[Federal Register Volume 85, Number 196 (Thursday, October 8, 2020)]
[Notices]
[Pages 63508-63524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22307]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA509]


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

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 NMFS has issued an incidental harassment authorization (IHA) to 
[Oslash]rsted Wind Power North America, LLC, ([Oslash]rsted) to 
incidentally harass, by Level B harassment only, marine mammals during 
marine site characterization surveys in coastal waters from New York to 
Massachusetts in the areas of the Commercial Lease of Submerged Lands 
for Renewable Energy Development on the Outer Continental Shelf (OCS-A 
0486/0517, OCS-A 0487, and OCS-A 0500) and along potential export cable 
routes to shoreline locations from New York to Massachusetts.

DATES: This authorization is valid from September 25, 2020 through 
September 24, 2021.

FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected 
Resources, NMFS, (301) 427-8421. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained by visiting the internet at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
above.

SUPPLEMENTARY INFORMATION:

Background

    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 mitigation, 
monitoring and reporting of such takings are set forth.

Summary of Request

    On April 15, 2020, NMFS received a request from [Oslash]rsted for 
an IHA to take marine mammals incidental to marine site 
characterization surveys in the OCS-A 0486/0517, OCS-A 0487, and OCS-A 
0500 Lease Areas designated and offered by the Bureau of Ocean Energy 
Management (BOEM) as well as along one or more export cable routes 
(ECRs) between the southern portions of the Lease Areas and shoreline 
locations from New York to Massachusetts, to support the development of 
offshore wind projects. NMFS deemed the application to be adequate and 
complete on July 1, 2020. [Oslash]rsted's request is for take, by Level 
B harassment only, of small numbers of 15 species or stocks of marine 
mammals. Neither [Oslash]rsted nor NMFS expects serious injury or 
mortality to result from this activity and the activity is expected to 
last no more than one year; therefore, an IHA is appropriate.
    NMFS previously issued an IHA to [Oslash]rsted for similar 
activities (84 FR 52464, October 2, 2019); [Oslash]rsted has complied 
with all the requirements (e.g., mitigation, monitoring, and reporting) 
of that IHA.

[[Page 63509]]

Description of Activity

Overview

    The purpose of the marine site characterization surveys in the 
Lease Areas and ECRs (herein Survey Area) is to obtain a baseline 
assessment of seabed/sub-surface soil conditions in the Survey Area to 
support the siting of potential future offshore wind projects. 
Underwater sound, produced by high-resolution geophysical (HRG) survey 
equipment, resulting from [Oslash]rsted's site characterization 
surveys, has the potential to result in incidental take of marine 
mammals. This take of marine mammals is expected to be in the form of 
harassment and no serious injury or mortality is anticipated, nor is 
any authorized in this IHA. [Oslash]rsted will conduct continuous HRG 
survey operations 12-hours per day (daylight only in shallow, nearshore 
locations) and 24-hours per day (offshore) using multiple vessels. 
Based on the planned 24-hours operations, the survey activities for all 
survey segments would require 1,302 vessel days if one vessel were 
surveying the entire survey line continuously. However, an estimated 5 
vessels may be used simultaneously, with a maximum of no more than 9 
vessels. Therefore, all the survey effort will be completed in one 
year.
    A detailed description of [Oslash]rsted's survey activities, 
including types of survey equipment planned for use, is provided in the 
notice of the proposed IHA (85 FR 48179; August 10, 2020). Since that 
time, no changes have been made to the activities; therefore, a 
detailed description is not provided here. Please refer to that notice 
for the description of the specified activity. Mitigation, monitoring, 
and reporting measures are described in detail later in this document 
(please see Mitigation and Monitoring and Reporting below).

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to [Oslash]rsted was 
published in the Federal Register on August 10, 2020 (85 FR 48179). 
That notice described, in detail, [Oslash]rsted's activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. During the 30-day public comment 
period, NMFS received comment letters from the Marine Mammal Commission 
(Commission) and a group of environmental non-governmental 
organizations (ENGOs). The ENGOs' letter was submitted jointly by the 
Natural Resources Defense Council, National Wildlife Federation, 
Conservation Law Foundation, Mass Audubon, Friends of the Earth, All 
our Energy, Wildlife Conservation Society, NY4WHALES, Defenders of 
Wildlife, Southern Environmental Law Center, Surfrider Foundation, WDC 
Whale and Dolphin Conservation, Inland Ocean Coalition, Gotham Whale, 
International Fund for Animal Welfare, Marine Mammal Alliance 
Nantucket, and Seatuck Environmental Association. NMFS has posted the 
comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. A summary of the public comments received from the 
Commission and ENGOs, as well as NMFS' responses to those comments, are 
below. Please see the comment letters, available online, for full 
details of the comments and rationale.
    Comment 1: The Commission recommended that NMFS consider whether 
IHAs are necessary for HRG surveys given the size of the lease-
stipulated Exclusion Zones (200 m, cetaceans and pinnipeds; 500 m North 
Atlantic right whales), which would minimize the potential for marine 
mammals to be exposed to sound levels expected to result in taking. The 
Commission suggested that NMFS overestimates Level B harassment zones, 
and that the lease-stipulated Exclusion Zones are adequate. As such, 
the Commission believes that the issuance of an incidental harassment 
authorization is unnecessary.
    Response (waiting on feedback from OPR).
    Comment 2: The ENGOs suggested that it should be NMFS' top priority 
to consider any initial data from passive acoustic monitoring data, 
opportunistic marine mammal sightings data, and other data sources, 
because the models used by NMFS do not adequately capture increased use 
of the survey areas by North Atlantic right whales. Further, these 
commenters state that the density models NMFS uses result in an 
underestimate of take, and do not fully reflect the abundance, 
distribution, and density of marine mammals for the U.S. East Coast.
    Response: NMFS will review any recommended data sources and will 
continue to use the best available information. We welcome future input 
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 New England waters. NMFS used 
the best scientific information available at the time the analyses for 
the proposed IHA were conducted--in this case the marine mammal density 
models developed by the Duke Marine Geospatial Ecology Lab (MGEL) 
(Roberts et al. 2016, 2017, 2018)--to inform our determinations in the 
IHA. The ENGOs are correct in their statement that North Atlantic right 
whale distribution has shifted in recent years. An updated North 
Atlantic right whale density model, recently released by Roberts et al. 
(2020), shows that the density of North Atlantic right whales in the 
Survey Area is approximately one third higher than was considered in 
the proposed IHA. We have adjusted the take estimates accordingly in 
the final IHA. In addition, we have shifted the Seasonal Restrictions 
from March through June to January through May, which will limit to 
three the number of vessels that can operate within the Survey Area 
during that timeframe. This mitigation measure will reduce the impact 
of survey activities, during the timeframe in which densities are 
highest in the Survey Area (Roberts 2020) and North Atlantic right 
whales have been consistently observed south of Martha's Vineyard 
(Pettis et al., 2020).
    Comment 3: The ENGOs recommended that NMFS should carefully analyze 
the cumulative impacts on the North Atlantic right whale and other 
protected species from the proposed survey activities and other survey 
activities contemplated in other lease areas, and ensure appropriate 
mitigation of the cumulative impacts. In addition, the ENGOs suggest 
that NMFS advance a programmatic incidental take regulation for site 
characterization activities.
    Response: The MMPA grants exceptions to its broad take prohibition 
for a ``specified activity.'' 16 U.S.C. 1371(a)(5)(A)(i). Cumulative 
impacts (also referred to as cumulative effects) is a term that appears 
in the context of the National Environmental Policy Act (NEPA) and the 
Endangered Species Act (ESA), but it is defined differently in those 
contexts. Neither the MMPA nor NMFS' codified implementing regulations 
address consideration of other unrelated activities and their impacts 
on populations. However, the preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989) states, in response to 
comments, that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Accordingly, NMFS here has factored 
into its negligible impact analysis the impacts of other past and 
ongoing anthropogenic activities via their impacts on the baseline 
(e.g., as reflected in the density/distribution and status of the 
species, population size

[[Page 63510]]

and growth rate, and other relevant stressors).
    Comment 4: The ENGOs asserted that the agency's assumptions 
regarding mitigation effectiveness are unfounded and cannot be used to 
justify any reduction in the number of takes authorized for North 
Atlantic right whales. The reasons cited include: (i) The agency's 
reliance on a 160 dB threshold for behavioral harassment that is not 
supported by the best available scientific information; (ii) the agency 
relies on the assumption that marine mammals will take measures to 
avoid the sound even though studies have not found avoidance behavior 
to be generalizable among species and contexts, and despite the 
possibility that avoidance may itself constitute take under the MMPA; 
and (iii) the mitigation and monitoring protocols prescribed by the 
agency are inadequate at protecting marine mammals and do not comply 
with the MMPA.
    Response: The three comments provided by the ENGOs are addressed 
individually below.
    (i) NMFS acknowledges that the 160-dB rms step-function approach is 
simplistic, and that an approach reflecting a more complex 
probabilistic function may more effectively represent the known 
variation in responses at different levels due to differences in the 
receivers, the context of the exposure, and other factors. The 
commenters suggested that our use of the 160-dB threshold implies that 
we do not recognize the science indicating that animals may react in 
ways constituting behavioral harassment when exposed to lower received 
levels. However, we do recognize the potential for Level B harassment 
at exposures to received levels below 160 dB rms, in addition to the 
potential that animals exposed to received levels above 160 dB rms will 
not respond in ways constituting behavioral harassment (e.g., Malme et 
al., 1983, 1984, 1985, 1988; McCauley et al., 1998, 2000a, 2000b; 
Barkaszi et al., 2012; Stone, 2015a; Gailey et al., 2016; Barkaszi and 
Kelly, 2018). These comments appear to evidence a misconception 
regarding the concept of the 160-dB threshold. While it is correct that 
in practice it works as a step-function, i.e., animals exposed to 
received levels above the threshold are considered to be ``taken'' and 
those exposed to levels below the threshold are not, it is in fact 
intended as a sort of mid-point of likely behavioral responses (which 
are extremely complex depending on many factors including species, 
noise source, individual experience, and behavioral context). What this 
means is that, conceptually, the function recognizes that some animals 
exposed to levels below the threshold will in fact react in ways that 
are appropriately considered take, while others that are exposed to 
levels above the threshold will not. Use of the 160-dB threshold allows 
for a simplistic quantitative estimate of take, while we can 
qualitatively address the variation in responses across different 
received levels in our discussion and analysis.
    As behavioral responses to sound depend on the context in which an 
animal receives the sound, including the animal's behavioral mode when 
it hears sounds, prior experience, additional biological factors, and 
other contextual factors, defining sound levels that disrupt behavioral 
patterns is extremely difficult. Even experts have not previously been 
able to suggest specific new criteria due to these difficulties (e.g., 
Southall et al. 2007; Gomez et al., 2016).
    (ii) The ENGOS disagreed with NMFS' assumption that marine mammals 
move away from sound sources. The ENGOS claimed that studies have not 
found avoidance behavior to be generalizable among species and 
contexts, and even though avoidance may itself constitute take under 
the MMPA. Importantly, the commenters mistakenly seem to believe that 
the NMFS' does not consider avoidance as a take, and that the concept 
of avoidance is used as a mechanism to reduce overall take--this is not 
the case. Avoidance of loud sounds is a well-documented behavioral 
response, and NMFS often accordingly accounts for this avoidance by 
reducing the number of injurious exposures, which would occur in very 
close proximity to the source and necessitate a longer duration of 
exposure. However, when Level A harassment takes are reduced in this 
manner, they are changed to Level B harassment takes, in recognition of 
the fact that this avoidance or other behavioral responses occurring as 
a result of these exposures are still take, NMFS does not reduce the 
overall amount of take as a result of avoidance.
    (iii) The ENGOs questioned the effectiveness of the mitigation and 
monitoring measures proposed to be authorized, and NMFS' prior 
authorization of a reduced number of takes for North Atlantic right 
whales (relative to the estimated value) based on the anticipated 
protection afforded by mitigation measures. They specifically 
recommended that seasonal restrictions should be established and 
consideration should be given to species for which an unusual mortality 
event (UME) has been declared. Note that NMFS is requiring 
[Oslash]rsted to comply with restrictions associated with identified 
seasonal management areas (SMA) and they must comply with dynamic 
management area restrictions (DMAs), if any DMAs are established near 
the Survey Area. Furthermore, we have established a 500-m shutdown zone 
for North Atlantic right whales, which is more than three times as 
large as the greatest Level B harassment isopleth calculated for the 
specified activities for this IHA (141 m). Additionally, Seasonal 
Restrictions from January through May will limit the number of vessel 
that can operate within the Survey Area, thus providing an additional 
protective measure for North Atlantic right whales. Similar mitigation 
and monitoring measures have previously been required in numerous HRG 
survey IHAs and have been successfully implemented. Finally, we made no 
reductions in authorized takes of North Atlantic right whales by Level 
B harassment in this IHA. Rather, as a result of incorporating the 
updated NARW density model data, the number of takes authorized for 
right whales has been increased from the amount in the proposed IHA 
(from 24 to 37).
    Comment 5: The ENGOs recommended that HRG surveys should commence, 
with ramp-up, during daylight hours only, to maximize the probability 
that North Atlantic right whales detected and confirmed clear of the 
exclusion zone.
    Response: We acknowledge the limitations inherent in detection of 
marine mammals at night. However, no injury is expected to result even 
in the absence of mitigation, given the very small estimated Level A 
harassment zones. Any 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. Vessels would also potentially be on the 
water for an extended time, introducing noise into the marine 
environment. The restrictions recommended by the commenters could 
result in the surveys spending increased time on the water, which may 
result in greater overall exposure to sound for marine mammals and 
increase the risk of a vessel strike; thus, the commenters have not 
demonstrated that such a requirement would result in a net benefit. 
Furthermore, restricting the applicant to ramp-up only during daylight 
hours

[[Page 63511]]

would have the potential to result in lengthy shutdowns of the survey 
equipment, which could result in the applicant failing to collect the 
data they have determined is necessary and, subsequently, the need to 
conduct additional surveys 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 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 
when visibility is unimpeded is not warranted or practicable in this 
case.
    Comment 6: The ENGOs recommended that NMFS require monitoring an 
exclusion zone (EZ) for North Atlantic right whales of at least 500 
meters (m), and ideally 1,000 m, around each vessel conducting 
activities with noise levels that could result in injury or harassment 
to this species.
    Response: Regarding the recommendation for a 1,000 m EZ 
specifically for North Atlantic right whales, we have determined that 
the 500 m EZ, as required in the IHA, is sufficiently protective. We 
note that the 500 m EZ exceeds the modeled distance to the largest 
Level B harassment isopleth distance (141 m) by a substantial margin. 
Thus, we are not requiring shutdown if a right whale is observed beyond 
500 m.
    Comment 7: The ENGOs recommended that a combination of visual 
monitoring by PSOs and passive acoustic monitoring (PAM) should be used 
at all times. Since PSOs are unable to visually monitor the exclusion 
area during nighttime hours, the ENGOs also recommended that NMFS 
require, for efforts that continue into the nighttime, a combination of 
night-vision, thermal imaging, and PAM.
    Response: There are several reasons why we do not agree that use of 
PAM is warranted for 24-hour HRG surveys such as the one planned by 
[Oslash]rsted. While NMFS agrees that PAM can be an important tool for 
augmenting detection capabilities in certain circumstances, its utility 
in further reducing impact for [Oslash]rsted's HRG survey activities is 
limited. First, for this activity, the area expected to be ensonified 
above the Level B harassment threshold is relatively small (a maximum 
of 141 m as described in the Estimated Take section)--this reflects the 
fact that, to start with, the source level is comparatively low and the 
intensity of any resulting impacts would be lower level and, further, 
it means that inasmuch as PAM will only detect a portion of any animals 
exposed within a zone (see below), the overall probability of PAM 
detecting an animal in the harassment zone is low--together these 
factors support the limited value of PAM for use in reducing take with 
smaller zones. PAM is only capable of detecting animals that are 
actively vocalizing, while many marine mammal species vocalize 
infrequently or during certain activities, which means that only a 
subset of the animals within the range of the PAM would be detected 
(and potentially have reduced impacts). Additionally, localization and 
range detection can be challenging under certain scenarios. For 
example, odontocetes are fast moving and often travel in large or 
dispersed groups which makes localization difficult. In addition, the 
ability of PAM to detect baleen whale vocalizations is further limited 
because the PAM instruments are deployed from the stern of a vessel, 
which puts the PAM hydrophones in proximity to propeller noise and low 
frequency engine noise; this can mask the low frequency sounds emitted 
by baleen whales, including right whales.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for right whales and other low frequency cetaceans, species 
for which PAM has limited efficacy), and the cost and impracticability 
of implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat.
    As stated in the proposed IHA, [Oslash]rsted is required to use 
night-vision equipment (i.e., night-vision goggles and/or infrared 
technology) during night time monitoring.
    Comment 8: The ENGOs recommended that NMFS should require 
developers to operate sub-bottom profilers at power settings that 
achieve the lowest practicable source level for the objective.
    Response: [Oslash]rsted has selected the equipment necessary to 
achieve their objectives. We have evaluated the effects expected as a 
result of use of this equipment, made the necessary findings, and 
imposed mitigation requirements sufficient to achieve the least 
practicable adverse impact on the affected species and stocks of marine 
mammals. It is not within NMFS' purview to make judgments regarding 
what constitutes the ``lowest practicable source level'' for an 
operator's survey objectives.
    Comment 9: The ENGOs recommended that all project vessels operating 
within or transiting to/from the Survey Area, regardless of size, 
observe a mandatory 10 knot speed restriction during the entire survey 
period.
    Response: NMFS does not concur with these measures. NMFS has 
analyzed the potential for ship strike resulting from [Oslash]rsted'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 km/hour) or less speed restrictions in any 
established DMA or SMA; a requirement that all vessel operators reduce 
vessel speed to 10 knots (18.5 km/hour) or less when any large whale, 
mother/calf pairs, pods, or large assemblages of non-delphinid 
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; and 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. 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. Furthermore, no documented vessel strikes have occurred 
for any HRG surveys which were issued IHAs from NMFS.
    Comment 10. The ENGOs objected to NMFS' process to consider 
extending any one-year IHA (which includes a truncated 15-day comment 
period), stating that it is contrary to the MMPA.
    Response: NMFS' IHA Renewal process meets all statutory 
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA, 
are valid for a period of not more than one year. And the public has at 
least 30 days to comment on all proposed IHAs, with a cumulative total 
of 45 days for IHA Renewals. As noted above, the Request for Public 
Comments section made clear that the agency was seeking comment on both 
the initial proposed IHA and the potential issuance of a Renewal for 
this project. Because any Renewal (as explained in the Request for 
Public Comments section) is limited to another year of identical or 
nearly identical activities in the same location (as

[[Page 63512]]

described in the Description of Proposed Activity section) 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.
    While there will be additional documents submitted with a Renewal 
request, for a qualifying Renewal these will be limited to 
documentation that NMFS will make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS will also confirm, among other things, that the 
activities will occur in the same location; involve the same species 
and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The Renewal request 
will also contain a preliminary monitoring report, to verify that 
effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-day public comment 
period provides the public an opportunity to review these few 
documents, provide any additional pertinent information and comment on 
whether they think the criteria for a Renewal have been met. Between 
the initial 30-day comment period on these same activities and the 
additional 15 days, the total comment period for a Renewal is 45 days.
    Comment 11: The ENGOs recommended that NMFS develop, and 
subsequently require, a robust and effective real-time monitoring and 
mitigation system for North Atlantic right whales and other endangered 
and protected species (e.g., fin whales, sei whales, humpback whales).
    Response: NMFS is generally supportive of this concept. A network 
of near real-time baleen whale monitoring devices are active or have 
been tested in portions of New England and Canadian waters. These 
systems employ various digital acoustic monitoring instruments which 
have been placed on autonomous platforms including slocum gliders, wave 
gliders, profiling floats and moored buoys. Systems that have proven to 
be successful will likely see increased use as operational tools for 
many whale monitoring and mitigation applications.
    NOAA Fisheries recently published ``Technical Memorandum 
NMFS[hyphen]OPR[hyphen]64: North Atlantic Right Whale Monitoring and 
Surveillance: Report and Recommendations of the National Marine 
Fisheries Service's Expert Working Group'' which is available at: 
https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations. This 
report summarizes a workshop NOAA Fisheries convened to address 
objectives related to monitoring North Atlantic right whales and 
presents the Expert Working Group's recommendations for a comprehensive 
monitoring strategy to guide future analyses and data collection. Among 
the numerous recommendations found in the report, the Expert Working 
Group encouraged the widespread deployment of auto-buoys to provide 
near real-time detections of North Atlantic right whale calls that 
visual survey teams can then respond to for collection of 
identification photographs or biological samples. [Oslash]rsted must 
consult NMFS' North Atlantic right whale reporting systems for the 
presence of North Atlantic right whales throughout survey operations 
and for the establishment of a Dynamic Management Area (DMA), and is 
immediately to report a sighting of a North Atlantic right whale to the 
NMFS North Atlantic Right Whale Sighting Advisory System.

Changes From the Proposed IHA to the Final IHA

    As described above, NMFS increased the authorized take of North 
Atlantic right whales based on an updated density model that was 
released after the publication of the proposed IHA in the Federal 
Register. Table 4, 5, and 6 reflect the updated densities, take 
estimates by Survey Area segment, and total authorized take by Level B 
harassment for NARWs, respectively. In addition, the Seasonal 
Restrictions (see Mitigation section) timeframe was shifted from March 
through June to January through May, during which [Oslash]rsted must 
limit to three the number of vessels operating in the Survey Area.

Description of Marine Mammals in the Area of Specified Activity

    Sections 3 and 4 of the IHA application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the affected species. 
Additional information regarding population trends and threats may be 
found in NMFS' Stock Assessment Reports (SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website 
(www.fisheries.noaa.gov/find-species).
    All species that could potentially occur in the Survey Area are 
included in Table 6 of the IHA application. However, the temporal and/
or spatial occurrence of several species listed in Table 6 of the IHA 
application is such that take of these species is not expected to 
occur, because they have very low densities in the Survey Area and/or 
are extralimital to the Survey Area. These are: The blue whale 
(Balaenoptera musculus), Cuvier's beaked whale (Ziphius cavirostris), 
four species of Mesoplodont beaked whale (Mesoplodon spp.), dwarf and 
pygmy sperm whale (Kogia sima and Kogia breviceps), short-finned pilot 
whale (Globicephala macrorhynchus), northern bottlenose whale 
(Hyperoodon ampullatus), killer whale (Orcinus orca), pygmy killer 
whale (Feresa attenuata), false killer whale (Pseudorca crassidens), 
melon-headed whale (Peponocephala electra), striped dolphin (Stenella 
coeruleoalba), white-beaked dolphin (Lagenorhynchus albirostris), 
pantropical spotted dolphin (Stenella attenuata), Fraser's dolphin 
(Lagenodelphis hosei), rough-toothed dolphin (Steno bredanensis), 
Clymene dolphin (Stenella clymene), spinner dolphin (Stenella 
longirostris), hooded seal (Cystophora cristata), and harp seal 
(Pagophilus groenlandicus). As take of these species is not anticipated 
as a result of the planned activities, these species are not analyzed 
further. In addition, the Florida manatee (Trichechus manatus) may be 
found in the coastal waters of the Survey Area. However, Florida 
manatees are managed by the U.S. Fish and Wildlife Service and are not 
considered further in this document.
    Table 1 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 (2020). PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs). While no mortality is anticipated or authorized, PBR and serious 
injury or mortality from anthropogenic sources are

[[Page 63513]]

included here as a gross indicator of the status of the species.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' Atlantic SARs (e.g., Hayes et al., 2020). All values presented in 
Table 1 are the most recent available at the time of publication and 
are available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.

                  Table 1--Marine Mammals Known To Occur in the Survey Area That May be Affected by [Oslash]rsted's HRG Survey Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent     PBR \3\   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              428 (0; 418; n/a).....        0.8       6.85
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; N              1,396 (0; 1,380; See           22      12.15
                                                                                                             SAR).
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E/D; Y              7,418 (0.25; 6,029;            12       2.35
                                                                                                             See SAR).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.015; 3,098;          6.2          1
                                                                                                             see SAR).
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -/-; N              24,202 (0.3; 18,902;          189        8.2
                                       acutorostrata.                                                        See SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  NA.....................  E; Y                4,349 (0.28;3,451; See        3.9          0
                                                                                                             SAR).
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -/-; Y              39,215 (0.30; 30,627).        306         21
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -/-; N              62,851 (0.23; 51,914;         519         28
                                                                Offshore.                                    See SAR).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -/-; N              172,825 (0.21;              1,452        419
                                                                                                             145,216; See SAR).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -/-; N              93,233 (0.71; 54,443;         544         26
                                                                                                             See SAR).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -/-; N              39,921 (0.27; 32,032;         320          0
                                                                                                             2012).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -/-; N              35,493 (0.19; 30,289;         303       54.3
                                                                                                             See SAR).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       See SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \4\...................  Halichoerus grypus.....  Western North Atlantic.  -/-; N              27,131 (0.19; 23,158,       1,389      5,410
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -/-; N              75,834 (0.15; 66,884,       2,006        350
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). Annual M/SI, found in NMFS' SARs,
  represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship
  strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented
  in the 2020 SARs (Hayes et al., 2020).
\4\ NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.

    A detailed description of the species likely to be affected by 
[Oslash]rsted's activities, including brief introductions to the 
species and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence were provided in the notice of the proposed IHA (85 FR 
48179; August 10, 2020). Since that time, we are not aware of any 
changes in the status (under the MMPA or ESA) of these species and 
stocks; therefore, detailed descriptions are not provided here. Please 
refer to that notice for these descriptions. Please also refer to NMFS' 
website (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 [Oslash]rsted's survey 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the Survey Area. The notice of 
proposed IHA (85 FR 48179; August 10, 2020) included a discussion of 
the effects of anthropogenic noise on marine mammals and the potential 
effects of

[[Page 63514]]

underwater noise from [Oslash]rsted's survey activities on marine 
mammals and their habitat. That information and analysis is 
incorporated by reference into this final IHA determination and is not 
repeated here; please refer to the notice of proposed IHA (85 FR 48179; 
August 10, 2020) for more details.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment), 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG sources. Based on the 
nature of the activity and the anticipated effectiveness of the 
mitigation measures (i.e., exclusion zones and shutdown measures), 
discussed in detail below in Mitigation section, Level A harassment or 
and/or mortality is neither anticipated nor authorized. Below we 
describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds recommended by NMFS for use in evaluating when 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 area, and (4) and the number 
of days of activities. We note that while these basic factors can 
contribute to a rudimentary calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimate.

Acoustic Thresholds

    NMFS recommends use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (e.g., 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 120 
dB re 1 microPascal root mean square ([mu]Pa rms) for continuous (e.g., 
vibratory driving, drilling) and above 160 dB re 1 [mu]Pa (rms) for 
non-explosive impulsive (e.g., seismic airguns) or intermittent, non-
impulsive (e.g., scientific sonar) sources. [Oslash]rsted's survey 
activity includes the use of impulsive (i.e., boomers and sparkers) and 
intermittent, non-impulsive sources (e.g., non-parametric sub-bottom 
profilers); therefore, the 160 dB re 1 [mu]Pa (rms) threshold is 
applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(NMFS, 2018) identifies dual criteria thresholds to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). The 
components of [Oslash]rsted's planned activity that may result in take 
of marine mammals include the use of impulsive (e.g., boomers or 
sparkers) and intermittent, non-impulsive (e.g., non-parametric sub-
bottom profilers) sources. The thresholds described above 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: 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 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]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 (LE)
  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.


[[Page 63515]]

Ensonified Area

    Here we describe operational and environmental parameters of the 
activity that will contribute to identifying the area ensonified above 
the acoustic thresholds, which include sources levels and a 
transmission loss coefficient.
    NMFS has developed a user-friendly methodology for determining the 
rms sound pressure level (SPLrms) at the 160-dB isopleth for 
the purposes of estimating the extent of Level B harassment isopleths 
associated with HRG survey equipment (NMFS, 2020). This methodology 
incorporates frequency and some directionality to refine estimated 
ensonified zones of influence (ZOIs). [Oslash]rsted used NMFS's 
methodology with additional modifications to incorporate a seawater 
absorption formula and account for energy emitted outside of the 
primary beam of the source. For sources that operate with different 
beam widths, the maximum beam width was used, and the lowest frequency 
of the source was used when calculating the absorption coefficient. 
Please see Table 3 of the IHA application for detailed information 
about HRG acoustic source parameters.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to the Level A 
and Level B harassment thresholds. In cases when the source level for a 
specific type of HRG equipment is not provided in Crocker and 
Fratantonio (2016), NMFS recommends that either the source levels 
provided by the manufacturer be used, or, in instances where source 
levels provided by the manufacturer are unavailable or unreliable, a 
proxy from Crocker and Fratantonio (2016) be used instead. Table 3 of 
the IHA application details HRG equipment types that may be used during 
the planned surveys, and the associated sound levels.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by [Oslash]rsted that 
has the potential to result in Level B harassment of marine mammals, 
sound produced by the Applied Acoustics Dura-Spark UHD sparkers and 
GeoMarine Geo-Source sparker would propagate furthest to the Level B 
harassment threshold (141 m; Table 3). As described above, only a 
portion of [Oslash]rsted's survey activity days will employ boomers or 
sparkers; therefore, for the purposes of the exposure analysis, it was 
assumed that sparkers would be the dominant acoustic source for 
approximately 701 of the total 1,302 survey activity days. For the 
remaining 601 survey days, the TB Chirp III (54 m; Table 3) was assumed 
to be the dominant source. Thus, the distances to the isopleths 
corresponding to the threshold for Level B harassment for sparkers (141 
m) and the TB Chirp III (54 m) were used as the basis of the take 
calculation for all marine mammals for 54% and 46% of survey activity 
days, respectively.

Table 3--Modeled Radial Distances From HRG Survey Equipment to Isopleths Corresponding to Level A Harassment and
                                          Level B Harassment Thresholds
----------------------------------------------------------------------------------------------------------------
                                     Radial distance to level a harassment threshold (m) *       Radial distance
                               ----------------------------------------------------------------    to Level B
                                                                                                   harassment
         Sound source                                                               Phocid        threshold (m)
                                 Low frequency   Mid frequency  High frequency     pinnipeds   -----------------
                                   cetaceans       cetaceans       cetaceans     (underwater)      All marine
                                                                                                     mammals
----------------------------------------------------------------------------------------------------------------
ET 216 CHIRP..................              <1              <1             2.9               0                12
ET 424 CHIRP..................               0               0               0               0                 4
ET 512i CHIRP.................               0               0              <1               0                 6
GeoPulse 5430.................              <1              <1            36.5              <1                29
TB CHIRP III..................              <1              <1            16.9              <1                54
Innomar Parametric SBPs.......              <1              <1             1.7              <1                 4
AA Triple plate S-Boom (700/                <1               0             4.7              <1                76
 1,000 J).....................
AA, Dura-spark UHD (500 J/400               <1               0             2.8              <1               141
 tip).........................
AA, Dura-spark UHD 400+400....              <1               0             2.8              <1               141
GeoMarine, Geo-Source dual 400              <1               0             2.8              <1               141
 tip sparker..................
Pangeo Acoustic Corer (LF                   <1               0              <1              <1                 4
 CHIRP).......................
Pangeo Acoustic Corer (HF                   <1              <1              <1              <1                 4
 CHIRP).......................
USBL (all models).............               0               0             1.7               0                50
----------------------------------------------------------------------------------------------------------------
* AA = Applied Acoustics; CHIRP = Compressed High-Intensity Radiated Pulse; ET = EdgeTech; SBP = Sub-bottom
  Profiler; TB = Teledyne Benthos; UHD = Ultra-high Definition; USBL = Ultra-short Baseline. Distances to the
  Level A harassment threshold based on the larger of the dual criteria (peak SPL and SELcum) are shown.

    Isopleth distances to Level A harassment thresholds for all types 
of HRG equipment and all marine mammal functional hearing groups were 
modeled using the NMFS User Spreadsheet and NMFS Technical Guidance 
(2018), which provides a conservative approach to exposure estimation. 
The dual criteria (peak SPL and SELcum) were applied to 
impulsive HRG sources using the modeling methodology described above, 
and the isopleth distances for each functional hearing group were then 
carried forward in the exposure analysis. For the GeoMarine Geo-Source 
dual 400 tip sparker, Applied Acoustics Triple plate S-Boom and Dura-
Spark models, the peak SPL metric resulted in larger isopleth distances 
for the high frequency hearing group. Distances to the Level A 
harassment thresholds for all equipment types are shown in Table 3.
    Distances to the Level A harassment threshold for Innomar were 
calculated using a Matlab-based numerical model, which accounts for the 
source's extremely narrow beam width. Cumulative sound exposure level 
from a moving source to an assumed stationary marine mammal was 
calculated based on the safe distance

[[Page 63516]]

method described in Sivle et al. (2015), with modifications to include 
absorption loss and beamwidth. The cumulative received level was then 
frequency weighted using the NMFS (2018) frequency weighting function 
for each marine mammal functional hearing group. Finally, the safe 
horizontal distance (i.e., isopleth distance to the Level A harassment 
threshold) was determined numerically at a point where the 
SELcum would not exceed the 24-hour SELcum.
    Modeled distances to isopleths corresponding to the Level A 
harassment threshold are very small (<1 m) for three of the four marine 
mammal functional hearing groups that may be impacted by the survey 
activities (i.e., low frequency and mid frequency cetaceans, and phocid 
pinnipeds; see Table 3). Based on the extremely small Level A 
harassment zones for these functional hearing groups, the potential for 
species within these functional hearing groups to be taken by Level A 
harassment is considered so low as to be discountable. These three 
functional hearing groups encompass all but one of the marine mammal 
species that may be impacted by the planned activities, listed in Table 
1. There is one species (harbor porpoise) within the high frequency 
functional hearing group that may be impacted by the planned 
activities. However, the largest modeled distance to the Level A 
harassment threshold for the high frequency functional hearing group 
was only 36.5 m (Table 3), and this estimate is assumed to be 
conservative. Level A harassment would also be more likely to occur at 
close approach to the sound source or as a result of longer duration 
exposure to the sound source, and mitigation measures--including a 100 
m exclusion zone for harbor porpoises--are expected to minimize the 
potential for close approach or longer duration exposure to active HRG 
sources. In addition, harbor porpoises are a notoriously shy species 
which is known to avoid vessels. Harbor porpoises would also be 
expected to avoid a sound source prior to that source reaching a level 
that would result in injury (Level A harassment). Therefore, we have 
determined that the potential for take by Level A harassment of harbor 
porpoises is so low as to be discountable. As NMFS has determined that 
the likelihood of take of any marine mammals in the form of Level A 
harassment occurring as a result of the surveys is so low as to be 
discountable, we therefore do not authorize the take by Level A 
harassment of any marine mammals. For more information about Level A 
harassment exposure estimation, please see section 6.2.1 of the IHA 
application.

Marine Mammal Occurrence

    The habitat-based density models produced by the Duke University 
Marine Geospatial Ecology Laboratory (Roberts et al., 2016a,b, 2017, 
2018) and Roberts (2020) represent the best available information 
regarding marine mammal densities in the Survey Area. The density data 
presented by Roberts et al. (2016a,b, 2017, 2018) and Roberts (2020) 
incorporates aerial and shipboard line-transect survey data from NMFS 
and other organizations and incorporates data from 8 physiographic and 
16 dynamic oceanographic and biological covariates, and controls for 
the influence of sea state, group size, availability bias, and 
perception bias on the probability of making a sighting. These density 
models were originally developed for all cetacean taxa in the U.S. 
Atlantic (Roberts et al., 2016a,b). In subsequent years, certain models 
have been updated based on additional data as well as certain 
methodological improvements. More information is available online at 
seamap.env.duke.edu/models/Duke-EC-GOM-2015/. Marine mammal density 
estimates in the Survey Area (animals/km\2\) were obtained using the 
most recent model results for all taxa (Roberts et al., 2016b, 2017, 
2018) and Roberts (2020). The updated models incorporate additional 
sighting data, including sightings from the NOAA Atlantic Marine 
Assessment Program for Protected Species (AMAPPS) surveys from 2010-
2014 (NEFSC & SEFSC, 2011, 2012, 2014a, 2014b, 2015, 2016). In 
addition, Roberts (2020) further updates model results for NARWs by 
implementing three major changes: Increasing spatial resolution, 
generating monthly estimates for three time periods of survey data, and 
dividing the study area into five discrete regions. These changes are 
designed to produce estimates that better reflect the most current, 
regionally specific data, including observations collected during 
aerial surveys in the Massachusetts and Rhode Island Wind Energy Areas, 
conducted by the New England Aquarium from February 2017 through June 
2018 (Quintana et al., 2019). More information, including the initial 
model results and supplementary information for each model, is 
available online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/.
    For the exposure analysis, density data from Roberts et al. (2016b, 
2017, 2018) and Roberts (2020) were mapped using a geographic 
information system (GIS). Density grid cells that included any portion 
of the Survey Area were selected for all survey months. Densities for 
the recently split Lease Areas OCS-A 0486 and OCS-A 0517 were combined, 
as the Lease Areas occupy the same habitat and densities and, 
therefore, overlap. For each of the Survey Area segments (i.e., OCS-A 
0486/0517, OCS-A 0487. OCS-A 0500, and ECR Area), the densities of each 
species as reported by Roberts et al. (2016b, 2017, 2018) and Roberts 
(2020) were averaged by month; those values were then used to calculate 
a mean annual density for each species for each segment of the Survey 
Area. Estimated mean monthly and annual densities (animals per km\2\) 
of all marine mammal species that may be taken by the survey 
activities, for all segments of the Survey Area, are shown in Tables 8, 
9, 10, and 11 of the IHA application. The mean annual density values 
used to estimate take numbers are shown in Table 4 below.
    For bottlenose dolphin densities, Roberts et al. (2016b 2017, 2018) 
does not differentiate by stock. The Western North Atlantic northern 
migratory coastal stock primarily occurs in coastal waters from the 
shoreline to approximately the 20 m isobath (Hayes et al., 2018). As 
the Survey Area is located north of the northern extent of the range of 
the Western North Atlantic Migratory Coastal Stock and within depths 
exceeding 20 m, where only the offshore stock would be expected to 
occur, all calculated bottlenose dolphin exposures within the Survey 
Area are expected to be from the offshore stock. Similarly, Roberts et 
al. (2018) produced density models for all seals but did not 
differentiate by seal species. Because the seasonality and habitat use 
by gray seals roughly overlaps with that of harbor seals in the Survey 
Area, it was assumed that the mean annual density of seals could refer 
to either of the respective species and was, therefore, divided equally 
between the two species.

[[Page 63517]]



         Table 4--Mean Annual Marine Mammal Densities (Number of Animals per 100 km2) in the Survey Area
----------------------------------------------------------------------------------------------------------------
                     Species                        OCS-A 0486/     OCS-A 0487      OCS-A 0500       ECR area
-------------------------------------------------------0517-----------------------------------------------------
North Atlantic right whale......................            0.26            0.29            0.27            0.12
Humpback whale..................................            0.14            0.13            0.12            0.05
Fin whale.......................................            0.21            0.26            0.27            0.15
Sei whale.......................................            0.01            0.01            0.02            0.01
Minke whale.....................................            0.05            0.06            0.07            0.04
Sperm Whale.....................................            0.01            0.01            0.01            0.01
Pilot whale.....................................            0.16            0.33            0.68            0.37
Bottlenose dolphin..............................            1.17            0.77            0.72            3.51
Common dolphin..................................            4.68            7.58            4.40            2.60
Atlantic white-sided dolphin....................            1.46            2.55            3.86            1.98
Atlantic spotted dolphin........................            0.01            0.02            0.05            0.05
Risso's dolphin.................................            0.00            0.00            0.01            0.01
Harbor porpoise.................................            3.44            4.62            5.65            3.20
Gray seal.......................................            0.73            0.70            0.65            1.59
Harbor seal.....................................            0.73            0.70            0.65            1.59
----------------------------------------------------------------------------------------------------------------
Note: All density values derived from Roberts et al. (2016b, 2017, 2018) and Roberts (2020). Densities shown
  represent the mean annual density values.

Take Calculation and Estimates

    Here we describe how the information provided above was 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 Level B harassment thresholds were 
calculated, as described above. Those distances were 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 was 
then calculated, based on areas predicted to be ensonified around the 
HRG survey equipment and the estimated trackline distance traveled per 
day by the survey vessel. The daily ensonified area was multiplied by 
the mean annual density of a given marine mammal species for each 
Survey Area segment. This value was then multiplied by the number of 
planned vessel days.
    As noted previously, not all noise producing survey equipment/
sources will be operated concurrently by each survey vessel on every 
vessel day. The greatest distance to the Level B harassment threshold 
for impulsive sources (e.g., boomers and sparkers) is 141 m, while the 
greatest distance to the Level B harassment threshold for intermittent, 
non-impulsive sources (e.g., CHIRPs, Innomar, USBL) is 54 m. Therefore, 
the distance used to estimate take by Level B harassment was 141 m for 
the portion of survey days (54%) employing boomers and sparkers and 54 
m for the portion of survey days (46%) when only non-impulsive sources 
will be used.
    [Oslash]rsted estimates that the surveys will achieve a maximum 
daily track line distance of 70 km per 24-hour day during the HRG 
survey activity days; this distance accounts for the vessel traveling 
at approximately 4.0 kn, during active survey periods only. Estimates 
of incidental take by Level B harassment for impulsive and non-
impulsive HRG equipment were calculated using the 141 m and 54 m Level 
B harassment isopleths, respectively, to determine the daily ensonified 
areas for 24-hour operations (impulsive 19.8 km\2\; non-impulsive 7.659 
km\2\), estimated daily vessel track of approximately 70 km, and the 
relevant species density, multiplied by the number of survey days 
estimated for the specific Survey Area segment (Tables 5 and 6).
    [Oslash]rsted will establish a 500 m exclusion zone for the North 
Atlantic right whale, which substantially exceeds the distance to the 
Level B harassment isopleth for both survey days using impulsive 
sources (141 m) and survey days using non-impulsive sources (54 m). 
However, [Oslash]rsted will be operating 24 hours per day for a 
majority of the total of 1,302 vessel days. Even with the 
implementation of mitigation measures (including visual monitoring at 
night with use of night vision devices), it is reasonable to assume 
that night time operations for an extended period could result in a 
limited number of North Atlantic right whales being exposed to 
underwater sound exceeding Level B harassment levels. Take has been 
conservatively calculated based on the largest isopleth for both types 
of survey days (i.e., using impulsive or non-impulsive sources), and is 
thereby likely an overestimate because the acoustic source resulting in 
the largest isopleth would not be used on 100 percent of survey days 
for each category. In addition, [Oslash]rsted will implement specific 
mitigation and monitoring protocols for both types of survey days 
(e.g., night vision goggles with thermal clip-ons for nighttime 
operations, exclusion zones, ramp-up and shutdown protocols). NMFS 
predicts that, in the absence of mitigation, 37 North Atlantic right 
whales may be taken by Level B harassment throughout the Survey Area 
over the 12-month project duration. The conservative estimate of 
exposure at Level B harassment levels coupled with the monitoring and 
mitigation measures make it likely that this prediction is an 
overestimate.
    As described above, NMFS has determined that the likelihood of take 
of any marine mammals in the form of Level A harassment occurring as a 
result of the surveys is so low as to be discountable; therefore, we do 
authorize take of any marine mammals by Level A harassment.

[[Page 63518]]



    Table 5--Numbers of Potential Incidental Take by Level B Harassment of Marine Mammals in Each of the Survey Segments by Survey Type and Duration
                                                         [*, I = Impulsive; NI = Non-impulsive]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Estimated takes by Level B harassment
                                                 -------------------------------------------------------------------------------------------------------
                   Survey type                         OCS-A 0486/0517             OCS-A 0487                OCS-A 0500                 ECR area
                                                 -------------------------------------------------------------------------------------------------------
                                                      I *          NI *          I            NI           I            NI           I            NI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vessel days.....................................          114          103           97          164          112           52          378          283
Species:
    North Atlantic right whale..................         5.87         2.02         5.57         3.60         5.99         1.06         8.98         2.57
    Humpback whale..............................         3.16         1.09         2.50         1.61         2.66         0.47         3.74         1.07
    Fin whale...................................         4.74         1.64         4.99         3.23         5.99         1.06        11.23         3.21
    Sei whale...................................         0.23         0.08         0.19         0.12         0.44         0.08         0.75         0.21
    Minke whale.................................         1.13         0.39         1.15         0.74         1.55         0.28          3.0         0.86
    Sperm whale.................................         0.02         0.08         0.19         0.12         0.22         0.04         0.75         0.21
    Long-finned pilot whale.....................         3.61         1.25         6.34         4.10        15.08         2.68        27.69         7.93
    Bottlenose dolphin (W N Atlantic Offshore)..        26.40         9.12        14.79         9.56        15.97         2.83       262.70        75.19
    Common dolphin..............................       105.64        36.49       145.58        94.09        97.57        17.32       194.59        55.69
    Atlantic white-sided dolphin................        32.96        11.38        48.98        31.65        85.60        15.19       148.19        42.41
    Atlantic spotted dolphin....................         0.23         0.08         0.45         0.25         1.11         0.20         3.74         1.07
    Risso's dolphin.............................         0.00         0.00         0.00         0.00         0.22         0.04         0.75         0.21
    Harbor porpoise.............................        77.65        26.82        88.73        57.35       125.29        22.24       239.50        68.54
    Gray seal...................................        16.48         5.69        13.44         8.69        14.41         2.56       119.00        34.06
    Harbor seal.................................        16.48         5.69        13.44         8.69        14.41         2.56       119.00        34.06
--------------------------------------------------------------------------------------------------------------------------------------------------------


     Table 6--Numbers of Potential Incidental Take of Marine Mammals Authorized and Takes as a Percentage of
                                                   Population
----------------------------------------------------------------------------------------------------------------
                                                                                                      Total
                                                                    Estimated         Total         authorized
                            Species                              takes by Level    authorized       takes as a
                                                                  B harassment   takes by Level   percentage of
                                                                                  B harassment      population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale.....................................              37              37             8.64
Humpback whale \1\.............................................              16              21             1.50
Fin whale......................................................              36              36             0.49
Sei whale......................................................               2               2             0.03
Minke whale \1\................................................               9              13             0.05
Sperm whale \1\................................................               2               3             0.07
Long-finned pilot whale........................................              69              69             0.18
Bottlenose dolphin (W.N. Atlantic Offshore) \2\................             417             419             0.67
Common dolphin \1\ \2\.........................................             747           2,211             1.28
Atlantic white-sided dolphin \2\...............................             416             418             0.45
Atlantic spotted dolphin.......................................               7               7             0.02
Risso's dolphin \1\............................................               1              30             0.08
Harbor porpoise \2\............................................             706             916             0.96
Harbor seal \2\................................................             214             215             0.28
Gray seal \2\..................................................             214             215             0.79
----------------------------------------------------------------------------------------------------------------
\1\ The authorized takes (Level B harassment only) for these species has been increased from the estimated take
  number to mean group size (Risso's dolphin: Palka (2012); sperm whale: Barkaszi and Kelly (2018)) or increased
  based on PSO sighting observations from [Oslash]rsted's HRG survey activities in the same Survey Area in 2019
  and 2020 (humpback and minke whales, and common dolphins).
\2\ Total authorized take by Level B harassment has been increased to include modeled exposures resulting from
  estimation of take by Level A harassment, which is not anticipated (see Section 6.2.1 of the IHA application).

    Orsted has requested additional take, by Level B harassment, 
authorizations beyond the modelled takes for humpback and minke whales 
and common dolphins, based on increased detection of these species 
during its 2019 survey. Orsted's justification for this request can be 
found in its application, which is available here: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or

[[Page 63519]]

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.
    The mitigation measures described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with HRG survey activities. 
Modeling was performed to estimate ZOIs (see ``Estimated Take''); these 
ZOI values were used to inform mitigation measures for HRG survey 
activities to eliminate Level A harassment and minimize Level B 
harassment, while providing estimates of the areas within which Level B 
harassment might occur.
    In addition to the specified measures described below, 
[Oslash]rsted will conduct briefings for vessel operators and crews, 
the marine mammal monitoring teams, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
the marine mammal monitoring protocol, and operational procedures.

Pre-Start Clearance, Exclusion and Monitoring Zones

    Marine mammal exclusion zones (EZs) will be established around 
impulsive acoustic sources (e.g., boomers and sparkers) and non-
impulsive, non-parametric sub-bottom profilers and monitored by 
protected species observers (PSOs):
     500 m EZ for North Atlantic right whales for use of 
impulsive acoustic sources (e.g., boomers and/or sparkers) and non-
impulsive, non-parametric sub-bottom profilers; and
     100 m EZ for all other marine mammals for use of impulsive 
acoustic sources (e.g., boomers and/or sparkers), with the exception of 
certain small delphinids specified below.
    If a marine mammal is detected approaching or entering the EZs 
during the HRG survey, the vessel operator will adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
Pre-start clearance, ramp-up and shutdown procedures (described below) 
are not required during HRG survey operations using only non-impulsive 
sources, excluding non-impulsive, non-parametric sub-bottom profilers. 
Pre-clearance and ramp-up, but not shutdown, are required when using 
non-impulsive, non-parametric sub-bottom profilers. These stated 
requirements will be included in the site-specific training to be 
provided to the survey team.

Pre-Start Clearance of the Exclusion Zones

    [Oslash]rsted will implement a 30-minute pre-start clearance period 
of the specified EZs prior to the initiation of ramp-up of boomers, 
sparkers, and non-impulsive, non-parametric sub-bottom profilers. 
During this period, the EZs will be monitored by the PSOs, using the 
appropriate visual technology. Ramp-up may not be initiated if any 
marine mammal(s) is within its respective EZ. If a marine mammal is 
observed within an EZ during the pre-start clearance period, ramp-up 
may not begin until the animal(s) has been observed exiting its 
respective EZ or until an additional time period has elapsed with no 
further sighting (i.e., 15 minutes for small odontocetes and seals, and 
30 minutes for all other species).

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure will be used for 
boomers, sparkers, and non-impulsive, non-parametric sub-bottom 
profilers capable of adjusting energy levels at the start or re-start 
of survey activities. The ramp-up procedure will be used at the 
beginning of HRG survey activities in order to provide additional 
protection to marine mammals in the Survey Area by allowing them to 
vacate the area prior to the commencement of survey equipment operation 
at full power.
    A ramp-up will begin with the powering up of the smallest acoustic 
HRG equipment at its lowest practical power output appropriate for the 
survey. When technically feasible, the power will then be gradually 
turned up and other acoustic sources will be added.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective EZ, and may only recommence if the animal has been observed 
exiting its respective EZ or until an additional time period has 
elapsed with no further sighting (i.e., 15 minutes for small 
odontocetes and seals, and 30 minutes for all other species).
    Activation of survey equipment through ramp-up procedures may not 
occur when visual observation of the pre-clearance zone is not expected 
to be effective (i.e., during inclement conditions such as heavy rain 
or fog). The Exclusion Zone must be fully visible during pre-start 
clearance and ramp-up operations.

Shutdown Procedures

    An immediate shutdown of boomers and sparkers will be required if a 
marine mammal is sighted entering or within its respective EZ. No 
shutdown is required for surveys operating only non-impulsive acoustic 
sources (including non-parametric sub-bottom profilers). The vessel 
operator must comply immediately with any call for shutdown by the Lead 
PSO. Any disagreement between the Lead PSO and vessel operator should 
be discussed only after shutdown has occurred. Subsequent restart of 
the survey equipment can be initiated if the animal has been observed 
exiting its respective EZ or after an additional time period has 
elapsed since the observation (i.e., 15 minutes for small odontocetes 
and seals and 30 minutes for all other species).
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (54 m, non-impulsive; 141 m impulsive), 
shutdown will occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective EZs. If the acoustic source is shut down for a period 
longer than 30 minutes and PSOs have maintained constant observation, 
then pre-start clearance and ramp-up procedures will be initiated as 
described in the previous section.
    The shutdown requirement is waived for small delphinids of the 
following genera: Delphinus, Lagenorhynchus, Stenella, and Tursiops. 
Specifically, if a delphinid from the specified genera is visually 
detected approaching the vessel or towed equipment, shutdown is not 
required. Furthermore, if there is uncertainty regarding identification 
of a marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which shutdown is waived), 
PSOs must use best professional judgement in making the decision to 
call for a shutdown. Additionally, shutdown is required if a delphinid 
is detected in the EZ and

[[Page 63520]]

belongs to a genus other than those specified.

Vessel Strike Avoidance

    Vessel strike avoidance measures include, but are not limited to, 
the following, except under circumstances when complying with these 
measures would put the safety of the vessel or crew at risk:
     All vessel operators and crews must maintain a vigilant 
watch for all protected species and slow down, stop their vessel, or 
alter course, as appropriate and regardless of vessel size, to avoid 
striking any protected species. A visual observer aboard the vessel 
must monitor a vessel strike avoidance zone around the vessel 
(distances stated below). Visual observers monitoring the vessel strike 
avoidance zone may be third-party observers (i.e., PSOs) or crew 
members, but crew members responsible for these duties must be provided 
sufficient training to (1) distinguish protected species from other 
phenomena and (2) broadly to identify a marine mammal as a North 
Atlantic right whale, other whale (defined in this context as sperm 
whales or baleen whales other than North Atlantic right whales), or 
other marine mammal.
     All vessels 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 (DMAs) 
when in effect and the Mid-Atlantic SMAs (from November 1 through April 
30). See 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 
when any large whale, 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 North Atlantic 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 sperm whales and all other baleen 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 protected species 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 a NARW is sighted 
within the relevant separation distance, the vessel must steer a course 
away at 10 knots or less until the 500 m separation distance has been 
established.
     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.

Seasonal Restrictions

    [Oslash]rsted will limit to three the number of survey vessels that 
will operate concurrently from January through May within the Lease 
Areas (OSC-A 0486/0517, OCS-A 0487, and OCS-A 500) and ECR Area north 
of the Lease Areas up to, but not including, coastal and bay waters. 
[Oslash]rsted will operate either a single vessel, two vessels 
concurrently or, for short periods, no more than three survey vessels 
concurrently in the Survey Area from January through May, when North 
Atlantic right whale densities are high (Roberts 2020). This practice 
will help to reduce the number of right whale takes and minimize the 
extent to which right whales may be exposed to project noise in a day.
    Between watch shifts, members of the monitoring team will consult 
NOAA Fisheries North Atlantic right whale reporting systems for the 
presence of right whales throughout survey operations. The Survey Area 
occurs near the SMAs located off the coast of Rhode Island (Block 
Island Sounds SMA) and at the entrance to New York Harbor (New York 
Bight SMA). If survey vessels transit through these SMAs, they must 
adhere to the seasonal mandatory speed restrictions from November 1 
through April 30. Throughout all survey operations, [Oslash]rsted will 
monitor NOAA Fisheries North Atlantic right whale reporting systems for 
the establishment of a DMA. If NOAA Fisheries should establish a DMA in 
the Survey Area, the vessels will abide by speed restrictions in the 
DMA per the lease condition.
    Based on our evaluation of the required measures, as well as other 
measures considered by NMFS, NMFS has determined that these mitigation 
measures provide the means of effecting the least practicable impact on 
marine mammal species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
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).
     Mitigation and monitoring effectiveness.

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the

[[Page 63521]]

resumes of whom will be provided to NMFS for review and approval prior 
to the start of survey activities. [Oslash]rsted will employ 
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be 
employed by a third-party observer provider, (2) have no tasks other 
than to conduct observational effort, collect data, and communicate 
with and instruct relevant vessel crew with regard to the presence of 
marine mammals and mitigation requirements (including brief alerts 
regarding maritime hazards), and (3) have successfully completed an 
approved PSO training course appropriate for their designated task and/
or have demonstrated experience in the role of independent PSO during a 
geophysical survey. On a case-by-case basis, non-independent observers 
may be approved by NMFS for limited, specific duties in support of 
approved, independent PSOs on smaller vessels with limited crew 
capacity operating in nearshore waters.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including EZs, during all HRG survey operations. PSOs will 
visually monitor and identify marine mammals, including those 
approaching or entering the established EZs during survey activities. 
It will be the responsibility of the Lead PSO on duty to communicate 
the presence of marine mammals as well as to communicate the action(s) 
that are necessary to ensure mitigation and monitoring requirements are 
implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times when acoustic sources are active. Two PSOs 
will be on watch during nighttime operations. PSO(s) will ensure 
360[deg] visual coverage around the vessel from the most appropriate 
observation posts and will conduct visual observations using binoculars 
and/or NVDs and the naked eye while free from distractions and in a 
consistent, systematic, and diligent manner. PSOs may be on watch for a 
maximum of four consecutive hours followed by a break of at least two 
hours between watches and may conduct a maximum of 12 hours of 
observation per 24-hour period. In cases where multiple vessels are 
surveying concurrently, any observations of marine mammals will be 
communicated to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detected marine mammals, particularly 
in proximity to EZs. Reticulated binoculars must also be available to 
PSOs for use as appropriate based on conditions and visibility to 
support the sighting and monitoring of marine mammals. During nighttime 
operations, night-vision goggle with thermal clip-ons and infrared 
technology will be used. Position data will be recorded using hand-held 
or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs will also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey will be relayed to 
the PSO team.
    Data on all PSO observations will be recorded based on standard PSO 
collection requirements. This will include dates, times, and locations 
of survey operations; dates and times of observations, location and 
weather; details of marine mammal sightings (e.g., species, numbers, 
behavior); and details of any observed marine mammal behavior that 
occurs (e.g., noted behavioral disturbances).

Reporting

    Within 90 days after completion of survey activities, a final 
technical report will be provided to NMFS that fully documents the 
methods and monitoring protocols, summarizes the data recorded during 
monitoring, summarizes the number of marine mammals observed during 
survey activities (by species, when known), summarizes the mitigation 
actions taken during surveys (including what type of mitigation and the 
species and number of animals that prompted the mitigation action, when 
known), and provides an interpretation of the results and effectiveness 
of all mitigation and monitoring. Any recommendations made by NMFS must 
be addressed in the final report prior to acceptance by NMFS.
    In addition to the final technical report, [Oslash]rsted will 
provide the reports described below as necessary during survey 
activities.
    In the event that [Oslash]rsted personnel discover an injured or 
dead marine mammal, [Oslash]rsted must report the incident to the NMFS 
Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report must 
include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, [Oslash]rsted 
must report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report must 
include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not

[[Page 63522]]

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, our analysis applies to all the species listed 
in Table 1, given that NMFS expects the anticipated effects of the 
surveys to be similar in nature. NMFS does not anticipate that serious 
injury or mortality will occur as a result from HRG surveys, even in 
the absence of mitigation, and no serious injury or mortality is 
authorized. As discussed in the Potential Effects section, non-auditory 
physical effects and vessel strike are not expected to occur. We expect 
that all potential takes would be in the form of short-term Level B 
behavioral harassment in the form of temporary avoidance of the area or 
decreased foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007). Even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole. As described above, Level A harassment is not 
expected to occur given the nature of the operations, the estimated 
size of the Level A harassment zones, and the required shutdown zones 
for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m; almost half of survey days will 
include activity with a reduced acoustic harassment zone of 54 m per 
vessel, producing expected effects of particularly low severity. 
Consequently, the ensonified area surrounding each vessel is relatively 
small compared to the overall distribution of the animals in the area 
and their use of the habitat. Feeding behavior is not likely to be 
significantly impacted as prey species are mobile and are broadly 
distributed throughout the Survey Area; therefore, marine mammals that 
may be temporarily displaced during survey activities are expected to 
be able to resume foraging once they have moved away from areas with 
disturbing levels of underwater noise. Because of the temporary nature 
of the disturbance and the availability of similar habitat and 
resources in the surrounding area, the impacts to marine mammals and 
the food sources that they utilize are not expected to cause 
significant or long-term consequences for individual marine mammals or 
their populations.
    ESA-listed species for which takes are authorized are North 
Atlantic right, fin, sei, and sperm whales; impacts on these species 
are anticipated to be limited to lower level behavioral effects. NMFS 
does not anticipate that serious injury or mortality will occur to ESA-
listed species, even in the absence of mitigation, and this 
authorization does not authorize any serious injury or mortality. The 
survey activities are not anticipated to affect the fitness or 
reproductive success of individual animals. Since impacts to individual 
survivorship and fecundity are unlikely, the survey activities are not 
expected to result in population-level effects for any ESA-listed 
species or alter current population trends of any ESA-listed species.
    The status of the North Atlantic right whale population is of 
heightened concern, and merits additional analysis. In July 2020, the 
International Union for the Conservation of Nature (IUCN) moved the 
right whale from Endangered to Critically Endangered on the IUCN Red 
List. An increasing trend in right whale mortalities began in June 
2017, primarily in Canada. Overall, preliminary findings support human 
interactions, specifically vessel strikes and entanglements, as the 
cause of death for the majority of right whales. The Survey Area 
includes a biologically important migratory route for right whales 
(effective March-April and November-December) that extends from 
Massachusetts to Florida (LeBrecque et al., 2015). Off the south coast 
of Massachusetts and Rhode Island, this biologically important 
migratory area extends from the coast to beyond the shelf break. 
However, in recent years, the temporal and spatial scales of right 
whale distribution and migratory patterns have shifted (e.g., Gowan et 
al., 2019), and right whales are now observed year-round south of 
Martha's Vineyard and Nantucket (northeast of the Survey Area) (Pettis 
et al., 2020). The spatial acoustic footprint of the survey is very 
small relative to the spatial extent of the available migratory 
habitat, thus, right whale migration is not expected to be impacted by 
the survey. As previously described, Seasonal Restrictions must be 
implemented to limit both the amount of vessel activity and acoustic 
impact of [Oslash]rsted's survey activities on right whales utilizing 
the habitat that overlaps with the Survey Area. Required vessel strike 
avoidance measures will also decrease risk of ship strike during 
migration, although no ship strike is expected to occur. Additionally, 
[Oslash]rsted is required to maintain a 500 m EZ and shutdown if a 
right whale is sighted at or within the EZ. The 500 m shutdown zone for 
right whales is conservative, considering the Level B harassment 
isopleth for the most impactful acoustic source (i.e., GeoMarine Geo-
Source 400 tip sparker) is estimated to be 141 m, and thereby minimizes 
the potential for behavioral harassment of this species. Finally, all 
survey vessels are required to maintain a 500 m separation distance 
from right whales, at all times.
    The Survey Area includes a fin whale feeding BIA, effective between 
March and October. The fin whale feeding area is sufficiently large 
(2,933 km\2\), and the acoustic footprint of the survey is sufficiently 
small that whale feeding habitat would not be reduced in any way, and 
any impacts to foraging behavior within the habitat are expected to be 
minimal. Behavioral harassment is typically context-dependent, and 
current literature demonstrates that some mysticetes are less likely to 
be susceptible to disruption of behavioral patterns when engaged in 
feeding (Southall et al., 2007; Goldbogen et al., 2013; Harris et al., 
2019). Any fin whales temporarily displaced from the Survey Area would 
be expected to have sufficient habitat available to them and would not 
be prevented from feeding in other areas within the biologically 
important feeding habitat. In addition, any displacement of fin whales 
from the BIA would be expected to be temporary

[[Page 63523]]

in nature. Therefore, we do not expect fin whale feeding to be 
negatively impacted by the survey.
    As noted previously, there are several active UMEs occurring in the 
vicinity of [Oslash]rsted's Survey Area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or distinct population segment 
(DPS)) remains stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and have occurred across Maine, New 
Hampshire, and Massachusetts. Based on tests conducted so far, the main 
pathogen found in the seals is phocine distemper virus, although 
additional testing to identify other factors that may be involved in 
this UME are underway. The UME does not yet provide cause for concern 
regarding population-level impacts to any of these stocks. For harbor 
seals, the population abundance is over 75,000 and annual M/SI (350) is 
well below PBR (2,006) (Hayes et al., 2018). The population abundance 
for gray seals in the United States is over 27,000, with an estimated 
overall abundance, including seals in Canada, of approximately 505,000. 
In addition, the abundance of gray seals is likely increasing in the 
U.S. Atlantic EEZ as well as in Canada (Hayes et al., 2018).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes by providing animals the opportunity to move 
away from the sound source throughout the Survey Area before HRG survey 
equipment reaches full energy, thus preventing animals from being 
exposed to sound levels that have the potential to cause injury (Level 
A harassment) or more severe Level B harassment. No Level A harassment 
is anticipated or authorized.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated or authorized;
     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;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be Level B behavioral harassment, 
consisting of brief startling reactions and/or temporary avoidance of 
the Survey Area;
     While the Survey Area is within areas noted as 
biologically important for North Atlantic right whale migration, the 
survey activities will occur in such a comparatively small area such 
that any avoidance of the Survey Area due to survey activities would 
not affect migration. Seasonal vessel restrictions from January through 
May will further reduce the potential overall impacts of survey 
activities on NARWs utilizing habitat in or near the Survey Area. In 
addition, the mitigation measure to shutdown if a North Atlantic right 
whale is observed nearing or entering the 500 m EZ would limit any take 
of the species. Similarly, due to the small footprint of the survey 
activities in relation to the size of a biologically important area for 
fin whales' foraging, the survey activities would not affect foraging 
success of this species; and
     The required mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is less than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    We authorize incidental take of fifteen marine mammal stocks. The 
numbers of marine mammals for which we authorize take, for all species 
and stocks, are small relative to the relevant stocks or populations 
(less than 9 percent for all species and stocks) as shown in Table 6. 
Based on the analysis contained herein of the planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of all affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes,

[[Page 63524]]

funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of IHAs, NMFS consults 
internally, in this case with the NMFS Greater Atlantic Regional 
Fisheries Office (GARFO), whenever we propose to authorize take for 
endangered or threatened species. Within the Survey Area, fin, sei, 
humpback, North Atlantic right, and sperm whales are listed as 
endangered species under the ESA. Under section 7 of the ESA, BOEM 
consulted with NMFS on commercial wind lease issuance and site 
assessment activities on the Atlantic Outer Continental Shelf in 
Massachusetts, Rhode Island, New York, and New Jersey Wind Energy 
Areas. NOAA's GARFO issued a Biological Opinion concluding that these 
activities may adversely affect but are not likely to jeopardize the 
continues existence of the North Atlantic right, fin, sei, and sperm 
whale. The Biological Opinion can be found online at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-biological-opinions-greater-atlantic-region. Upon request from the 
NMFS Office of Protected Resources, NMFS GARFO issued an amended 
incidental take statement associated with this Biological Opinion to 
include the take of the ESA-listed marine mammal species authorized 
through this IHA in September, 2020.

National Environmental Policy Act

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

Authorization

    NMFS has issued an IHA to [Oslash]rsted for conducting marine site 
characterization surveys in coastal waters from New York to 
Massachusetts, for a period of one year, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: October 5, 2020.
Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-22307 Filed 10-7-20; 8:45 am]
BILLING CODE 3510-22-P