[Federal Register Volume 83, Number 110 (Thursday, June 7, 2018)]
[Notices]
[Pages 26416-26432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12225]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF991


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys off of Delaware

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 
Garden State Offshore Energy, LLC (GSOE), to incidentally harass, by 
Level B harassment only, marine mammals during marine site 
characterization surveys off the coast of Delaware as part of the 
Skipjack Wind Project in the area of the Commercial Lease of Submerged 
Lands for Renewable Energy Development on the Outer Continental Shelf 
(OCS-A 0482) and along potential submarine cable routes to a landfall 
location in Maryland or Delaware.

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

FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the applications 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained by visiting the internet at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/

[[Page 26417]]

incidental-take-authorizations-other-energy-activities-renewable. In 
case of problems accessing these documents, please call the contact 
listed above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On November 22, 2017, NMFS received a request from GSOE for an IHA 
to take marine mammals incidental to marine site characterization 
surveys off the coast of Delaware in the area of the Commercial Lease 
of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0482) (Lease Area) and along potential 
submarine cable routes to a landfall location in Maryland or Delaware. 
GSOE has designated Skipjack Offshore Energy, LLC (Skipjack), a wholly-
owned indirect subsidiary of Deepwater Wind Holdings, LLC (Deepwater 
Wind), and an affiliate of GSOE, to perform the activities described in 
the IHA application. A revised application was received on March 19, 
2018. NMFS deemed that request to be adequate and complete. GSOE's 
request is for take of 14 marine mammal species by Level B harassment. 
Neither GSOE nor NMFS expects serious injury or mortality to result 
from this activity, and the activity is expected to last no more than 
one year Therefore, an IHA is appropriate.

Description of the Activity

Overview

    GSOE plans to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) and geotechnical surveys, 
in the Lease Area and along potential submarine cable routes to 
landfall locations in either the state of Maryland or Delaware. Surveys 
would occur from approximately May 2018 through December 2018.
    The purpose of the marine site characterization surveys is to 
obtain a baseline assessment of seabed/sub-surface soil conditions in 
the Lease Area and cable route corridors to support the siting of the 
proposed Skipjack wind farm. Underwater sound resulting from GSOE's 
site characterization surveys have the potential to result in 
incidental take of marine mammals in the form of behavioral harassment. 
Geophysical surveys would be conducted for up to 183 days and 
geotechnical surveys would be conducted for up to 72 days. This 
schedule is based on 24-hour operations and includes potential down 
time due to inclement weather.
    Geotechnical surveys would entail the use of core penetration 
testing, deep boring cores and vibracores. Geotechnical surveys are not 
expected to result in the take of marine mammals and are not analyzed 
further in this document. Geophysical surveys would entail the use of a 
multibeam depth sounder, shallow penetration sub-bottom profiler 
(chirp), medium penetration sub-bottom profiler (boomer and sparker or 
bubble gun), sidescan sonar and marine magnetometer. The deployment of 
geophysical survey equipment, including the equipment planned for use 
during GSOE's planned activity, produces sound in the marine 
environment that has the potential to result in harassment of marine 
mammals.
    A detailed description of the planned survey activities, including 
types of survey equipment planned for use, is provided in the Federal 
Register notice of the proposed IHA (83 FR 14417; April 4, 2018). Since 
that time, no changes have been made to the planned activities. 
Therefore, a detailed description is not repeated here. Please refer to 
that Federal Register notice for the description of the specific 
activity.
Comments and Responses
    NMFS published a notice of proposed IHA in the Federal Register on 
April 4, 2018 (83 FR 14417). During the 30-day public comment period, 
NMFS received comment letters from the Marine Mammal Commission 
(Commission), from a group of non-governmental organizations (NGOs) 
including Natural Resources Defense Council, National Wildlife 
Federation, Conservation Law Foundation, Defenders of Wildlife, 
Southern Environmental Law Center, Surfrider Foundation, Sierra Club, 
International Fund for Animal Welfare, and Wildlife Conservation 
Society, and from a member of the general public. NMFS has posted the 
comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The following is a summary of the public comments received 
and NMFS' responses.
    Comment 1: The Commission expressed concern that the method used to 
estimate the numbers of takes, which summed fractions of takes for each 
species across project days, does not account for and negates the 
intent of NMFS' 24-hour reset policy and recommended that NMFS share 
the rounding criteria with the Commission in an expeditious manner.
    NMFS Response: NMFS appreciates the Commission's ongoing concern in 
this matter. Calculating predicted takes is not an exact science and 
there are arguments for taking different mathematical approaches in 
different situations, and for making qualitative adjustments in other 
situations. We believe, however, that the methodology used for take 
calculation in this IHA remains appropriate and is not at odds with the 
24-hour reset policy the Commission references. We look forward to 
continued discussion with the Commission on this matter and will share 
the rounding guidance as soon as it is ready for public review.
    Comment 2: The Commission recommended that, until behavioral 
thresholds are updated, NMFS require applicants to use the 120-decibel 
(dB) re 1 micropascal ([mu]Pa), rather than 160- dB re 1[mu]Pa, 
threshold for acoustic, non-

[[Page 26418]]

impulsive sources (e.g., sub-bottom profilers/chirps, echosounders, and 
other sonars including side-scan and fish-finding).
    NMFS Response: Certain sub-bottom profiling systems are 
appropriately considered to be impulsive sources (e.g., boomers, 
sparkers); therefore, the threshold of 160 dB re 1[mu]Pa will continue 
to be used for those sources. Other source types referenced by the 
Commission (e.g., chirp sub-bottom profilers, echosounders, and other 
sonars including side-scan and fish-finding) produce signals that are 
not necessarily strictly impulsive; however, NMFS finds that the 160-dB 
rms threshold is most appropriate for use in evaluating potential 
behavioral impacts to marine mammals because the temporal 
characteristics (i.e., intermittency) of these sources are better 
captured by this threshold. The 120-dB threshold is associated with 
continuous sources and was derived based on studies examining 
behavioral responses to drilling and dredging. Continuous sounds are 
those whose sound pressure level remains above that of the ambient 
sound, with negligibly small fluctuations in level (NIOSH, 1998; ANSI, 
2005). Examples of sounds that NMFS would categorize as continuous are 
those associated with drilling or vibratory pile driving activities. 
Intermittent sounds are defined as sounds with interrupted levels of 
low or no sound (NIOSH, 1998). Thus, signals produced by these source 
types are not continuous but rather intermittent sounds. With regard to 
behavioral thresholds, we consider the temporal and spectral 
characteristics of signals produced by these source types to more 
closely resemble those of an impulse sound rather than a continuous 
sound. The threshold of 160 dB re 1[mu]Pa is typically associated with 
impulsive sources, which are inherently intermittent. Therefore, the 
160 dB threshold (typically associated with impulsive sources) is more 
appropriate than the 120 dB threshold (typically associated with 
continuous sources) for estimating takes by behavioral harassment 
incidental to use of such sources.
    Comment 3: The Commission requested clarification regarding certain 
issues associated with NMFS' notice that one-year renewals could be 
issued in certain limited circumstances and expressed concern that the 
process would bypass the public notice and comment requirements. The 
Commission also suggested that NMFS should discuss the possibility of 
renewals through a more general route, such as a rulemaking, instead of 
notice in a specific authorization. The Commission further recommended 
that if NMFS did not pursue a more general route, that the agency 
provide the Commission and the public with a legal analysis supporting 
our conclusion that this process is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA.
    NMFS Response: The process of issuing a renewal IHA does not bypass 
the public notice and comment requirements of the MMPA. The notice of 
the proposed IHA expressly notifies the public that under certain, 
limited conditions an applicant could seek a renewal IHA for an 
additional year. The notice describes the conditions under which such a 
renewal request could be considered and expressly seeks public comment 
in the event such a renewal is sought. Importantly, such renewals would 
be limited to circumstances where: the activities are identical or 
nearly identical to those analyzed in the proposed IHA; monitoring does 
not indicate impacts that were not previously analyzed and authorized; 
and, the mitigation and monitoring requirements remain the same, all of 
which allow the public to comment on the appropriateness and effects of 
a renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as they are for 
all IHAs. Last, NMFS will publish on our website a description of the 
renewal process before any renewal is issued utilizing the new process.
    Comment 4: The NGOs expressed concern regarding the marine mammal 
density estimates used to calculate take. Specifically, the commenters 
stated the estimates derived from models presented in Roberts et al. 
(2016) may underrepresent density and seasonal presence of large whales 
in the survey area, and recommended that NMFS consider additional data 
sources in density modeling for future analyses of estimated take, 
including initial data from state monitoring efforts, existing passive 
acoustic monitoring data, opportunistic marine mammal sightings data, 
and other data sources.
    NMFS Response: NMFS has determined that the data provided by 
Roberts et al. (2016) represents the best available information 
concerning marine mammal density in the survey area and has used it 
accordingly. NMFS has considered other available information, including 
that cited by the commenters, and determined that it does not 
contradict the information provided by Roberts et al. (2016). The 
information discussed by the commenters does not provide data in a 
format that is directly usable in an acoustic exposure analysis and the 
commenters make no useful recommendation regarding how to do so. We 
will review the data sources recommended by the commenters and will 
consider their suitability for inclusion in future analyses, as 
requested by the commenters.
    Comment 5: The NGOs recommended that NMFS should analyze levels of 
take for the entire duration of the activities specified in the 
proposed IHA (i.e., May 15th to December 31st, 2018).
    NMFS Response: We agree with the commenters. As noted in the IHA 
application, density data for the months May through December (i.e., 
the entire duration of the survey including May 15th to December 31st, 
2018) were, in fact, analyzed in the take estimate. The statement in 
the Federal Register notice of the proposed IHA (83 FR 14417; April 4, 
2018) that the NGOs refer to in this comment, that density data for the 
months of May and December were not included in the take analysis, was 
incorrect, and has been corrected in this document. The potential for 
analyzing only certain months of density data, based on anticipated 
months that the survey would most likely be active, had been discussed 
previously but this approach was not ultimately followed, thus this 
statement should not have appeared in the Federal Register notice of 
the proposed IHA. We regret any confusion this may have caused.
    Comment 6: Regarding mitigation measures, the NGOs recommended NMFS 
impose a restriction on site assessment and characterization activities 
that have the potential to injure or harass the North Atlantic right 
whale from November 1st to April 30th.
    NMFS Response: In evaluating how mitigation may or may not be 
appropriate to ensure the least practicable adverse impact on species 
or stocks and their habitat, we carefully consider two primary factors: 
(1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat; and 
(2) the practicability of the measures for applicant implementation, 
which may consider such things as relative cost and impact on 
operations.
    GSOE determined the planned duration of the survey based on their

[[Page 26419]]

data acquisition needs, which are largely driven by the Bureau of Ocean 
Energy Management's (BOEM) data acquisition requirements prior to 
required submission of a construction and operations plan (COP). Any 
effort on the part of NMFS to restrict the months during which the 
survey could operate would likely have the effect of forcing the 
applicant to conduct additional months of surveys the following year, 
resulting in increased costs incurred by the applicant and additional 
time on the water with associated additional production of underwater 
noise which could have further potential impacts to marine mammals. 
Thus the time and area restrictions recommended by the commenters would 
not be practicable for the applicant to implement and would to some 
degree offset the benefit of the recommended measure. In addition, our 
analysis of the potential impacts of the survey on right whales does 
not indicate that such closures are warranted, as potential impacts to 
right whales from the survey activities would be limited to short-term 
behavioral responses; no marine mammal injury is expected as a result 
of the survey, nor is injury authorized in the IHA. Thus, in 
consideration of the limited potential benefits of time and area 
restrictions, in concert with the impracticability and increased cost 
on the part of the applicant that would result from such restrictions, 
NMFS has determined that time and area restrictions are not warranted 
in this case. Existing mitigation measures, including exclusion zones, 
ramp-up of survey equipment, and vessel strike avoidance measures, are 
sufficiently protective to ensure the least practicable adverse impact 
on species or stocks and their habitat.
    Comment 7: Regarding mitigation measures, the NGOs recommended that 
NMFS require that geophysical surveys commence, with ramp-up, during 
daylight hours only to maximize the probability that North Atlantic 
right whales are detected and confirmed clear of the exclusion zone, 
and that, if a right whale were detected in the exclusion zone during 
nighttime hours and the survey is shut down, developers should be 
required to wait until daylight hours for ramp-up to commence.
    NMFS Response: We acknowledge the limitations inherent in detection 
of marine mammals at night. However, similar to the discussion above 
regarding time and area closures, restricting the ability of the 
applicant to ramp-up surveys only during daylight hours would have the 
potential to result in lengthy shutdowns of the survey equipment, which 
could result in the applicant failing to collect the data they have 
determined is necessary, which could result in the need to conduct 
additional surveys the following year. This would result in 
significantly increased costs incurred by the applicant. Thus the 
restriction suggested by the commenters would not be practicable for 
the applicant to implement. In addition, as described above, potential 
impacts to marine mammals from the survey activities would be limited 
to short-term behavioral responses. Restricting surveys in the manner 
suggested by the commenters may reduce marine mammal exposures by some 
degree in the short term, but would not result in any significant 
reduction in either intensity or duration of noise exposure. No injury 
is expected to result even in the absence of mitigation, given the very 
small estimated Level A harassment zones. In the event that NMFS 
imposed the restriction suggested by the commenters, potentially 
resulting in a second survey season of surveys required for the 
applicant, vessels would be on the water introducing noise into the 
marine environment for an extended period of time. Therefore, in 
addition to practicability concerns for the applicant, the restrictions 
recommended by the commenters could result in the surveys spending 
increased time on the water, which may result in greater overall 
exposure to sound for marine mammals; thus the commenters have failed 
to demonstrate that such a requirement would result in a net benefit 
for affected marine mammals. Therefore, in consideration of potential 
effectiveness of the recommended measure and its practicability for the 
applicant, NMFS has determined that restricting survey start-ups to 
daylight hours is not warranted in this case.
    However, in recognition of the concerns raised by the commenters, 
we have added a mitigation requirement to the IHA that shutdown of 
geophysical survey equipment is required upon confirmed passive 
acoustic monitoring (PAM) detection of a North Atlantic right whale at 
night, even in the absence of visual confirmation, except in cases 
where the acoustic detection can be localized and the right whale can 
be confirmed as being beyond the 500 m exclusion zone (EZ); equipment 
may be re-started no sooner than 30 minutes after the last confirmed 
acoustic detection.
    Comment 8: The NGOs recommended that NMFS require a 500 m EZ for 
marine mammals and sea turtles (with the exception of dolphins that 
voluntarily approach the vessel). Additionally, the NGOs recommended 
that protected species observers (PSOs) monitor to an extended 1,000 m 
EZ for North Atlantic right whales.
    NMFS Response: Regarding the recommendation for a 1,000 m EZ 
specifically for North Atlantic right whales, we have determined that 
the 500 m EZ, as required in the IHA, is sufficiently protective. We 
note that the 500 m EZ exceeds the modeled distance to the Level B 
harassment isopleth (447 m) thus for North Atlantic right whales 
detected by PSOs this EZ would be expected to effectively minimize 
potential instances of injury and harassment.
    Regarding the commenters' recommendation to require a 500 m EZ for 
all marine mammals (except dolphins that approach the vessel) we have 
determined the EZs as currently required in the IHA (described in 
Mitigation Measures, below) are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. The 
EZs would prevent all potential instances of marine mammal injury 
(though in this instance, injury would not be an expected outcome even 
in the absence of mitigation due to very small predicted isopleths 
corresponding to the Level A harassment threshold (Table 5) and would 
further prevent some instances of behavioral harassment, as well as 
limiting the intensity and/or duration of behavioral harassment that 
does occur. As NMFS has determined the EZs currently required in the 
IHA to be sufficiently protective, we do not think expanded EZs, beyond 
what is required in the IHA, are warranted. With respect to EZs for sea 
turtles, we do not have the statutory authority under the MMPA to 
require mitigation measures specific to sea turtles.
    Comment 9: The NGOs recommended that NMFS should not allow 
modifications of the radii of the EZs based on sound source validation 
data, except in the event that sound source validation data support the 
extension of the EZs.
    NMFS Response: While NMFS disagrees that modifications should not 
be made on the basis of empirical data, this comment is not relevant to 
this action. The potential for modification of the radii of the EZs has 
not been proposed by NMFS in this IHA and is not included in the issued 
IHA.
    Comment 10: The NGOs recommended that a combination of visual 
monitoring by PSOs and PAM should be required 24 hours per day, and 
that a combination of PAM and continual visual monitoring using night

[[Page 26420]]

vision and infra-red should be required at night.
    NMFS Response: The PAM requirement has been included in the IHA 
because PAM was proposed by the applicant, and PAM is required in BOEM 
lease stipulations. We do not think the use of PAM is necessarily 
warranted for surveys using the sound sources proposed for use by GSOE, 
due to relatively small areas that are expected to be ensonified to the 
Level A harassment threshold (Table 5). As we are not convinced that 
PAM is necessarily warranted for this type of survey, we do not think a 
requirement to expand the use of PAM to 24 hours a day during the 
planned survey is warranted. Expanding the PAM requirement to 24 hours 
a day may also result in increased costs on the part of the applicant. 
When the potential benefits of a 24 hour PAM requirement are considered 
in concert with the potential increased costs on the part of the 
applicant that would result from such a requirement, we determined a 
requirement for 24 hour PAM operation is not warranted in this case. We 
have determined the current requirements for visual and acoustic 
monitoring are sufficient to ensure the EZs and Watch Zone are 
adequately monitored.
    Comment 11: The NGOs recommended that NMFS require a 10 knot speed 
restriction on all project-related vessels transiting to/from the 
survey area from November 1st through April 30th and that all project 
vessels operating within the survey area should be required to maintain 
a speed of 10 knots or less during the entire survey period.
    NMFS Response: NMFS has analyzed the potential for ship strike 
resulting from GSOE's activity and has determined that the mitigation 
measures specific to ship strike avoidance are sufficient to avoid the 
potential for ship strike. These include: A requirement that all vessel 
operators comply with 10 knot (18.5 kilometer (km)/hr) or less speed 
restrictions in any Seasonal Management Area (SMA) or Dynamic 
Management Area (DMA); a requirement that all vessel operators reduce 
vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any 
mother/calf pairs, pods, or large assemblages of non-delphinoid 
cetaceans are observed within 100 m of an underway vessel; a 
requirement that all survey vessels maintain a separation distance of 
500 m or greater from any sighted North Atlantic right whale; a 
requirement that, if underway, vessels must steer a course away from 
any sighted North Atlantic right whale at 10 knots or less until the 
500 m minimum separation distance has been established; and a 
requirement that, if a North Atlantic right whale is sighted in a 
vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Additional 
measures to prevent the potential for ship strike are discussed in more 
detail below (see the Mitigation section). We have determined that the 
ship strike avoidance measures are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. We 
also note that vessel strike during surveys is extremely unlikely based 
on the low vessel speed; the survey vessel would maintain a speed of 
approximately 4 knots (7.4 kilometers per hour) while transiting survey 
lines.
    Comment 12: The NGOs recommended that NMFS account for the 
potential for indirect ship strike risk resulting from habitat 
displacement in our analyses.
    NMFS Response: NMFS determined that habitat displacement was not an 
expected outcome of the specified activity, therefore an analysis of 
potential impacts to marine mammals from habitat displacement is not 
warranted in this case.
    Comment 13: The NGOs recommended that NMFS fund analyses of 
recently collected marine mammal sighting and acoustic data from 2016 
and continue to fund and expand surveys and studies to (i) improve our 
understanding of distribution and habitat use of marine mammals off 
Delaware and the broader mid-Atlantic region, and (ii) enhance the 
resolution of population genetic structure for humpback and fin whales. 
The NGOs also recommended that NMFS support an expert workshop to 
consider any existing data and any new information necessary to inform 
seasonal restrictions and mitigation measures in time for the November 
2018 North Atlantic right whale migration period.
    NMFS Response: We agree with the NGOs that analyses of recently 
collected sighting and acoustic data, as well as continued marine 
mammal surveys, are warranted, and we welcome the opportunity to 
participate in fora where implications of such data for potential 
mitigation measures would be discussed; however, we have no statutory 
authority or ability to require funding of such analyses and surveys, 
nor do we have the ability to fund such a workshop. We note that NMFS 
is undertaking numerous efforts relative to recovering right whales; 
these include expert working groups focused on specific aspects of 
recovery such as ship strike mitigation and entanglement mitigation, 
including two subgroups under the Atlantic Large Whale Take Reduction 
Plan which both met within the last two months, with a further full 
team meeting planned for fall 2018.
    Comment 14: The NGOs recommended that NMFS incentivize offshore 
wind developers to partner with scientists to collect data that would 
increase the understanding of the effectiveness of night vision and 
infra-red technologies off Delaware and the broader region, with a view 
towards greater reliance on these technologies to commence surveys 
during nighttime hours in the future.
    NMFS Response: NMFS agrees with the NGOs that improved data on 
relative effectiveness of night vision and infra-red technologies would 
be beneficial and could help to inform future efforts at detection of 
marine mammals during nighttime activities. We have no authority to 
incentivize such partnerships under the MMPA and the commenters have 
not provided us with any specific recommendations to evaluate beyond a 
broad recommendation. However, we will encourage coordination and 
communication between offshore wind developers and researchers on 
effectiveness of night vision and infra-red technologies, to the extent 
possible. In recognition of the commenters' concerns, we have also 
added a requirement that the final report submitted to NMFS must 
include an assessment of the effectiveness of night vision equipment 
used during nighttime surveys, including comparisons of relative 
effectiveness among the different types of night vision equipment used.
    Comment 15: The comment letter from a member of the general public 
recommended the IHA be issued to GSOE.
    NMFS Response: We have issued the IHA to GSOE.

Description of Marine Mammals in the Area of Specified Activity

    Sections 3 and 4 of GSOE's IHA application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially affected 
species. Additional information regarding population trends and threats 
may be found in NMFS' Stock Assessment Reports (SAR; 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region) and more general information about 
these species (e.g., physical and behavioral descriptions) may be found 
on NMFS' website (www.fisheries.noaa.gov/species-

[[Page 26421]]

directory). All species that could potentially occur in the proposed 
survey area are included in Table 5 of the IHA application. However, 
the temporal and/or spatial occurrence of several species listed in 
Table 5 of the IHA application is such that take of these species is 
not expected to occur, and they are not discussed further beyond the 
explanation provided here. Take of these species is not anticipated 
either because they have very low densities in the project area, are 
known to occur further offshore than the project area, or are 
considered very unlikely to occur in the project area during the survey 
due to the species' seasonal occurrence in the area.
    Table 1 lists all species with expected potential for occurrence in 
the survey area and with the potential to be taken as a result of the 
survey and summarizes information related to the population or stock, 
including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. For taxonomy, we follow 
Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs). While no mortality is anticipated or authorized here, PBR is 
included here as a gross indicator of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. 2017 draft SARs (e.g., Hayes et al., 2018). All values 
presented in Table 1 are the most recent available at the time of 
publication and are available in the 2017 draft Atlantic SARs (Hayes et 
al., 2018).

                                                Table 1--Marine Mammals Known To Occur in the Survey Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             NMFS MMPA and      Stock Abundance
                                                              ESA status;       (CV,Nmin, most      Predicted abundance                Occurrence and
            Common name                     Stock           strategic (Y/N)    recent abundance          (CV) \3\         PBR \4\    seasonality in the
                                                                  \1\             survey) \2\                                            survey area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Toothed whales (Odontoceti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter               North Atlantic.......  E; Y              2,288 (0.28; 1,815;   5,353 (0.12)........        3.6  Rare.
 macrocephalus).                                                              n/a).
Long-finned pilot whale             W. North Atlantic....  -; Y              5,636 (0.63; 3,464;   18,977 (0.11) \6\...         35  Rare.
 (Globicephala melas).                                                        n/a).
Atlantic white-sided dolphin        W. North Atlantic....  -; N              48,819 (0.61;         37,180 (0.07).......        304  Rare.
 (Lagenorhynchus acutus).                                                     30,403; n/a).
Atlantic spotted dolphin (Stenella  W. North Atlantic....  -; N              44,715 (0.43;         55,436 (0.32).......        316  Rare.
 frontalis).                                                                  31,610; n/a).
Bottlenose dolphin (Tursiops        W. North Atlantic,     -; N              77,532 (0.40;         97,476 (0.06) \5\...        561  Common year round.
 truncatus).                         Offshore.                                56,053; 2011).
                                    W. North Atlantic,     -; N              6,639 (0.41; 4,759;   ....................         48  Common in summer;
                                     Northern Migratory                       2015).                                                 rare in winter.
                                     Coastal.
Common dolphin \6\ (Delphinus       W. North Atlantic....  -; N              173,486 (0.28;        86,098 (0.12).......        557  Common year round.
 delphis).                                                                    55,690; 2011).
Harbor porpoise (Phocoena           Gulf of Maine/Bay of   -; N              79,833 (0.32;         45,089 (0.12) *.....        706  Common year round.
 phocoena).                          Fundy.                                   61,415; 2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Baleen whales (Mysticeti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale          W. North Atlantic....  E; Y              458 (0; 455; n/a)...  535 (0.45) *........        1.4  Year round in
 (Eubalaena glacialis).                                                                                                              continental shelf
                                                                                                                                     and slope waters,
                                                                                                                                     occur seasonally to
                                                                                                                                     forage.
Humpback whale \7\ Megaptera        Gulf of Maine........  -; N              335 (0.42; 239; n/a)  1,637 (0.07) *......        3.7  Common year round.
 novaeangliae).
Fin whale (Balaenoptera physalus).  W. North Atlantic....  E; Y              1,618 (0.33; 1,234;   4,633 (0.08)........        2.5  Year round in
                                                                              n/a).                                                  continental shelf
                                                                                                                                     and slope waters,
                                                                                                                                     occur seasonally to
                                                                                                                                     forage.
Sei whale (Balaenoptera borealis).  Nova Scotia..........  E; Y              357 (0.52; 236; n/a)  717 (0.3)...........        0.5  Year round in
                                                                                                                                     continental shelf
                                                                                                                                     and slope waters,
                                                                                                                                     occur seasonally to
                                                                                                                                     forage.
Minke whale \6\ (Balaenoptera       Canadian East Coast..  -; N              20,741 (0.81; 1,425;  2,112 (0.05)*.......        162  Year round in
 acutorostrata).                                                              n/a).                                                  continental shelf
                                                                                                                                     and slope waters,
                                                                                                                                     occur seasonally to
                                                                                                                                     forage.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Earless seals (Phocidae)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal \8\ (Halichoerus grypus)  W. North Atlantic....  -; N              27,131 (0.10;         ....................      1,554  Rare.
                                                                              25,908; n/a).

[[Page 26422]]

 
Harbor seal (Phoca vitulina)......  W. North Atlantic....  -; N              75,834 (0.15;         ....................      2,006  Common year round.
                                                                              66,884; 2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see
  footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ Based on NMFS SARs except where noted otherwise. NMFS SARs online at: www.nmfs.noaa.gov/pr/sars. CV is coefficient of variation; Nmin is the minimum
  estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no
  associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have
  not yet been incorporated into the estimate. All values presented here are from the 2017 draft Atlantic SARs (Hayes et al., 2018).
\3\ This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016).
  These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we
  provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all
  pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported development of
  either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance.
\4\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\5\ Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly,
  the habitat-based cetacean density models produced by Roberts et al. (2016) are based in part on available observational data which, in some cases, is
  limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016) produced density models to genus level for Globicephala spp. and
  produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks.
\6\ Abundance as reported in the 2007 Canadian Trans-North Atlantic Sighting Survey (TNASS), which provided full coverage of the Atlantic Canadian coast
  (Lawson and Gosselin, 2009). Abundance estimates from TNASS were corrected for perception and availability bias, when possible. In general, where the
  TNASS survey effort provided superior coverage of a stock's range (as compared with NOAA shipboard survey effort), the resulting abundance estimate is
  considered more accurate than the current NMFS abundance estimate (derived from survey effort with inferior coverage of the stock range). NMFS stock
  abundance estimate for the common dolphin is 70,184. NMFS stock abundance estimate for the sei whale is 356.
\7\ NMFS stock abundance estimate applies to Gulf of Maine feeding population. Actual humpback whale population in survey area is likely to be larger
  and to include humpback whales from additional feeding populations in unknown numbers.
\8\ NMFS stock abundance estimate applies to U.S. population only, actual abundance is believed to be much larger.

    Four marine mammal species that are listed under the Endangered 
Species Act (ESA) may be present in the survey area and are included in 
the take request: North Atlantic right whale, fin whale, sei whale and 
sperm whale.
    Though other marine mammal species are known to occur in the 
Northwest Atlantic Ocean, the temporal and/or spatial occurrence of 
several of these species is such that take of these species is not 
expected to occur, and they are therefore not discussed further beyond 
the explanation provided here. Take of these species is not anticipated 
either because they have very low densities in the project area (e.g., 
blue whale, Clymene dolphin, pantropical spotted dolphin, striped 
dolphin, spinner dolphin, killer whale, false killer whale, pygmy 
killer whale,), or, are known to occur further offshore than the 
project area (e.g., beaked whales, short-finned pilot whale, rough 
toothed dolphin, Kogia spp.).
    For the majority of species potentially present in the specific 
geographic region, NMFS has designated only a single generic stock 
(e.g., ``western North Atlantic'') for management purposes. This 
includes the ``Canadian east coast'' stock of minke whales, which 
includes all minke whales found in U.S. waters. For humpback and sei 
whales, NMFS defines stocks on the basis of feeding locations, i.e., 
Gulf of Maine and Nova Scotia, respectively. However, our reference to 
humpback whales and sei whales in this document refers to any 
individuals of the species that are found in the specific geographic 
region.
    A detailed description of the species likely to be affected by 
GSOE's survey, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice of the proposed IHA (83 FR 
14417; April 4, 2018); since that time, we are not aware of any changes 
in the status of these species and stocks; therefore, detailed 
descriptions are not repeated here. Please refer to that Federal 
Register notice for these descriptions. Please also refer to NMFS' 
website (www.fisheries.noaa.gov/species-directory) for generalized 
species accounts.
    Information concerning marine mammal hearing, including marine 
mammal functional hearing groups, was provided in the Federal Register 
notice of the proposed IHA (83 FR 14417; April 4, 2018), therefore that 
information is not repeated here; please refer to that Federal Register 
notice for this information. For further information about marine 
mammal functional hearing groups and associated frequency ranges, 
please see NMFS (2016) for a review of available information. Fourteen 
marine mammal species (twelve cetacean and two pinniped (both phocid) 
species) have the reasonable potential to co-occur with the survey 
activities. Please refer to Table 1. Of the cetacean species that may 
be present, five are classified as low-frequency cetaceans (i.e., all 
mysticete species), six are classified as mid-frequency cetaceans 
(i.e., all delphinid species and the sperm whale), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from GSOE's survey activities have 
the potential to result in behavioral harassment of marine mammals in 
the vicinity of the survey area. The Federal Register notice of the 
proposed IHA (83 FR 14417; April 4, 2018) included a discussion of the 
effects of anthropogenic noise on marine mammals and their habitat, 
therefore that information is not repeated here; please refer to that 
Federal Register notice for that information. No instances of hearing 
threshold shifts, injury, serious injury, or mortality are expected as 
a result of the planned activities.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.

[[Page 26423]]

    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, the MMPA defines ``harassment'' as any act of pursuit, torment, 
or annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes are by Level B harassment, as use of the survey 
equipment has the potential to result in disruption of behavioral 
patterns for individual marine mammals. NMFS has determined take by 
Level A harassment is not an expected outcome of the activity and thus 
we do not authorize the take of any marine mammals by Level A 
harassment. This is discussed in greater detail below. As described 
previously, no mortality or serious injury is anticipated or authorized 
for this activity. Below we describe how the take is estimated for this 
project.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be behaviorally harassed or incur 
some degree of permanent hearing impairment; (2) the area or volume of 
water that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and (4) and the number of days of activities. Below, we describe these 
components in more detail and present the take estimate.

Acoustic Thresholds

    NMFS uses acoustic thresholds that identify the received level of 
underwater sound above which exposed marine mammals would be reasonably 
expected to be behaviorally harassed (equated to Level B harassment) or 
to incur PTS of some degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
sound source (e.g., frequency, predictability, duty cycle); the 
environment (e.g., bathymetry); and the receiving animals (hearing, 
motivation, experience, demography, behavioral context) and therefore 
can be difficult to predict (Southall et al., 2007, Ellison et al. 
2011). NMFS uses a generalized acoustic threshold based on received 
level to estimate the onset of Level B (behavioral) harassment. NMFS 
predicts that marine mammals may be behaviorally harassed when exposed 
to underwater anthropogenic noise above received levels 160 dB re 1 
[mu]Pa (rms) for non-explosive impulsive (e.g., seismic HRG equipment) 
or intermittent (e.g., scientific sonar) sources. GSOE's activity 
includes the use of impulsive sources. Therefore, the 160 dB re 1 
[mu]Pa (rms) criteria is applicable for analysis of Level B harassment.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2016) 
identifies dual criteria to assess auditory injury (Level A harassment) 
to five different marine mammal groups (based on hearing sensitivity) 
as a result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). The Technical Guidance identifies the 
received levels, or thresholds, above which individual marine mammals 
are predicted to experience changes in their hearing sensitivity for 
all underwater anthropogenic sound sources, reflects the best available 
science, and better predicts the potential for auditory injury than 
does NMFS' historical criteria.
    These thresholds were developed by compiling and synthesizing the 
best available science and soliciting input multiple times from both 
the public and peer reviewers to inform the final product, and are 
provided in Table 2 below. The references, analysis, and methodology 
used in the development of the thresholds are described in NMFS 2016 
Technical Guidance, which may be accessed at: www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. As described above, GSOE's activity includes 
the use of intermittent and impulsive sources

            Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift in Marine Mammals
----------------------------------------------------------------------------------------------------------------
                                                                    PTS onset thresholds
              Hearing group               ----------------------------------------------------------------------
                                                    Impulsive*                        Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.............  Lpk,flat: 219 dB; LE,LF,24h:  LE,LF,24h: 199 dB.
                                            183 dB.
Mid-Frequency (MF) Cetaceans.............  Lpk,flat: 230 dB; LE,MF,24h:  LE,MF,24h: 198 dB.
                                            185 dB.
High-Frequency (HF) Cetaceans............  Lpk,flat: 202 dB; LE,HF,24h:  LE,HF,24h: 173 dB.
                                            155 dB.
Phocid Pinnipeds (PW) (Underwater).......  Lpk,flat: 218 dB; LE,PW,24h:  LE,PW,24h: 201 dB.
                                            185 dB.
Otariid Pinnipeds (OW) (Underwater)......  Lpk,flat: 232 dB; LE,OW,24h:  LE,OW,24h: 219 dB.
                                            203 dB.
----------------------------------------------------------------------------------------------------------------


    Note: *Dual metric acoustic thresholds for impulsive sounds: Use 
whichever results in the largest isopleth for calculating PTS onset. 
If a non-impulsive sound has the potential of exceeding the peak 
sound pressure level thresholds associated with impulsive sounds, 
these thresholds should also be considered.


    Note: Peak sound pressure (Lpk) has a reference value of 1 
[mu]Pa, and cumulative sound exposure level (LE) has a reference 
value of 1[mu]Pa2s. In this Table, thresholds are abbreviated to 
reflect American National Standards Institute standards (ANSI 2013). 
However, peak sound pressure is defined by ANSI as incorporating 
frequency weighting, which is not the intent for this Technical 
Guidance. Hence, the subscript ``flat'' is being included to 
indicate peak sound pressure should be flat weighted or unweighted 
within the generalized hearing range. The subscript associated with 
cumulative sound exposure level thresholds indicates the designated 
marine mammal auditory weighting function (LF, MF, and HF cetaceans, 
and PW and OW pinnipeds) and that the recommended accumulation 
period is 24 hours. The cumulative sound exposure level thresholds 
could be exceeded in a multitude of ways (i.e., varying exposure 
levels and durations, duty cycle). When possible, it is valuable for 
action proponents to indicate the conditions under which these 
acoustic thresholds will be exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into estimating the area ensonified above the 
acoustic thresholds.
    The survey would entail the use of HRG survey equipment. The 
distance to the isopleth corresponding to the threshold for Level B 
harassment was calculated for all HRG survey equipment with the 
potential to result in harassment of marine mammals using the spherical 
transmission loss (TL) equation: TL=20log10. Results of 
acoustic modeling indicated that, of the

[[Page 26424]]

HRG survey equipment planned for use that has the potential to result 
in harassment of marine mammals, the AA Dura Spark would be expected to 
produce sound that would propagate the furthest in the water (Table 3); 
therefore, for the purposes of the take calculation, it was assumed the 
AA Dura Spark would be active during the entirety of the survey. Thus 
the distance to the isopleth corresponding to the threshold for Level B 
harassment for the AA Dura Spark (estimated at 447 m; Table 3) was used 
as the basis of the Level B take calculation for all marine mammals.

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

    Predicted distances to Level A harassment isopleths, which vary 
based on marine mammal functional hearing groups (Table 2), were also 
calculated. The updated acoustic thresholds for impulsive sounds (such 
as HRG survey equipment) contained in the Technical Guidance (NMFS, 
2016) were presented as dual metric acoustic thresholds using both 
SELcum and peak sound pressure level metrics. As dual 
metrics, NMFS considers onset of PTS (Level A harassment) to have 
occurred when either one of the two metrics is exceeded (i.e., metric 
resulting in the largest isopleth). The SELcum metric 
considers both level and duration of exposure, as well as auditory 
weighting functions by marine mammal hearing group. In recognition of 
the fact that calculating Level A harassment ensonified areas could be 
more technically challenging to predict due to the duration component 
and the use of weighting functions in the new SELcum 
thresholds, NMFS developed an optional User Spreadsheet that includes 
tools to help predict a simple isopleth that can be used in conjunction 
with marine mammal density or occurrence to facilitate the estimation 
of take numbers. GSOE used the NMFS optional User Spreadsheet to 
calculate distances to Level A harassment isopleths based on 
SELcum and used the spherical spreading loss model (similar 
to the method used to calculate Level B isopleths as described above) 
to calculate distances to Level A harassment isopleths based on peak 
pressure.
    Modeling of distances to isopleths corresponding to Level A 
harassment was performed for all types of HRG equipment planned for use 
with the potential to result in harassment of marine mammals. Of the 
HRG equipment types modeled, the AA Dura Spark resulted in the largest 
distances to isopleths corresponding to Level A harassment for all 
marine mammal functional hearing groups; therefore, to be conservative, 
the isopleths modeled for the AA Dura Spark were used to estimate 
potential Level A take. Based on a conservative assumption that the AA 
Dura Spark would be operated at 1,000 joules during the survey, a peak 
source level of 223 dB re 1[mu]Pa was used for modeling Level A 
harassment isopleths based on peak pressure (Crocker & Fratantonio, 
2016). Inputs to the NMFS optional User Spreadsheet for the AA Dura 
Spark are shown in Table 4. Modeled distances to isopleths 
corresponding to Level A harassment thresholds for the AA Dura Spark 
are shown in Table 5 (modeled distances to Level A harassment isopleths 
for all other types of HRG equipment planned for use are shown in Table 
6 of the IHA application). As described above, NMFS considers onset of 
PTS (Level A harassment) to have occurred when either one of the two 
metrics is exceeded (i.e., metric resulting in the largest isopleth). 
In this case, modeled distances to isopleths corresponding to the Level 
A harassment threshold were greater based on the peak SPL metric than 
the SELcum metric for all marine mammal functional hearing 
groups (Table 5). We note that Table 5 in the Federal Register notice 
of the proposed IHA (83 FR 14417; April 4, 2018) contained errors that 
reflected errors in Table 6 of the IHA application (an incorrect 
weighting factor adjustment was used in the optional User Spreadsheet 
which resulted in incorrect Level A isopleths for the SELcum 
metric). The correct inputs are shown in Table 4 below and the correct 
distances to Level A isopleths are shown in Table 5 below. Note that 
where distances to isopleths corresponding to the Level A harassment 
threshold have changed in comparison to those shown and analyzed in the 
proposed IHA, they are less than those that were presented in the 
proposed IHA.

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


[[Page 26425]]


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

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

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    The best available scientific information was considered in 
calculating marine mammal exposure estimates (the basis for estimating 
take). For cetacean species, densities calculated by Roberts et al. 
(2016) were used. The density data presented by Roberts et al. (2016) 
incorporates aerial and shipboard line-transect survey data from NMFS 
and from other organizations collected over the period 1992-2014. 
Roberts et al. (2016) modeled density from 8 physiographic and 16 
dynamic oceanographic and biological covariates, and controlled for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. NMFS considers the models 
produced by Roberts et al. (2016) to be the best available source of 
data regarding cetacean densities for this project. More information, 
including the model results and supplementary information for each 
model, is available online at: seamap.env.duke.edu/models/Duke-EC-GOM-2015/.
    For the purposes of the take calculations, density data from 
Roberts et al. (2016) were mapped using a geographic information system 
(GIS), using density data for the months May through December. Mean 
density per month for each species within the survey area was 
calculated by selecting 11 random raster cells selected from 100 km\2\ 
grid cells that were inside the Delaware Wind Energy Area (WEA) and an 
additional buffer of 10 km outside the WEA boundary (see Figure 1 in 
the IHA application). Estimates provided by the models are based on a 
grid cell size of 100 km\2\; therefore, model grid cell values were 
then divided by 100 to determine animals per square km. We note that 
the Federal Register notice of the proposed IHA (83 FR 14417; April 4, 
2018) contained an incorrect statement that density data for the months 
of May and December were not included in the take estimates, however, 
this statement was incorrect; density data for all months during which 
the survey may occur (i.e., May through December) were included in the 
take analysis.
    Systematic, offshore, at-sea survey data for pinnipeds are more 
limited than those for cetaceans. The best available information 
concerning pinniped densities in the survey area is the U.S. Navy's 
Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 2007). These 
density models utilized vessel-based and aerial survey data collected 
by NMFS from 1998-2005 during broad-scale abundance studies. Modeling 
methodology is detailed in DoN (2007). For the purposes of the take 
calculations, NODEs Density Estimates (DoN, 2007) as reported for the 
summer and fall seasons in the ``Mid Atlantic'' area were used to 
estimate harbor seal densities. NODEs reports a density value of 0 for 
gray seals throughout the year in the ``Mid Atlantic'' area; however, 
the survey data used to develop the OPAREA Density Estimates for gray 
seal are nearly 20 years old; and, based on the best available 
information (Hayes et al., 2018), gray seals are expected to occur in 
the survey area, especially during the fall months. Therefore, density 
data for harbor seals for the summer and fall seasons in the ``Mid 
Atlantic'' area were used to estimate gray seal density in the survey 
area. We acknowledge that this probably represents a conservative 
approach to estimating gray seal density in the survey area, however 
this approach is based on the best available information.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to harassment thresholds 
are calculated, as described above. Those distances are then used to 
calculate the area(s) around the HRG survey equipment predicted to be 
ensonified to sound levels that exceed harassment thresholds. The area 
estimated to be ensonified to relevant thresholds in a single day of 
the survey is then calculated, based on areas predicted to be 
ensonified around the HRG survey equipment and the estimated trackline 
distance traveled per day by the survey vessel. GSOE estimates a daily 
track line distance of

[[Page 26426]]

110 km per day during HRG surveys. Based on the maximum estimated 
distance to the Level B harassment threshold of 447 m (Table 3) and the 
estimated daily track line distance of 110 km, an area of 98.9 km\2\ 
would be ensonified to the Level B harassment threshold per day during 
HRG surveys.
    The number of marine mammals expected to be incidentally taken per 
day is then calculated by estimating the number of each species 
predicted to occur within the daily ensonified area, using estimated 
marine mammal densities as described above. Estimated numbers of each 
species taken per day are then multiplied by the number of survey days, 
and the product is then rounded, to generate an estimate of the total 
number of each species expected to be taken over the duration of the 
survey (Table 6).
    Takes of bottlenose dolphins could be from either the Western North 
Atlantic Offshore or Western North Atlantic Northern Migratory Coastal 
stocks. For purposes of calculating takes as a percentage of 
population, we assume 50 percent of bottlenose dolphins taken will be 
from the Western North Atlantic Offshore stock and 50 percent will be 
from the Western North Atlantic Northern Migratory Coastal stock.
    The applicant estimated a total of 4 takes by Level A harassment of 
harbor porpoises and 3 takes each by Level A harassment for harbor 
seals and gray seals would occur, in the absence of mitigation. 
However, as described above, due to the very small estimated distances 
to Level A harassment thresholds (Table 5), and in consideration of the 
planned mitigation measures, the likelihood of the planned survey 
resulting in take in the form of Level A harassment is considered so 
low as to be discountable; therefore, we do not authorize take of any 
marine mammals by Level A harassment. Take numbers are shown in Table 
6.

                Table 6--Total Numbers of Potential Incidental Take of Marine Mammals Authorized and Takes as a Percentage of Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Total takes  authorized as a
                  Species                   Density (#/100   Level A takes     Estimated     Level B takes    Total takes     percentage of  population
                                                km\2\)        authorized     Level B takes    authorized      authorized                 \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale................          0.0078               0               1               1               1  0.2
Humpback whale............................          0.0344               0               6               6               6  0.4
Fin whale.................................          0.1004               0              18              18              18  0.4
Sei whale \2\.............................          0.0036               0               1               2               2  <0.1
Minke whale \3\...........................          0.0244               0               4               4               4  <0.1
Sperm whale...............................          0.0053               0               1               1               1  <0.1
Long-finned pilot whale \2\...............          0.0507               0               9              32              32  0.2
Bottlenose dolphin \4\....................          6.3438               0            1148            1148            1148  1.18 (W. North Atlantic
                                                                                                                             Offshore stock) \3\
                                                                                                                            17.3 (W. North Atlantic
                                                                                                                             Northern Migratory Coastal
                                                                                                                             stock)
Atlantic Spotted dolphin..................          0.1323               0              24              24              24  <0.1
Common dolphin \3\........................          2.9574               0             535             535             535  0.3
Atlantic white-sided dolphin..............          0.4342               0              79              79              79  0.2
Harbor porpoise...........................          0.5625               0             102             102             102  0.2
Harbor seal...............................          6.4933               0            1175            1175            1175  1.6
Gray seal.................................          6.4933               0            1175            1175            1175  4.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Estimates of total takes as a percentage of population are based on marine mammal abundance estimates provided by Roberts et al. (2016), when
  available, to maintain consistency with density estimates which are derived from data provided by Roberts et al. (2016). In cases where abundances are
  not provided by Roberts et al. (2016), total takes as a percentage of population are based on abundance estimates in the NMFS Atlantic SARs (Hayes et
  al., 2018).
\2\ The number of authorized takes (Level B harassment only) for these species has been increased from the estimated take to mean group size. Source for
  sei whale group size estimate is: Schilling et al. (1992). Source for long-finned pilot whale group size estimate is: Augusto et al. (2017).
\3\ Estimates of total authorized takes as a percentage of population are based on marine mammal abundance estimates as reported in the 2007 TNASS
  (Lawson and Gosselin, 2009) (Table 1). Abundance estimates from TNASS were corrected for perception and availability bias, when possible. In general,
  where the TNASS survey effort provided superior coverage of a stock's range (as compared with NOAA shipboard survey effort), the resulting abundance
  estimate is considered more accurate than abundance estimates based on NMFS surveys.
\4\ A total of 1,148 takes of bottlenose dolphins are authorized. Takes could be from either the Western North Atlantic Offshore or Western North
  Atlantic Northern Migratory Coastal stocks. For purposes of calculating takes as a percentage of population we assume 50 percent of bottlenose
  dolphins taken will be from the Western North Atlantic Offshore stock and 50 percent will be from the Western North Atlantic Northern Migratory
  Coastal stock.

    Species with Take Estimates Less than Mean Group Size: Using the 
approach described above to estimate take, the take estimates for the 
sei whale and long-finned pilot whale were less than the average group 
sizes estimated for these species (Table 6). However, information on 
the social structures and life histories of these species indicates 
these species are often encountered in groups. The results of take 
calculations support the likelihood that the planned survey is expected 
to encounter and to incidentally take these species, and we believe it 
is likely that these species may be encountered in groups. Therefore it 
is reasonable to conservatively assume that one group of each of these 
species will be taken during the planned survey. We authorize the take 
of the average group size for these species and stocks to account for 
the possibility that the planned survey encounters a group of any of 
these species or stocks (Table 6). We note that the average group size 
estimate for sei whales in the Federal Register notice of the proposed 
IHA was incorrectly stated as 6 when in fact Schilling et al. (1992) 
report an average

[[Page 26427]]

group size of 2; therefore, the number of authorized takes of sei 
whales has been revised downward from the number of takes proposed in 
the proposed IHA (from 6 takes proposed to 2 takes authorized). Note 
that the take estimate for the North Atlantic right whale was not 
increased to average group size because the exclusion zone for right 
whales (500 m) (see the Mitigation section), which exceeds the 
estimated isopleth corresponding to the Level B harassment threshold, 
is expected to avoid the potential for takes that exceed the take 
estimate. Also, the take estimate for the sperm whale was not increased 
to average group size because, based on water depths in the survey area 
(16 to 28 m (52 to 92 ft)), it is very unlikely that groups of sperm 
whales, which tend to prefer deeper depths, would be encountered by the 
planned survey.

Mitigation

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

Mitigation Measures

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

Marine Mammal Exclusion Zones and Watch Zone

    Marine mammal EZs would be established around the HRG survey 
equipment and monitored by protected species observers (PSO) during HRG 
surveys, as follows:
     500 m EZ for North Atlantic right whales;
     200 m EZ for all other ESA-listed cetaceans (including fin 
whale, sei whale and sperm whale); and
     25 m EZ for harbor porpoises.
    The applicant proposed a 500 m EZ for North Atlantic right whales 
and 200 m EZ for all other marine mammals; however, for non-ESA-listed 
marine mammals, based on estimated distances to isopleths corresponding 
with Level A harassment thresholds (Table 5), we determined EZs for 
species other than those described above were not warranted. If HRG 
survey equipment is shut down (as described below) due to a marine 
mammal being observed within or approaching the relevant EZs, ramp up 
of survey equipment may not commence until the animal(s) has been 
observed exiting the relevant EZ, or until an additional time period 
has elapsed with no further sighting of the animal (e.g., 15 minutes 
for harbor porpoises and 30 minutes for all large whale species). In 
addition to the EZs described above, PSOs will visually monitor and 
record the presence of all marine mammals within 500 m. Marine mammals 
observed by PSOs within 447 m of geophysical survey equipment will be 
documented as takes by Level B harassment.

Visual Monitoring

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

Pre-Clearance of the Exclusion Zone

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

Passive Acoustic Monitoring

    As proposed by the applicant and required by BOEM lease 
stipulations, PAM will be used to support monitoring during night time 
operations to provide for optimal acquisition of species detections at 
night. The PAM system will consist of an array of hydrophones with both 
broadband (sampling mid-range frequencies of 2 kHz to 200 kHz) and at 
least one low-frequency hydrophone (sampling range frequencies of 75 Hz 
to 30 kHz). The PAM operator(s) will monitor acoustic signals in real 
time both aurally (using headphones) and visually (via sound analysis 
software). PAM operators will communicate nighttime detections to the 
lead PSO on duty who will ensure the implementation of the appropriate 
mitigation measure.
    Shutdown of geophysical survey equipment is required upon confirmed 
PAM detection of a North Atlantic right whale at night, even in the 
absence of

[[Page 26428]]

visual confirmation, except in cases where the acoustic detection can 
be localized and the right whale can be confirmed as being beyond the 
500 m EZ; equipment may be re-started no sooner than 30 minutes after 
the last confirmed acoustic detection. However, aside from the required 
shutdown for right whales as described above, PAM detection alone would 
not trigger a requirement for any mitigation action to be taken upon 
acoustic detection of marine mammals.

Ramp-Up of Survey Equipment

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

Shutdown Procedures

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

Vessel Strike Avoidance

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

Seasonal Operating Requirements

    As described above, the northern section of the survey area 
partially overlaps with a portion of one North Atlantic right whale SMA 
which occurs

[[Page 26429]]

off the mouth of the Delaware Bay. This SMA is active from November 1 
through April 30 of each year. Survey vessels that are 65 ft (19.8 m) 
or greater in overall length will be required to adhere to the 
mandatory vessel speed restrictions (<10 kn) when operating within the 
SMA during times when the SMA is active. In addition, between watch 
shifts, members of the monitoring team will consult NMFS' North 
Atlantic right whale reporting systems for the presence of North 
Atlantic right whales throughout survey operations. Members of the 
monitoring team will monitor the NMFS North Atlantic right whale 
reporting systems for the establishment of a Dynamic Management Area 
(DMA). If NMFS should establish a DMA in the survey area, within 24 
hours of the establishment of the DMA, GSOE will coordinate with NMFS 
to alter the survey activities as needed to avoid right whales to the 
extent possible.
    The mitigation measures are designed to avoid the already low 
potential for injury in addition to some Level B harassment, and to 
minimize the potential for vessel strikes. There are no known marine 
mammal feeding areas, rookeries, or mating grounds in the survey area 
that would otherwise potentially warrant increased mitigation measures 
for marine mammals or their habitat (or both). The survey would occur 
in an area that has been identified as a biologically important area 
for migration for North Atlantic right whales. However, given the small 
spatial extent of the survey area relative to the substantially larger 
spatial extent of the right whale migratory area, and the relatively 
limited temporal overlap of the survey with the months that the 
migratory area is considered biologically important (March, April, 
November and December), the survey is not expected to appreciably 
reduce migratory habitat nor to negatively impact the migration of 
North Atlantic right whales. Thus additional mitigation to address the 
survey's occurrence in North Atlantic right whale migratory habitat is 
not warranted. Further, we believe the mitigation measures are 
practicable for the applicant to implement.
    Based on our evaluation of the applicant's measures, NMFS has 
determined that the mitigation measures provide the means of effecting 
the least practicable impact on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, requirements pertaining to 
the monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     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);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring Measures

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

Reporting Measures

    Within 90 days after completion of survey activities, a final 
technical report will be provided to NMFS that fully documents the 
methods and monitoring protocols, summarizes the data recorded during 
monitoring, summarizes the number of marine mammals estimated to have 
been taken during survey activities (by species, when known), 
summarizes the mitigation actions taken during surveys (including what 
type of mitigation and the species and number of animals that prompted 
the mitigation action, when known), includes an

[[Page 26430]]

assessment of the effectiveness of night vision equipment used during 
nighttime surveys (including comparisons of relative effectiveness 
among the different types of night vision equipment used), and provides 
an interpretation of the results and effectiveness of all mitigation 
and monitoring. Any recommendations made by NMFS must be addressed in 
the final report prior to acceptance by NMFS.
    In addition to the final technical report, GSOE will provide the 
reports described below as necessary during survey activities. In the 
unanticipated event that GSOE's survey activities lead to an injury 
(Level A harassment) or mortality (e.g., ship-strike, gear interaction, 
and/or entanglement) of a marine mammal, DWW would immediately cease 
the specified activities and report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources and 
the NMFS Greater Atlantic Stranding Coordinator. The report would 
include the following information:
    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 GSOE to minimize 
reoccurrence of such an event in the future. GSOE would not resume 
activities until notified by NMFS.
    In the event that GSOE 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), GSOE would immediately report the incident to the Chief 
of the Permits and Conservation Division, Office of Protected Resources 
and the NMFS Greater Atlantic Stranding Coordinator. The report would 
include the same information identified in the paragraph above. 
Activities would be able to continue while NMFS reviews the 
circumstances of the incident. NMFS would work with GSOE to determine 
if modifications in the activities are appropriate.
    In the event that GSOE 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), GSOE would report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, and 
the NMFS Greater Atlantic Regional Stranding Coordinator, within 24 
hours of the discovery. GSOE would provide photographs or video footage 
(if available) or other documentation of the stranded animal sighting 
to NMFS. GSOE may continue its operations under such a case.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival. 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 6, given that NMFS expects the anticipated effects of the 
planned survey to be similar in nature.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result of GSOE's planned survey, even in the absence of 
mitigation. Thus this authorization does not authorize any serious 
injury or mortality. As discussed in the Potential Effects section, 
non-auditory physical effects and vessel strike are not expected to 
occur.
    We expect that all potential takes would be in the form of short-
term Level B behavioral harassment in the form of temporary avoidance 
of the area, a reaction that is considered to be of low severity and 
with no lasting biological consequences (e.g., Ellison et al., 2007). 
Potential impacts to marine mammal habitat were discussed in the 
Federal Register notice of the proposed IHA (83 FR 14417; April 4, 
2018) (see Potential Effects of the Specified Activity on Marine 
Mammals and their Habitat). Marine mammal habitat may be impacted by 
elevated sound levels, but these impacts would be temporary. In 
addition to being temporary and short in overall duration, the acoustic 
footprint of the planned survey is small relative to the overall 
distribution of the animals in the area and their use of the area. 
Feeding behavior is not likely to be significantly impacted, as no 
areas of biological significance for marine mammal feeding are known to 
exist in the survey area. Prey species are mobile and are broadly 
distributed throughout the project area; therefore, marine mammals that 
may be temporarily displaced during survey activities are expected to 
be able to resume foraging once they have moved away from areas with 
disturbing levels of underwater noise. Because of the temporary nature 
of the disturbance 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. In addition, there are no rookeries or mating or 
calving areas known to be biologically important to marine mammals 
within the project area. The planned survey area is within a 
biologically important migratory area for North Atlantic right whales 
(effective March-April and November-December) that extends from 
Massachusetts to Florida (LaBrecque, et al., 2015). Off the coast of 
Delaware, this biologically important migratory area extends from the 
coast to beyond the shelf break. Due to the fact that the planned 
survey is temporary and short in overall duration, the majority of the 
survey would occur

[[Page 26431]]

outside the months when the BIA is considered important for right whale 
migration, and the acoustic footprint of the planned survey is very 
small relative to the spatial extent of the available migratory habitat 
in the area, right whale migration is not expected to be impacted by 
the planned survey.
    The mitigation measures are expected to reduce the number and/or 
severity of takes by (1) giving animals the opportunity to move away 
from the sound source before HRG survey equipment reaches full energy; 
and (2) preventing animals from being exposed to sound levels that may 
otherwise result in injury. Additional vessel strike avoidance 
requirements will further mitigate potential impacts to marine mammals 
during vessel transit to and within the survey area.
    NMFS concludes that exposures to marine mammal species and stocks 
due to GSOE's planned survey would result in only short-term (temporary 
and short in duration) effects to individuals exposed. Marine mammals 
may temporarily avoid the immediate area but are not expected to 
permanently abandon the area. Impacts to breeding, feeding, sheltering, 
resting, or migration are not expected, nor are shifts in habitat use, 
distribution, or foraging success. NMFS does not anticipate the marine 
mammal takes that would result from the planned survey would impact 
annual rates of recruitment or survival.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality, serious injury, or Level A harassment is 
anticipated or authorized;
     The anticipated impacts of the activity on marine mammals 
would be temporary behavioral changes due to avoidance of the area 
around the survey vessel;
     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;
     The project area does not contain areas of significance 
for feeding, mating or calving;
     Effects on species that serve as prey species for marine 
mammals from the survey are not expected;
     The mitigation measures, including visual and acoustic 
monitoring, exclusion zones, and shutdown measures, are expected to 
minimize potential impacts to marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    The numbers of marine mammals that we authorize to be taken, for 
all species and stocks, would be considered small relative to the 
relevant stocks or populations (less than 17 percent for the Western 
North Atlantic Northern Migratory Coastal stock of bottlenose dolphins, 
and less than 5 percent for all other species and stocks) (Table 6). 
Bottlenose dolphins taken by the survey could originate from either the 
Western North Atlantic Offshore or Western North Atlantic Northern 
Migratory Coastal stocks, based on water depths and distances to shore 
in the survey area. For purposes of calculating takes as a percentage 
of population we assume 50 percent of bottlenose dolphins taken will 
originate from the Western North Atlantic Offshore stock and 50 percent 
will originate from the Western North Atlantic Northern Migratory 
Coastal stock. Based on the analysis contained herein of the activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    The NMFS Office of Protected Resources Permits and Conservation 
Division is authorizing the incidental take of four species of marine 
mammals which are listed under the ESA: The North Atlantic right, fin, 
sei and sperm whale. Under Section 7 of the ESA, we requested 
initiation of consultation with the NMFS Greater Atlantic Regional 
Fisheries Office (GARFO) on March 19, 2018, for the issuance of this 
IHA. In May, 2018, NMFS GARFO determined our issuance of the IHA to 
GSOE was not likely to adversely affect the North Atlantic right, fin, 
sei and sperm whale or the critical habitat of any ESA-listed species.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    Accordingly, NMFS prepared an Environmental Assessment (EA) and 
analyzed the potential impacts to marine mammals that would result from 
the project, as well as from a similar project proposed by Deepwater 
Wind New England LLC off the coasts of Rhode Island and Massachusetts. 
A Finding of No Significant Impact (FONSI) was signed on May 15, 2018. 
A copy of the EA and FONSI is available on the internet at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

[[Page 26432]]

Authorization

    NMFS has issued an IHA to GSOE for conducting marine site 
characterization surveys offshore of Delaware and along potential 
submarine cable routes for a period of one year, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: June 1, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-12225 Filed 6-6-18; 8:45 am]
BILLING CODE 3510-22-P