[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Notices]
[Pages 31032-31048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13874]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG612


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys Off 
the Coast of North Carolina

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to 
Avangrid Renewables, LLC (Avangrid) to take small numbers of marine 
mammals, by harassment, incidental to high-resolution geophysical (HRG) 
survey investigations associated with marine site characterization 
activities off the coast of North Carolina in the area of the 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS-A 0508) (the Lease Area) and the 
coastal waters off North Carolina and Virginia where one or more cable 
route corridors will be established.

DATES: This authorization is effective from June 1, 2019, through May 
31, 2020.

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

SUPPLEMENTARY INFORMATION: 

[[Page 31033]]

Background

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

Summary of Request

    On October 4, 2018, NMFS received a request from Avangrid for an 
IHA to take marine mammals incidental to HRG survey investigations off 
the coast of North Carolina in the OCS-A 0508 Lease Area and in the 
coastal waters of Virginia and North Carolina where one or more cable 
route corridors will be established to support the development of an 
offshore wind project. The application was deemed adequate and complete 
on February 21, 2019. Avangrid's request is for take of small numbers 
of nine species by Level B harassment only. Neither Avangrid nor NMFS 
expects serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.

Description of the Specified Activity

Overview

    The purpose of the marine site characterization survey is to 
support the siting, design, and deployment of up to three 
meteorological data buoy deployment areas and obtain a baseline 
assessment of seabed/sub-surface soil conditions in the Lease Area and 
cable route corridors to support the siting of a planned wind farm. 
Underwater sound resulting from use of HRG equipment for site 
characterization purposes can have the potential to result in 
incidental take of marine mammals. The survey area extends along the 
coast from near the mouth of the Chesapeake Bay to Currituck, North 
Carolina. Up to 37 days of active HRG survey operations are planned and 
could take place any time during the one year authorization period. The 
surveys are planned to take place during the summer months. The IHA 
would be effective for one year. Take of marine mammals is anticipated 
to be in the form of Level B harassment only; no serious injury or 
mortality is anticipated or authorized. The IHA is effective from June 
1, 2019, through May 31, 2020.
    A detailed description of the planned survey activities, including 
types of survey equipment planned for use, is provided in the Federal 
Register notice for the proposed IHA (84 FR 17384; April 25, 2019). 
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 specified 
activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on April 25, 2019 (84 FR 17384). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission) and from a group of non-governmental 
organizations (NGOs) including Natural Resources Defense Council, 
National Wildlife Federation, Southern Environmental Law Center, North 
Carolina Wildlife Federation, Oceanic Preservation Society, Mass 
Audubon, Defenders of Wildlife, WDC North America, NY4WHALES, Gotham 
Whale, Ocean Conservation Research, Conservation Law Foundation, Inland 
Ocean Coalition, International Marine Mammal Project of the Earth 
Island Institute, and Sanctuary Education Advisory Specialists SEAS 
LLC. NMFS has posted the comments online at: https://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 recommended that, until the behavior 
thresholds are updated, NMFS require applicants to use the 120- rather 
than 160-dB re 1 [mu]Pa threshold for intermittent, non-impulsive 
sources (i.e., parametric SBPs, chirps, echosounders, and other 
sonars). The Commission stated that general Level B harassment 
thresholds currently relate only to impulsive and continuous sources 
and that NMFS's characterization of the parametric SBPs and chirps as 
impulsive sources for the purpose of estimating the extent of the Level 
B harassment thresholds is incorrect. The Commission related that these 
sources are neither impulsive nor continuous sources, but rather should 
be described as non-impulsive, intermittent sources. Researchers have 
observed that various species of marine mammals, including harbor 
porpoises, respond to sound from sources with similar characteristics 
at received levels below 160 dB re 1 [micro]Pa. The Commission noted 
that the behavior thresholds currently used by NMFS do not reflect the 
current state of understanding regarding the temporal and spectral 
characteristics of various sound sources and their impacts on marine 
mammals. Therefore, NMFS should default to the more precautionary Level 
B harassment threshold of 120 dB re 1 [micro]Pa.
    Response: NMFS has historically used generalized acoustic 
thresholds based on received levels to predict the occurrence of 
behavioral harassment, given the practical need to use a relatively 
simple threshold based on information that is available for most 
activities. Thresholds were selected in consideration largely of 
measured avoidance responses of mysticete whales to airgun signals and 
to industrial noise sources, such as drilling. The selected thresholds 
of 160 dB rms SPL and 120 dB rms SPL, respectively, have been extended 
for use since then for estimation of behavioral harassment associated 
with noise exposure from sources associated with other common 
activities as well.
    Sound sources can be divided into broad categories based on various 
criteria or for various purposes. As discussed by Richardson et al. 
(1995), source characteristics include strength of signal amplitude, 
distribution of sound frequency and, importantly in context of these 
thresholds, variability over time. With regard to temporal properties, 
sounds are generally considered to be either continuous or transient 
(i.e., intermittent). Continuous sounds, which are produced by the 
industrial noise sources for which the 120-dB behavioral harassment 
threshold was selected, are simply those whose sound pressure level 
remains above ambient sound during the observation

[[Page 31034]]

period (ANSI, 2005). Intermittent sounds are defined as sounds with 
interrupted levels of low or no sound (NIOSH, 1998). Simply put, a 
continuous noise source produces a signal that continues over time, 
while an intermittent source produces signals of relatively short 
duration having an obvious start and end with predictable patterns of 
bursts of sound and silent periods (i.e., duty cycle) (Richardson and 
Malme, 1993). It is this fundamental temporal distinction that is most 
important for categorizing sound types in terms of their potential to 
cause a behavioral response. For example, Gomez et al. (2016) found a 
significant relationship between source type and marine mammal 
behavioral response when sources were split into continuous (e.g., 
shipping, icebreaking, drilling) versus intermittent (e.g., sonar, 
seismic, explosives) types. In addition, there have been various 
studies noting differences in responses to intermittent and continuous 
sound sources for other species (e.g., Neo et al., 2014; Radford et 
al., 2016; Nichols et al., 2015).
    Sound sources may also be categorized based on their potential to 
cause physical damage to auditory structures and/or result in threshold 
shifts. In contrast to the temporal distinction discussed above, the 
most important factor for understanding the differing potential for 
these outcomes across source types is simply whether the sound is 
impulsive or not. Impulsive sounds, such as those produced by airguns, 
are defined as sounds which are typically transient, brief (<1 sec), 
broadband, and consist of a high peak pressure with rapid rise time and 
rapid decay (ANSI, 1986; NIOSH, 1998). These sounds are generally 
considered to have greater potential to cause auditory injury and/or 
result in threshold shifts. Non-impulsive sounds can be broadband, 
narrowband or tonal, brief or prolonged, continuous or intermittent, 
and typically do not have the high peak pressure with rapid rise/decay 
time that impulsive sounds do (ANSI, 1995; NIOSH, 1998). Because the 
selection of the 160-dB behavioral threshold was focused largely on 
airgun signals, it has historically been commonly referred to as the 
``impulse noise'' threshold (including by NMFS). However, this 
longstanding confusion in terminology--i.e., the erroneous impulsive/
continuous dichotomy--presents a narrow view of the sound sources to 
which the thresholds apply, and inappropriately implies a limitation in 
scope of applicability for the 160-dB behavioral threshold in 
particular.
    An impulsive sound is by definition intermittent; however, not all 
intermittent sounds are impulsive. Many sound sources for which it is 
generally appropriate to consider the authorization of incidental take 
are in fact either impulsive (and intermittent) (e.g., impact pile 
driving) or continuous (and non-impulsive) (e.g., vibratory pile 
driving). However, parametric SBPs and chirps present a less common 
case where the sound produced is considered intermittent but non-
impulsive. Herein lies the crux of the Commission's argument, i.e., 
that because HRG equipment used in site characterization surveys are 
not impulsive sound sources, they must be assessed using the 120-dB 
behavioral threshold appropriate for continuous noise sources. However, 
given the existing paradigm--dichotomous thresholds appropriate for 
generic use in evaluating the potential for behavioral harassment 
resulting from exposure to continuous or intermittent sound sources--
the Commission does not adequately explain why potential harassment 
from an intermittent sound source should be evaluated using a threshold 
developed for use with continuous sound sources. As we have stated in 
prior responses to this recommendation, consideration of the preceding 
factors leads to a conclusion that the 160-dB threshold is more 
appropriate for use than is the 120-dB threshold.
    As noted above, the Commission first claims generically that we are 
using an incorrect threshold, because parametric SBPs and chirps do not 
produce impulse noise. However, in bridging the gap from this generic 
assertion to their specific recommendation that the 120-dB continuous 
noise threshold should be used, the Commission makes several leaps of 
logic that we address here. The Commission's justification is in large 
part seemingly based on citation to examples in the literature of the 
most sensitive species responding at lower received levels to sources 
dissimilar to those considered here. There are three critical errors in 
this approach.
    First, the citation of examples of animals ``responding to sound'' 
does not equate to behavioral harassment, as defined by the MMPA. As 
noted above under ``Background,'' the MMPA defines Level B harassment 
as acts with the potential to disturb a marine mammal by causing 
disruption of behavioral patterns. While it is possible that some 
animals do in fact experience Level B harassment upon exposure to 
intermittent sounds at received levels less than the 160-dB threshold, 
this is not in and of itself adequate justification for using a lower 
threshold. Implicit in the use of a step function for quantifying 
behavioral harassment is the realistic assumption, due to behavioral 
context and other factors, that some animals exposed to received levels 
below the threshold will in fact experience harassment, while others 
exposed to levels above the threshold will not. Moreover, a brief, 
transient behavioral response should not necessarily be considered as 
having the potential to disturb by disrupting behavioral patterns.
    Many of the examples given by the Commission demonstrate mild 
responses, but not behavioral changes more likely to indicate Level B 
harassment. As an example, Kastelein et al. (2006a) describe the 
response of harbor porpoise to an experimental acoustic alarm 
(discussed below; power averaged source level of 145 dB), while also 
noting that a striped dolphin showed no reaction to the alarm, despite 
both species being able to clearly detect the signal.
    Second, many of the cited studies do not present a relevant 
comparison. These studies discuss sources that are not appropriately or 
easily compared to the sources considered here and/or address responses 
of animals in experimental environments that are not appropriately 
compared to the likely exposure context here. For example, aside from 
the well-developed literature concerning ``acoustic harassment'' or 
``acoustic deterrent'' devices--which are obviously designed for the 
express purpose of harassing marine mammals (usually specific species 
or groups)--Kastelein et al. (2006b) describe harbor seal responses to 
signals used as part of an underwater data communication network. In 
this case, seals in a pool were exposed to signals of relatively long 
duration (1-2 seconds) and high duty cycle for 15 minutes, with 
experimental signals of continuously varying frequency, three different 
sound blocks, or frequency sweeps. These seals swam away from the sound 
(though they did not attempt to reduce exposure by putting their heads 
out of the water), but this result is of questionable relevance to 
understanding the likely response of seals in the wild that may be 
exposed to a 1-ms single-frequency signal from an echosounder moving 
past the seal as a transient stimulus.
    Third, the Commission relies heavily on the use of examples 
pertaining to the most sensitive species, which does not support an 
argument that the 120-dB threshold should be applied to all species. 
NMFS has acknowledged that the scientific evidence indicates that 
certain species are, in general, more acoustically sensitive than 
others. In particular, harbor porpoise and beaked

[[Page 31035]]

whales are considered to be behaviorally sensitive, and it may be 
appropriate to consider use of lower behavioral harassment thresholds 
for these species. NMFS is considering this issue in its current work 
of developing new guidelines for assessing behavioral harassment; 
however, until this work is completed and new guidelines are identified 
(if appropriate), the existing generic thresholds are retained. 
Moreover, as is discussed above for other reasons, the majority of 
examples cited by the Commission are of limited relevance in terms of 
comparison of sound sources. In support of their statement that 
numerous researchers have observed marine mammals responding to sound 
from sources claimed to be similar to those considered herein, the 
Commission indeed cites numerous studies; however, the vast majority of 
these address responses of harbor porpoise or beaked whales to various 
types of acoustic alarms or deterrent devices.
    We acknowledge that the Commission presents legitimate points in 
support of defining a threshold specific to non-impulsive, intermittent 
sources and that, among the large number of cited studies, there are a 
few that show relevant results of individual animals responding to 
exposure at lower received levels in ways that could be considered 
harassment. As noted in a previous comment response, NMFS is currently 
engaged in an ongoing effort towards developing updated guidance 
regarding the effects of anthropogenic sound on marine mammal behavior. 
However, prior to conclusion of this effort, NMFS will continue using 
the historical Level B harassment thresholds (or derivations thereof) 
and will appropriately evaluate behavioral harassment due to 
intermittent sound sources relative to the 160-dB threshold.
    Comment 2: The Commission and NGOs expressed concern that the 
Renewal process discussed in the notice for the proposed IHA is 
inconsistent with the statutory requirements contained in section 
101(a)(5)(D) of the MMPA. The NGOs asserted that IHAs can be valid for 
not more than one year and both commenters stated that 30 days for 
comment, including on Renewal IHAs, is required.
    Response: NMFS' IHA Renewal process meets all statutory 
requirements. All IHAs issued, whether an initial IHA or a Renewal, are 
valid for a period of not more than one year. And the public has 30 
days to comment on proposed IHAs, with a cumulative total of 45 days 
for IHA Renewals. One commenter characterized the agency's request for 
comments as seeking comment on the Renewal process and the proposed 
IHA, but the request for comments was not so limited. The Request for 
Public Comments section made clear that the agency was seeking comment 
on both the initial proposed IHA for this project and the potential 
issuance of a Renewal. Because any Renewal (as explained in the Request 
for Public Comments section) is limited to another year of identical or 
nearly identical activities (as described in the Description of 
Proposed Activity) or the same activities that were not completed 
within the one-year period of the initial IHA, reviewers have the 
information needed to effectively comment on both the immediate 
proposed IHA and a possible one-year Renewal, should the IHA holder 
choose to request one in the coming months. Minor changes have been 
made to the description of the Renewal process to make this even 
clearer.
    While there will be additional documents submitted with a Renewal 
request, for a qualifying Renewal these will be limited to 
documentation verifying that the activities are identical to those in 
the initial IHA, are nearly identical such that the changes would have 
either no effect on impacts to marine mammals or decrease those 
impacts, or are a subset of activities analyzed and authorized but not 
completed under the initial IHA. The Renewal request will also contain 
a preliminary monitoring report, but that is to verify that effects 
from the activities do not indicate impacts of a scale or nature not 
previously analyzed. An additional 15-day public comment period 
provides the public an opportunity to review these documents and any 
additional pertinent information and comment on whether they think the 
criteria for a Renewal have been met. Between the initial 30-day 
comment period on these same activities and the additional 15 days, the 
total comment period for a Renewal is 45 days.
    Comment 3: The NGOs stated that NMFS should explain why applicants 
whose activities may result in incidental take of marine mammals over 
more than one year should not be required to apply for incidental take 
authorization under section 101(a)(5)(A), which provides for 
authorizations for up to five years.
    Response: It is up to an applicant to decide which authorization 
process it wants to pursue. While it is correct that MMPA 
authorizations under section 101(a)(5)(A) can be issued for up to five 
years (seven years for military readiness activities), the agency 
cannot require an applicant to apply under this provision. An applicant 
whose activities qualify for an IHA has the right to choose that course 
of action, including requesting a second year of authorization if they 
meet all of the criteria for an IHA Renewal.
    Comment 4: The Commission and NGOs also argued that the 15-day 
comment period places a burden on reviewers, who will need to review 
the original authorization and numerous supporting documents and then 
formulate comments very quickly. The Commission stated that if proposed 
renewals are complex or occur frequently, reviewers who attempt to 
comment on all proposed authorizations and renewals would be hard 
pressed to do so within the 15-day comment period.
    Response: NMFS has taken a number of steps to ensure the public has 
adequate notice, time, and information to be able to comment 
effectively on Renewal IHAs within the limitations of processing 
Renewal requests efficiently. Federal Register notices for proposed 
initial IHAs identify the conditions under which a one-year Renewal IHA 
could be appropriate. This information would have been presented in the 
Request for Public Comments section, which encouraged submission of 
comments on a potential one-year Renewal in addition to the initial IHA 
during the initial 30-day comment period. With this information about 
the Renewal process and the project-specific information provided in 
the Federal Register notice, reviewers have the information needed to 
provide information and comment on both the initial IHA and a potential 
Renewal for the project. Thus reviewers interested in submitting 
comments on a proposed Renewal will have already reviewed the 
activities and mitigation and monitoring measures, which will not 
change from the IHA issued, and the anticipated effects of those 
activities on marine mammals and provided their comments during the 
initial 30-day comment period. When we receive a request for a Renewal 
IHA, we will publish notice of the proposed IHA Renewal in the Federal 
Register and provide an additional 15 days for public comment to allow 
review of the additional documents (preliminary monitoring report, 
Renewal request, and proposed Renewal), which should confirm that the 
activities have not changed (or only minor changes), commit to continue 
the same mitigation and monitoring measures, and document that 
monitoring does not indicate any impacts of a scale or nature not 
previously analyzed. In addition, to minimize any burden on reviewers, 
NMFS will directly contact all

[[Page 31036]]

commenters on the initial IHA by email, phone, or, if the commenter did 
not provide email or phone information, by postal service to provide 
them direct notice about the opportunity to submit any additional 
comments on the proposed Renewal IHA.
    Comment 5: The NGOs commented that NMFS apparently intends for the 
IHA Renewal process to become the rule rather than the exception. The 
Commission recommended that NMFS use the renewal process sparingly and 
limit its use to only those proposed IHAs that are expected to have the 
lowest levels of impacts to marine mammals and that require the least 
complex analyses.
    Response: As described in the Federal Register notice for the 
proposed IHA and on NMFS' website where information on all MMPA 
incidental take authorization processes is provided, requests for 
Renewal IHAs are appropriate only in the limited circumstances 
described in the response to Comment 2. NMFS does not anticipate many 
projects that would meet all the criteria for a Renewal. Nonetheless, 
information about the Renewal process and the opportunity to comment on 
a potential Renewal is included in every notice of a proposed IHA 
because NMFS cannot necessarily predetermine who may seek or qualify 
for a Renewal. NMFS has also explained that the possibility of a 
Renewal must be included in the notice of the initial proposed IHA for 
the agency to consider a Renewal request, for the purpose of providing 
adequate opportunity for public comment as discussed in the response 
above. Where the commenter has likely already reviewed and commented on 
the initial proposed IHA and a potential Renewal for these same 
activities, the abbreviated additional comment period is sufficient for 
consideration of the results of the preliminary monitoring report and 
new information (if any) from the past months.
    NMFS' purpose in providing for Renewals is two-fold. First and 
foremost, the efficiencies in dealing with these simple, low-impact 
projects (which have already been fully described and analyzed in the 
initial IHA) frees up limited staff resources to increase focus on more 
complex and impactful projects, creating opportunities for increased 
conservation value and even better utilization of new science and 
evolving technologies. In addition, while the agency has always striven 
for efficiency in regulatory processes, recent directives have called 
for agencies to put processes in place that reduce regulatory timelines 
and the regulatory burden on the public. The Renewal process reduces 
the effort needed by both applicants and NMFS staff for simple, 
relatively low impact projects with little to no uncertainty regarding 
effects that have already been analyzed by the agency and considered by 
the public--with no reduction in protection to marine mammals.
    Comment 6: The Commission recommended that, in the future, NMFS 
take all steps necessary to ensure that it publishes and finalizes 
proposed incidental harassment authorizations far enough in advance of 
the planned start date of the proposed activities to ensure full 
consideration is given to any and all comments received.
    Response: NMFS encourages all applicants to submit applications for 
IHAs five to eight months in advance of the intended project start date 
and for rulemakings/LOAs at least nine months, and preferably 15 
months, in advance of the intended project start date. More generally, 
NMFS publishes FR notices for proposed IHAs as quickly as possible once 
the application is received and aims to allow more time on the back end 
of the comment period, but there are situations where the length of 
processing times are driven by the exigency of an applicant's activity 
start date or by the need to work with applicants to ensure we have the 
necessary information to deem an application adequate and complete. 
Here, NMFS provided the required 30-day notice for public comment, and 
has adequately considered the comments received in making the necessary 
findings for this IHA.
    Comment 7: The NGOs recommended that NMFS impose a restriction on 
site assessment and characterization activities that have the potential 
to harass the North Atlantic right whale from November 1st to April 30 
in case of delay of planned surveys beyond summer.
    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.
    Avangrid determined the planned duration of the survey based on 
their data acquisition needs, which are largely driven by the Bureau of 
Ocean Energy Management's (BOEM) data acquisition requirements prior to 
required submission of a construction and operations plan (COP). Even 
though Avangrid plans to conduct the survey during summer of 2019, 
unexpected delays may occur. Our analysis of the potential impacts of 
the survey on right whales does not indicate that such closures are 
warranted, as we do not anticipate any potential impacts to right 
whales from the survey activities during any time of the year 
particularly with the mitigation requirements. No behavioral 
disturbance or injury to right whales is expected and none is 
authorized in the IHA. Therefore, 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 8: The NGOs recommended that geophysical surveys should 
commence, with ramp up, during daylight hours only to maximize the 
probability that marine mammals are detected and confirmed clear of the 
exclusion zone (``EZ''). They state that if a right whale is detected 
in the EZ at night and the survey shuts down, the survey should not 
resume until daylight hours.
    Response: We acknowledge the limitations inherent in detection of 
marine mammals at night. However, similar to the discussion above 
regarding time 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, potential impacts to marine mammals authorized for take 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

[[Page 31037]]

zones. In the event that NMFS imposed the restriction suggested by the 
commenters, vessels would potentially be on the water for an extended 
time introducing noise into the marine environment. 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 not 
demonstrated that such a requirement would result in a net benefit. 
Furthermore, it is not anticipated that right whales would be exposed 
to sound levels that would result in take by Level A or Level B 
harassment. 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.
    Comment 9: The NGOs recommended that NMFS encourage developers to 
partner with scientists to collect data that would increase the 
understanding of the effectiveness of night vision and infrared 
technologies off North Carolina, Virginia, and the broader mid-Atlantic 
region, with a view towards greater reliance on these technologies to 
commence surveys during nighttime hours in the future.
    Response: NMFS agrees with the NGOs that improved data on relative 
effectiveness of night vision and infra-red technologies would be 
beneficial and could help to inform future efforts at detection of 
marine mammals during nighttime activities. The commenters have not 
provided us with any specific recommendations to evaluate beyond a 
broad recommendation. However, we will encourage coordination and 
communication between offshore wind developers and researchers on 
effectiveness of night vision and infra-red technologies, to the extent 
possible.
    Comment 10: The NGOs recommended that NMFS require a 500 m EZ for 
marine mammals and that protected species observers (PSOs) monitor to 
an extended 1,000 m EZ for North Atlantic right whales. Another comment 
from the NGOs suggested that survey activity should be shut down upon 
the visual detection of a North Atlantic right whale, presumably at any 
distance.
    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 by two times the modeled distance to the 
largest Level B harassment isopleth (200 m). Thus for North Atlantic 
right whales detected by PSOs this EZ would be expected to effectively 
minimize potential instances of injury and behavioral harassment. For 
the same reason we are not requiring shutdown if a right whale is 
observed beyond 500 m. Similarly, the recommended 500 m EZ for other 
species is overly conservative when a 200 m isopleth has been modeled 
for behavioral harassment.
    Comment 11: PSOs should adhere to a shift schedule of two-on/two-
off to ensure no individual PSO is responsible for monitoring more than 
180[deg] of the EZ at any one time.
    Response: Previous IHAs issued for HRG surveys have required that a 
single PSO must be stationed at the highest vantage point and engaged 
in general 360-degree scanning during daylight hours. A number of 
marine mammal monitoring reports submitted to NMFS have effectively 
employed this approach. NMFS sees no reason to deviate from this 
practice at the present time.
    Comment 12: The NGOs recommended that a combination of visual 
monitoring by PSOs and passive acoustic monitoring should be used at 
all times.
    Response: We do not think the use of PAM is necessarily warranted 
for surveys using the sound sources proposed for use by Avangrid, due 
to relatively small areas that are expected to be ensonified to the 
Level A harassment threshold. Given that the effects to marine mammals 
from the types of surveys authorized in this IHA are expected to be 
limited to behavioral harassment even in the absence of mitigation, we 
have determined the current requirements for visual monitoring are 
sufficient to ensure the EZs and monitoring zones are adequately 
monitored for this particular activity.
    Comment 13: The NGOs recommended that all vessels operating within 
the survey area, including support vessels, should maintain a speed of 
10 knots or less during the entire survey period. If site 
characterization and assessment activities are delayed into the fall 
and winter, a 10-knot speed restriction on all project-associated 
vessels transiting to/from the survey area from November 1 through 
April 30 should also be required.
    Response: NMFS has analyzed the potential for ship strike resulting 
from Avangrid's activity and has determined that the mitigation 
measures specific to ship strike avoidance are sufficient to avoid the 
potential for ship strike. These include: A requirement that all vessel 
operators comply with 10 knot (18.5 kilometer (km)/hour) or less speed 
restrictions in any SMA or Dynamic Management Area (DMA); a requirement 
that all vessel operators reduce vessel speed to 10 knots (18.5 km/
hour) or less when any large whale, any mother/calf pairs, pods, or 
large assemblages of non-delphinoid cetaceans are observed within 100 m 
of an underway vessel; a requirement that all survey vessels maintain a 
separation distance of 500 m or greater from any sighted North Atlantic 
right whale; a requirement that, if underway, vessels must steer a 
course away from any sighted North Atlantic right whale at 10 knots or 
less until the 500 m minimum separation distance has been established; 
and a requirement that, if a North Atlantic right whale is sighted in a 
vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Additional 
measures to prevent the potential for ship strike are discussed in more 
detail below (see the Mitigation section). We have determined that the 
ship strike avoidance measures are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. We 
also note that vessel strike during surveys is extremely unlikely based 
on the low vessel speed of approximately 4 knots (7.4 km/hour) while 
transiting survey lines.
    Comment 14: The NGOs recommended that NMFS account for the 
potential for indirect ship strike risk resulting from habitat 
displacement.
    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 15: The NGOs commented that Lease Area lies to the west of 
the Cape Hatteras Special Research Area (CHSRA) which is a highly 
diverse and biologically productive marine ecosystem. Therefore, it is 
crucial that that NMFS afford special attention to the general 
importance of the waters off North Carolina to marine mammals when 
permitting offshore wind development activities in this region, and 
requires strong mitigation measures capable of protecting multiple 
species in the Lease Area and cable route corridors.
    Response: NMFS is requiring mitigation measures as part of the IHA 
which do protect multiple marine mammal species.

[[Page 31038]]

    Comment 16: The NGOs expressed concern regarding the marine mammal 
density estimates used to calculate take. Specifically, they commented 
that the density maps produced by Roberts et al. do not fully reflect 
the abundance, distribution, and density of marine mammals, including 
North Atlantic right whales, for the U.S. East Coast and therefore 
should not be the only information source relied upon when estimating 
take.
    Response: NMFS has determined that the data provided by Roberts et 
al. 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). Furthermore, 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.
    Comment 17: The NGOs recommended that NMFS' top priority should be 
to consider any initial data from State monitoring efforts, passive 
acoustic monitoring data, opportunistic marine mammal sightings data, 
and other data sources, and to take steps now to develop a dataset that 
more accurately reflects marine mammal presence so that it is in hand 
for future IHA authorizations and other work.
    Response: As noted above, we will review any recommended data 
sources and will continue to use the best available information. We 
welcome future input, even outside the comment period for this 
particular IHA, from interested parties on data sources that may be of 
use in analyzing the potential presence and movement patterns of marine 
mammals, including North Atlantic right whales, in the mid-Atlantic 
area.
    Comment 18: The NGOs stated that NMFS should not adjust take 
numbers for endangered whales based on the effectiveness of mitigation 
measures. NMFS' assumptions regarding mitigation effectiveness are 
unfounded according to the NGOs. They also do not believe it is 
possible to mitigate all potential for Level B harassment though 
implementation of an EZ for right whales or fin whales.
    Response: NMFS reduced authorized take for these whale species to 
zero down for right whale and fin whale. The NGOs' arguments against 
reduction are: (i) The agency's reliance on a 160 dB threshold for 
behavioral harassment is not supported by best available scientific 
information and (ii) the monitoring protocols the agency prescribes for 
the EZ are under-protective. NMFS addressed the first item in the 
response to Comment 1 and the second item is addressed in responses to 
Comment 8 and Comment 9.
    Additionally, NMFS referenced monitoring reports from previous HRG 
action to justify the effectiveness of mitigation measures and 
reduction of right and fin whale take numbers. We acknowledge that 
visual monitoring may not capture all of the animals that enter into a 
harassment zone, especially during nighttime operations and adverse 
weather conditions. Nevertheless, we believe it provides a reasonably 
accurate depiction of observed take levels and supports the efficacy of 
required mitigation measures. Also, note that the 200 m Level B 
harassment isopleth is considered to be conservative based on sound 
source verification testing. As such, NMFS has determined that given 
the density of these species in the area and the size of the Level B 
harassment zone (resulting in a very low likelihood of exposure absent 
mitigation) combined with the likely effectiveness of the mitigation 
should an unexpected encounter with either of these species occur--it 
is reasonable to expect that Level B harassment of right and fin whales 
will not occur.
    Comment 19: The NGOs recommended that NMFS acknowledge the 
potential for Level A harassment take on small cetaceans and reconsider 
its analysis of Level A harassment take on harbor porpoise and other 
acoustically sensitive species.
    Response: Small cetaceans and harbor porpoises are highly mobile 
species existing in an environment where HRG sound sources are non-
stationary. We find it unlikely that these marine mammals would remain 
within the small injury zones long enough such that their cumulative 
exposure would result in permanent threshold shift (PTS) as defined in 
NMFS' Technical Guidance (2018).
    Comment 20: The NGOs stated that is incumbent upon the agency to 
address potential impacts to other endangered and protected whale 
species, particularly in light of the UMEs declared for right whales, 
humpback whales and minke whales, as well as the several strategic and/
or depleted stocks of small cetaceans that inhabit the region.
    Response: We discuss the potential impacts of HRG surveys on 
species experiencing UMEs and for which take is authorized (i.e., 
humpback whale, minke whale) in the Negligible Impact Determination 
section. Please refer to that discussion.
    Comment 21: The NGOs recommended NMFS: (1) Fund analyses of 
recently collected sighting and acoustic data for all data-holders; and 
(2) continue to fund and expand surveys and studies to improve our 
understanding of distribution and habitat use of marine mammals in the 
mid-Atlantic region.
    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. 
Additionally, NMFS will fund pertinent surveys in the mid-Atlantic 
region based on agency priorities and budgetary considerations.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists species with expected potential for take in the 
survey area 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 (2018). PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS's 
SARs). While no mortality or serious injury is anticipated or 
authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species and other threats.

[[Page 31039]]

    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic 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 SARs (Hayes et al., 2018) and 
draft 2018 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                           Table 1--Marine Mammal Species That May Occur Near the Survey Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic Right whale......  Eubalaena glacialis....  Western North Atlantic   E/D; Y              451 (0; 445; 2017)....        0.9       5.56
                                                                (WNA).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; N              896 (0; 896; 2012)....       14.6        9.8
    Fin whale.......................  Balaenoptera physalus..  WNA....................  E/D; Y              1,618 (0.33; 1,234;           2.5        2.5
                                                                                                             2011).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              357 (0.52; 236........        0.5        0.6
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -/-; N              2,591 (0.81; 1,425....         14        7.5
                                       acutorostrata.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Short-finned pilot whale........  Globicephala             WNA....................  -/-; Y              21,515 (0.37;                 159        192
                                       macrorhynchus.                                                        15,913:2011).
    Long-finned pilot whale.........  Globicephala melas.....  WNA....................  -/-; Y              5,636 (0.63; 3,464)...         35         38
    Bottlenose dolphin..............  Tursiops spp...........  WNA Offshore...........  -/-; N              77,532 (0.40; 56053;          561       39.4
                                                                                                             2016).
                                                               WNA Southern Migratory   -/-; Y              3,751 (0.060; 2,353;           23     0-12.3
                                                                Coastal.                                     2017).
    Short beaked common dolphin.....  Delphinus delphis......  WNA....................  -/-; N              70,184 (0.28; 55,690;         557        406
                                                                                                             2011).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  WNA....................  -/-; N              48,819 (0.61; 30,403;         304         30
                                                                                                             2011).
    Atlantic spotted dolphin........  Stenella frontalis.....  WNA....................  -/-: N              44,715 (0.43; 31,610;         316          0
                                                                                                             2013).
    Risso's dolphin.................  Grampus griseus........  WNA....................  -/-; N              18,250 (0.5; 12,619;          126       49.7
                                                                                                             2011).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              79,833 (0.32; 61,415;         706        255
                                                                Fundy.                                       2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (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 or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.

    A detailed description of the species likely to be affected by 
Avangrid'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 for the proposed IHA (84 FR 
17384; April 25, 2019) 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 the Federal 
Register notice for the proposed IHA for descriptions of other species. 
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Avangrid's survey activities 
have the potential to result in take of marine mammals by harassment in 
the vicinity of the survey area. The Federal Register notice for the 
proposed IHA (84 FR 17384; April 25, 2019) included a discussion of the 
effects of anthropogenic noise on marine mammals and their habitat, and 
that information is not repeated here. No instances of 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.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as: Any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption

[[Page 31040]]

of behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering (Level B 
harassment).
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and (4) and 
the number of days of activities. We note that while these basic 
factors can contribute to a calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the calculated take 
estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed 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 for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive 
(e.g., seismic airguns) or intermittent (e.g., scientific sonar) 
sources. Avangrid's activity includes the use of impulsive and/or 
intermittent sources (HRG equipment) and, therefore, the 160 dB re 1 
[mu]Pa (rms) is applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (NMFS, 2018) identifies dual criteria to 
assess auditory injury (Level A harassment) to five different marine 
mammal groups (based on hearing sensitivity) as a result of exposure to 
noise from two different types of sources (impulsive or non-impulsive). 
Avangrid's activity includes the use of impulsive sources (medium 
penetration sub-bottom profiler) and non-impulsive sources (shallow 
penetration sub-bottom profiler).
    These thresholds are provided in Table 2. The references, analysis, 
and methodology used in the development of the thresholds are described 
in NMFS 2018 Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* 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]Pa\2\s. 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 identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    Previously we explained that auditory injury of marine mammals is 
unlikely given the higher level of sound and/or longer durations of 
exposure necessary to cause PTS and the small zone within which sound 
levels would exceed criteria for onset of PTS. The information provided 
in Tables 4 and 5 support this position and demonstrate that the 
mitigation measures are based on a highly conservative evaluation of 
potential acoustic impacts.
    When the NMFS Technical Guidance was first published in 2016, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we

[[Page 31041]]

anticipate that isopleths produced are typically going to be 
overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available. NMFS continues to develop ways to 
quantitatively refine these tools, and will qualitatively address the 
output where appropriate. For mobile sources, including the HRG survey 
equipment, 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. Note however, that 
use of the spreadsheet is generally not appropriate for use in 
assessing potential for Level A harassment for very highly directional 
sources, such as the Innomar SES-2000, for reasons explained below. 
Inputs used in the User Spreadsheet and the resulting isopleths are 
reported in Table 3.

              Table 3--User Spreadsheet Input Parameters Used for Calculating Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                                USBL             Shallow             Medium
                                                        -------------------  penetration SBP    penetration SBP
                                                                           -------------------------------------
                  Spreadsheet tab used                   D: Mobile source:  D: Mobile source:  F: Mobile source:
                                                           Non-impulsive,     Non-impulsive,       Impulsive,
                                                            intermittent       intermittent       intermittent
----------------------------------------------------------------------------------------------------------------
Source Level (dB)......................................        188 RMS SPL        179 RMS SPL        206 RMS SPL
Weighting Factor Adjustment (kHz)......................               26.5                2.6                1.4
Source Velocity (m/s)..................................              2.058              2.058              2.058
Pulse Duration (seconds)...............................              0.016             0.0658              0.008
1/Repetition rate[supcaret] (seconds)..................               0.33               0.25               0.25
Source Level (PK SPL)..................................  .................  .................                215
Propagation (xLogR)....................................                 20                 20                 20
----------------------------------------------------------------------------------------------------------------

    Note that the Innomar SES-2000 is a specialized type of HRG sub-
bottom profiler that uses the principle of ``parametric'' or 
``nonlinear'' acoustics to generate short narrow-beam sound pulses. As 
no field data currently exists for the Innomar sub-bottom profiler 
acoustic modeling was completed using a version of the U.S. Naval 
Research Laboratory's Range-dependent Acoustic Model (RAM) and BELLHOP 
Gaussian beam ray-trace propagation model (Porter and Liu 1994). 
Calculations of the ensonified area are conservative due to the 
directionality of the sound sources. Due to the short sound pulses and 
the highly directional sound pulse transmission (1[deg] beamwidth) of 
parametric sub-bottom profilers, the volume of area affected is much 
lower than using conventional (linear) acoustics devices such as 
sparker and chirp systems. Level A harassment zones of less than 5 
meters (Table 4) for HF cetaceans were calculated for this HRG 
equipment in the planned survey area while Level B harassment isopleths 
were found to range from 120 to 135 meters (Table 5).

                Table 4--Maximum Distances to Level A Harassment Thresholds by Equipment Category
----------------------------------------------------------------------------------------------------------------
 Representative HRG survey equipment     Marine mammal group           PTS onset           Lateral distance (m)
----------------------------------------------------------------------------------------------------------------
                                          USBL/GAPS Positioning Systems
----------------------------------------------------------------------------------------------------------------
Sonardyne Ranger 2 USBL HPT 5/7000...  LF cetaceans...........  199 dB SELcum..........  --
                                       MF cetaceans...........  198 dB SELcum..........  --
                                       HF cetaceans...........  173 dB SELcum..........  3
----------------------------------------------------------------------------------------------------------------
                                           Shallow Sub-Bottom Profiler
----------------------------------------------------------------------------------------------------------------
Edgetech 512i........................  LF cetaceans...........  199 dB SELcum..........  --
                                       MF cetaceans...........  198 dB SELcum..........  --
                                       HF cetaceans...........  173 dB SELcum..........  --
----------------------------------------------------------------------------------------------------------------
                                     Shallow Parametric Sub-Bottom Profiler
----------------------------------------------------------------------------------------------------------------
Innomar SES-2000 Standard Parametric   LF cetaceans...........  199 dB SELcum..........  N/A
 Sub-Bottom Profiler.
                                       MF cetaceans...........  198 dB SELcum..........  --
                                       HF cetaceans...........  173 dB SELcum..........  -- <5
----------------------------------------------------------------------------------------------------------------
                                     Medium Penetration Sub-Bottom Profiler
----------------------------------------------------------------------------------------------------------------
SIG ELC 820 Sparker..................  LF cetaceans...........  219 dBpeak, 183 dB       --, 10
                                                                 SELcum.
                                       MF cetaceans...........  230 dBpeak, 185 dB       --, --
                                                                 SELcum.
                                       HF cetaceans...........  202 dBpeak, 155 dB       5, 4
                                                                 SELcum.
----------------------------------------------------------------------------------------------------------------
Notes: The peak SPL criterion is un-weighted (i.e., flat weighted), whereas the cumulative SEL criterion is
  weighted for the given marine mammal functional hearing group.
The calculated sound levels and results are based on NMFS Technical Guidance's companion User Spreadsheet except
  as indicated.
-- indicates that no injury was predicted for the given HRG equipment noise profile.
N/A indicates not applicable as the HRG sound source operates outside the effective marine mammal hearing range.


[[Page 31042]]

    Distances to Level B harassment noise thresholds were calculated 
using the conservative practical spreading model (transmission loss 
(TL) equation: TL = 15log10r), with the exception of the 
Innomar SES-2000 described previously. The Sig ELC 820 Sparker was 
calculated to have the largest Level B harassment isopleth of 200 m 
(656.2 ft). To account for some of the potential variation of operating 
conditions, the maximum distance of 200 m to the harassment thresholds 
is used to determine estimated exposure. The 200 m distance to the 
medium penetration sub-bottom profiler represents the largest distance 
and is likely a very conservative estimate based on sound source field 
verification assessments of similar sparker electrode equipment.
    The 200 m distance to the medium penetration sub-bottom profiler 
represents the largest distance and is likely a very conservative 
estimate based on sound source field verification assessments of 
similar sparker electrode equipment.

           Table 5--Distances to Level B Harassment Thresholds
                               [160 dBRMS]
------------------------------------------------------------------------
                                                         Marine mammal
                                                            level B
                   Survey equipment                      harassment 160
                                                       dBRMS re 1 [mu]Pa
                                                              (m)
------------------------------------------------------------------------
                                  USBL
------------------------------------------------------------------------
Sonardyne Ranger 2 USBL..............................                 25
------------------------------------------------------------------------
                 Shallow Penetration Sub-Bottom Profiler
------------------------------------------------------------------------
EdgeTech 512i........................................                 10
Innomar parametric SES-2000 Standard.................            120-135
------------------------------------------------------------------------
                 Medium Penetration Sub-Bottom Profiler
------------------------------------------------------------------------
SIG ELC 820 Sparker..................................                200
------------------------------------------------------------------------

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 data used as the basis for estimating cetacean 
density (``D'') for the survey area are sightings per unit effort 
(SPUE) derived by Duke University (Roberts et al. 2016a), updated with 
new modeling results (Roberts et al. 2016b; 2017; 2018). SPUE (or, the 
relative abundance of species) is derived by using a measure of survey 
effort and number of individual cetaceans sighted. SPUE allows for 
comparison between discrete units of time (i.e. seasons) and space 
within a project area (Shoop and Kenney, 1992). The Duke University 
(Roberts et al. 2016) cetacean density data represent models derived 
from aggregating line-transect surveys conducted over 23 years by five 
institutions (NOAA NMFS Northeast Fisheries Science Center, New Jersey 
Department of Environmental Protection, NOAA NMFS Southeast Fisheries 
Science Center, University of North Carolina Wilmington, and Virginia 
Aquarium & Marine Science Center). Model versions discussed in Roberts 
et al. (2016a) are freely available online at the Ocean Biogeographic 
Information System Spatial Ecological Analysis of Megavertebrate 
Populations (OBISSEAMAP) repository. Monthly mean density values within 
the survey area were averaged by season (Winter (December, January, 
February), Spring (March, April, May), Summer (June, July, August), 
Fall (September, October, November)) to provide seasonal density 
estimates for those taxa for which monthly model results are available. 
The highest seasonal density estimates during the duration of the 
survey were used to estimate take (i.e., summer or fall). (2016b; 2017; 
2018).

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 survey vessel trackline distance 
traveled per day.
    The survey activities that have the potential to cause Level B 
harassment (160 dBRMS re 1 [micro]Pa) are listed in Table 5. 
Based on the results of this assessment, the furthest distance to the 
Level B harassment criteria is 200 m from the use of the SIG ELC 820 
Sparker. As a conservative measure to account for some of the potential 
variation of operating conditions, the maximum distance of 200 m to the 
Level B harassment isopleth for the SIG ELC 820 Sparker is used to 
determine estimated exposure for the entire HRG survey.
    The estimated distance of the daily vessel trackline was determined 
using the estimated average speed of the vessel (4 knots) and the 24-
hour operational period. Using the maximum distance to the Level B 
harassment threshold of 200 m (656 ft) and estimated daily vessel track 
of approximately 177.8 km (110.5 mi), estimates of take by survey 
equipment has been based on an ensonified area around the survey 
equipment of 71.2 km\2\ (27.5 mi\2\) per day over a projected survey 
period for each survey segment as shown in Table 6.

                         Table 6--Survey Segment Distances and Level B Harassment Zones
----------------------------------------------------------------------------------------------------------------
                                                                                                    Calculated
                                                     Number of       Estimated       Estimated        Level B
                 Survey segment                    active survey   distances per    total line      harassment
                                                       days          day (km)        distance      zone per day
                                                                                                      (km\2\)
----------------------------------------------------------------------------------------------------------------
Lease Area......................................              29           177.8           5,156            71.2
Cable Route Corridor............................               8           177.8           1,422            71.2
----------------------------------------------------------------------------------------------------------------

    The parameters in Table 6 were used to estimate the potential take 
by incidental harassment for each segment of the HRG survey. Density 
data from Roberts et al. (2016b; 2017; 2018) were mapped within the 
boundary of the survey area for each segment (Figure 1 in application) 
using geographic information systems. For both survey segments, species 
densities, as reported by Roberts et al. (2016) within the maximum 
survey area, were averaged by

[[Page 31043]]

season (spring and summer) based on the planned HRG survey schedule 
(commencing no earlier than June 1, 2019). Potential take calculations 
were then based on the maximum average seasonal species density 
(between spring and summer) within the maximum survey area, given the 
survey start date and duration. Results of the take calculations by 
survey segment are provided in Table 7.

                                         Table 7--Marine Mammal Density and Estimated Take by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Lease area                 Cable corridor route                   Totals
                                                         -----------------------------------------------------------------------------------------------
                                                              Maximum                         Maximum
                                                              average                         average
                         Species                             seasonal       Calculated       seasonal       Calculated      Total take      Percent of
                                                            density \1\    take (number)    density \1\    take (number)   authorization    population
                                                             (No./100                        (No./100                        (number)
                                                              km\2\)                         km[sup2])
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale..............................           0.051           1.063           0.051           0.288           \3\ 0  ..............
Humpback whale..........................................           0.466           9.631           0.102           0.581              10            1.11
Fin whale...............................................           0.328           6.773           0.128           0.729           \3\ 0  ..............
Sei whale...............................................           0.020           0.406           0.003           0.018               0  ..............
Minke whale.............................................           0.757          15.643           0.171          0.9722              17            0.65
Pilot whale.............................................           0.100           2.073           0.034           0.195          4 5 10           <0.01
Harbor porpoise.........................................           1.252          25.874           0.690           3.931              30           <0.01
Bottlenose dolphin (WNA southern migratory coastal) \2\.           0.000           0.000          49.102         104.944             105             2.8
Bottlenose dolphin (offshore) \2\.......................           6.409         132.413          49.102         174.906             307           <0.01
Short beaked common dolphin.............................           5.241         108.275           2.144          12.221             120            0.17
Atlantic white-sided dolphin............................           2.482          51.288           0.320           1.826              53            0.11
Atlantic spotted dolphin................................           8.895         183.772           3.493          19.910             204            0.46
Risso's dolphin.........................................           0.074           1.525           0.074           0.421          \4\ 40            0.21
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Density values from Duke University (Roberts et al. 2016b; 2017; 2018).
\2\ Estimates split based on bottlenose dolphin stock preferred water depths (Reeves et al. 2002; Waring et al. 2016).
\3\ No take authorized, as discussed below.
\4\ Adjusted for group size.
\5\ For short-finned and long-finned pilot whales, percentage of stock taken is <0.01percent both species if all 10 takes are allocated separately to
  each species.

    Since the calculated take value for pilot whales (2) is less than 
the mean group size (9.4), NMFS assumed that take of at least one group 
of pilot whales could occur (Silva et al., 2014). For bottlenose 
dolphin densities, Roberts et al. (2016b; 2017; 2018) does not 
differentiate by individual stock. Given the southern coastal migratory 
stock's propensity to be found in waters shallower than the 20 m depth 
isobath north of Cape Hatteras (Reeves et al., 2002; Waring et al., 
2016), the Export Cable Corridor segment was roughly divided along the 
20 m depth isobath. The Lease Area is located within depths exceeding 
20 m, where the southern coastal migratory stock would be unlikely to 
occur. Roughly 40 percent of the Export Cable Corridor is 20 m or less 
in depth. Given the Export Cable Corridor area is estimated to take 8 
days to complete survey activity, 3 days have been estimated for depths 
shallower than 20 m. Therefore, to account for the potential for mixed 
stocks within the Export Cable Corridor, 3 days has been applied to the 
take estimation equation for the southern coastal migratory stock and 
the remaining applied to the offshore stock (5 days). The offshore 
stock is the only stock of bottlenose dolphins that may occur in the 
lease area; therefore bottlenose dolphin densities within the Lease 
Area have been considered part of the offshore stock only for purposes 
of take estimation.
    For Risso's dolphins, NMFS adjusted the calculated take number to 
account for group size. These dolphins are usually seen in groups of 12 
to 40, but loose aggregations of 100 to 200 or more are seen 
occasionally (Reeves et al., 2002). NMFS conservatively assumed that a 
group of 40 or several smaller groups not exceeding a total of 40 takes 
by Level B harassment.
    The three ESA-listed large whales that could potentially be present 
in the survey area occur at very low densities, and the calculated 
numbers of potential acoustic exposures above the 160-dB threshold are 
small, i.e., one right whale exposure, zero sei whale exposures, and 
eight fin whale exposures. In addition, Avangrid will implement a 500 m 
(1,640 ft) exclusion zone for the right whale and a 200 m (656 ft) 
exclusion zone for sei and fin whales. Both of these measures are 
incorporated into the issued IHA. These exclusion zones exceed (in the 
case of right whales) or equal (in the case of sei and fin whales) the 
distance to the conservatively calculated Level B harassment isopleths. 
Given the low likelihood of exposure in context of the mitigation 
requirements (with relatively high detection probabilities for large 
whales at these distances during good visibility), we do not believe 
that there is a reasonably anticipated potential for the specified 
activity to cause the disruption of behavioral patterns for these 
species. Therefore, we did not authorize take by Level B harassment for 
these species.

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

[[Page 31044]]

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 cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    Avangrid's application included a list of proposed mitigation 
measures during site characterization surveys utilizing HRG survey 
equipment. NMFS required the additional measure of establishing an 
exclusion zone of 200 m for sei and fin whales. The mitigation measures 
outlined in this section are based on protocols and procedures that 
have been successfully implemented and previously approved by NMFS 
(DONG Energy, 2016, ESS, 2013; Dominion, 2013 and 2014).

Visual Monitoring

    Visual monitoring of designated exclusion and Level B harassment 
zones will ensure that (1) Any take of ESA-listed species would be 
limited; (2) exposure to underwater noise does not result in injury 
(Level A harassment), and (3) the number of instances of take does not 
exceed the authorized amounts. PSOs will coordinate to ensure 360[deg] 
visual coverage around the vessel and conduct visual observations while 
free from distractions and in a consistent, systematic, and diligent 
manner. Visual PSOs shall immediately communicate all observations of 
marine mammals to the on-duty acoustic PSO(s), including any 
determination by the PSO regarding species identification, distance, 
and bearing and the degree of confidence in the determination. Any 
observations of marine mammal species by crew members aboard any vessel 
associated with the survey shall be relayed to the PSO team.
    PSOs will establish and monitor applicable exclusion zones. During 
use of HRG acoustic sources (i.e., anytime the acoustic source is 
active,), occurrences of marine mammal species approaching the relevant 
exclusion zone will be communicated to the operator to prepare for the 
potential shutdown of the acoustic source. Exclusion zones are defined, 
depending on the species and context, below:
     500 m (1,640 ft) exclusion zone for North Atlantic right 
whales;
     200 m (656 ft) exclusion zone for sei and fin whales; and
     100 m (328 ft) exclusion zone for other large cetaceans 
(i.e. humpback whale, minke whale, pilot whale, Risso's dolphin).
    The Level B harassment zone represents the zone within which marine 
mammals would be considered taken by Level B harassment and will 
encompass a distance of 200 m (656 ft) from survey equipment for all 
marine mammal species.

Pre-Clearance

    Avangrid will implement a 30-minute clearance period of the 
exclusion zones. This will help ensure marine mammals are not in the 
exclusion zones prior to startup of HRG equipment. During this period 
the exclusion zones will be monitored by the PSOs, using the 
appropriate visual technology for a 30-minute period. The intent of 
pre-clearance observation is to ensure no marine mammal species are 
observed within the exclusion zones prior to the beginning of operation 
of HRG equipment. A PSO conducting pre-clearance observations must be 
notified immediately prior to initiating start of HRG equipment and the 
operator must receive confirmation from the PSO to proceed.
    Activation of HRG equipment may not be initiated if any marine 
mammal is observed within the applicable exclusion zones as described 
above. If a marine mammal is observed within the applicable exclusion 
zone during the 30 minute pre-clearance period, activation of HRG 
equipment may not begin until the animal(s) has been observed exiting 
the zones or until an additional time period has elapsed with no 
further sightings (15 minutes for small delphinoid cetaceans and 30 
minutes for all other species). Activation of HRG equipment may occur 
at times of poor visibility, including nighttime, if continuous visual 
observation and has occurred with no detections of marine mammals in 
the 30 minutes prior to beginning of start-up.

Shutdown Procedures

    An immediate shutdown of the HRG survey equipment will be required 
if a marine mammal is sighted at or within its respective exclusion 
zone to minimize or avoid behavioral impacts to ESA-listed species. The 
vessel operator must comply immediately with any call for shutdown by 
the lead PSO. The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that shutdown commands are conveyed swiftly 
while allowing PSOs to maintain watch. When shutdown is called for by a 
PSO, the acoustic source must be immediately deactivated and any 
dispute resolved only following deactivation.
    Should there be any uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which shutdown is waived or 
one of the species with a larger exclusion zone), visual PSOs may use 
best professional judgment in making the decision to call for a 
shutdown. If a species for which authorization has not been granted, 
or, a species for which authorization has been granted but the 
authorized number of takes have been met, approaches or is observed 
within the 200 m Level B harassment zone, shutdown must occur.
    Subsequent restart of the survey equipment can be initiated if the 
animal has been observed exiting its respective exclusion zone within 
30 minutes of the shutdown or an additional time period has elapsed 
with no further sighting (i.e., 15 minutes for small odontocetes and 30 
minutes for all other species).
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without pre-clearance protocols, if PSOs have 
maintained constant observation and no detections of any marine mammal 
have occurred within the respective exclusion zones.

Vessel Strike Avoidance

    In order to avoid striking animals, vessel operators and crews must 
maintain a vigilant watch for all marine mammal species and slow down, 
stop their vessel, or alter course, as appropriate and regardless of 
vessel size. A visual observer aboard the vessel must monitor a vessel 
strike avoidance zone around the vessel (distances stated below). 
Visual observers monitoring the vessel strike avoidance zone may be 
third-party observers (i.e., PSOs) or crew members, but crew members

[[Page 31045]]

responsible for these duties must be provided sufficient training to 
distinguish marine mammal species from other phenomena and broadly to 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal. Vessel strike avoidance measures will include the 
following:
     All vessels (e.g., source vessels, chase vessels, supply 
vessels), regardless of size, must observe a 10-knot speed restriction 
in specific areas designated by NMFS for the protection of North 
Atlantic right whales from vessel strikes: Any Dynamic Management Areas 
(DMA) when in effect, and the Mid-Atlantic Seasonal Management Areas 
(SMA) (from November 1 through April 30). See 50 CFR 224.105 and 
www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail 
regarding these areas.
     Vessel speeds must also be reduced to 10 knots or less, 
regardless of location, when mother/calf pairs, pods, or large 
assemblages of cetaceans are observed near a vessel;
     All vessels must maintain a minimum separation distance of 
500 m from right whales. If a whale is observed but cannot be confirmed 
as a species other than a right whale, the vessel operator must assume 
that it is a right whale and take appropriate action;
     All vessels must maintain a minimum separation distance of 
100 m from all other baleen whales and sperm whales;
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel);
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance, e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area. If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained; and
     These requirements do not apply in any case where 
compliance would create an imminent and serious threat to a person or 
vessel or to the extent that a vessel is restricted in its ability to 
maneuver and, because of the restriction, cannot comply.
    Based on our evaluation of the applicant's measures, as well as 
other measures considered by NMFS, we haves determined that the 
mitigation measures provide the means 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.

Visual Monitoring

    Visual monitoring shall be conducted by NMFS-approved PSOs. PSO 
resumes shall be provided to NMFS for approval prior to commencement of 
the survey. Avangrid must use independent, dedicated, trained PSOs, 
meaning that the PSOs must be employed by a third-party observer 
provider, must have no tasks other than to conduct observational 
effort, collect data, and communicate with and instruct relevant vessel 
crew with regard to the presence of marine mammals and mitigation 
requirements (including brief alerts regarding maritime hazards).
    Observations shall take place from the highest available vantage 
point on the survey vessel. General 360-degree scanning shall occur 
during the monitoring periods, and target scanning by the PSO shall 
occur when alerted of a marine mammal presence. An observer team 
comprising a minimum of four NMFS-approved PSOs, operating in shifts, 
will be stationed aboard the survey vessel. PSO's will work in shifts 
such that no one monitor will work more than 4 consecutive hours 
without a 2-hour break or longer than 12 hours during any 24-hour 
period. During daylight hours the PSOs will rotate in shifts of 1 on 
and 3 off, and during nighttime operations PSOs will work in pairs.
    PSOs must have all equipment (including backup equipment) needed to 
adequately perform necessary tasks, including accurate determination of 
distance and bearing to observed marine mammals. PSOs will be equipped 
with binoculars and have the ability to estimate distances to marine 
mammals located in proximity to their established zones 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. Cameras of appropriate quality will 
be used for photographs and video to record sightings and verify 
species identification. Each PSO must have a camera and backup cameras 
should be available. During night operations, night-vision equipment 
(night-vision goggles with thermal clip-ons) and infrared technology 
will be used. Position data will be recorded using hand-held or vessel 
global positioning system (GPS) units for each sighting.

[[Page 31046]]

Radios for each PSO are required in order to communicate among vessel 
crew and PSOs. PSO must also have compasses and any other tools 
necessary to perform other PSO tasks.
    PSOs shall be responsible for visually monitoring and identifying 
marine mammals approaching or entering the established monitoring zones 
as well as beyond the monitoring zones to the maximum extent possible. 
PSOs will record animals both within and beyond the monitoring zones 
during survey activities.
    Data on all PSO observations must be recorded based on standard PSO 
collection requirements. PSOs must use standardized data forms, whether 
hard copy or electronic. This shall include the following:
     Vessel names (source vessel and other vessels associated 
with survey), vessel size and type, maximum speed capability of vessel, 
port of origin, and call signs;
     PSO names and affiliations;
     Dates of departures and returns to port with port name;
     Date and participants of PSO briefings;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions);
     Survey activity information, such as acoustic source power 
output while in operation, and any other notes of significance (i.e., 
pre-ramp-up survey, ramp-up, shutdown, testing, ramp-up completion, end 
of operations, etc.);
     If a marine mammal is sighted, the following information 
should be reported:
    (a) Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
    (b) PSO who sighted the animal;
    (c) Time of sighting;
    (d) Vessel location at time of sighting;
    (e) Water depth;
    (f) Direction of vessel's travel (compass direction);
    (g) Direction of animal's travel relative to the vessel;
    (h) Pace of the animal;
    (i) Estimated distance to the animal and its heading relative to 
vessel at initial sighting;
    (j) Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
    (k) Estimated number of animals (high/low/best);
    (l) Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    (m) Description (as many distinguishing features as possible of 
each individual seen, including length, shape, color, pattern, scars or 
markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
    (n) Detailed behavior observations (e.g., number of blows, number 
of surfaces, breaching, spyhopping, diving, feeding, traveling; as 
explicit and detailed as possible; note any observed changes in 
behavior);
    (o) Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source;
    (p) Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
    (q) Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.

Reporting Measures

    Within 90 days after completion of survey activities, a final 
report will be provided to NMFS that fully documents the methods and 
monitoring protocols, summarizes the data recorded during monitoring, 
estimates the number of marine mammals estimated to have been taken 
during survey activities, and provides an interpretation of the results 
and effectiveness of all mitigation and monitoring. All raw 
observational data shall be made available to NMFS. The draft report 
must be accompanied by a certification from the lead PSO as to the 
accuracy of the report, and the lead PSO may submit directly to NMFS a 
statement concerning implementation and effectiveness of the required 
mitigation and monitoring. Any recommendations made by NMFS must be 
addressed in the final report prior to acceptance by NMFS. A final 
report must be submitted within 30 days following resolution of any 
comments on the draft report.

Notification of Injured or Dead Marine Mammals

    In the unanticipated event that the specified HRG activities lead 
to an injury of a marine mammal (Level A harassment) or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), Avangrid 
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 Southeast Regional 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 Avangrid to minimize 
reoccurrence of such an event in the future. Avangrid would not resume 
activities until notified by NMFS.
    In the event that Avangrid 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), Avangrid would immediately report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources and the NMFS Southeast Regional 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 Avangrid to 
determine if modifications in the activities are appropriate.
    In the event that Avangrid 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

[[Page 31047]]

with moderate to advanced decomposition, or scavenger damage), Avangrid 
would report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, and the NMFS Southeast 
Regional Stranding Coordinator, within 24 hours of the discovery. 
Avangrid would provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to NMFS. Avangrid 
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 (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 7, given that many of the 
anticipated effects of this project on different marine mammal stocks 
are expected to be relatively similar in nature. Where there are 
meaningful differences between species or stocks, or groups of species, 
in anticipated individual responses to activities, impact of expected 
take on the population due to differences in population status, or 
impacts on habitat, they are described independently in the analysis 
below.
    As explained the in the Federal Register notice of proposed IHA (84 
FR 17384; April 25, 2019), PTS, masking, non-auditory physical effects, 
and vessel strike are not expected to occur. Marine mammal habitat may 
be impacted by elevated sound levels but these impacts would be short 
term. Feeding behavior is not likely to be significantly impacted. Prey 
species are mobile, and are broadly distributed throughout the survey 
area; therefore, marine mammals that may be temporarily displaced 
within the comparatively small ensonified area 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 
availability of similar habitat and resources in the surrounding area, 
and the lack of important or unique marine mammal habitat, the impacts 
to marine mammals and the food sources that they utilize are not 
expected to cause significant or long-term consequences for individual 
marine mammals or their populations. Additionally, there are no feeding 
areas or mating grounds known to be biologically important to marine 
mammals within the project area with the exception of a migratory BIA 
for North Atlantic right whales described below.

Biologically Important Areas (BIA)

    The survey area overlaps with 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). As previously noted, no take of North 
Atlantic right whales has been authorized, and HRG survey operations 
will be required to shut down at 500 m to further minimize any 
potential effects to this species. The fact that the spatial acoustic 
footprint of the survey is very small relative to the spatial extent of 
the available migratory habitat, combined with the fact that no takes 
of right whales are anticipated, leads us to expect that right whale 
migration will not be impacted by the survey.

Unusual Mortality Events (UME)

    A UME is defined under the MMPA as a stranding that is unexpected; 
involves a significant die-off of any marine mammal population; and 
demands immediate response. Two UMEs are ongoing and under 
investigation relevant to the HRG survey area for species for which 
take has been authorized. These involve humpback whales and minke 
whales. There is currently no direct connection between the UMEs, as 
there is no evident cause of stranding or death that is common across 
the species involved in the UMEs. Additionally, strandings across the 
two species are not clustering in space or time. We are authorizing 
take of only limited numbers of humpback (10) and minke whale (17) by 
Level B harassment in the form of minor, short-term behavioral 
modifications that are unlikely to directly or indirectly result in 
strandings or mortality.
    Based on the foregoing information, direct physical interactions 
(ship strikes and entanglements) appear to be responsible for many of 
the UME mortalities recorded. The planned HRG survey with the required 
mitigation and monitoring is not likely to result in any mortalities, 
nor combine with the effects of the ongoing UMEs to result in any 
additional impacts not analyzed here. Fishing gear and in-water lines 
will not be employed by the survey vessel, and ship speed and avoidance 
mitigation measures will minimize risk of ship strikes.
    The required mitigation measures are expected to reduce the number 
and/or severity of takes by giving animals the opportunity to move away 
from the sound source before HRG survey equipment reaches full energy 
and preventing animals from being exposed to sound levels that have the 
potential to cause injury (Level A harassment) and more severe Level B 
harassment during HRG survey activities. Vessel strike avoidance 
requirements will further mitigate potential impacts to marine mammals 
during vessel transit to and within the survey area.
    Avangrid did not request, and NMFS is not authorizing, take of 
marine mammals by serious injury or mortality. NMFS expects that most 
takes would primarily consist of short-term Level B behavioral 
harassment in the form of temporary vacating of the area or decreased 
foraging (if such activity were occurring). These reactions are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007). Since the source is mobile, 
a specified area would be ensonified by sound levels that could result 
in take for only a short period. Additionally, required mitigation 
measures would reduce exposure to sound that could result in more 
severe forms of harassment.
    In summary, and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species

[[Page 31048]]

or stock through effects on annual rates of recruitment or survival:
     No mortality or injury is anticipated or authorized;
     Take is anticipated to be by Level B behavioral harassment 
only, consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal and the project area 
does not overlap any known important feeding areas;
     The availability of alternate areas of similar habitat 
value will allow marine mammals to temporarily vacate the survey area 
to avoid exposure to sounds generated by operation of HRG equipment.
     While the survey area is within areas noted as 
biologically important for migration of the North Atlantic right whale, 
migration would not be affected since project activities would occur in 
such a comparatively small area and no takes of right whales are 
expected or authorized. In addition, mitigation measures will be 
required to shut down sound sources at 500 m to further minimize any 
potential for effects to this species; and
     The mitigation measures, including visual monitoring and 
shutdowns, are expected to minimize potential impacts to marine 
mammals, particularly in light of the small size of the take zones.
    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 Sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of 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 relative to the species.
    The numbers of marine mammals that we have authorized for take, for 
all species and stocks, would be considered small relative to the 
relevant stocks or populations (less than 3 percent for the bottlenose 
dolphin Western North Atlantic, southern migratory coastal stock and 
less than one percent for all other species and stocks proposed for 
authorization). See Table 7. 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 sizes of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

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 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. A Finding of No Significant Impact 
(FONSI) was signed in May 2019. A copy of the EA and FONSI is available 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat.
    No incidental take of ESA-listed species is expected or authorized 
for this activity. Therefore, NMFS has determined that formal 
consultation under section 7 of the ESA is not required for this 
action.

Authorization

    NMFS has issued an IHA to Avangrid for conducting marine site 
characterization surveys off the Coast of Virginia and North Carolina 
from June 1, 2019, through May 31, 2020, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: June 25, 2019.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2019-13874 Filed 6-27-19; 8:45 am]
 BILLING CODE 3510-22-P