reporting Measures

    Dominion must provide the following reports as necessary during 
survey activities:
    Notification of Injured or Dead Marine Mammals--In the 
unanticipated event that the specified HRG activities lead to an injury 
of a marine mammal (Level A harassment) or mortality (e.g., ship-
strike, gear interaction, and/or entanglement), Dominion must 
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

[[Page 39074]]

Stranding Coordinator. The report must 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 must not resume until NMFS is able to review the 
circumstances of the event. NMFS shall work with Dominion to minimize 
reoccurrence of such an event in the future. Dominion must not resume 
activities until notified by NMFS.
    In the event that Dominion 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), Dominion must 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 must include the same information identified in the paragraph 
above. Activities must be able to continue while NMFS reviews the 
circumstances of the incident. NMFS must work with Dominion to 
determine if modifications in the activities are appropriate.
    In the event that Dominion 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), Dominion must 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. Dominion must provide photographs or video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS. Dominion may continue its operations under such a 
case.
    Within 90 days after completion of survey activities, a final 
technical report must be provided to NMFS that fully documents the 
methods and monitoring protocols, summarizes the data recorded during 
monitoring, estimates the number of marine mammals estimated to have 
been taken during survey activities, 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.

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. 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 Tables 8 and 9, given that NMFS expects the anticipated effects of 
the proposed survey to be similar in nature.
    NMFS does not anticipate that injury, serious injury, or mortality 
would occur as a result of Dominion's proposed survey, even in the 
absence of mitigation. Thus the authorization does not authorize any 
serious injury or mortality. Non-auditory physical effects and vessel 
strike are not expected to occur.
    We expect that most potential takes would be in the form of short-
term Level B behavioral harassment in the form of temporary avoidance 
of the area or decreased foraging (if such activity were occurring), 
reactions that are considered to be of low severity and with no lasting 
biological consequences (e.g., Southall et al., 2007).
    Potential impacts to marine mammal habitat were discussed in the 
notice of proposed IHA (83 FR 26968; June 11, 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 proposed 
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, as no areas of biological significance for 
marine mammal feeding are known to exist in the survey area. 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, 
the availability of similar habitat and resources in the surrounding 
area, and the lack of important or unique marine mammal feeding 
habitat, the impacts to marine mammals and the food sources that they 
utilize are not expected to cause significant or long-term consequences 
for individual marine mammals or their populations. In addition, there 
are no rookeries or mating or calving areas known to be biologically 
important to marine mammals within the proposed project area.
    The proposed 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 coast of Virginia, this biologically 
important migratory area extends from the coast to the just beyond the 
shelf break. Due to the fact that that the proposed survey is temporary 
and short in overall duration, and the fact that the spatial acoustic 
footprint of the proposed survey is very small relative to the spatial 
extent of the available migratory habitat in the area, North Atlantic 
right whale migration is not

[[Page 39075]]

expected to be impacted by the proposed survey.
    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 Dominion's proposed 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 or serious injury is anticipated or 
authorized;
    <bullet> No injury is anticipated or authorized;
    <bullet> The anticipated impacts of the proposed activity on marine 
mammals would be limited to temporary behavioral changes due to 
avoidance of the area around the survey vessel;
    <bullet> Alternate areas of similar habitat value for marine 
mammals to temporarily vacate the survey area during the proposed 
survey and avoid exposure to sounds from the activity are available;
    <bullet> The proposed project area does not contain areas of 
significance for feeding, mating or calving;
    <bullet> Effects on species that serve as prey species for marine 
mammals from the proposed survey are expected to be minimal;
    <bullet> Mitigation measures, including visual and acoustic 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
proposed 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 authorized to be taken would 
be considered small relative to the relevant stocks or populations for 
all species and stocks (less than 10 percent of bottlenose dolphin 
stocks, and less than 1 percent of each of the other species and 
stocks). See Tables 6 and 7. 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.

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.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review. We 
have reviewed all comments submitted in response to the proposed IHA 
notice prior to concluding our NEPA process and making this final 
decision on the IHA request.

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.
    The NMFS Office of Protected Resources is proposing mitigation to 
avoid the incidental take of the species of marine mammals which are 
likely to be present and are listed under the ESA: The North Atlantic 
right and fin whales. Therefore, consultation under section 7 of the 
ESA is not required.

Authorization

    NMFS has issued an IHA to Dominion for conducting UXO surveys 
offshore Virginia for a period of one year, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: July 31, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-16885 Filed 8-7-18; 8:45 am]
 BILLING CODE 3510-22-P