[Federal Register Volume 87, Number 107 (Friday, June 3, 2022)]
[Notices]
[Pages 33730-33749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11987]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC026]


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

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

ACTION: 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 doing business as Dominion Energy 
Virginia (Dominion Energy) to incidentally harass marine mammals during 
marine site characterization surveys off of Virginia in support of the 
Coastal Virginia Offshore Wind Commercial (CVOW) Project.

DATES: This Authorization is effective from May 27, 2022 to May 26, 
2023.

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

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 33731]]

rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stocks for taking for certain 
subsistence uses (referred to in shorthand as ``mitigation''); and 
requirements pertaining to the mitigation, monitoring and reporting of 
the takings are set forth. The definitions of all applicable MMPA 
statutory terms cited above are included in the relevant sections 
below.

Summary of Request

    On September 30, 2021, NMFS received a request from Dominion Energy 
for an IHA to take marine mammals incidental to marine site 
characterization surveys off of Virginia. Dominion Energy submitted 
revised applications on December 3, 2021, January 21, 2022 and March 2, 
2022 in response to comments from NMFS. The application was deemed 
adequate and complete on March 8, 2022. Dominion Energy's request is 
for take of a small number of 14 species of marine mammals by Level B 
harassment only. Neither Dominion Energy nor NMFS expects serious 
injury or mortality to result from this activity and, therefore, an IHA 
is appropriate.
    NMFS previously issued IHAs to Dominion Energy for similar and 
related work in the same general area (85 FR 55415; September 8, 2020 
(modified on December 17, 2020 (85 FR 81879) and April 22, 2021 (86 FR 
21298)), 85 FR 30930; May 21, 2020, and 83 FR 39062; August 8, 2018). 
Dominion Energy complied with all the requirements (e.g., mitigation, 
monitoring, and reporting) of the previous IHAs and information 
regarding their monitoring results may be found in the Estimated Take 
section.

Description of the Specified Activity

    As part of its overall marine site characterization survey 
operations, Dominion Energy plans to conduct high-resolution 
geophysical (HRG) surveys in the Lease Area and along the Offshore 
Export Cable Corridor (OECC) off the coast of Virginia.
    The purpose of the surveys is to locate and identify potential 
unexploded ordnance (UXO) in support of the Dominion Energy Coastal 
Virginia Offshore Wind Commercial Project. Underwater sound resulting 
from Dominion Energy's planned site characterization survey activities, 
specifically HRG surveys, has the potential to result in incidental 
take of marine mammals in the form of behavioral harassment.
    Table 1 identifies the representative survey equipment with the 
expected potential to result in exposure of marine mammals and 
potentially result in take. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending on the final survey design, 
vessel availability, and survey contractor selection.

                                                    Table 1--Summary of Representative HRG Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Operating      RMS  source    Peak  source                                       Pulse
              System                    Representative        frequency     level  (dB re   level  (dB re       Primary  beam  width         duration
                                        equipment \a\           (kHz)        1 [mu]PA m)     1 [mu]PA m)             (degrees)             (millisecond)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Multibeam Echosounder.............  R2Sonics 2026........         170-450         \b\ 191         \b\ 221  0.45 x 0.45-1 x 1............     0.015-1.115
Medium Penetration Seismic........  Geo Marine Dual 400           0.3-1.2         \c\ 203         \c\ 212  Omnidirectional..............         0.5-0.8
                                     Sparker 800J.
                                    Applied Acoustics S-          0.5-3.5         \d\ 203         \d\ 213  \e\ 60.......................              10
                                     Boom (Triple Plate
                                     Boomer 1000J).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Make/model of equipment may vary depending on availability. Will be finalized as part of the survey preparations and contract negotiations with the
  survey contractor.
\b\ Reported by manufacturer.
\c\ Based on data from Crocker and Fratantonio (2016) for the Applied Acoustics Dura Spark.
\d\ Based on data from Crocker and Fratantonio (2016) for the Applied Acoustics S-Boom with CS.
\e\ The beam width was based on data from Crocker and Fratantonio (2016) for the Applied Acoustics S-Boom. dB re 1 [mu]Pa m--decibels referenced to 1
  microPascal at 1 meter.

    Required mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Mitigation and 
Monitoring and Reporting).
    A detailed description of the planned survey is provided in the 
Federal Register notice for the proposed IHA (87 FR 19864; April 6, 
2022). Since that time, no changes have been made to Dominion Energy's 
planned survey activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Dominion Energy was 
published in the Federal Register on April 6, 2022 (87 FR 19864). That 
proposed notice described, in detail, Dominion Energy's activities, the 
marine mammal species that may be affected by the activities, and the 
anticipated effects on marine mammals. In that notice, we requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization, and any other aspect of the 
notice of proposed IHA, and requested that interested persons submit 
relevant information, suggestions, and comments. This proposed notice 
was available for a 30-day public comment period.
    NMFS received letters from Oceana and Southern Environmental Law 
Center (SELC) and one comment from a private citizen. Summaries of all 
substantive comments, and our responses to these comments, are provided 
here. Please see the comment letters, available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-marine-site-characterization-surveys-coastal, for full detail 
regarding the comments received.
    Comment 1: Oceana made comments objecting to NMFS' renewal process 
regarding the extension of any one-year IHA with a truncated 15-day 
public comment period, and suggested an additional 30-day public 
comment period is necessary for any renewal request.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about IHA renewals (e.g., 
84 FR 52464; October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has

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explained how the renewal process, as implemented, is consistent with 
the statutory requirements contained in section 101(a)(5)(D) of the 
MMPA, and further, promotes NMFS' goals of improving conservation of 
marine mammals and increasing efficiency in the MMPA compliance 
process. Therefore, we intend to continue implementing the renewal 
process.
    In particular, we emphasize that any Renewal IHA does have a 30-day 
public comment period, and in fact, each Renewal IHA is made available 
for a 45-day public comment period. The notice of the proposed IHA 
published in the Federal Register on April 6, 2022 (87 FR 19864) made 
clear that NMFS was seeking comment on the proposed IHA and the 
potential issuance of a renewal for this survey. As detailed in the 
Federal Register notice for the proposed IHA and on the agency's 
website, any renewal is limited to another year of identical or nearly 
identical activities in the same location or the same activities that 
were not completed within the 1-year period of the initial IHA. NMFS' 
analysis of the anticipated impacts on marine mammals caused by the 
applicant's activities covers both the Initial IHA period and the 
possibility of a one-year Renewal. Therefore a member of the public 
considering commenting on a proposed Initial IHA also knows exactly 
what activities (or subset of activities) would be included in a 
proposed Renewal IHA, the potential impacts of those activities, the 
maximum amount and type of take that could be caused by those 
activities, the mitigation and monitoring measures that would be 
required, and the basis for the agency's negligible impact 
determinations, least practicable adverse impact findings, small 
numbers findings, and (if applicable) the no unmitigable adverse impact 
on subsistence use finding--all the information needed to provide 
complete and meaningful comments on a possible Renewal at the time of 
considering the proposed Initial IHA. Reviewers have the information 
needed to meaningfully comment on both the immediate proposed IHA and a 
possible 1-year renewal, should the IHA holder choose to request one.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-day public comment 
period, which includes NMFS' direct notice to anyone who commented on 
the proposed Initial IHA, provides the public an opportunity to review 
these few documents, provide any additional pertinent information and 
comment on whether they think the criteria for a renewal have been met. 
Between the initial 30-day comment period on these same activities and 
the additional 15 days, the total comment period for a renewal is 45 
days.
    In addition to the IHA renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress' intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for renewals in the regulations, description of the process 
and express invitation to comment on specific potential renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
Renewals respectively, NMFS has ensured that the public is ``invited 
and encouraged to participate fully in the agency's decision-making 
process'', as Congress intended.
    Comment 2: Oceana stated that NMFS must utilize the best available 
science, and suggested that NMFS has not done so, specifically 
referencing information regarding the North Atlantic right whale such 
as updated population estimates, habitat usage in the survey area, and 
seasonality information. Oceana specifically asserted that NMFS is not 
using the best available science with regards to the North Atlantic 
right whale population estimate and state that NMFS should be using the 
estimate of 336 individuals presented in the recent North Atlantic 
Right Whale Report Card (https://www.narwc.org/report-cards.html).
    Response: While NMFS agrees that the best available science should 
be used for assessing North Atlantic right whale abundance estimates, 
we disagree that the North Atlantic Right Whale Report Card (i.e., 
Pettis et al. (2022)) study represents the most recent and best 
available estimate for North Atlantic right whale abundance. Rather the 
revised abundance estimate (368; 95 percent with a confidence interval 
of 356-378) published by Pace (2021) (and subsequently included in the 
2021 draft Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), which was used in the proposed IHA, 
provides the most recent and best available estimate, and introduced 
improvements to NMFS' right whale abundance model. Specifically, Pace 
(2021) looked at a different way of characterizing annual estimates of 
age-specific survival. NMFS considered all relevant information 
regarding North Atlantic right whale, including the information cited 
by the commenters. However, NMFS relies on the SAR. Recently (after 
publication of the notice of proposed IHA), NMFS updated its species 
web page to recognize the population estimate for North Atlantic right 
whales is now below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). We anticipate that this 
information will be presented in the draft 2022 SAR. We note that this 
change in abundance estimate would not change the estimated take of 
North Atlantic right whales or authorized take numbers, nor affect our 
ability to make the required findings under the MMPA for Dominion 
Energy's survey activities.
    NMFS further notes that the commenters seem to be conflating the 
phrase ``best available data'' with ``the most recent data.'' The MMPA 
specifies that the ``best available data'' must be used, which does not 
always mean the most recent. As is NMFS' prerogative, we referenced the 
best available NARW abundance estimate of 368 from the draft 2021 SARs 
as NMFS' determination of the best available data that we relied on in 
our analysis. The Pace (2021) results strengthened the case for a 
change in mean survival rates after 2010-2011, but did not 
significantly change other current estimates (population size, number 
of new animals, adult female survival) derived from the model. 
Furthermore, NMFS notes that the SARs are peer reviewed by other 
scientific review groups prior to being finalized and

[[Page 33733]]

published and that the North Atlantic Right Whale Report Card (Pettis 
et al., 2022) does not undertake this process.
    NMFS considered the best available science regarding both recent 
habitat usage patterns for the study area and up-to-date seasonality 
information in the notice of the proposed IHA, including consideration 
of existing BIAs and densities provided by Roberts et al. (2021). While 
the commenter has suggested that NMFS consider best available 
information for recent habitat usage patterns and seasonality, it has 
not offered any additional information which it suggests should be 
considered best available information in place of what NMFS considered 
in its notice of proposed IHA (87 FR 19864; April 6, 2022).
    Lastly, as we stated in the notice of proposed IHA (87 FR 19864; 
April 6, 2022), any impacts to marine mammals are expected to be 
temporary and minor and, given the relative size of the survey area 
compared to the overall migratory route leading to foraging habitat 
(which is not affected by the specified activity). Comparatively, the 
survey area is extremely small (approximately 4,000 km\2\) compared to 
the size of the NARW migratory BIA (269,448 km\2\). Because of this, 
and in context of the minor, low-level nature of the impacts expected 
to result from the planned survey, such impacts are not expected to 
result in disruption to biologically important behaviors.
    Comment 3: Oceana noted that chronic stressors are an emerging 
concern for NARW conservation and recovery, and stated that chronic 
stress may result in energetic effects for North Atlantic right whales. 
Oceana suggested that NMFS has not fully considered both the use of the 
area and the effects of both acute and chronic stressors on the health 
and fitness of North Atlantic right whales, as disturbance responses in 
North Atlantic right whales could lead to chronic stress or habitat 
displacement, leading to an overall decline in their health and 
fitness.
    Response: NMFS agrees with Oceana that both acute and chronic 
stressors are of concern for North Atlantic right whale conservation 
and recovery. We recognize that acute stress from acoustic exposure is 
one potential impact of these surveys, and that chronic stress can have 
fitness, reproductive, etc. impacts at the population-level scale. NMFS 
has carefully reviewed the best available scientific information in 
assessing impacts to marine mammals, and recognizes that the surveys 
have the potential to impact marine mammals through behavioral effects, 
stress responses, and auditory masking. However, NMFS does not expect 
that the generally short-term, intermittent, and transitory marine site 
characterization survey activities planned by Dominion Energy will 
create conditions of acute or chronic acoustic exposure leading to 
long-term physiological stress responses in marine mammals. NMFS has 
also prescribed a robust suite of mitigation measures, including 
extended distance shutdowns for North Atlantic right whale, that are 
expected to further reduce the duration and intensity of acoustic 
exposure, while limiting the potential severity of any possible 
behavioral disruption. The potential for chronic stress was evaluated 
in making the determinations presented in NMFS' negligible impact 
analyses. Because North Atlantic right whales generally use this 
location in a transitory manner, specifically for migration, any 
potential impacts from these surveys are lessened for other behaviors 
due to the brief periods where exposure is possible. In context of 
these expected low-level impacts, which are not expected to 
meaningfully affect important behavior, we also refer again to the 
large size of the migratory corridor compared with the survey area (the 
overlap between the BIA and the proposed survey area will cover 
approximately 4,000 km\2\ of the 269,448 km\2\ BIA). Thus, the 
transitory nature of North Atlantic right whales at this location means 
it is unlikely for any exposure to cause chronic effects, as Dominion 
Energy's planned survey area and ensonified zones are much smaller than 
the overall migratory corridor. As such, NMFS does not expect acute or 
cumulative stress to be a detrimental factor to North Atlantic right 
whales from Dominion Energy's described survey activities.
    Comment 4: Oceana asserted that NMFS must fully consider the 
discrete effects of each activity and the cumulative effects of the 
suite of approved, proposed and potential activities on marine mammals 
and North Atlantic right whales in particular and ensure that the 
cumulative effects are not excessive before issuing or renewing an IHA. 
In a related comment, the SELC stated that in proceeding with this IHA 
and all incidental take authorizations for future offshore wind energy 
development off the East Coast, NMFS should analyze the cumulative risk 
to North Atlantic right whales and other marine mammal species posed by 
these multiple projects and leasing phases, including as it relates to 
development of mitigation measures.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of other unrelated activities and 
their impacts on populations. The preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989) states in response to 
comments that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline, e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and other relevant 
stressors. The 1989 final rule for the MMPA implementing regulations 
also addressed public comments regarding cumulative effects from 
future, unrelated activities. There NMFS stated that such effects are 
not considered in making findings under section 101(a)(5) concerning 
negligible impact. In this case, this IHA, as well as other IHAs 
currently in effect or proposed within the specified geographic region, 
are appropriately considered an unrelated activity relative to the 
others. The IHAs are unrelated in the sense that they are discrete 
actions under section 101(a)(5)(D), issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Dominion Energy was the applicant for the IHA, and we 
are responding to the specified activity as described in that 
application (and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated (1) that we would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) that reasonably foreseeable cumulative effects would also be 
considered under section 7 of the Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written 
Environmental Assessments (EA) that addressed cumulative impacts 
related to

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substantially similar activities, in similar locations, e.g., the 2019 
Avangrid EA for survey activities offshore North Carolina and Virginia; 
the 2017 Ocean Wind, LLC EA for site characterization surveys off New 
Jersey; and the 2018 Deepwater Wind EA for survey activities offshore 
Delaware, Massachusetts, and Rhode Island. Cumulative impacts regarding 
issuance of IHAs for site characterization survey activities such as 
those planned by Dominion Energy have been adequately addressed under 
NEPA in prior environmental analyses that support NMFS' determination 
that this action is appropriately categorically excluded from further 
NEPA analysis. NMFS independently evaluated the use of a categorical 
exclusion (CE) for issuance of Dominion Energy's IHA, which included 
consideration of extraordinary circumstances.
    Separately, the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New 
York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562; July 7, 
2017, 85 FR 21198; April 16, 2020 and 86 FR 26465; May 10, 2021), which 
are similar to those planned by Dominion Energy under this current IHA 
request. This Biological Opinion determined that NMFS' issuance of IHAs 
for site characterization survey activities associated with leasing, 
individually and cumulatively, are not likely to adversely affect 
listed marine mammals. NMFS notes, that while issuance of this IHA is 
covered under a different consultation, this BiOp remains valid.
    Comment 5: The SELC recommends that NMFS reinitiate its 
consultation under the ESA, stating that it relies on outdated 
scientific information about the North Atlantic right whale and fails 
to include mitigation measures that meet the ESA's requirements. It 
says that NMFS should instead require in the Final IHA the measures 
found in Attachment 5 of its comment letter.
    Response: NMFS disagrees with SELC's assertion that reinitiation of 
its ESA section 7 consultation is warranted, as none of the 
reinitiation triggers listed in NMFS' 2021 programmatic consultation 
have been met. Regarding the mitigation measures included in the 2021 
programmatic consultation, NMFS Greater Atlantic Regional Fisheries 
Office (GARFO) has determined that activities which were considered in 
its 2021 programmatic consultation are not likely to adversely affect 
ESA-listed marine mammals, provided that the required Project Design 
Criteria (PDC) are implemented. This IHA requires Dominion Energy to 
abide by the relevant PDCs. Please see the response to Comment 6 and 
other relevant comments regarding the appropriateness of the measures 
in Attachment 5 to SELC's comment letter.
    Comment 6: The SELC recommends that NMFS require the mitigation 
measures described in Attachment 5 of its letter in the Final IHA. NMFS 
has summarized the remaining recommendations from Attachment 5 here. 
Please refer to Attachment 5 to SELC's letter for the full recommended 
measures. SELC recommends that NMFS: (1) Prohibit site assessment and 
site characterization activities during times of highest risk. (2) 
Require diel restrictions on site assessment and characterization 
activities. (3) Require the clearance zone and exclusion zone distances 
stated in Attachment 5 prior to activities known to injure or harass 
large whales. (4) Require shutdown of activities if a large whale is 
detected visually or acoustically. (5) Require robust monitoring 
protocols during pre-clearance and when site assessment and 
characterization activities are underway. (6) Require mandatory vessel 
speed restrictions. (7) Implement other vessel-related measures. (8) 
Require underwater noise reduction to the fullest extent feasible. (9) 
Require mandatory reporting of all North Atlantic right whale and other 
large whale detections.
    Response: Responses below refer to the corresponding number in the 
comment.
    (1) Given the very minor degree to which North Atlantic right 
whales are anticipated to be impacted by this activity (see the 
Estimated Take and Negligible Impact Analysis and Determination 
sections for additional detail), it is not appropriate to prohibit 
survey activities during certain times. However, as described in the 
Mitigation section of this notice, the IHA does include mitigation 
measures related to vessel transit that are required during certain 
times when North Atlantic right whales are anticipated to occur in the 
project area in higher numbers. Further, the IHA requires that members 
of the monitoring team consult NMFS North Atlantic right whale 
reporting system and Whale Alert, as able, for the presence of North 
Atlantic right whales throughout survey operations, and for the 
establishment of a DMA. If NMFS should establish a DMA in the survey 
area during the survey, vessels must abide by speed restrictions in the 
DMA. Please also see NMFS' response to Comment 14.
    (2) Please see NMFS' response to Comment 8.
    (3) Please see NMFS' response to Comment 16.
    (4) Please see NMFS' response to Comment 18.
    (5) Regarding the recommendation to conduct acoustic monitoring, 
please refer to Comment 17. Further, as also recommended by the 
commenter, PSOs stationed on a survey vessel must be able to view the 
entire exclusion or clearance zone, and monitoring must begin at least 
30 minutes prior to the commencement or re-activation after a shutdown. 
NMFS requires that visual monitoring must continue until 30 minutes 
after use of the specified acoustic source ceases. However, NMFS 
disagrees with the commenter's recommendation to require at least 4 
PSOs (rotating two on duty, two off duty). Rather, the IHA requires a 
minimum of one PSO on duty, per source vessel, during daylight hours 
and two PSOs must be on duty, per source vessel, during nighttime 
hours, and expects that these PSOs will be able to sufficiently monitor 
the zones. NMFS disagrees with the commenter that a 1,000 m clearance 
zone for North Atlantic right whales and other large whale species is 
appropriate. Please see NMFS' response to Comment 16 for additional 
explanation.
    (6) Please see NMFS' response to Comment 10 that describes why it 
has not required a 10-knot speed restriction at all times. Further, 
Dominion Energy has not developed a peer-reviewed ``Adaptive Plan'' 
that is proven to be equally or more effective than a 10-knot speed 
restriction, nor does NMFS find such a plan to be warranted, given that 
the factors described in Comment 10 in support of the vessel speed 
restriction requirements included in the IHA.
    (7) The IHA states that visual observers monitoring the vessel 
strike avoidance zone may be third-party observers (i.e., PSOs) or crew 
members, but crew members responsible for these duties must be provided 
sufficient training to (1) distinguish marine mammals from other 
phenomena and (2) broadly to identify a marine mammal as a right whale, 
other whale (defined in this context as sperm whales or baleen whales 
other than right whales), or other marine mammals. While this 
requirement does not include ``all personnel working offshore'' as 
recommended by the commenter, it

[[Page 33735]]

includes all relevant personnel who may be responsible for vessel 
strike avoidance.
    Regarding vessel separation zones, NMFS requires a 500 m separation 
distance for ESA-listed whales (North Atlantic right whale and fin 
whale), which aligns with the commenter's recommendation for North 
Atlantic right whale, and is more conservative than the commenter's 
recommendation (100 m) for fin whales. For all other large whales, the 
final IHA requires a vessel separation distance of 100 m, as also 
recommended by the commenter and as was included in the proposed IHA. 
As needed, vessels must take action to maintain these separation 
distances. During nighttime observations, PSOs will use thermal imaging 
devices. Regarding the recommendation for crew transport vessels to use 
thermal imaging devices, Dominion Energy's survey plans do not require 
additional vessels for crew transport, and therefore, this 
recommendation has not been included in the IHA.
    (8) Please see NMFS' response to Comment 7.
    (9) Please see NMFS' response to Comment 15.
    Comment 7: Oceana states that NMFS must make an assessment of which 
activities, technologies and strategies are truly necessary to achieve 
site characterization to inform development of the offshore wind 
projects and which are not critical, asserting that NMFS should 
prescribe the appropriate survey techniques. In general, Oceana and the 
SELC stated that NMFS must require that all IHA applicants minimize the 
impacts of underwater noise to the fullest extent feasible, including 
through the use of best available technology and methods to minimize 
sound levels from geophysical surveys such as through the use of 
technically and commercially feasible and effective noise reduction and 
attenuation measures. SELC states that for example, project proponents 
should select and operate sub-bottom profiling systems at power 
settings that achieve the lowest practicable source level for the 
objective.
    Response: The MMPA requires that an IHA include measures that will 
effect the least practicable adverse impact on the affected species and 
stocks and, in practice, NMFS agrees that the IHA should include 
conditions for the survey activities that will first avoid adverse 
effects on North Atlantic right whales in and around the survey site, 
where practicable, and then minimize the effects that cannot be 
avoided. NMFS has determined that the IHA meets this requirement to 
effect the least practicable adverse impact. As part of the analysis 
for all marine site characterization survey IHAs, NMFS evaluated the 
effects expected as a result of the specified activity, made the 
necessary findings, and prescribed mitigation requirements sufficient 
to achieve the least practicable adverse impact on the affected species 
and stocks of marine mammals. It is not within NMFS' purview to make 
judgments regarding what may be appropriate techniques or technologies 
for an operator's survey objectives.
    Comment 8: SELC recommends that NMFS prohibit initiation of site 
characterization activities within 1.5 hours of civil sunset or in 
times of low visibility when the visual clearance and exclusion zones 
cannot be visually monitored.
    Response: NMFS disagrees with the commenter that prohibiting 
initiation of site characterization activities within 1.5 hours of 
civil sunset or in times of low visibility when the visual clearance 
and exclusion zones cannot be visually monitored is warranted.
    NMFS acknowledges the limitations inherent in detection of marine 
mammals at night and in times of low visibility. However, no injury is 
expected to result even in the absence of mitigation, given the 
characteristics of the sources planned for use (supported by the very 
small estimated Level A harassment zones; i.e., <54 m for all impulsive 
sources). Regarding Level B harassment, any potential impacts will be 
limited to short-term behavioral responses, as described in the 
Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat section of the notice of proposed IHA (87 FR 19864; April 6, 
2022) and the Negligible Impact Analysis and Determination section of 
this notice. NMFS considers impacts from this category of survey 
operations to be near de minimis, with the potential for Level A 
harassment for any species to be discountable and the severity of Level 
B harassment (and, therefore, the impacts of the take event on the 
affected individual), if any, to be low. Commenters provide no evidence 
to the contrary. NMFS is also requiring Dominion Energy to employ two 
PSOs during nighttime hours and Dominion Energy must supply at least 
one thermal (infrared) imaging device suited for the marine 
environment. Given these factors, NMFS has determined that more 
restrictive mitigation requirements are not warranted.
    Restricting surveys in the manner suggested by the commenters may 
reduce marine mammal exposures by some degree in the short term, but 
would not result in any significant reduction in either intensity or 
duration of noise exposure. Vessels would also potentially be on the 
water for an extended time introducing additional noise into the marine 
environment. The restrictions recommended by the commenters could 
result in the surveys spending increased time on the water, which may 
result in greater overall exposure to sound for marine mammals; thus 
the commenters have not demonstrated that such a requirement would 
result in a net benefit. Furthermore, restricting the ability of the 
applicant to begin surveys within 1.5 hours of civil sunset would have 
the potential to result in lengthy shutdowns of the survey equipment, 
which could result in the applicant failing to collect the data they 
have determined is necessary and, subsequently, the need to conduct 
additional surveys in the future. This would result in significantly 
increased costs incurred by the applicant. Thus, the restriction 
suggested by the commenters would not be practicable for the applicant 
to implement. In consideration of the likely effects of the activity on 
marine mammals absent mitigation, potential unintended consequences of 
the measures as proposed by the commenters, and practicability of the 
recommended measures for the applicant, NMFS has determined that 
restricting operations as recommended is not warranted or practicable 
in this case.
    Comment 9: Oceana suggests that PSOs complement their survey 
efforts using additional technologies, such as infrared detection 
devices when in low-light conditions.
    Response: NMFS agrees with Oceana regarding this suggestion and a 
requirement to utilize a thermal (infrared) device during low-light 
conditions was included in the proposed Federal Register Notice. That 
requirement is included as a requirement of the issued IHA.
    Comment 10: Oceana and the SELC recommended that NMFS restrict all 
vessels of all sizes associated with the proposed survey activities to 
speeds less than 10 knots (kn) at all times due to the risk of vessel 
strikes to North Atlantic right whales and other large whales.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for vessel strike 
resulting from Dominion Energy's activity and have determined that 
based on the nature of the activity and the required mitigation 
measures specific to vessel strike avoidance included in the IHA, 
potential for vessel strike is so low as to

[[Page 33736]]

be discountable. The required mitigation measures, all of which were 
included in the proposed IHA and are now required in the final IHA, 
include: A requirement that all vessel operators comply with 10 kn 
(18.5 km/hour) or less speed restrictions in any SMA, DMA or Slow Zone 
while underway, and check daily for information regarding the 
establishment of mandatory or voluntary vessel strike avoidance areas 
(SMAs, DMAs, Slow Zones) and information regarding NARW sighting 
locations; a requirement that all vessels greater than or equal to 19.8 
m in overall length operating from November 1 through April 30 operate 
at speeds of 10 kn (18.5 km/hour) or less; a requirement that all 
vessel operators reduce vessel speed to 10 kn (18.5 km/hour) or less 
when any large whale, any mother/calf pairs, pods, or large assemblages 
of non-delphinid cetaceans are observed near the vessel; a requirement 
that all survey vessels maintain a separation distance of 500 m or 
greater from any ESA-listed whales or other unidentified large marine 
mammals visible at the surface while underway; a requirement that, if 
underway, vessels must steer a course away from any sighted ESA-listed 
whale at 10 kn or less until the 500 m minimum separation distance has 
been established; a requirement that, if an ESA-listed whale is sighted 
in a vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral; a requirement 
that all vessels underway must maintain a minimum separation distance 
of 100 m from all non-ESA-listed baleen whales; and a requirement that 
all vessels underway must, to the maximum extent practicable, attempt 
to maintain a minimum separation distance of 50 m from all other marine 
mammals, with an understanding that at times this may not be possible 
(e.g., for animals that approach the vessel). We have determined that 
the vessel strike avoidance measures in the IHA are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. Furthermore, no documented vessel strikes have occurred 
for any marine site characterization surveys which were issued IHAs 
from NMFS during the survey activities themselves or while transiting 
to and from survey sites.
    Comment 11: Oceana suggests that NMFS require vessels maintain a 
separation distance of at least 500 m from North Atlantic right whales 
at all times.
    Response: NMFS agrees with Oceana regarding this suggestion and a 
requirement to maintain a separation distance of at least 500 m from 
North Atlantic right whales at all times was included in the proposed 
Federal Register Notice and was included as a requirement in the issued 
IHA.
    Comment 12: Oceana recommended that the IHA should require all 
vessels supporting site characterization to be equipped with and using 
Class A Automatic Identification System (AIS) devices at all times 
while on the water. Oceana suggested this requirement should apply to 
all vessels, regardless of size, associated with the survey.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and using Class A 
Automatic Identification System (devices) at all times while on the 
water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, these activities carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Dominion Energy, with the potential for 
both Level A and Level B harassment take. Given the small isopleths and 
small numbers of take authorized by this IHA, NMFS does not agree that 
the benefits of requiring AIS on all vessels associated with the survey 
activities outweighs and warrants the cost and practicability issues 
associated with this requirement.
    Comment 13: Oceana asserts that the IHA must include requirements 
to hold all vessels associated with site characterization surveys 
accountable to the IHA requirements, including vessels owned by the 
developer, contractors, employees, and others regardless of ownership, 
operator, and contract. They state that exceptions and exemptions will 
create enforcement uncertainty and incentives to evade regulations 
through reclassification and redesignation. They recommend that NMFS 
simplify this by requiring all vessels to abide by the same 
requirements, regardless of size, ownership, function, contract or 
other specifics.
    Response: NMFS agrees with Oceana and required these measures in 
the proposed IHA and final IHA. The IHA requires that a copy of the IHA 
must be in the possession of Dominion Energy, the vessel operators, the 
lead PSO, and any other relevant designees of Dominion Energy operating 
under the authority of this IHA. The IHA also states that Dominion 
Energy must ensure that the vessel operator and other relevant vessel 
personnel, including the Protected Species Observer (PSO) team, are 
briefed on all responsibilities, communication procedures, marine 
mammal monitoring protocols, operational procedures, and IHA 
requirements prior to the start of survey activity, and when relevant 
new personnel join the survey operations.
    Comment 14: The SELC recommends that NMFS prohibit site 
characterization activities that have the potential to injure or harass 
North Atlantic right whales (defined in its letter as sources operating 
at frequencies between 7 and 35 kHz) from November 1 to April 30.
    Response: NMFS appreciates the value of seasonal restrictions under 
certain circumstances. However, in this case, we have determined 
seasonal restrictions from April 1 to November 30 are not warranted, 
given the relatively low density of North Atlantic right whales in the 
area, the nature of the proposed activities, and the required 
mitigation measures. As described in response to Comment 16, Dominion 
Energy is required to implement clearance and exclusion zones of 500 m 
for North Atlantic right whales. This 500 m zone exceeds the modeled 
distance to the largest 160 dB Level B harassment isopleth (141 m 
during sparker use) by a substantial margin. Further, Level A 
harassment (auditory injury) is not expected to result even in the 
absence of mitigation, given the characteristics of the sources planned 
for use.
    Comment 15: Oceana stated that the IHA must include a requirement 
for all phases of the site characterization to subscribe to the highest 
level of transparency, including frequent reporting to federal 
agencies. Oceana and SELC recommend requirements to report all visual 
and acoustic detections of North Atlantic right whales and any dead, 
injured, or entangled marine mammals to NMFS or the Coast Guard as soon 
as possible and no later than the end of the PSO shift. SELC also 
recommends the Marine Animal Response Team as a potential organization 
for reporting of entangled or dead North Atlantic right whales or other 
large whales. Oceana states that to foster stakeholder relationships 
and allow public engagement and oversight of the permitting, the IHA 
should require all reports and data to be accessible on a publicly 
available website. Related, SELC recommends that quarterly reports of 
PSO sighting data be made publicly available.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA calls for IHAs to incorporate reporting requirements. However, 
NMFS does not concur with the suggestion that Dominion Energy should 
submit quarterly PSO sightings data reports,

[[Page 33737]]

and that these reports be made publicly available. As included in the 
proposed IHA, the final IHA includes requirements for reporting that 
supports Oceana's recommendations. Dominion Energy is required to 
submit a monitoring report to NMFS within 90 days after completion of 
survey activities that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring. PSO 
datasheets or raw sightings data must also be provided with the draft 
and final monitoring report. SELC did not provide specific examples 
regarding how making PSO sightings data publicly available on a 
quarterly basis would inform marine mammal science and protection in 
any meaningful way on this timescale.
    Further, the draft IHA and final IHA stipulate that if a North 
Atlantic right whale is observed at any time by any survey vessels, 
during surveys or during vessel transit, Dominion Energy must 
immediately report sighting information to the NMFS North Atlantic 
Right Whale Sighting Advisory System within two hours of occurrence, 
when practicable, or no later than 24 hours after occurrence. Dominion 
Energy may also report the sighting to the U.S. Coast Guard. 
Additionally, Dominion Energy must report any discoveries of injured or 
dead marine mammals to the Office of Protected Resources, NMFS, and to 
the New England/Mid-Atlantic Regional Stranding Coordinator as soon as 
feasible. This includes entangled animals. All reports and associated 
data submitted to NMFS are included on the website for public 
inspection.
    Daily visual and acoustic detections of North Atlantic right whales 
and other large whale species along the Eastern Seaboard, as well as 
Slow Zone locations, are publicly available on WhaleMap (https://whalemap.org/WhaleMap/). Further, recent acoustic detections of North 
Atlantic right whales and other large whale species are available to 
the public on NOAA's Passive Acoustic Cetacean Map website https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw. Given the open access to the 
resources described above, NMFS does not concur that public access to 
quarterly PSO reports is warranted and we have not included this 
measure in the authorization.
    Comment 16: The SELC recommended that for site characterization 
activities that have the potential to injure or harass North Atlantic 
right whales, NMFS require a visual clearance and exclusion zone of at 
least 1,000 m for North Atlantic right whales and 500 m for all large 
whale species around each vessel conducting activities with noise 
levels that could result in injury to or harassment of large whales, 
and also require an acoustic clearance and exclusion zone of at least 
1,000 m for North Atlantic right whales around each vessel conducting 
activities with noise levels that could harass North Atlantic right 
whales. SELC states that if a large whale is detected within the 1000 m 
clearance zone but the species cannot be identified, it must be assumed 
to be a North Atlantic right whale. Similarly, Oceana recommended 
increasing the Exclusion Zone to 1,000m for North Atlantic right 
whales.
    Response: NMFS notes that the 500 m Exclusion Zone for North 
Atlantic right whales exceeds the modeled distance to the largest 160 
dB Level B harassment isopleth (141 m during sparker use) by a 
substantial margin. Commenters do not provide a compelling rationale 
for why the Exclusion Zone should be even larger. Given that these 
surveys are relatively low impact and that, regardless, NMFS has 
prescribed a North Atlantic right whale Exclusion Zone that is 
significantly larger (500 m) than the conservatively estimated largest 
harassment zone (141 m), NMFS has determined that the Exclusion Zone is 
appropriate. Regarding the clearance zone, the SELC did not provide a 
compelling reason why the recommended clearance zones are warranted. 
The IHA already requires a clearance zone of 500 m for ESA-listed 
marine mammals (which includes all large whales, except humpback and 
minke whales), which like the Exclusion Zones, are much larger than the 
Level B harassment zone for all activities (the largest of which is 141 
m, as noted above). For all other marine mammals, the 100 m clearance 
zone is significantly larger than the calculated Level A harassment 
zones, and it incorporates most or all of the Level B harassment zones, 
including the largest Level B harassment zone of 141 m. Further, Level 
A harassment is not expected to result even in the absence of 
mitigation, given the characteristics of the sources planned for use.
    Regarding the use of acoustic monitoring to implement exclusion and 
clearance zones, NMFS does not anticipate that acoustic monitoring 
would be effective for a variety of reasons, as described in its 
response to Comment 17, and therefore has not required it in this IHA. 
Please refer to Comment 17 for additional information. As described in 
the Mitigation section, NMFS has determined that the prescribed 
mitigation requirements are sufficient to effect the least practicable 
adverse impact on all affected species or stocks.
    Comment 17: Oceana recommended that NMFS should require Passive 
Acoustic Monitoring (PAM) at all times to maximize the probability of 
detection for North Atlantic right whales. It provided recommendations 
that NMFS should require PAM at all times, both day and night, to 
maximize the probability of detection for North Atlantic right whales, 
as well as other species and stocks. In a related comment, the SELC 
recommended that applicants use PAM to assist in implementing clearance 
and exclusion zones for North Atlantic right whales.
    Response: The commenters do not explain why they expect that PAM 
would be effective in detecting vocalizing mysticetes, nor does NMFS 
agree that this measure is warranted, as it is not expected to be 
effective for use in detecting the species of concern. It is generally 
accepted that, even in the absence of additional acoustic sources, 
using a towed passive acoustic sensor to detect baleen whales 
(including North Atlantic right whales) is not typically effective 
because the noise from the vessel, the flow noise, and the cable noise 
are in the same frequency band and will mask the vast majority of 
baleen whale calls. Vessels produce low-frequency noise, primarily 
through propeller cavitation, with main energy in the 5-300 Hertz (Hz) 
frequency range. Source levels range from about 140 to 195 decibel (dB) 
re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), 
depending on factors such as ship type, load, and speed, and ship hull 
and propeller design. Studies of vessel noise show that it appears to 
increase background noise levels in the 71-224 Hz range by 10-13 dB 
(Hatch et al. 2012; McKenna et al. 2012; Rolland et al. 2012). PAM 
systems employ hydrophones towed in streamer cables approximately 500 m 
behind a vessel. Noise from water flow around the cables and from 
strumming of the cables themselves is also low frequency and typically 
masks signals in the same range. Experienced PAM operators 
participating in a recent workshop (Thode et al. 2017) emphasized that 
a PAM operation could easily report no acoustic encounters, depending 
on species present, simply because background noise levels rendered any 
acoustic detection impossible. The same workshop report stated that a 
typical eight-element array towed 500 m behind a vessel could be 
expected to detect delphinids, sperm whales, and beaked whales at the 
required range, but not baleen whales, due to expected background noise 
levels (including

[[Page 33738]]

seismic noise, vessel noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (a maximum of 141 m); this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low. Together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for North Atlantic right whales and other low frequency 
cetaceans, species for which PAM has limited efficacy), and the cost 
and impracticability of implementing a full-time PAM program, we have 
determined the current requirements for visual monitoring are 
sufficient to ensure the least practicable adverse impact on the 
affected species or stocks and their habitat. NMFS has previously 
provided discussions on why PAM isn't a required monitoring measure 
during HRG survey IHAs in past Federal Register notices (see 86 FR 
21289, April 22, 2021 and 87 FR 13975, March 11, 2022 for examples).
    Comment 18: Oceana recommends a shutdown requirement if a North 
Atlantic right whale or other ESA-listed species is detected in the 
clearance zone as well as a publicly available explanation of any 
exemptions as to why the applicant would not be able to shut down in 
these situations. In a related comment, the SELC recommends that if a 
North Atlantic right whale or other large whale species is visually or 
acoustically detected within the relevant clearance zone, site 
assessment and characterization activities with noise levels that could 
result in injury or harassment to large whales must not be initiated. 
SELC further recommends that site assessment and characterization 
activities with noise levels that could result in injury or harassment 
to large whales be halted if a North Atlantic right whale or other 
large whale species is visually detected within the visual exclusion 
zone or if a North Atlantic right whale is acoustically detected within 
the acoustic exclusion zone.
    Response: NMFS reiterates that use of the planned sources is not 
expected to have any potential to cause injury of any species, 
including North Atlantic right whale, even in the absence of 
mitigation. Consideration of the anticipated effectiveness of the 
mitigation measures (i.e., exclusion zones and shutdown measures) 
discussed below and in the Mitigation section of this notice further 
strengthens the conclusion that injury is not a reasonably anticipated 
outcome of the survey activity. Nevertheless, there are several 
shutdown requirements described in the Federal Register notice of the 
proposed IHA (87 FR 19864; April 6, 2022), and which are included in 
the final IHA, including the stipulation that geophysical survey 
equipment must be immediately shut down if any marine mammal is 
observed within or entering the relevant Exclusion Zone while 
geophysical survey equipment is operational. There is no exemption for 
the shutdown requirement for NARW and ESA-listed species.
    Dominion Energy is required to implement a 30-minute pre-start 
clearance period prior to the initiation of ramp-up of specified HRG 
equipment. During this period, clearance zones will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective clearance 
zone. If a marine mammal is observed within an clearance zone during 
the pre-start clearance period, ramp-up may not begin until the 
animal(s) has been observed exiting its respective exclusion zone or 
until an additional time period has elapsed with no further sighting 
(i.e., 15 minutes for small odontocetes and seals, and 30 minutes for 
all other species). If the acoustic source is shut down for reasons 
other than mitigation (e.g., mechanical difficulty) for less than 30 
minutes, it may be activated again without ramp-up if PSOs have 
maintained constant observation and no detections of any marine mammal 
have occurred within the respective exclusion zones.
    NMFS does not require acoustic monitoring for the reasons stated in 
our response to Comment 17.
    Comment 19: Oceana recommended that when HRG surveys are allowed to 
resume after a shutdown event, the surveys should be required to use a 
ramp-up procedure to encourage any nearby marine life to leave the 
area.
    Response: NMFS agrees with this recommendation and included in the 
Federal Register notice of the proposed IHA (87 FR 19864; April 6, 
2022) and this final IHA a stipulation that when technically feasible, 
survey equipment must be ramped up at the start or restart of survey 
activities. 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 a way such that the 
source level would increase gradually. NMFS notes that ramp-up is not 
required for short periods where acoustic sources were shut down (i.e., 
less than 30 minutes) if PSOs have maintained constant visual 
observation and no detections of marine mammals occurred within the 
applicable Exclusion Zones.

Changes From the Proposed IHA to Final IHA

    Since publication of the Notice of proposed IHA, NMFS has 
acknowledged that the population estimate of North Atlantic right 
whales is now under 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale). However, as discussed in our 
response to Comment 2 above, NMFS has determined that this change in 
abundance estimate would not change the estimated take of North 
Atlantic right whales or authorized take numbers, nor affect our 
ability to make the required findings under the MMPA for Dominion 
Energy's survey activities. The status and trends of the NARW 
population remain unchanged.
    NMFS considered all public comments received and determined that no 
changes to the final IHA were necessary due to these recommendations. 
However, in section 6 of the IHA (Reporting Requirements) NMFS removed 
reference to an acoustic monitoring report which was inadvertently 
included in the proposed IHA, as an acoustic monitoring report is not 
required. Additionally, in the same

[[Page 33739]]

section, NMFS added a GARFO email address to which the draft and final 
reports must also be sent.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS' 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
authorized for this action, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2021). PBR is defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS' SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic and Gulf of Mexico SARS. All values presented in 
Table 2 are the most recent available at the time of publication and 
are available in the 2020 SARs (Hayes et al. 2021) and draft 2021 SARs 
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                     Table 2--Marine Mammals Likely To Occur in the Project Area That May Be Affected by Dominion Energy's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Stock  abundance  (CV,
                                                                                        ESA/ MMPA  status;    Nmin,  most recent               Annual  M/
             Common name                  Scientific name               Stock             strategic  (Y/N)  abundance  survey) \2\     PBR       SI \3\
                                                                                                \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western North Atlantic.  E, D, Y             368 (0, 364, 2019)....        0.7        7.7
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24, 5,573,            11        1.8
                                                                                                             2016).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, Y             1,396 (0, 1,380, 2016)         22      12.15
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -, -, N             21,968 (0.31, 17,002,         170       10.6
                                       acutorostrata.                                                        2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02, 3,098,           6.2        0.8
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale.........................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             4,349 (0.28, 3,451,           3.9          0
                                                                                                             2016).
Family Delphinidae:
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71, 54,443,         544         27
                                                                                                             2016).
    Bottlenose dolphin..............  Tursiops spp...........  Western North Atlantic   -, -, N             62,851 \b\ (0.23,             519         28
                                                                Offshore.                                    51,914 \b\, 2016).
                                                               Southern Migratory       -, -, Y             3,751 (0.6, 2,353,             23     0-18.3
                                                                Coastal.                                     2016).
    Short-finned pilot whale........  Globicephala             Western North Atlantic.  -, -, Y             28,924 (0.24, 23,637,         236        136
                                       macrorhynchus.                                                        2016).
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3, 30,627,          306         29
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             35,215 (0.19, 30,051,         301         34
                                                                                                             2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             172,974 (0.21,               1452        390
                                                                                                             145,216, 2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             39,921 (0.27, 32,032,         320          0
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31, 74,034,         851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \4\.......................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,300 (0.22, 22,785,        1389       4453
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08, 57,637,        1729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). Under the MMPA, a strategic stock is one for which the level of direct human-
  caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, vessel strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual M/SI value given is for the total stock.


[[Page 33740]]

    A detailed description of the of the species likely to be affected 
by Dominion Energy's activities, including information regarding 
population trends, threats, and local occurrence, was provided in the 
Federal Register notice for the proposed IHA (87 FR 19864; April 6, 
2022); since that time, we are not aware of any changes in the status 
of these species and stocks; therefore, detailed descriptions are not 
provided here. Please refer to that Federal Register notice for these 
descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et al. 
1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al. 2006; Kastelein et al. 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
16 marine mammal species (14 cetacean and two phocid pinniped species) 
have the reasonable potential to co-occur with the planned survey 
activities. Please refer to Table 2. Of the cetacean species that may 
be present, five are classified as low-frequency cetaceans (i.e., all 
mysticete species), eight are classified as mid-frequency cetaceans 
(i.e., all delphinids and the sperm whale), and one is classified as 
high-frequency cetaceans (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the deployed acoustic sources 
have the potential to result in behavioral harassment of marine mammals 
in the vicinity of the study area. The Federal Register notice for the 
proposed IHA (87 FR 19864; April 6, 2022) included a discussion of the 
effects of anthropogenic noise on marine mammals and their habitat, 
therefore that information is not repeated here; please refer to the 
Federal Register notice (87 FR 19864; April 6, 2022) for that 
information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to HRG sources. Based primarily on the 
characteristics of the signals produced by the acoustic sources planned 
for use, Level A harassment is neither anticipated (even absent 
mitigation) nor authorized. Consideration of the anticipated 
effectiveness of the mitigation measures (i.e., exclusion zones and 
shutdown measures) discussed in detail below in the Mitigation section, 
further strengthens the conclusion that Level A harassment is not a 
reasonably anticipated outcome of the survey activity. As described 
previously, no serious injury or mortality is anticipated authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified

[[Page 33741]]

above these levels in a day; (3) the density or occurrence of marine 
mammals within these ensonified areas; and, (4) and the number of days 
of activities. We note that while these basic factors can contribute to 
a basic calculation to provide an initial prediction of takes, 
additional information that can qualitatively inform take estimates is 
also sometimes available (e.g., previous monitoring results or average 
group size). Below, we describe the factors considered here in more 
detail and present the take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al. 2007, Ellison et al. 2012). Based on what the 
available science indicates and the practical need to use a threshold 
based on a factor that is both predictable and measurable for most 
activities, NMFS uses a generalized acoustic threshold based on 
received level to estimate the onset of behavioral harassment. NMFS 
predicts that marine mammals are likely to be behaviorally harassed in 
a manner we consider Level B harassment when exposed to underwater 
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms) 
for the impulsive sources (i.e., boomers, sparkers) evaluated here for 
Dominion Energy's activity.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). For more 
information, see NMFS' 2018 Technical Guidance, which may be accessed 
at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Dominion Energy's planned survey includes the use of impulsive 
(i.e., sparkers and boomers) sources. However, as discussed above, NMFS 
has concluded that Level A harassment is not a reasonably likely 
outcome for marine mammals exposed to noise through use of the sources 
planned for use here, and the potential for Level A harassment is not 
evaluated further in this document. Please see Dominion Energy's 
application for details of a quantitative exposure analysis exercise, 
i.e., calculated Level A harassment isopleths and estimated Level A 
harassment exposures. Maximum estimated Level A harassment isopleths 
were less than 6 m for all sources and hearing groups with the 
exception of an estimated 54 m zone calculated for high-frequency 
cetaceans during use of the Applied Acoustics S-Boom Boomer, (see Table 
1 for source characteristics). Dominion Energy did not request 
authorization of take by Level A harassment, and no take by Level A 
harassment is authorized here by NMFS.

Ensonified Area

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the frequency-dependent absorption coefficient (Table 1).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
types that may be used during the planned surveys and the source levels 
associated with those HRG equipment types.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Dominion Energy 
that has the potential to result in Level B harassment of marine 
mammals, the Geo Marine Dual 400 Sparker 800J will produce the largest 
Level B harassment isopleth (141 m; see Table 6-3 of Dominion Energy's 
application). The Applied Acoustics S-Boom (Triple Plate Boomer 1000J) 
will produce a Level B harassment isopleth of 22 m. Although Dominion 
Energy does not expect to use the Geo Marine Dual 400 Sparker 800J 
source on all planned survey days, it assumes, for purposes of 
analysis, that the sparker will be used on all survey days. This is a 
conservative approach, as the actual sources used on individual survey 
days may produce smaller harassment distances.

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.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory and the Marine-life Data and Analysis 
Team, based on the best available marine mammal data from 1992-2019 
obtained in a collaboration between Duke University, the Northeast 
Regional Planning Body, the University of North Carolina Wilmington, 
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et 
al. 2016a; Curtice et al. 2018), represent the best available 
information regarding marine mammal densities in the survey area. More 
recently, these data have been updated with new modeling results and 
include density estimates for pinnipeds (Roberts et al. 2016, 2017, 
2018, 2020, 2021).
    The density data presented by Roberts et al. (2016b, 2017, 2018, 
2020, 2021) incorporates aerial and shipboard line-transect survey data 
from NMFS and other organizations and incorporates data from eight 
physiographic and 16 dynamic oceanographic and biological covariates, 
and controls for the influence of sea state, group size, availability 
bias, and perception bias on the probability of making a sighting. 
These density models were originally developed for all cetacean taxa in 
the U.S. Atlantic (Roberts et al. 2016). In subsequent years, certain 
models have been updated based on additional data as well as certain 
methodological improvements. More information is available online at 
https://seamap.env.duke.edu/models/Duke/EC/ EC/. Marine mammal density 
estimates in the survey area (animals/km\2\) were

[[Page 33742]]

obtained using the most recent model results for all taxa (Roberts et 
al. 2016, 2017, 2018, 2020, 2021), with the exception of the North 
Atlantic right whale (discussed below). The updated models incorporate 
additional sighting data, including sightings from NOAA's Atlantic 
Marine Assessment Program for Protected Species (AMAPPS) surveys.
    For the exposure analysis, the density data from Roberts et al. 
(2016, 2017, 2018, 2020, 2021) were mapped using a geographic 
information system (GIS). For the full survey area, Dominion Energy 
averaged the densities of each species as reported by Roberts et al. 
(2016, 2017, 2018, 2020, 2021) by season; thus, a density was 
calculated for each species for spring, summer, fall and winter. To be 
conservative, the greatest seasonal density calculated for each species 
was then carried forward in the exposure analysis. The largest 
estimated seasonal densities (animals per km\2\) of all marine mammal 
species that may be taken by the proposed survey, for all survey areas, 
is shown in Table 4, below. Below, we discuss how densities were 
assumed to apply to specific species for which the Roberts et al. 
(2016b, 2017, 2018, 2020, 2021) models provide results at the genus or 
guild level. Additional data regarding average group sizes from survey 
effort in the region was considered to ensure take estimates are 
adequate to account for anticipated real-world encounter rates.
    For bottlenose dolphin densities, Roberts et al. (2016b, 2017, 
2018) does not differentiate by stock. Given the southern coastal 
migratory stock's propensity to occur in waters shallower than the 25 m 
(82 ft) isobath north of Cape Hatteras (Reeves et al. 2002; Hayes et 
al. 2018), the project's offshore export cable route corridor segment 
was roughly divided along the 25 m (82 ft) isobath. Roughly 90 percent 
of the cable corridor is 25 m (82 ft) or less in depth. The Lease Area 
is mostly located within depths exceeding 25 m (82 ft), where the 
southern coastal migratory stock is unlikely to occur. Roughly 25 
percent of the Lease Area survey segment is 25 m (82 ft) or less in 
depth. Therefore, to account for the potential for mixed stocks within 
the Project's offshore export cable route corridor, 90 percent of the 
estimated take calculation in that area is assumed to be of individuals 
in the southern coastal migratory stock and the remaining applied to 
the Western North Atlantic offshore stock within the Project's offshore 
export cable route corridor survey area. Within the Lease Area, 25 
percent of the estimated take calculation is assumed to be of 
individuals from the southern coastal migratory stock and the remaining 
applied to the Western North Atlantic offshore stock.
    The seasonality, feeding preferences, and habitat use by gray seals 
often overlaps with that of harbor seals in the survey areas. The 
density models produced by Roberts et al. (2016b, 2017, 2018) do not 
differentiate between gray seals and harbor seals. Rather, the model 
provides one density estimate for ``seals.'' Therefore, for the density 
values reported in the IHA application, Dominion Energy assumed that 
half of the seals were gray seals, and the other half harbor seals.
    Dominion Energy used model Version 10 (Roberts et al. 2021) to 
estimate the density of North Atlantic right whales. While two more 
recent versions (Version 11 and Version 11.1) of the model are 
available, the updates in these versions do not affect the densities in 
the project area. The update in Version 11 pertains to Cape Cod Bay 
only, which is outside of the CVOW project area. Density surfaces in 
Version 11.1 did not change from Version 11; rather Version 11.1 
includes uncertainty surfaces as well as density surfaces.

 Table 4--Maximum Seasonal Densities of Marine Mammals in the Lease Area
                                and OECC
                         [Animals per 100 km\2\]
------------------------------------------------------------------------
                                                            Lease area/
                         Species                               OECC
------------------------------------------------------------------------
North Atlantic right whale..............................           0.111
Humpback whale..........................................           0.060
Fin whale...............................................           0.184
Sei whale...............................................           0.001
Minke whale.............................................           0.047
Sperm whale.............................................           0.003
Pilot whale.............................................           0.029
Bottlenose dolphin (Offshore)...........................          10.614
Bottlenose dolphin (Southern Migratory Coastal).........
Common dolphin..........................................           2.163
Atlantic white-sided dolphin............................           0.600
Atlantic spotted dolphin................................           0.311
Risso's dolphin.........................................           0.008
Harbor porpoise.........................................           0.794
Gray seal...............................................           0.514
Harbor seal.............................................
------------------------------------------------------------------------

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 (zone of influence 
(ZOI)) is then calculated, based on areas predicted to be ensonified 
around the HRG survey equipment (i.e., 141 m) and the estimated 
trackline distance traveled per day by the survey vessel (i.e., 58 km). 
Based on the maximum estimated distance to the Level B harassment 
threshold of 141 m (Geo Marine Dual 400 Sparker 800J) and the maximum 
estimated daily track line distance of 58 km, the ZOI is estimated to 
be 16.4 km\2\ during Dominion Energy's planned HRG surveys. As 
described above, this is a conservative estimate as it assumes the HRG 
source that results in the greatest distance to the Level B harassment 
isopleth will be operated at all times during all vessel days.


[[Page 33743]]


ZOI = (Distance/day x 2r) + [pi]r\2\

    Where r is the linear distance from the source to the harassment 
isopleth.
    Potential daily Level B harassment takes are estimated by 
multiplying the average annual marine mammal densities (animals/km\2\), 
as described above, by the ZOI. Estimated numbers of each species taken 
over the duration of the authorization are calculated by multiplying 
the potential daily Level B harassment takes by the total number of 
vessel days. The product is then rounded, to generate an estimate of 
the total number of instances of harassment expected for each species 
over the duration of the survey. A summary of this method is 
illustrated in the following formula:

Estimated Take = D x ZOI x vessel days

    Where D = average species density (animals/km\2\), ZOI = maximum 
daily ensonified area to relevant threshold, and vessel days = 244.
    Table 5 shows the authorized take by Level B harassment.

    Table 5--Authorized Incidental Take of Marine Mammals and Authorized Takes as a Percentage of Population
----------------------------------------------------------------------------------------------------------------
                                                                    Authorized                      Authorized
                                                     Estimated    takes by Level                    takes as a
                     Species                      takes by Level   B harassment      Abundance      percent of
                                                   B harassment         \a\                            stock
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................             4.4               4             368             1.4
Humpback whale..................................             2.4               2           1,396              <1
Fin whale.......................................             7.4               7           6,802              <1
Sei whale.......................................            0.04               0           6,292               0
Minke whale.....................................             1.9               2          21,968              <1
Sperm whale.....................................             0.0               0           4,349               0
Short-finned pilot whale........................             1.2              20          28,924              <1
Long-finned pilot whale.........................                                          39,215              <1
Bottlenose dolphin (Western North Atlantic                 279.2             279          62,851              <1
 Offshore stock)................................
Bottlenose dolphin (Southern Migratory Coastal             147.1             147           3,751             3.9
 stock).........................................
Common dolphin..................................            86.6           4,880         172,974             2.8
Atlantic white-sided dolphin....................            24.1              25          93,233              <1
Atlantic spotted dolphin........................            12.5           4,880          39,921            12.4
Risso's dolphin.................................             0.3              25          35,215              <1
Harbor porpoise.................................            31.8              32          95,543              <1
Gray seal.......................................              12              12         451,431              <1
Harbor seal.....................................              12              12          61,336              <1
----------------------------------------------------------------------------------------------------------------

    The authorized take listed in Table 5 generally reflects the 
estimated take calculation described above (Estimated Take = D x ZOI x 
vessel days). Further, take estimates for pilot whale and Risso's 
dolphin have been modified to reflect group size estimates, and take 
estimates for Atlantic spotted dolphin and common dolphin have been 
modified to reflect previous monitoring in the CVOW project area, as 
described further below.
    Roberts et al. (2017) provides a density for all pilot whales that 
does not differentiate between short-finned and long-finned pilot 
whales, both of which could be in the project area. However, the take 
estimate for pilot whales was further adjusted to account for group 
size. Dominion Energy estimates that a group of 20 pilot whales (Reeves 
et al. 2002) may be taken by Level B harassment during the surveys. 
While the take calculation described above estimates no takes of 
Risso's dolphin, Dominion Energy also conservatively estimates that a 
group of 25 Risso's dolphins (Reeves et al. 2002) may be taken by Level 
B harassment during the surveys. NMFS concurs with these estimates, and 
has authorized 20 takes by Level B harassment of pilot whales and 25 
takes by Level B harassment of Risso's dolphin.
    Previous monitoring in the CVOW project area (Dominion Energy, 
2021; 86 FR 21298; April 22, 2021 and 85 FR 81879; December 17, 2020) 
indicates that the calculated take of Atlantic spotted dolphin and 
common dolphin is too low. Given previous monitoring, Dominion Energy 
conservatively estimated that two pods of common dolphins, each 
averaging 10 individuals, may be taken by Level B harassment on each 
vessel day (2 pods x 10 individuals x 244 vessel days = 4,880 takes by 
Level B harassment of common dolphin). Dominion Energy conservatively 
estimates that one pod of Atlantic spotted dolphins, averaging 20 
individuals, may be taken by Level B harassment on each vessel day (1 
pod x 20 individuals x 244 vessel days = 4,880 takes by Level B 
harassment of Atlantic spotted dolphin). While these estimates are 
likely conservative, NMFS concurs, and has authorized 4,880 takes by 
Level B harassment of both common dolphin and Atlantic spotted dolphin.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, 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

[[Page 33744]]

impact being mitigated (likelihood, scope, range). It further considers 
the likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

    NMFS requires that the following mitigation measures be implemented 
during Dominion Energy's planned marine site characterization surveys. 
Pursuant to section 7 of the ESA, Dominion Energy is also required to 
adhere to relevant Project Design Criteria (PDC) of the NMFS' GARFO 
programmatic consultation (specifically PDCs 4, 5, and 7) regarding 
geophysical surveys along the U.S. Atlantic coast (https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Marine Mammal Exclusion Zones and Harassment Zones

    Marine mammal exclusion zones will be established around the HRG 
survey equipment and monitored by protected species observers (PSOs):
    <bullet> 500 m exclusion zone for North Atlantic right whales 
during use of specified acoustic sources (sparkers, boomers, and non-
parametric sub-bottom profilers).
    <bullet> 100 m exclusion zone for all other marine mammals, with 
certain exceptions specified below, during operation of impulsive 
acoustic sources (boomer and/or sparker).
    If a marine mammal is detected approaching or entering the 
exclusion zone during the HRG survey, the vessel operator will adhere 
to the shutdown procedures described below to minimize noise impacts on 
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.

Pre-Start Clearance

    Marine mammal clearance zones will be established around the HRG 
survey equipment and monitored by protected species observers (PSOs):
    <bullet> 500 m for all ESA-listed marine mammals; and
    <bullet> 100 m for all other marine mammals.
    Dominion Energy will implement a 30-minute pre-start clearance 
period prior to the initiation of ramp-up of specified HRG equipment 
(see exception to this requirement in the Shutdown Procedures section 
below) During this period, clearance zones will be monitored by the 
PSOs, using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective clearance 
zone. If a marine mammal is observed within an clearance zone during 
the pre-start clearance period, ramp-up may not begin until the 
animal(s) has been observed exiting its respective exclusion zone or 
until an additional time period has elapsed with no further sighting 
(i.e., 15 minutes for small odontocetes and seals, and 30 minutes for 
all other species).

Ramp-Up of Survey Equipment

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
acoustic source when technically feasible. The ramp-up procedure will 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the survey area by 
allowing them to vacate the area prior to the commencement of survey 
equipment operation at full power. Operators should ramp up sources to 
half power for 5 minutes and then proceed to full power.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective exclusion zone. Ramp-up will continue if the animal has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals and 30 minutes for all other species).
    Ramp-up may occur at times of poor visibility, including nighttime, 
if appropriate visual monitoring has occurred with no detections of 
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic 
source activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment is 
required if a marine mammal is sighted entering or within its 
respective exclusion zone. The vessel operator must comply immediately 
with any call for shutdown by the Lead PSO. Any disagreement between 
the Lead PSO and vessel operator should be discussed only after 
shutdown has occurred. Subsequent restart of the survey equipment can 
be initiated if the animal has been observed exiting its respective 
exclusion zone or until an additional time period has elapsed (i.e., 15 
minutes for harbor porpoise, 30 minutes for all other species).
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone, shutdown will occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective exclusion zones. If the acoustic source is shut down for 
a period longer than 30 minutes, then pre-clearance and ramp-up 
procedures will be initiated as described in the previous section.
    The shutdown requirement will be waived for pinnipeds and for small 
delphinids of the following genera: Delphinus, Lagenorhynchus, 
Stenella, and Tursiops. Specifically, if a delphinid from the specified 
genera or a pinniped is visually detected approaching the vessel (i.e., 
to bow ride) or towed equipment, shutdown is not required. Furthermore, 
if there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived), PSOs must use best 
professional judgement in making the decision to call for a shutdown. 
Additionally, shutdown is required if a delphinid or pinniped detected 
in the exclusion zone and belongs to a genus other than those 
specified.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., echosounders).

Vessel Strike Avoidance

    Dominion Energy must adhere to the following measures except in the 
case where compliance would create an imminent and serious threat to a 
person or vessel or to the extent that a vessel is restricted in its 
ability to maneuver and, because of the restriction, cannot comply.

[[Page 33745]]

    <bullet> Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated below). Visual observers 
monitoring the vessel strike avoidance zone may be third-party 
observers (i.e., PSOs) or crew members, but crew members responsible 
for these duties must be provided sufficient training to (1) 
distinguish protected species from other phenomena and (2) broadly to 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal;
    <bullet> Members of the monitoring team will consult NMFS North 
Atlantic right whale reporting system and Whale Alert, as able, for the 
presence of North Atlantic right whales throughout survey operations, 
and for the establishment of a DMA. If NMFS should establish a DMA in 
the survey area during the survey, the vessels will abide by speed 
restrictions in the DMA;
    <bullet> All survey vessels, regardless of size, must observe a 10-
knot (18.5 km/hr) speed restriction in specific areas designated by 
NMFS for the protection of North Atlantic right whales from vessel 
strikes including seasonal management areas (SMAs) and dynamic 
management areas (DMAs) when in effect;
    <bullet> All vessels greater than or equal to 19.8 m in overall 
length operating from November 1 through April 30 will operate at 
speeds of 10 knots (18.5 km/hr) or less at all times;
    <bullet> All vessels must reduce their speed to 10 knots (18.5 km/
hr) or less when mother/calf pairs, pods, or large assemblages of 
cetaceans are observed near a vessel;
    <bullet> All vessels must maintain a minimum separation distance of 
500 m from right whales and other ESA-listed large whales;
    <bullet> If a whale is observed but cannot be confirmed as a 
species other than a right whale or other ESA-listed large whale, the 
vessel operator must assume that it is a right whale and take 
appropriate action;
    <bullet> All vessels must maintain a minimum separation distance of 
100 m from non-ESA listed whales;
    <bullet> All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50m from all other 
marine mammals, with an understanding that at times this may not be 
possible (e.g., for animals that approach the vessel); and
    <bullet> When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. Prior to implementation with 
vessel crews, the training program will be provided to NMFS for review 
and approval. Confirmation of the training and understanding of the 
requirements will be documented on a training course log sheet. Signing 
the log sheet will certify that the crew member understands and will 
comply with the necessary requirements throughout the survey 
activities.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
required mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
survey area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
    <bullet> Nature, scope, or context of likely marine mammal exposure 
to potential 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).
    <bullet> Mitigation and monitoring effectiveness.

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Dominion Energy will 
employ independent, dedicated, trained PSOs, meaning that the PSOs must 
(1) be employed by a third-party observer provider, (2) have no tasks 
other than to conduct observational effort, collect data, and 
communicate with and instruct relevant vessel crew with regard to the 
presence of marine mammals and mitigation requirements (including brief 
alerts regarding maritime hazards), and (3) have successfully completed 
an approved PSO training course appropriate for their designated task. 
On a case-by-case basis, non-independent observers may be approved by 
NMFS for limited, specific duties in support of approved, independent 
PSOs on smaller vessels with limited crew capacity operating in 
nearshore waters. Section 5 of the draft IHA contains further details 
regarding PSO approval.

[[Page 33746]]

    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established exclusion zones 
during survey activities. It will be the responsibility of the Lead PSO 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) will ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and will conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least 2 hours between 
watches and may conduct a maximum of 12 hours of observation per 24-hr 
period. In cases where multiple vessels are surveying concurrently, any 
observations of marine mammals will be communicated to PSOs on all 
nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology will be used. Position data will be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs will also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey will be relayed to 
the PSO team. Data on all PSO observations will be recorded based on 
standard PSO collection requirements. This will include dates, times, 
and locations of survey operations; dates and times of observations, 
location and weather; details of marine mammal sightings (e.g., 
species, numbers, behavior); and details of any observed marine mammal 
behavior that occurs (e.g., noted behavioral disturbances).

Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a draft technical report will be 
provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys (including what type of mitigation and the species and number 
of animals that prompted the mitigation action, when known), and 
provides an interpretation of the results and effectiveness of all 
mitigation and monitoring. A final report must be submitted within 30 
days following resolution of any comments on the draft report. All 
draft and final marine mammal monitoring reports must be submitted to 
<a href="/cdn-cgi/l/email-protection#c39391ed8a9793ed8eacadaab7acb1aaada491a6b3acb1b7b083adaca2a2eda4acb5"><span class="__cf_email__" data-cfemail="1343413d5a47433d5e7c7d7a677c617a7d744176637c616760537d7c72723d747c65">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#da938e8af49ebbacb3a99ab4b5bbbbf4bdb5ac"><span class="__cf_email__" data-cfemail="ace5f8fc82e8cddac5dfecc2c3cdcd82cbc3da">[email protected]</span></a>, and 
<a href="/cdn-cgi/l/email-protection#157b7873663b7274673b7c7b767c71707b6174793861747e70557b7a74743b727a63"><span class="__cf_email__" data-cfemail="ff9192998cd1989e8dd196919c969b9a918b9e93d28b9e949abf91909e9ed1989089">[email protected]</span></a>. The report must contain at minimum, 
the following:
    <bullet> PSO names and affiliations;
    <bullet> Dates of departures and returns to port with port name;
    <bullet> Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
    <bullet> Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
    <bullet> Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
    <bullet> Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
    <bullet> Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
    <bullet> Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-start 
clearance survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
    <bullet> Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
    <bullet> PSO who sighted the animal;
    <bullet> Time of sighting;
    <bullet> Vessel location at time of sighting;
    <bullet> Water depth;
    <bullet> Direction of vessel's travel (compass direction);
    <bullet> Direction of animal's travel relative to the vessel;
    <bullet> Pace of the animal;
    <bullet> Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
    <bullet> Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
    <bullet> Estimated number of animals (high/low/best);
    <bullet> Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    <bullet> Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    <bullet> Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
    <bullet> Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
    <bullet> Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
    <bullet> Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during surveys or during vessel 
transit, Dominion Energy must immediately report sighting information 
to the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 
755-6622. North

[[Page 33747]]

Atlantic right whale sightings in any location may also be reported to 
the U.S. Coast Guard via channel 16.
    In the event that Dominion Energy personnel discover an injured or 
dead marine mammal, Dominion Energy will report the incident to the 
NMFS Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would 
include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the unanticipated event of a vessel strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Dominion 
Energy would report the incident to the NMFS OPR and the NMFS New 
England/Mid-Atlantic Stranding Coordinator as soon as feasible. The 
report would include the following information:
    <bullet> Time, date, and location (latitude/longitude) of the 
incident;
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Vessel's speed during and leading up to the incident;
    <bullet> Vessel's course/heading and what operations were being 
conducted (if applicable);
    <bullet> Status of all sound sources in use;
    <bullet> Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    <bullet> Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    <bullet> Estimated size and length of animal that was struck;
    <bullet> Description of the behavior of the marine mammal 
immediately preceding and following the strike;
    <bullet> If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
    <bullet> Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
    <bullet> To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 2, given that NMFS expects the anticipated effects of the 
planned survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
NMFS does not anticipate that serious injury or mortality would occur 
as a result from HRG surveys, even in the absence of mitigation, and no 
serious injury or mortality is authorized. As discussed in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat section, non-auditory physical effects and vessel strike are 
not expected to occur. NMFS expects that all potential takes will be in 
the form of short-term Level B behavioral harassment in the form of 
temporary avoidance of the area or decreased foraging (if such activity 
was occurring), reactions that are considered to be of low severity and 
with no lasting biological consequences (e.g., Southall et al. 2007). 
Even repeated Level B harassment of some small subset of an overall 
stock is unlikely to result in any significant realized decrease in 
viability for the affected individuals, and thus would not result in 
any adverse impact to the stock as a whole. As described above, Level A 
harassment is not expected to occur given the nature of the operations, 
the estimated size of the Level A harassment zones, and the required 
shutdown zones for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m. Although this distance is assumed 
for all survey activity in estimating take numbers evaluated and 
authorized here, in reality, the Geo Marine Dual 400 Sparker will 
likely not be used across the entire 24-hour period and across all 244 
vessel days. The other acoustic sources operating below 200 kHz that 
Dominion Energy has included in their application produce Level B 
harassment zones below 22 m. Therefore, the ensonified area surrounding 
each vessel is relatively small compared to the overall distribution of 
the animals in the area and their use of the habitat. Feeding behavior 
is not likely to be significantly impacted as prey species are mobile 
and are broadly distributed throughout the survey area; therefore, 
marine mammals that may be temporarily displaced during survey 
activities are expected to be able to resume foraging once they have 
moved away from areas with disturbing levels of underwater noise. 
Because of the temporary nature of the disturbance and the availability 
of similar habitat and resources in the surrounding area, the impacts 
to marine mammals and the food sources that they utilize are not 
expected to cause significant or long-term consequences for individual 
marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the planned survey area 
and there are no feeding areas known to be biologically important to 
marine mammals within the planned survey area. There is no designated 
critical habitat for any ESA-listed marine mammals in the planned 
survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits

[[Page 33748]]

additional analysis. As noted previously, elevated North Atlantic right 
whale mortalities began in June 2017, and there is an active UME. 
Overall, preliminary findings support human interactions, specifically 
vessel strikes and entanglements, as the cause of death for the 
majority of right whales. As noted previously, the planned survey area 
overlaps a migratory corridor BIA for North Atlantic right whales. Due 
to the fact that the impacts of the planned survey are expected to be 
of low severity (as described in the Potential Effects of Specified 
Activities on Marine Mammals and their Habitat), the survey activities 
are temporary, and the spatial extent of sound produced by the survey 
will be very small relative to the spatial extent of the available 
migratory habitat in the BIA (the overlap between the BIA and the 
survey area covers approximately 4,000 km\2\ of the 269,448 km\2\ BIA), 
right whale migration is not expected to be impacted by the survey. 
Given the relatively small size of the ensonified area, it is unlikely 
that prey availability would be adversely affected by HRG survey 
operations. Required vessel strike avoidance measures will also 
decrease risk of vessel strike during migration; no vessel strike is 
expected to occur during Dominion Energy's planned activities. The 500-
m shutdown zone for right whales is conservative, considering the Level 
B harassment isopleth for the most impactful acoustic source (i.e., 
sparker) is estimated to be 141 m, and thereby minimizes the potential 
for behavioral harassment of this species.
    As noted previously, Level A harassment is not expected due to the 
small PTS zones associated with HRG equipment types planned for use. 
The authorization of take by Level B harassment of North Atlantic right 
whale is not expected to exacerbate or compound upon the ongoing UME. 
The limited authorized takes of North Atlantic right whale by Level B 
harassment are expected to be of a short duration, and given the number 
of estimated takes, repeated exposures of the same individual are not 
expected. Further, given the relatively small size of the ensonified 
area during Dominion Energy's planned activities, it is unlikely that 
North Atlantic right whale prey availability would be adversely 
affected. Accordingly, NMFS does not anticipate North Atlantic right 
whales takes that may result from Dominion Energy's planned activities 
will impact annual rates of recruitment or survival of any individuals. 
Thus, any takes that occur will not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Dominion Energy's planned survey area. Elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine 
through Florida since January 2016. Of the cases examined, 
approximately half had evidence of human interaction (vessel strike or 
entanglement). The UME does not yet provide cause for concern regarding 
population-level impacts. Despite the UME, the relevant population of 
humpback whales (the West Indies breeding population, or DPS) remains 
stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    The required mitigation measures are expected to reduce the number 
and/or severity of authorized takes for all species listed in Table 2, 
including those with active UMEs, to the level of least practicable 
adverse impact. In particular, they would provide animals the 
opportunity to move away from the sound source throughout the survey 
area before HRG survey equipment reaches full energy, thus preventing 
them from being exposed to sound levels that have the potential to 
cause injury (Level A harassment) or more severe Level B harassment. As 
discussed previously, take by Level A harassment (injury) is considered 
unlikely, even absent mitigation, based on the characteristics of the 
signals produced by the acoustic sources planned for use, and is not 
authorized. Implementation of required mitigation will further reduce 
this potential.
    NMFS expects that takes will be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals will only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures will 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
    <bullet> No mortality or serious injury is anticipated or 
authorized;
    <bullet> No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
    <bullet> Foraging success is not likely to be impacted as effects 
on species that serve as prey species for marine mammals from the 
survey are expected to be minimal;
    <bullet> The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
    <bullet> Take is anticipated to be by Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the survey area;
    <bullet> While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, the activities will occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities would not affect migration. In addition, mitigation 
measures require shutdown at 500 m (almost four times the size of the 
Level B harassment isopleth (141 m), which minimizes the effects of the 
take on the species; and
    <bullet> The required mitigation measures, including effective 
visual monitoring, and shutdowns are expected to minimize potential 
impacts to marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of

[[Page 33749]]

abundance of the relevant species or stock in our determination of 
whether an authorization is limited to small numbers of marine mammals. 
When the predicted number of individuals to be taken is fewer than one 
third of the species or stock abundance, the take is considered to be 
of small numbers. Additionally, other qualitative factors may be 
considered in the analysis, such as the temporal or spatial scale of 
the activities.
    NMFS has authorized incidental take (by Level B harassment only) of 
14 marine mammal species (with 15 managed stocks). The total amount of 
authorized takes relative to the best available population abundance is 
less than 33 percent for all stocks (Table 5).
    Based on the analysis contained herein of the planned activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the issuance of an IHA) 
and alternatives with respect to potential impacts on the human 
environment. This action is consistent with categories of activities 
identified in Categorical Exclusion B4 of the Companion Manual for NAO 
216-6A, which do not individually or cumulatively have the potential 
for significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that this action qualifies to be categorically excluded from further 
NEPA review.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS Office of Protected Resources (OPR) consults internally whenever 
we propose to authorize take for endangered or threatened species.
    NMFS is authorizing take of North Atlantic right whale and fin 
whales, which are listed under the ESA. On June 29, 2021 (revised 
September 2021), GARFO completed an informal programmatic consultation 
on the effects of certain site assessment and site characterization 
activities to be carried out to support the siting of offshore wind 
energy development projects off the U.S. Atlantic coast. Part of the 
activities considered in the consultation are geophysical surveys such 
as those proposed by Dominion Energy and for which we have authorize 
take. GARFO concluded site assessment surveys are not likely to 
adversely affect endangered species or adversely modify or destroy 
critical habitat. NMFS has determined issuance of the IHA is covered 
under the programmatic consultation; therefore, ESA consultation has 
been satisfied.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Dominion Energy authorizing take, by Level B harassment, incidental to 
conducting marine site characterization surveys off of Virginia for a 
period of one year, that includes the previously explained mitigation, 
monitoring, and reporting requirements.

    Dated: May 31, 2022.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-11987 Filed 6-2-22; 8:45 am]
BILLING CODE 3510-22-P


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