[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Notices]
[Pages 56589-56601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19889]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE435


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys off 
the Coast of Massachusetts

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA), notification is hereby given that NMFS has 
issued an Incidental Harassment Authorization (IHA) to Bay State Wind 
LLC (Bay State Wind) to take marine mammals, by harassment, incidental 
to high-resolution geophysical (HRG) and geotechnical survey 
investigations associated with marine site characterization activities 
off the coast of Massachusetts in the area of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0500) (the Lease Area).

DATES: Effective August 13, 2016, through August 12, 2017.

FOR FURTHER INFORMATION CONTACT: John Fiorentino, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Availability

    An electronic copy of Bay State Wind's IHA application (the 
application) and supporting documents, as well as a list of the 
references cited in this document, may be obtained by visiting the 
Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/. In case 
of problems accessing these documents, please call the contact listed 
above (see FOR FURTHER INFORMATION CONTACT).

Background

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

Summary of Request

    On December 4, 2015, NMFS received an application from Bay State 
Wind for the taking of marine mammals incidental to spring 2016 
geophysical survey investigations off the coast of Massachusetts in the 
OCS-A 0500 Lease Area, designated and offered by the U.S. Bureau of 
Ocean Energy Management (BOEM), to support the development of an 
offshore wind project. NMFS determined that the application was 
adequate and complete on January 27, 2016. On January 20, 2016, Bay 
State Wind submitted a separate request for the taking of marine 
mammals incidental to proposed geotechnical

[[Page 56590]]

survey activities within the Lease Area scheduled for fall 2016. On 
February 26, 2016, Bay State Wind submitted a revision to the take 
request for the geotechnical activities and an addendum requesting that 
the two IHA requests be processed as a single application and IHA. NMFS 
determined that the combined application was adequate and complete on 
February 26, 2016. NMFS published a notice making preliminary 
determinations and proposing to issue an IHA on April 5, 2016 (81 FR 
19557). The notice initiated a 30-day comment period.
    The proposed geophysical survey activities would occur for four 
weeks beginning in August 2016, and geotechnical survey activities 
would take place in September 2016 and last for approximately 6 days. 
The following specific aspects of the proposed activities are likely to 
result in the take of marine mammals: shallow and medium-penetration 
sub-bottom profiler (chirper and sparker) and equipment positioning 
system (also referred to as acoustic positioning system, or pinger) use 
during the HRG survey, and dynamically positioned (DP) vessel thruster 
use in support of geotechnical survey activities. Take, by Level B 
Harassment only, of individuals of nine species of marine mammals is 
anticipated to result from the specified activities.

Description of the Specified Activity

Overview

    Bay State Wind's proposed activities discussed here are based on 
its February 26, 2016, final IHA application. Bay State Wind proposes 
to conduct a geophysical and geotechnical survey in the Lease Area to 
support the characterization of the existing seabed and subsurface 
geological conditions in the Lease Area. This information is necessary 
to support the siting and design of up to two floating light and 
detection ranging buoys (FLIDARs) and up to two metocean monitoring 
buoys, as well as to obtain a baseline assessment of seabed/sub-surface 
soil conditions in the Bay State Wind Massachusetts Lease Area to 
support the siting of the proposed wind farm.

Dates and Duration

    HRG surveys are anticipated to commence in August 2016 and will 
last for approximately 30 days. Geotechnical surveys requiring the use 
of the DP drill ship will take place in September 2016, at the 
earliest, and will last for approximately 6 days.

Specified Geographic Region

    Bay State Wind's survey activities will occur in the approximately 
187,532-acre Lease Area designated and offered by BOEM, located 
approximately 14 miles (mi) south of Martha's Vineyard, Massachusetts, 
at its closest point (see Figure 1-1 of the application). The Lease 
Area falls within the Massachusetts Wind Energy Area (MA WEA; Figure 1-
1 of the application). An evaluation of site assessment activities 
within the MA WEA was fully assessed in the BOEM Environmental 
Assessment (EA) and associated Finding of No Significant Impact (BOEM 
2014). A Biological Opinion on site assessment activities within the MA 
WEA was issued by NMFS' Greater Atlantic Regional Fisheries Office 
(formerly Northeast Regional Office) to BOEM in April 2013.

Detailed Description of Activities

    The Federal Register notice for the proposed IHA (81 FR 19557; 
April 5, 2016; pages 19558-19560) contains a full detailed description 
of the geotechnical and geophysical survey activities, including the 
sources proposed to be used and vessel details. That information has 
not changed and is therefore not repeated here.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Bay State Wind was 
published in the Federal Register on April 5, 2016 (81 FR 19557). That 
notice described, in detail, Bay State Wind's proposed activities, the 
marine mammal species that may be affected by the proposed activities, 
and the anticipated effects on marine mammals and their habitat. During 
the 30-day public comment period, NMFS only received comments from the 
Marine Mammal Commission (Commission). Specific comments and responses 
are provided below. Comments are also posted at http://www.nmfs.noaa.gov/pr/permits/incidental/.
    Comment 1: The Commission recommended a 24-hour ``reset'' for 
enumerating takes by applying standard rounding rules before summing 
the numbers of estimated takes across days. The Commission has made 
similar rounding recommendations for other recent proposed incidental 
harassment authorizations.
    Response: NMFS generally does not round take calculations to derive 
a daily take estimate prior to summing values across total project 
days. Rather, we apply standard rounding rules at the end of our 
calculations, which we feel results in a more accurate estimation of 
takes over the duration of the project and authorization. NMFS 
appreciates the Commission's recommendation and concurs that a 
consistent approach to estimating potential takes, where appropriate, 
is important. We will consider the Commission's recommended methodology 
on an action-specific basis.
    Comment 2: The Commission recommended that NMFS revise its take 
estimates for harbor and gray seals by removing the 80 percent 
reduction factor that was used to calculate takes in Bay State Wind's 
application and in the proposed IHA (81 FR 19557; ``Estimated Take by 
Incidental Harassment,'' pages 19573-19575).
    Response: NMFS agrees with the Commission's recommendation to no 
longer use a reduction factor to estimate harbor and gray seal 
densities in the project area. In the proposed IHA, NMFS had applied an 
80 percent reduction factor for harbor and gray seal densities based on 
the presumption that original density estimates for the project area 
were an overestimation because they included breeding populations of 
Cape Cod (Schroeder 2000; Ronald and Gots 2003). NMFS has since 
determined that the findings used to inform that reduction factor are 
outdated and do not accurately reflect the average annual rate of 
population increase (especially for gray seal) (refer to Waring et al., 
2015 for information on population size and current population trend), 
and this reduction factor is no longer appropriate for calculating 
takes for harbor and gray seals. NMFS has revised the take estimates 
accordingly for harbor and gray seals in this final IHA, using the 
densities reported in the Northeast Navy Operations Area (OPAREA) 
Density Estimates (see Table 3). Despite the resulting increase in take 
numbers for harbor and gray seals, estimated takes continue to 
represent extremely small numbers (less than 1 percent) relative to the 
affected species or stock sizes. NMFS will continue to advise future 
applicants to use up to date density estimates that reflect best 
available information for harbor and gray seals (and other marine 
mammals) as these data become available.
    Comment 3: The Commission recommended that until behavior 
thresholds are updated, that NMFS require applicants to use the 120-dB 
rather than 160-dB Level B harassment threshold for sub-bottom 
profilers. The Commission has made similar comments on other NMFS 
authorizations (e.g., ExxonMobil Alaska liquefied natural gas 
geophysical surveys; NMFS Fisheries Science Center fisheries research) 
proposed for

[[Page 56591]]

activities using acoustic non-impulsive sources, including sub-bottom 
profilers, echosounders, and other sonars (e.g., side scan and fish-
finding).
    Response: The 120-dB threshold is typically associated with 
continuous sources. Continuous sounds are those whose sound pressure 
level remains above that of the ambient sound, with negligibly small 
fluctuations in level (NIOSH 1998; ANSI 2005). Intermittent sounds are 
defined as sounds with interrupted levels of low or no sound (NIOSH 
1998). Sub-bottom profiler signals are intermittent sounds. 
Intermittent sounds can further be defined as either impulsive or non-
impulsive. Impulsive sounds have been defined as sounds which are 
typically transient, brief (<1 second), broadband, and consist of a 
high peak pressure with rapid rise time and rapid decay (ANSI 1986; 
NIOSH 1998). Non-impulsive sounds typically have more gradual rise 
times and longer decays (ANSI 1995; NIOSH 1998). Sub-bottom profiler 
signals have durations that are typically very brief (<1 second), with 
temporal characteristics that more closely resemble those of impulsive 
sounds than non-impulsive sounds. With regard to behavioral thresholds, 
we therefore consider the temporal and spectral characteristics of sub-
bottom profiler signals to more closely resemble those of an impulse 
sound rather than a continuous sound. The 160-dB threshold is typically 
associated with impulsive sources.
    The Commission has suggested that, for certain sources considered 
here, the interval between pulses is so small it should be considered 
continuous. However, a sub-bottom profiler chirp's pulse train is 
emitted in a similar fashion as odontocete echolocation click trains. 
Research indicates that marine mammals, in general, have extremely fine 
auditory temporal resolution and can detect each signal separately 
(e.g., Au et al., 1988; Dolphin et al., 1995; Supin and Popov 1995; 
Mooney et al., 2009), especially for species with echolocation 
capabilities. Therefore, it is highly unlikely that marine mammals 
would perceive sub-bottom profiler signals as being continuous.
    In conclusion, sub-bottom profiler signals are intermittent rather 
than continuous signals, and the fine temporal resolution of the marine 
mammal auditory system allows them to perceive these sounds as such. 
Further, the physical characteristics of these signals indicate a 
greater similarity to the way that intermittent, impulsive sounds are 
received. Therefore, the 160-dB threshold (typically associated with 
impulsive sources) is more appropriate than the 120-dB threshold 
(typically associated with continuous sources) for estimating takes by 
behavioral harassment incidental to use of such sources.
    NMFS agrees with the Commission's recommendation to update existing 
acoustic criteria and thresholds as necessary to specify threshold 
levels that would be more appropriate for a wider range of sound 
sources, and is currently in the process of producing such revisions. 
In particular, NMFS recognizes the importance of context (e.g., 
behavioral state of the animals, distance) in behavioral responses. The 
current behavioral categorization (i.e., impulse vs. continuous) does 
not account for context and is not appropriate for all sound sources. 
Thus, updated NMFS Acoustic Guidance (http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm), once finalized, will more appropriately 
categorize behavioral harassment criteria by activity type. NMFS 
recognizes, as new science becomes available, that our current 
categorizations (i.e., impulse vs. continuous) may not fully encompass 
the complexity associated with behavioral responses (i.e., context, 
etc.) and are working toward addressing these issues in future acoustic 
guidance. However, in the meanwhile, while our current behavioral 
acoustic thresholds may not fully account for some of the differences 
observed across taxa and contexts, they still serve as somewhat 
conservative generalized indicators of received levels at which we 
anticipate behavioral harassment, and are not undermined by newer 
information.
    Comment 4: The Commission commented that the number of days used to 
estimate takes for the planned HRG and geotechnical surveys was 
determined in an inconsistent manner. The Commission recommended that 
if NMFS plans to include weather contingency days in its calculation of 
takes for HRG surveys it should also include weather contingency days 
for the geotechnical surveys as well.
    Response 4: The notice of the proposed IHA was not clear regarding 
NMFS' consideration of weather contingency days in the calculating of 
takes. To clarify, additional days for weather downtime were not 
factored into the calculation of takes for either the HRG or 
geotechnical surveys. Takes for the HRG survey were calculated based on 
the 30 days estimated for completion of that survey effort, and takes 
for the geotechnical survey were based on a total of 6 days of survey 
work. There was no difference in NMFS' approach to calculating takes 
for these two survey activities.
    Comment 5: The Commission recommended that NMFS work with the BOEM 
Office of Renewable Energy to develop clear and consistent guidance for 
applicants regarding appropriate mitigation measures and the 
circumstances under which adoption of such measures would avoid the 
potential for taking marine mammals and the need for an incidental 
harassment authorization. The Commission further recommended that NMFS 
use a consistent approach for reducing (or not reducing) the numbers of 
estimated takes based on the requirement to implement mitigation 
measures to preclude taking in the respective Level B harassment zones.
    Response 5: NMFS agrees with the Commission that close coordination 
with BOEM is needed to maintain appropriate and consistent guidance for 
potential applicants, including with regards to mitigation and 
monitoring strategies that might potentially reduce the potential for 
taking marine mammals or preclude the need for a MMPA authorization. 
NMFS has been working closely with BOEM to develop a stage-based 
approach to mitigation, monitoring, and reporting for each stage of 
offshore wind farm development. This is especially important in light 
of the growing potential for OCS wind farm development in the Atlantic, 
where there is uncertainty regarding impacts and in which an applicant 
may need to engage in multi-regulatory and compliance efforts and 
processes that involve other agencies (e.g., BOEM, Federal Energy 
Regulatory Commission, U.S. Army Corps of Engineers) who may include 
standard mitigation measures for protected species as part of their 
compliance requirements. Often these compliance efforts occur well 
before an applicant considers an MMPA authorization (as an example, the 
mitigation requirements and other standard operating conditions for the 
geophysical and geotechnical activities covered by the BOEM Lease OCS-A 
0500 were developed over a year ago).
    NMFS appreciates the Commission's recommendation and concurs that a 
consistent approach to estimating potential takes, where appropriate, 
is important. With few exceptions (e.g., pile-driving activities in 
Cook Inlet--as referenced in the Commission's comment letter), NMFS 
generally does not factor in the implementation of mitigation measures 
to reduce Level B harassment takes in its MMPA authorizations. Rather, 
we base our analysis and negligible impact determinations on the actual 
number of

[[Page 56592]]

takes that are authorized and without accounting for any potential 
post-mitigation reductions in take numbers. In the case of this IHA, 
and despite the fact that the total number of takes authorized is 
unlikely to actually occur due to the very restrictive mitigation 
measures (e.g., shutdown/powerdown if an animal enters the Level B 
harassment isopleths), it was NMFS' opinion that some Level B takes 
would still occur due to the nature and duration of the survey 
activities within these harassment zones (e.g., night time operations; 
large [up to 3.4 km] Level B harassment zones in some cases) and the 
potential to take listed species (as corroborated by the 2013 
Biological Opinion), thus, warranting the issuance of an MMPA 
authorization.

Description of Marine Mammals in the Area of the Specified Activity

    The ``Description of Marine Mammals in the Area of the Specified 
Activities'' section has not changed from what was in the proposed IHA 
(81 FR 19557; April 5, 2016; pages 19560-19561). The following species 
are both common in the waters of the Northwest Atlantic Outer 
Continental Shelf (OCS) region south of Massachusetts and have the 
highest likelihood of occurring, at least seasonally, in the Lease 
Area: North Atlantic right whale (Eubalaena glacialis), humpback whale 
(Megaptera novaeangliae), fin whale (Balaenoptera physalus), minke 
whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena 
phocoena), Atlantic white-sided dolphin (Lagenorhynchus acutus), short-
beaked common dolphin (Delphinus delphis), harbor seal (Phoca 
vitulina), and gray seal (Halichorus grypus). Three of these species 
are listed under the Endangered Species Act (ESA): North Atlantic right 
whale, humpback whale, and fin whale.
    Further information on the biology, ecology, abundance, and 
distribution of those species likely to occur in the Lease Area can be 
found in Bay State Wind's application and in the NMFS Marine Mammal 
Stock Assessment Reports (see Waring et al., 2015), which are available 
online at: http://www.nmfs.noaa.gov/pr/species/mammals.

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    We provided a detailed discussion of the potential effects of the 
specified activity on marine mammals and their habitat in the notice of 
the proposed IHA (81 FR 19557; April 5, 2016; pages 19561-19567). That 
information has not changed and is not repeated here.

Mitigation

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses (where relevant).

Mitigation Measures

    With NMFS' input during the application process, and as per the 
BOEM Lease, Bay State Wind shall implement the following mitigation 
measures during site characterization surveys utilizing HRG survey 
equipment and use of the DP thruster. The mitigation measures outlined 
in this section are based on protocols and procedures that have been 
successfully implemented for similar offshore projects and previously 
approved by NMFS (ESS 2013; Dominion 2013 and 2014).

Marine Mammal Exclusion Zones

    Protected species observers (PSOs) shall monitor the following 
exclusion/monitoring zones for the presence of marine mammals:
     A 400-m exclusion zone during HRG surveys when the sub-
bottom profiler is in operation.
     A 200-m exclusion zone during HRG surveys when all other 
equipment (i.e., equipment positioning systems) is in operation.
     A 3,500-m monitoring zone during the use of DP thrusters 
during geotechnical survey activities.
    The radial distances from the sound sources for these exclusion/
monitoring zones were derived from acoustic modeling (see Appendix A of 
the application) and cover the area for both the Level A and Level B 
harassment zones (i.e., the 190/180 dB and 160 dB isopleths, 
respectively) when HRG survey equipment is in use, and the Level B 
harassment zone (the 120 dB isopleth) when DP thrusters are in use; DP 
thrusters will not produce sound levels at 180 dB re 1 [mu]Pa (rms). 
Acoustic modeling of the HRG survey equipment and DP thrusters was 
completed based on a version of the U.S. Naval Research Laboratory's 
Range-dependent Acoustic Model (RAM) and BELLHOP Gaussian beam ray-
trace propagation model (Porter and Liu, 1994). The representative area 
ensonified to the Level B harassment threshold for each of the pieces 
of HRG survey equipment and for the DP thruster use represents the zone 
within which take of a marine mammal could occur. The distances to the 
Level A and Level B harassment thresholds were used to support the 
estimate of take as well as the development of the monitoring and/or 
mitigation measures. The complete acoustic modeling assessment can be 
found in Appendix A of the application, and is also summarized in the 
notice of the proposed IHA (81 FR 19557; April 5, 2016; pages 19567-
19568). Radial distance to NMFS' Level A and Level B harassment 
thresholds are summarized in Tables 1 and 2.

               Table 1--Modeled Distances to MMPA Thresholds for Marine Mammals During HRG Survey
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                                         Marine mammal  Level A harassment    Marine mammal  Level B harassment
             HRG equipment                   180 dBRMS re 1 [mu]Pa (m)*           160 dBRMS re 1 [mu]Pa (m)
----------------------------------------------------------------------------------------------------------------
ixBlue GAPS (pinger)..................  <10................................  25
Sonardyne Scout USBL (pinger).........  0..................................  25
GeoPulse Sub-bottom Profiler (chirper)  30.................................  75
Geo-Source 800 (sparker)..............  80.................................  250
Geo-Source 200 (sparker)..............  90.................................  380
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* Distances to NMFS' 190 dB Level A harassment threshold for pinnipeds are smaller.


[[Page 56593]]


 Table 2--Modeled Distances to MMPA Thresholds for Marine Mammals During Geotechnical Survey Using DP Thrusters
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                                         Marine mammal  Level A harassment    Marine mammal  Level B harassment
           Survey equipment                  180 dBRMS re 1 [mu]Pa (m)            120 dBRMS re 1 [mu]Pa (m)
----------------------------------------------------------------------------------------------------------------
DP Thrusters--at 38 m depth...........  N/A................................  2,875
DP Thrusters--at 44 m depth...........  N/A................................  3,225
DP Thrusters--at 54 m depth...........  N/A................................  3,400
----------------------------------------------------------------------------------------------------------------

    Visual monitoring of the established exclusion zone(s) for the HRG 
and geotechnical surveys will be performed by qualified and NMFS-
approved PSOs, the resumes of whom will be provided to NMFS for review 
and approval prior to the start of survey activities. Observer 
qualifications will include direct field experience on a marine mammal 
observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of 
Mexico. An observer team comprising a minimum of four NMFS-approved 
PSOs and two certified Passive Acoustic Monitoring (PAM) operators (PAM 
operators will not function as PSOs), operating in shifts, will be 
stationed aboard either the survey vessel or a dedicated PSO-vessel. 
PSOs and PAM operators will work in shifts such that no one monitor 
will work more than four consecutive hours without a two-hour break or 
longer than 12 hours during any 24-hour period. During daylight hours 
the PSOs will rotate in shifts of one on and three off, while during 
nighttime operations PSOs will work in pairs. The PAM operators will 
also be on call as necessary during daytime operations should visual 
observations become impaired. Each PSO will monitor 360 degrees of the 
field of vision.
    PSOs will be responsible for visually monitoring and identifying 
marine mammals approaching or within the established exclusion zone(s) 
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 and enforce the action(s) that are necessary to ensure 
mitigation and monitoring requirements are implemented as appropriate. 
PAM operators will communicate detections/vocalizations to the Lead PSO 
on duty, who will then be responsible for implementing the necessary 
mitigation procedures. A mitigation and monitoring communications flow 
diagram has been included as Appendix B in the IHA application.
    PSOs will be equipped with binoculars and have the ability to 
estimate distances to marine mammals located in proximity to the vessel 
and/or exclusion zone using range finders. Reticulated binoculars will 
also be available to PSOs for use as appropriate based on conditions 
and visibility to support the siting and monitoring of marine species. 
Digital single-lens reflex camera equipment will be used to record 
sightings and verify species identification. During night operations or 
when visual observation is otherwise impaired (e.g., during bad 
weather, rough sea conditions, poor lighting conditions), PAM (see 
Passive Acoustic Monitoring requirements below) and night-vision 
devices with infrared light-emitting diodes spotlights, in combination 
with infrared video monitoring, will be used (for additional details 
regarding proposed PAM, night-vision, and infrared technologies, refer 
to Section 2.5 Alternative Monitoring Plan in the Bay State Wind 
Offshore Wind Farm Site Assessment Plan [SAP] Survey Plan [BOEM 2016], 
which was submitted pursuant to Addendum C, Lease Stipulation 2.1.1.1 
of the BOEM Lease). Position data will be recorded using hand-held or 
vessel global positioning system (GPS) units for each sighting.
    The PSOs will begin observation of the exclusion zone(s) at least 
60 minutes prior to ramp-up of HRG survey equipment. Use of noise-
producing equipment will not begin until the exclusion zone is clear of 
all marine mammals for at least 60 minutes, as per the requirements of 
the BOEM Lease.
    If a marine mammal is detected approaching or entering the 200-m or 
400-m exclusion zones during the HRG survey, or the 3,500-m monitoring 
zone during DP thrusters use, the vessel operator would adhere to the 
shutdown (during HRG survey) or powerdown (during DP thruster use) 
procedures described below to minimize noise impacts on the animals.
    At all times, the vessel operator will maintain a separation 
distance of 500 m from any sighted North Atlantic right whale as 
stipulated in the Vessel Strike Avoidance procedures described below. 
These stated requirements will be included in the site-specific 
training to be provided to the survey team.

Vessel Strike Avoidance

    Bay State Wind will ensure that vessel operators and crew maintain 
a vigilant watch for cetaceans and pinnipeds and slow down or stop 
their vessels to avoid striking these species. Survey vessel crew 
members responsible for navigation duties will receive site-specific 
training on marine mammal and sea turtle sighting/reporting and vessel 
strike avoidance measures. Vessel strike avoidance measures will 
include the following, except under extraordinary circumstances when 
complying with these requirements would put the safety of the vessel or 
crew at risk:
     All vessel operators will comply with 10 knot (<18.5 km 
per hour [km/h]) speed restrictions in any Dynamic Management Area 
(DMA). In addition, all vessels operating from November 1 through July 
31 will operate at speeds of 10 knots (<18.5 km/h) or less.
     All survey vessels will maintain a separation distance of 
500 m or greater from any sighted North Atlantic right whale.
     If underway, vessels must steer a course away from any 
sited North Atlantic right whale at 10 knots (<18.5 km/h) or less until 
the 500 m minimum separation distance has been established. If a North 
Atlantic right whale is sited in a vessel's path, or within 100 m to an 
underway vessel, the underway vessel must reduce speed and shift the 
engine to neutral. Engines will not be engaged until the North Atlantic 
right whale has moved outside of the vessel's path and beyond 100 m. If 
stationary, the vessel must not engage engines until the North Atlantic 
right whale has moved beyond 100 m.
     All vessels will maintain a separation distance of 100 m 
or greater from any sighted non-delphinoid (i.e., mysticetes and sperm 
whales) cetaceans. If sighted within 100 m, the vessel underway must 
reduce speed and shift the engine to neutral, and must not engage the 
engines until the non-delphinoid cetacean has moved outside of the 
vessel's path and beyond 100 m.

[[Page 56594]]

If a survey vessel is stationary, the vessel will not engage engines 
until the non-delphinoid cetacean has moved out of the vessel's path 
and beyond 100 m.
     All vessels will maintain a separation distance of 50 m or 
greater from any sighted delphinoid cetacean. Any vessel underway will 
remain parallel to a sighted delphinoid cetacean's course whenever 
possible, and avoid excessive speed or abrupt changes in direction. Any 
vessel underway will reduce vessel speed to 10 knots or less when pods 
(including mother/calf pairs) or large assemblages of delphinoid 
cetaceans are observed. Vessels may not adjust course and speed until 
the delphinoid cetaceans have moved beyond 50 m and/or abeam (i.e., 
moving away and at a right angle to the centerline of the vessel) of 
the underway vessel.
     All vessels will maintain a separation distance of 50 m 
(164 ft) or greater from any sighted pinniped.
    The training program will be provided to NMFS for review and 
approval prior to the start of surveys. Confirmation of the training 
and understanding of the requirements will be documented on a training 
course log sheet. Signing the log sheet will certify that the crew 
members understand and will comply with the necessary requirements 
throughout the survey event.

Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team will consult 
the NMFS North Atlantic right whale reporting systems for the presence 
of North Atlantic right whales throughout survey operations. The 
proposed survey activities will, however, occur outside of the seasonal 
management area (SMA) located off the coast of Massachusetts and Rhode 
Island. The proposed survey activities will also occur in August and 
September, which is outside of the seasonal mandatory speed restriction 
period for this SMA (November 1 through April 30).
    Throughout all survey operations, Bay State Wind will monitor the 
NMFS North Atlantic right whale reporting systems for the establishment 
of a DMA. If NMFS should establish a DMA in the Lease Area under 
survey, within 24 hours of the establishment of the DMA Bay State Wind 
will work with NMFS to shut down and/or alter the survey activities to 
avoid the DMA.

Passive Acoustic Monitoring

    As per the BOEM Lease, alternative monitoring technologies (e.g., 
active or passive acoustic monitoring) are required if a Lessee intends 
to conduct geophysical or geotechnical surveys at night or when visual 
observation is otherwise impaired (e.g., during bad weather, rough sea 
conditions, poor lighting conditions). To support 24-hour survey 
operations, Bay State Wind will use certified PAM operators with 
experience reviewing and identifying recorded marine mammal 
vocalizations, as part of the project monitoring during nighttime 
operations to provide for optimal acquisition of species detections at 
night, or as needed during periods when visual observations may be 
impaired. In addition, PAM systems shall be employed during daylight 
hours to support system calibration and PSO and PAM team coordination, 
as well as in support of efforts to evaluate the effectiveness of the 
various mitigation techniques (i.e., visual observations during day and 
night, compared to the PAM detections/operations).
    Given the range of species that could occur in the Lease Area, and 
that these species vary with regard to their vocalization frequencies 
(high vs. low), the PAM system will consist of an array of hydrophones 
with both broadband (sampling frequencies of 2 kHz to 200 kHz) and at 
least one low-frequency hydrophone (sampling range frequencies of 10 Hz 
to 30 kHz). Monitoring of the PAM system will be conducted from a 
customized processing station aboard the survey vessel. The on-board 
processing station provides the interface between the PAM system and 
the operator. The PAM operator(s) will monitor the hydrophone signals 
in real time both aurally (using headphones) and visually (via the 
monitor screen displays). Bay State Wind proposes the use of PAMGuard 
software for `target motion analysis' to support localization in 
relation to the identified exclusion zone. PAMGuard is an open source 
and versatile software/hardware interface to enable flexibility in the 
configuration of in-sea equipment (number of hydrophones, 
sensitivities, spacing, and geometry). PAM operators will immediately 
communicate detections/vocalizations to the Lead PSO on duty who will 
ensure the implementation of the appropriate mitigation measure (e.g., 
shutdown) even if visual observations by PSOs have not been made.
    Additional details regarding the proposed PAM system can be found 
in Section 2.5 Alternative Monitoring Plan in the Bay State Wind 
Offshore Wind Farm SAP Survey Plan (BOEM, 2016).

Ramp-Up

    As per the BOEM Lease, a ramp-up procedure will be used for HRG 
survey equipment capable of adjusting energy levels at the start or re-
start of HRG survey activities. A ramp-up procedure will be used at the 
beginning of HRG survey activities in order to provide additional 
protection to marine mammals near the Lease Area by allowing them to 
vacate the area prior to the commencement of survey equipment use. The 
ramp-up procedure will not be initiated during daytime, night time, or 
periods of inclement weather if the exclusion zone cannot be adequately 
monitored by the PSOs using the appropriate visual technology (e.g., 
reticulated binoculars, night vision equipment) and/or PAM for a 60-
minute period. A ramp-up would begin with the power of the smallest 
acoustic HRG equipment at its lowest practical power output appropriate 
for the survey. The power would then be gradually turned up and other 
acoustic sources added such that the source level would increase in 
steps not exceeding 6 dB per 5-minute period. If marine mammals are 
detected within the HRG survey exclusion zone prior to or during the 
ramp-up, activities will be delayed until the animal(s) has moved 
outside the monitoring zone and no marine mammals are detected for a 
period of 60 minutes.

Shutdown and Powerdown

    HRG Survey--The exclusion zone(s) around the noise-producing 
activities HRG survey equipment will be monitored, as previously 
described, by PSOs and at night by PAM operators for the presence of 
marine mammals before, during, and after any noise-producing activity. 
The vessel operator must comply immediately with any call for shutdown 
by the Lead PSO. Any disagreement should be discussed only after 
shutdown.
    As per the BOEM Lease, if a non-delphinoid (i.e., mysticetes and 
sperm whales) cetacean is detected at or within the established 
exclusion zone (200-m exclusion zone during equipment positioning 
systems use; 400-m exclusion zone during the operation of the sub-
bottom profiler), an immediate shutdown of the HRG survey equipment is 
required. Subsequent restart of the electromechanical survey equipment 
must use the ramp-up procedures described above and may only occur 
following clearance of the exclusion zone for 60 minutes. These are 
conservative shutdown zones, as the 200 and 400-m exclusion radii 
exceed the distances to the estimated Level B harassment isopleths 
(Table 1).
    As per the BOEM Lease, if a delphinoid cetacean or pinniped is 
detected at or within the exclusion zone, the HRG survey equipment 
(including the sub-bottom profiler) must

[[Page 56595]]

be powered down to the lowest power output that is technically 
feasible. Subsequent power up of the survey equipment must use the 
ramp-up procedures described above and may occur after (1) the 
exclusion zone is clear of a delphinoid cetacean and/or pinniped for 60 
minutes or (2) a determination by the PSO after a minimum of 10 minutes 
of observation that the delphinoid cetacean or pinniped is approaching 
the vessel or towed equipment at a speed and vector that indicates 
voluntary approach to bow-ride or chase towed equipment.
    If the HRG sound source (including the sub-bottom profiler) shuts 
down for reasons other than encroachment into the exclusion zone by a 
marine mammal including but not limited to a mechanical or electronic 
failure, resulting in the cessation of sound source for a period 
greater than 20 minutes, a restart for the HRG survey equipment 
(including the sub-bottom profiler) is required using the full ramp-up 
procedures and clearance of the exclusion zone of all cetaceans and 
pinnipeds for 60 minutes. If the pause is less than 20 minutes, the 
equipment may be restarted as soon as practicable at its operational 
level as long as visual surveys were continued diligently throughout 
the silent period and the exclusion zone remained clear of cetaceans 
and pinnipeds. If the visual surveys were not continued diligently 
during the pause of 20 minutes or less, a restart of the HRG survey 
equipment (including the sub-bottom profiler) is required using the 
full ramp-up procedures and clearance of the exclusion zone for all 
cetaceans and pinnipeds for 60 minutes.
    Geotechnical Survey (DP Thrusters)-- During geotechnical survey 
activities, a constant position over the drill, coring, or deep cone 
penetration test site must be maintained to ensure the integrity of the 
survey equipment. Any stoppage of DP thruster during the proposed 
geotechnical activities has the potential to result in significant 
damage to survey equipment. Therefore, during geotechnical survey 
activities if marine mammals enter or approach the established 3,500-m 
120 dB isopleth monitoring zone, Bay State Wind shall reduce DP 
thruster to the maximum extent possible, except under circumstances 
when reducing DP thruster use would compromise safety (both human 
health and environmental) and/or the integrity of the equipment. 
Reducing thruster energy will effectively reduce the potential for 
exposure of marine mammals to sound energy. After decreasing thruster 
energy, PSOs will continue to monitor marine mammal behavior and 
determine if the animal(s) is moving towards or away from the 
established monitoring zone. If the animal(s) continues to move towards 
the sound source then DP thruster use would remain at the reduced 
level. Normal use will resume when PSOs report that the marine mammals 
have moved away from and remained clear of the monitoring zone for a 
minimum of 60 minutes since the last sighting.

Mitigation Conclusions

    NMFS has carefully evaluated Bay State Wind's mitigation measures 
in the context of ensuring that we prescribe the means of effecting the 
least practicable impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed here:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of activities that we expect to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of activities that we expect to result in the take 
of marine mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of activities that we expect to result in the take of marine 
mammals (this goal may contribute to 1, above, or to reducing the 
severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the proposed measures, as well as other 
measures considered by NMFS, NMFS has determined that the proposed 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammals 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 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in our understanding of the likely occurrence of 
marine mammal species in the vicinity of the action, i.e., presence, 
abundance, distribution, and/or density of species.
    2. An increase in our understanding of the nature, scope, or 
context of the likely exposure of marine mammal species to any of the 
potential stressor(s) associated with the action (e.g., sound or visual 
stimuli), through better understanding of one or more of the following: 
The action itself and its environment (e.g., sound source 
characterization, propagation, and ambient noise levels); the affected 
species (e.g., life history or dive pattern); the likely co-occurrence 
of marine mammal species with the action (in whole or part) associated 
with specific adverse effects; and/or the likely biological or 
behavioral context of exposure to the stressor for the marine

[[Page 56596]]

mammal (e.g., age class of exposed animals or known pupping, calving, 
or feeding areas).
    3. An increase in our understanding of how individual marine 
mammals respond (behaviorally or physiologically) to the specific 
stressors associated with the action (in specific contexts, where 
possible, e.g., at what distance or received level).
    4. An increase in our understanding of how anticipated individual 
responses, to individual stressors or anticipated combinations of 
stressors, may impact either: The long-term fitness and survival of an 
individual; or the population, species, or stock (e.g., through effects 
on annual rates of recruitment or survival).
    5. An increase in our understanding of how the activity affects 
marine mammal habitat, such as through effects on prey sources or 
acoustic habitat (e.g., through characterization of longer-term 
contributions of multiple sound sources to rising ambient noise levels 
and assessment of the potential chronic effects on marine mammals).
    6. An increase in understanding of the impacts of the activity on 
marine mammals in combination with the impacts of other anthropogenic 
activities or natural factors occurring in the region.
    7. An increase in our understanding of the effectiveness of 
mitigation and monitoring measures.
    8. An increase in the probability of detecting marine mammals 
(through improved technology or methodology), both specifically within 
the safety zone (thus allowing for more effective implementation of the 
mitigation) and in general, to better achieve the above goals.

Monitoring Measures

    Bay State Wind submitted a marine mammal monitoring and reporting 
plan as part of the IHA application.
    Visual Monitoring--Visual monitoring of the established Level B 
harassment zones (400-m radius for sub-bottom profiler and 200-m radius 
for equipment positioning system use during HRG surveys [note that 
these are the same as the mitigation exclusion/shutdown zones 
established for HRG survey sound sources]; 3,500-m radius during DP 
thruster use [note that this is the same as the mitigation powerdown 
zone established for DP thruster sound sources]) will be performed by 
qualified and NMFS-approved PSOs (see discussion of PSO qualifications 
and requirements in Marine Mammal Exclusion Zones above).
    The PSOs will begin observation of the monitoring zone during all 
HRG survey activities and all geotechnical operations where DP 
thrusters are employed. Observations of the monitoring zone will 
continue throughout the survey activity and/or while DP thrusters are 
in use. PSOs will be responsible for visually monitoring and 
identifying marine mammals approaching or entering the established 
monitoring zone during survey activities.
    Observations will take place from the highest available vantage 
point on the survey vessel. General 360 degree scanning will occur 
during the monitoring periods, and target scanning by the PSO will 
occur when alerted of a marine mammal presence.
    Data on all PSO observations will be recorded based on standard PSO 
collection requirements. This will include dates and locations of 
survey operations; vessel activity during sighting, time and location 
(i.e., distance from sound source) of observation; weather conditions 
(i.e., percent cloud cover, visibility, percent glare); water 
conditions (i.e., Beaufort sea-state, tidal state, swell); details of 
the sightings (species, description of observed animal, sex, age 
classification [if known], numbers); and reaction of the animal(s) to 
relevant sound source (if any) and observed animal behavior (e.g., 
avoidance, approach), including bearing and direction of travel. The 
data sheet will be provided to both NMFS and BOEM for review and 
approval prior to the start of survey activities. In addition, prior to 
initiation of survey work, all crew members will undergo environmental 
training, a component of which will focus on the procedures for 
sighting and protection of marine mammals. A briefing will also be 
conducted between the survey supervisors and crews, the PSOs, and Bay 
State Wind. The purpose of the briefing will be to establish 
responsibilities of each party, define the chains of command, discuss 
communication procedures, provide an overview of monitoring purposes, 
and review operational procedures.
    Acoustic Field Verification--As per the requirements of the BOEM 
Lease, field verification of the exclusion/monitoring zones will be 
conducted to determine whether the proposed zones correspond accurately 
to the relevant isopleths and are adequate to minimize impacts to 
marine mammals. The details of the field verification strategy will be 
provided in a Field Verification Plan no later than 45 days prior to 
the commencement of field verification activities.
    Bay State Wind must conduct field verification of the exclusion 
zone (the 160 dB isopleth) for HRG survey equipment and the powerdown 
zone (the 120 dB isopleth) for DP thruster use for all equipment 
operating below 200 kHz. Bay State Wind must take acoustic measurements 
at a minimum of two reference locations and in a manner that is 
sufficient to establish source level (peak at 1 meter) and distance to 
the 180 dB and 160 dB isopleths (the Level A and B harassment zones for 
HRG surveys) and 120 dB isopleth (the Level B harassment zone) for DP 
thruster use. Sound measurements must be taken at the reference 
locations at two depths (i.e., a depth at mid-water and a depth at 
approximately 1 meter [3.28 ft] above the seafloor).
    Bay State Wind may use the results from its field-verification 
efforts to request modification of the exclusion/monitoring zones for 
the HRG or geotechnical surveys. Any new exclusion/monitoring zone 
radius proposed by Bay State Wind must be based on the most 
conservative measurements (i.e., the largest safety zone configuration) 
of the target Level A or Level B harassment acoustic threshold zones. 
The modified zone must be used for all subsequent use of field-verified 
equipment. Bay State Wind must obtain approval from NMFS and BOEM of 
any new exclusion/monitoring zone before it may be implemented.

Reporting Measures

    Bay State Wind will provide the following reports as necessary 
during survey activities:
     Bay State Wind will contact NMFS and BOEM within 24 hours 
of the commencement of survey activities and again within 24 hours of 
the completion of the activity.
     As per the BOEM Lease: Any observed significant behavioral 
reactions (e.g., animals departing the area) or injury or mortality to 
any marine mammals must be reported to NMFS and BOEM within 24 hours of 
observation. Dead or injured protected species are reported to the NMFS 
Greater Atlantic Regional Fisheries Office Stranding Hotline (800-900-
3622) within 24 hours of sighting, regardless of whether the injury is 
caused by a vessel. In addition, if the injury or death was caused by a 
collision with a project related vessel, Bay State Wind must ensure 
that NMFS and BOEM are notified of the strike within 24 hours. Bay 
State Wind must use the form included as Appendix A to Addendum C of 
the Lease to report the sighting or incident. If Bay State Wind is 
responsible for the injury or death, the vessel must assist with any 
salvage

[[Page 56597]]

effort as requested by NMFS. Additional reporting requirements for 
injured or dead animals are described below (Notification of Injured or 
Dead Marine Mammals).
     Notification of Injured or Dead Marine Mammals--In the 
unanticipated event that the specified HRG and geotechnical activities 
lead to an injury of a marine mammal (Level A harassment) or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), Bay State 
Wind would immediately cease the specified activities and report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources and the NOAA Greater Atlantic Regional Fisheries 
Office (GARFO) Stranding Coordinator. The report would include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the event. NMFS would work with Bay State Wind to 
minimize reoccurrence of such an event in the future. Bay State Wind 
would not resume activities until notified by NMFS.
    In the event that Bay State Wind discovers an injured or dead 
marine mammal and determines that the cause of the injury or death is 
unknown and the death is relatively recent (i.e., in less than a 
moderate state of decomposition), Bay State Wind would immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources and the GARFO Stranding 
Coordinator. The report would include the same information identified 
in the paragraph above. Activities would be able to continue while NMFS 
reviews the circumstances of the incident. NMFS would work with Bay 
State Wind to determine if modifications in the activities are 
appropriate.
    In the event that Bay State Wind discovers an injured or dead 
marine mammal and determines that the injury or death is not associated 
with or related to the activities authorized in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Bay State Wind would report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the NMFS Greater Atlantic Regional 
Fisheries Office Regional Stranding Coordinator, within 24 hours of the 
discovery. Bay State Wind would provide photographs or video footage 
(if available) or other documentation of the stranded animal sighting 
to NMFS. Bay State Wind can continue its operations under such a case.
     Within 90 days after completion of the marine site 
characterization survey activities, a draft technical report will be 
provided to NMFS and BOEM that fully documents the methods and 
monitoring protocols, summarizes the data recorded during monitoring 
(as identified above in Visual Monitoring), estimates the number of 
marine mammals that may have been taken during survey activities, and 
provides an interpretation of the results and effectiveness of all 
monitoring tasks. Any recommendations made by NMFS must be addressed in 
the final report prior to acceptance by NMFS.
     In addition to the reporting requirements outlined above, 
Bay State Wind will provide an assessment report of the effectiveness 
of the various mitigation techniques, i.e. visual observations during 
day and night, compared to the PAM detections/operations. This will be 
submitted as a draft to NMFS and BOEM 30 days after the completion of 
the HRG and geotechnical surveys and as a final version 60 days after 
completion of the surveys.

Estimated Take by Incidental Harassment

    Project activities that have the potential to harass marine 
mammals, as defined by the MMPA, include underwater noise from 
operation of the HRG survey sub-bottom profilers and equipment 
positioning systems, and noise propagation associated with the use of 
DP thrusters during geotechnical survey activities that require the use 
of a DP drill ship. Harassment could take the form of temporary 
threshold shift, avoidance, or other changes in marine mammal behavior. 
NMFS anticipates that impacts to marine mammals would be in the form of 
behavioral harassment and no take by injury, serious injury, or 
mortality is proposed. NMFS does not anticipate take resulting from the 
movement of vessels associated with construction because there will be 
a limited number of vessels moving at slow speeds over a relatively 
shallow, nearshore area.
    The basis for the take estimate is the number of marine mammals 
that would be exposed to sound levels in excess of NMFS' Level B 
harassment criteria for impulsive noise (160 dB re 1 [mu]Pa (rms) and 
continuous noise (120 dB re 1 [mu]Pa (rms.)). NMFS' current acoustic 
exposure criteria for estimating take are shown in Table 3 below. Bay 
State Wind's modeled distances to these acoustic exposure criteria are 
shown in Tables 1 and 2. Details on the model characteristics and 
results are provided in the hydroacoustic modeling assessment found in 
Appendix A of the IHA application. As discussed in the application and 
in Appendix A, modeling took into consideration sound sources using the 
loudest potential operational parameters, bathymetry, geoacoustic 
properties of the Lease Area, time of year, and marine mammal hearing 
ranges. Results from the hydroacoustic modeling assessment showed that 
estimated maximum critical distance to the 160 dB re 1 [mu]Pa (rms) 
MMPA threshold for all water depths for the HRG survey sub-bottom 
profilers (the HRG survey equipment with the greatest potential for 
effect on marine mammal) was approximately 380 m from the source (see 
Table 1), and the estimated maximum critical distance to the 120 dB re 
1 [mu]Pa (rms) MMPA threshold for all water depths for the drill ship 
DP thruster was approximately 3,400 m from the source (see Table 2). 
Bay State Wind and NMFS believe that these estimates represent the 
worst-case scenario and that the actual distances to the Level B 
harassment threshold may be shorter.

[[Page 56598]]



            Table 3--NMFS' Current Acoustic Exposure Criteria
------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
Non-Explosive Sound:
    Level A Harassment        Permanent Threshold   180 dB re 1 [mu]Pa-m
     (Injury).                 Shift (PTS) (Any      (cetaceans)/190 dB
                               level above that      re 1 [mu]Pa-m
                               which is known to     (pinnipeds) root
                               cause TTS).           mean square (rms).
    Level B Harassment......  Behavioral            160 dB re 1 [mu]Pa-m
                               Disruption (for       (rms).
                               impulse noises).
    Level B Harassment......  Behavioral            120 dB re 1 [mu]oPa-
                               Disruption (for       m (rms).
                               continuous noise).
------------------------------------------------------------------------

    Bay State Wind estimated species densities within the proposed 
project area in order to estimate the number of marine mammal exposures 
to sound levels above the 120 dB Level B harassment threshold for 
continuous noise (i.e., DP thrusters) and the 160 dB Level B harassment 
threshold for intermittent, impulsive noise (i.e., pingers and sub-
bottom profiler). Research indicates that marine mammals generally have 
extremely fine auditory temporal resolution and can detect each signal 
separately (e.g., Au et al., 1988; Dolphin et al., 1995; Supin and 
Popov 1995; Mooney et al., 2009b), especially for species with 
echolocation capabilities. Therefore, it is likely that marine mammals 
would perceive the acoustic signals associated with the HRG survey 
equipment as being intermittent rather than continuous, and we base our 
takes from these sources on exposures to the 160 dB threshold.
    The data used as the basis for estimating cetacean species density 
for the Lease Area are sightings per unit effort (SPUE) taken from 
Kenney and Vigness-Raposa (2009). SPUE (or, the relative abundance of 
species) is derived by using a measure of survey effort and number of 
individual cetaceans sighted. Species density (animals per km\2\) can 
be computed by dividing the SPUE value by the width of the marine 
mammal survey track, and numbers of animals can be computed by 
multiplying the species density by the size of the geographic area in 
question (km\2\). SPUE allows for comparison between discrete units of 
time (i.e. seasons) and space within a project area (Shoop and Kenney 
1992). SPUE calculated by Kenney and Vigness-Raposa (2009) was derived 
from a number of sources including: (1) North Atlantic Right Whale 
Consortium (NARWC) database; (2) University of Rhode Island Cetacean 
and Turtle Assessment Program (CeTAP); (3) sightings data from the 
Coastal Research and Education Society of Long Island, Inc. and Okeanos 
Ocean Research Foundation; (4) the Northeast Regional Stranding network 
(marine mammals); and (5) the NOAA Northeast Fisheries Science Center's 
Fisheries Sampling Branch.
    The OPAREA Density Estimates (U.S. Department of the Navy 2007) 
were used for estimating takes for harbor and gray seals. In the 
proposed IHA, NMFS had applied an 80 percent reduction factor for 
harbor and gray seal densities based on the presumption that original 
density estimates for the project area were an overestimation because 
they included breeding populations of Cape Cod (Schroeder 2000; Ronald 
and Gots 2003). NMFS has since determined that the findings used to 
inform that reduction factor are outdated and do not accurately reflect 
the average annual rate of population increase (especially for gray 
seal), and this reduction factor is no longer appropriate for 
calculating takes for harbor and gray seals.
    The methodology for calculating takes was described in the Federal 
Register notice for the proposed IHA (81 FR 19557; April 5, 2016). 
Estimated takes were calculated by multiplying the species density (per 
100 km\2\) by the zone of influence (ZOI), multiplied by the number of 
days of the specified activity. A detailed description of the acoustic 
modeling used to calculate zones of influence is provided in the 
acoustic modeling assessment found in Appendix A of the IHA application 
(also see the discussion in the ``Mitigation'' section above).
    Bay State Wind used a ZOI of 23.6 m\2\ (61 km\2\) and a survey 
period of 30 days to estimate take from use of the HRG survey equipment 
during geophysical survey activities. The ZOI is based on the worst 
case (since it assumes the higher powered GeoSource 200 sparker will be 
operating all the time) ensonified area of 380 m, and a maximum survey 
trackline of 49 mi (79 km) per day. Based on the proposed HRG survey 
schedule, take calculations were based on the species density as 
derived from seasonal SPUE data reported in Kenney and Vigness-Raposa 
(2009) and seasonal OPAREA density estimates (U.S. Department of the 
Navy 2007). The resulting take estimates (rounded to the nearest whole 
number) are presented in Table 4.

                      Table 4--Estimated Level B Harassment Takes for HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
                                                    Density \1\     Calculated         Take            stock
                     Species                        (number/100   take  (number)   authorization    potentially
                                                      km\2\)                         (number)        affected
----------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale......................            0.07            1.28               1            0.22
Humpback Whale..................................            0.05            0.92               1            0.01
Fin Whale.......................................            0.14            2.56               3            0.19
Minke Whale.....................................            0.44            8.05               8            0.04
Common Dolphin..................................            8.21          150.24             150            0.12
Atlantic White-sided Dolphin....................            7.46          136.52             137            0.28
Harbor Porpoise.................................            0.23            4.21               4            0.01
Harbor Seal \2\.................................            9.74          178.24             178            0.23
Gray Seal \2\...................................           14.16          259.13             259            0.07
----------------------------------------------------------------------------------------------------------------
\1\ Densities have been updated since the publishing of the proposed IHA to more accurately reflect the
  seasonality of the proposed HRG survey activities (August-September). Seasonal densities, and resulting takes,
  depicted in the proposed IHA were based on a projected spring HRG survey, which is no longer accurate. Despite
  this change in seasonal densities and take numbers there were no changes in our analysis or negligible impact
  determination since the publishing of the proposed IHA.

[[Page 56599]]

 
\2\ An 80 percent reduction factor for harbor and gray seal densities was applied in the proposed IHA based on
  the presumption that original density estimates for the project area were an overestimation because they
  included breeding populations of Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since determined
  that the findings used to inform that reduction factor are outdated and do not accurately reflect the average
  annual rate of population increase (especially for gray seal). Therefore, NMFS no longer considers this
  reduction factor appropriate for calculating takes for harbor and gray seals.

    Bay State Wind used a ZOI of 9.8 m\2\ (25.4 km\2\) and a maximum DP 
thruster use period of 6 days to estimate take from use of the DP 
thruster during geotechnical survey activities. The ZOI represents the 
worst-case ensonified area across the three representative water depths 
within the Lease Area (125 ft, 144 ft, and 177 ft [38m, 44 m, and 54 
m]). Based on the proposed geotechnical survey schedule, take 
calculations were based on the species density as derived from seasonal 
abundance data reported in Kenney and Vigness-Raposa (2009) and 
seasonal OPAREA density estimates (U.S. Department of the Navy 2007) 
(Table 5). The resulting take estimates (rounded to the nearest whole 
number) based upon these conservative assumptions for common and 
Atlantic white-sided dolphins are presented in Table 5. These numbers 
are based on six days and represent only 0.011 and 0.022 percent of the 
stock for these two species, respectively. Take calculations for North 
Atlantic right whale, humpback whale, fin whale, minke whale, harbor 
porpoise, gray seal, and harbor seal are at or near zero (refer to the 
IHA application); therefore, no takes for these species are requested 
or proposed for authorization.

                 Table 5--Estimated Level B Harassment Takes for Geotechnical Survey Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
                                                   Fall Density     Calculated         Take            stock
                     Species                        (number/100   take  (number)   authorization    potentially
                                                      km\2\)                         (number)        affected
----------------------------------------------------------------------------------------------------------------
Common Dolphin..................................            8.21            12.5              13            0.01
Atlantic White-sided Dolphin....................            7.46              11              11            0.02
----------------------------------------------------------------------------------------------------------------

    Bay State Wind's authorized take numbers are provided in Tables 4 
and 5. Bay State Wind's calculations do not take into account whether a 
single animal is harassed multiple times or whether each exposure is a 
different animal. Therefore, the numbers in Tables 4 and 5 are the 
maximum number of animals that may be harassed during the HRG and 
geotechnical surveys (i.e., Bay State Wind assumes that each exposure 
event is a different animal). These estimates do not account for 
prescribed mitigation measures that Bay State Wind would implement 
during the specified activities and the fact that shutdown/powerdown 
procedures shall be implemented if an animal enters the Level B 
harassment zone (160 dB and 120 dB for HRG survey equipment and DP 
thruster use, respectively), further reducing the potential for any 
takes to occur during these activities.

Analysis and Determinations

Negligible Impact

    Negligible impact is ``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, as the 
severity of harassment may vary greatly depending on the context and 
duration of the behavioral response, many of which would not be 
expected to have deleterious impacts on the fitness of any individuals. 
In determining whether the expected takes will have a negligible 
impact, in addition to considering estimates of the number of marine 
mammals that might be ``taken,'' NMFS must consider other factors, such 
as the likely nature of any responses (their intensity, duration, 
etc.), the context of any responses (critical reproductive time or 
location, migration, etc.), as well as the number and nature of 
estimated Level A harassment takes, the number of estimated 
mortalities, and the status of the species.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Tables 4 and 5, given that the anticipated 
effects of this activity on these different marine mammal stocks are 
expected to be similar. There is no information about the nature or 
severity of the impacts, or the size, status, or structure of any 
species or stocks that would lead to a different analysis for this 
activity.
    As discussed in the ``Potential Effects'' section of the notice of 
the proposed IHA (81 FR 19557; April 5, 2016; pages 19561-19567), 
permanent threshold shift, masking, non-auditory physical effects, and 
vessel strike are not expected to occur. There is some potential for 
limited TTS; however, animals in the area would likely incur no more 
than brief hearing impairment (i.e., TTS) due to generally low SPLs--
and in the case of the HRG survey equipment use, highly directional 
beam pattern, transient signals, and moving sound sources--and the fact 
that most marine mammals would more likely avoid a loud sound source 
rather than swim in such close proximity as to result in TTS or PTS. 
Further, once an area has been surveyed, it is not likely that it will 
be surveyed again, therefore reducing the likelihood of repeated 
impacts within the project area.
    Potential impacts to marine mammal habitat were discussed 
previously in the ``Anticipated Effects on Marine Mammal Habitat'' 
section of the notice of the proposed IHA (81 FR 19557; April 5, 2016; 
page 19567). Marine mammal habitat may be impacted by elevated sound 
levels and some sediment disturbance, but these impacts would be 
temporary. Feeding behavior is not likely to be significantly impacted, 
as marine mammals appear to be less likely to exhibit behavioral 
reactions or avoidance responses while engaged in feeding activities 
(Richardson et al., 1995). Prey species are mobile, and are broadly 
distributed throughout the Lease Area; therefore, marine mammals that 
may be temporarily displaced during survey activities are expected to 
be able to resume foraging once they have moved away from areas with 
disturbing levels of underwater noise. Because of the temporary nature 
of the disturbance, the availability of similar habitat and resources 
in the surrounding

[[Page 56600]]

area, and the lack of important or unique marine mammal habitat, the 
impacts to marine mammals and the food sources that they utilize are 
not expected to cause significant or long-term consequences for 
individual marine mammals or their populations. Furthermore, there are 
no feeding areas, rookeries, or mating grounds known to be biologically 
important to marine mammals within the proposed project area. A 
biologically important area (BIA) for feeding for North Atlantic right 
whale encompasses the Lease Area (LaBrecque, et al., 2015); however, 
there is no temporal overlap between the BIA (effective March-April; 
November-December) and the proposed survey activities. ESA-listed 
species for which takes are proposed are North Atlantic right, 
humpback, and fin whales. Recent estimates of abundance indicate a 
stable or growing humpback whale population, while examination of the 
minimum number alive population index calculated from the individual 
sightings database for the years 1990-2010 suggests a positive and 
slowly accelerating trend in North Atlantic right whale population size 
(Waring et al., 2015). There are currently insufficient data to 
determine population trends for fin whale (Waring et al., 2015). There 
is no designated critical habitat for any ESA-listed marine mammals 
within the Lease Area, and none of the stocks for non-listed species 
proposed to be taken are considered ``depleted'' or ``strategic'' by 
NMFS under the MMPA.
    The mitigation measures are expected to reduce the number and/or 
severity of takes by (1) giving animals the opportunity to move away 
from the sound source before HRG survey equipment reaches full energy; 
(2) reducing the intensity of exposure within a certain distance by 
reducing the DP thruster power; and (3) preventing animals from being 
exposed to sound levels reaching 180 dB during HRG survey activities 
(sound levels in excess of 180 dB are not anticipated for DP thruster 
use). Additional vessel strike avoidance requirements will further 
mitigate potential impacts to marine mammals during vessel transit to 
and within the Study Area.
    Bay State Wind did not request, and NMFS is not proposing, take of 
marine mammals by injury, serious injury, or mortality. NMFS expects 
that most takes would be in the form of short-term Level B behavioral 
harassment in the form of brief startling reaction and/or temporary 
vacating of the area, or decreased foraging (if such activity were 
occurring)--reactions that are considered to be of low severity and 
with no lasting biological consequences (e.g., Southall et al., 2007). 
This is largely due to the short time scale of the proposed activities, 
the low source levels and intermittent nature of many of the 
technologies proposed to be used, as well as the required mitigation.
    Based on the best available science, NMFS concludes that exposures 
to marine mammal species and stocks due to Bay State Wind's HRG and 
geotechnical survey activities would result in only short-term 
(temporary and short in duration) and relatively infrequent effects to 
individuals exposed, and not of the type or severity that would be 
expected to be additive for the very small portion of the stocks and 
species likely to be exposed. Given the duration and intensity of the 
activities, and the fact that shipping contributes to the ambient sound 
levels in the surrounding waters (vessel traffic in this area is 
relatively high; some marine mammals may be habituated to this noise), 
NMFS does not anticipate the proposed take estimates to impact annual 
rates of recruitment or survival. Animals may temporarily avoid the 
immediate area, but are not expected to permanently abandon the area. 
Major shifts in habitat use, distribution, or foraging success, are not 
expected.
    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 proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
Bay State Wind's proposed HRG survey and DP thruster use during 
geotechnical survey activities will have a negligible impact on the 
affected marine mammal species or stocks.

Small Numbers

    The requested takes proposed to be authorized for the HRG and 
geotechnical surveys represent 0.22 percent of the Western North 
Atlantic (WNA) stock of North Atlantic right whale, 0.01 percent of the 
Gulf of Maine stock of humpback whale, 0.43 percent of the WNA stock of 
fin whale, 0.01 percent of the Canadian East Coast stock of minke 
whale, 0.04 percent of the WNA stock of short-beaked common dolphin, 
0.30 percent of the WNA stock of Atlantic white-sided dolphin, 0.01 
percent of the Gulf of Maine/Bay of Fundy stock of harbor porpoise, 
0.23 percent of the WNA stock of harbor seal, and 0.07 percent of the 
North Atlantic stock of gray seal. These take estimates represent the 
percentage of each species or stock that could be taken by Level B 
behavioral harassment and are extremely small numbers (less than 1 
percent) relative to the affected species or stock sizes. Further, the 
proposed take numbers are the maximum numbers of animals that are 
expected to be harassed during the project; it is possible that some of 
these exposures may occur to the same individual. Therefore, NMFS finds 
that small numbers of marine mammals will be taken relative to the 
populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Endangered Species Act

    Within the project area, fin, humpback, and North Atlantic right 
whale are listed as endangered under the ESA. Under section 7 of the 
ESA, BOEM consulted with NMFS on commercial wind lease issuance and 
site assessment activities on the Atlantic Outer Continental Shelf in 
Massachusetts, Rhode Island, New York and New Jersey Wind Energy Areas. 
NOAA's GARFO issued a Biological Opinion concluding that these 
activities may adversely affect but are not likely to jeopardize the 
continued existence of fin whale, humpback whale, or North Atlantic 
right whale. NMFS also consulted internally on the issuance of an IHA 
under section 101(a)(5)(D) of the MMPA for this activity. Following 
issuance of the Bay State Wind IHA, the Biological Opinion will be 
amended to include an incidental take exemption for these marine mammal 
species, as appropriate.

National Environmental Policy Act

    BOEM prepared an Environmental Assessment (EA) in accordance with 
the National Environmental Policy Act (NEPA), to evaluate the issuance 
of wind energy leases covering the entirety of the Massachusetts Wind 
Energy Area (including the OCS-A 0500 Lease Area), and the approval of 
site assessment activities within those leases (BOEM 2014). NMFS has 
reviewed BOEM's EA, determined it to be sufficient, and adopted that EA 
and signed a Finding of No Significant Impact (FONSI). We believe that 
the adoption of BOEM's EA allows NMFS to meet its responsibilities 
under NEPA for the issuance of an IHA to Bay State Wind for HRG and 
geotechnical survey investigations in

[[Page 56601]]

the Lease Area. BOEM's EA and NMFS' FONSI are available on the internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental/energy_other.htm.

Authorization

    As a result of these determinations, NMFS has issued an IHA to Bay 
State Wind for HRG survey activities and use of DP vessel thrusters 
during geotechnical survey activities from August 2016 through August 
2017, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated.

Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-19889 Filed 8-19-16; 8:45 am]
 BILLING CODE 3510-22-P