[Federal Register Volume 87, Number 66 (Wednesday, April 6, 2022)]
[Notices]
[Pages 19864-19884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07258]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB855]


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

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from Virginia Electric and Power 
Company doing business as Dominion Energy Virginia (Dominion Energy) 
for authorization to take marine mammals incidental to marine site 
characterization surveys off of Virginia in support of the Coastal 
Virginia Offshore Wind Commercial (CVOW Commercial) Project. Pursuant 
to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments 
on its proposal to issue an incidental harassment authorization (IHA) 
to incidentally take marine mammals during the specified activities. 
NMFS is also requesting comments on a possible one-time, one-year 
renewal that could be issued under certain circumstances and if all 
requirements are met, as described in Request for Public Comments at 
the end of this notice. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorizations and agency responses will be summarized in the final 
notice of our decision.

DATES: Comments and information must be received no later than May 6, 
2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service and should be submitted via email to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at 
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

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

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 19865]]

and reporting of the takings are set forth. The definitions of all 
applicable MMPA statutory terms cited above are included in the 
relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment. This action 
is consistent with categories of activities identified in Categorical 
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of 
the Companion Manual for NOAA Administrative Order 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 preliminarily determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review. We will review all comments 
submitted in response to this notice prior to concluding our NEPA 
process or making a final decision on the IHA request.

Summary of Request

    On September 30, 2021, NMFS received a request from Dominion Energy 
for an IHA to take marine mammals incidental to marine site 
characterization surveys off of Virginia. Dominion Energy submitted 
revised applications on December 3, 2021, January 21, 2022 and March 2, 
2022 in response to comments from NMFS. The application was deemed 
adequate and complete on March 8, 2022. Dominion Energy's request is 
for take of a small number of 16 species of marine mammals by Level B 
harassment only. Neither Dominion Energy nor NMFS expects serious 
injury or mortality to result from this activity and, therefore, an IHA 
is appropriate.
    NMFS previously issued IHAs to Dominion Energy for similar and 
related work in the same general area (85 FR 55415; September 8, 2020 
(modified on December 17, 2020 (85 FR 81879) and April 22, 2021 (86 FR 
21298)), 85 FR 30930; May 21, 2020, and 83 FR 39062; August 8, 2018). 
Dominion Energy complied with all the requirements (e.g., mitigation, 
monitoring, and reporting) of the previous IHA and information 
regarding their monitoring results may be found in the Estimated Take 
section.

Description of Proposed Activity

Overview

    As part of its overall marine site characterization survey 
operations, Dominion Energy proposes to conduct high-resolution 
geophysical (HRG) surveys in the Lease Area and along the Offshore 
Export Cable Corridor (OECC) off of Virginia. The purpose of the 
surveys is to locate and identify potential unexploded ordnance (UXO) 
in support of the Dominion Energy Coastal Virginia Offshore Wind 
Commercial Project. Underwater sound resulting from Dominion Energy's 
proposed site characterization survey activities, specifically HRG 
surveys, has the potential to result in incidental take of marine 
mammals in the form of behavioral harassment.

Dates and Duration

    Dominion Energy initially anticipated that HRG survey activities 
would occur on approximately 122 vessel days (104 in the Lease Area and 
18 in the project's OECC), with an assumed daily survey distance of 178 
km/day. However, in discussions with NMFS, Dominion Energy later 
updated the estimated vessel distance to 58 km/day to better reflect 
actual daily vessel distances achieved during previous surveys. 
Accordingly, survey activities are now estimated to occur on up to 244 
vessel days (208 days in the Lease Area and 36 days in the project's 
OECC). Each day that a survey vessel is operating counts as a single 
survey day, e.g., two survey vessels operating on the same day count as 
two survey days. This schedule is based on assumed 24-hour operations. 
Dominion Energy proposes to begin survey activities upon receipt of an 
IHA, and continue for up to one year (though the actual duration will 
likely be shorter, particularly given the use of multiple vessels). The 
IHA would be effective for one year from the date of issuance.

Specific Geographic Region

    Dominion Energy's HRG survey activities would occur in the 
Northwest Atlantic Ocean within federal and state waters. The surveys 
would occur in Lease Area OCS-A 0483, which is a portion of the Mid-
Atlantic Wind Energy Area, and along an export cable corridor within 
the lower Chesapeake Bay as shown in Figure 1. The Lease Area is 
approximately 498 km\2\ (122,799 acres).
BILLING CODE 3510-22-P

[[Page 19866]]

[GRAPHIC] [TIFF OMITTED] TN06AP22.032

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Dominion Energy proposes to conduct HRG survey operations including 
single and multibeam depth sounding, seafloor imaging, and medium 
penetration sub-bottom profiling. The HRG surveys may be conducted 
using any or all of the following equipment types: Side scan sonar, 
single and multibeam depth sounders, magnetometers, boomers, or 
sparkers. Dominion Energy anticipates that HRG survey activities would 
include two vessels operating concurrently (though up to four vessels 
may operate concurrently). Survey vessels would operate at least 
several kilometers apart, typically operating with even greater 
distances of separation between two vessels. Dominion Energy assumes 
that HRG survey activities would be conducted continuously 24 hours per 
day, with an assumed daily survey distance of 58 km per day. This 
assumption is based on Dominion's experience through past survey 
effort.
    Acoustic sources planned for use during HRG survey activities 
proposed by Dominion Energy include the following:
     Medium penetration sub-bottom profiler (boomers and 
sparkers) to map deeper subsurface stratigraphy as needed. A boomer is 
a broadband sound source operating in the 3.5 Hz to 10 kHz frequency 
range. Sparkers create acoustic pulses from 50 Hz to 4 kHz 
omnidirectionally from the source that can penetrate several hundred 
meters into the seafloor. These sources are typically towed behind the 
vessel;
    Operation of the following survey equipment types is not reasonably 
expected to present risk of marine mammal take, and will not be 
discussed further beyond the brief summaries provided below:
     Multibeam echosounders to determine water depths and 
general bottom topography (estimated to range from approximately 
minimum vessel draft to 38 m deep).
     Single beam echosounders to determine water depths and 
general bottom topography (estimated to range from approximately 
minimum vessel draft to 38 m deep).
     Sidescan sonar (SSS) is used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets resting on the bottom as well as any anomalous features.
    Table 1 identifies the representative survey equipment with the 
expected potential to result in exposure of marine mammals and 
potentially result in take. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending on the final survey design, 
vessel availability, and survey contractor selection.
    HRG surveys are expected to use several equipment types 
concurrently in order to collect multiple aspects of geophysical data 
along one transect. Selection of equipment combinations is based on 
specific survey objectives.

[[Page 19867]]



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

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

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

                 Table 2--Marine Mammals Likely To Occur in the Project Area That May Be Affected by Dominion Energy's Proposed Activity
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                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western North Atlantic.  E, D, Y             368 (0, 364, 2019)....        0.7        7.7
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24, 5,573,            11        1.8
                                                                                                             2016).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, Y             1,396 (0, 1,380, 2016)         22      12.15
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -, -, N             21,968 (0.31, 17,002,         170       10.6
                                       acutorostrata.                                                        2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02, 3,098,           6.2        0.8
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             4,349 (0.28, 3,451,           3.9          0
                                                                                                             2016).
Family Delphinidae:
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71, 54,443,         544         27
                                                                                                             2016).
    Bottlenose dolphin..............  Tursiops spp...........  Western North Atlantic   -, -, N             62,851\b\ (0.23,              519         28
                                                                Offshore.                                    51,914\b\, 2016).
                                                               Southern Migratory       -, -, Y             3,751 (0.6, 2,353,             23     0-18.3
                                                                Coastal.                                     2016).
    Short-finned pilot whale........  Globicephala             Western North Atlantic.  -, -, Y             28,924 (0.24, 23,637,         236        136
                                       macrorhynchus.                                                        2016).

[[Page 19868]]

 
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3, 30,627,          306         29
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             35,215 (0.19, 30,051,         301         34
                                                                                                             2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             172,974 (0.21,              1,452        390
                                                                                                             145,216, 2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             39,921 (0.27, 32,032,         320          0
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31, 74,034,         851        164
                                                                Fundy.                                       2016).
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                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal\4\....................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,300 (0.22, 22,785,       1,389      4,453
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08, 57,637,       1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). Under the MMPA, a strategic stock is one for which the level of direct human-
  caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual M/SI value given is for the total stock.

    As indicated above, all 16 species (with 17 managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have proposed 
authorizing it. All species that could potentially occur in the 
proposed survey areas are included in Table 3-1 of the IHA application. 
However, the temporal and/or spatial occurrence of several species 
listed in Table 3-1 of the IHA application is such that take of these 
species is not expected to occur. Blue whales rarely occur in the 
project area (U.S. Navy Marine Species Monitoring, 2018a). Clymene 
dolphin, dwarf sperm whale, false killer whale, Fraser's dolphin, 
killer whale, pantropical spotted dolphin, melon-headed whale, pygmy 
killer whale, pygmy sperm whale, rough-toothed dolphin, spinner 
dolphin, striped dolphin, white beaked dolphin, Blainville's beaked 
whale, Cuvier's beaked whale, Sowerby's beaked whale, and True's beaked 
whale are generally found in more pelagic shelf-break waters, have a 
preference for northern latitudes, or are so rarely sighted that their 
presence in the Survey Area is unlikely. While a harp seal was recently 
observed at the Chesapeake Tunnel Joint Venture Parallel Thimble Shoal 
Tunnel Project in Virginia Beach, Virginia, such an occurrence is 
extremely uncommon, as they, and hooded seals typically occur far north 
of the project area.
    In addition, the Florida manatee (Trichechus manatus; a sub-species 
of the West Indian manatee) has been previously documented as an 
occasional visitor to the Northeast region during summer months (U.S. 
Fish and Wildlife Service (USFWS) 2019). However, manatees are managed 
by the U.S. Fish and Wildlife Service (USFWS) and are not considered 
further in this document.
    For the majority of species potentially present in the specific 
geographic region, NMFS has designated only a single generic stock 
(e.g., ``western North Atlantic'') for management purposes. This 
includes the ``Canadian east coast'' stock of minke whales, which 
includes all minke whales found in U.S. waters and is also a generic 
stock for management purposes. For humpback whales, NMFS defines stocks 
on the basis of feeding locations, i.e., Gulf of Maine. However, 
references to humpback whales in this document refer to any individuals 
of the species that are found in the specific geographic region. 
Additional information on these animals can be found in Sections 3 and 
4 of Dominion Energy's IHA application, the draft 2021 SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and NMFS' website.
    Below is a description of the species that have the highest 
likelihood of occurring in the survey area and are thus expected to 
potentially be taken by the proposed activities as well as further 
detail informing the baseline for select species (i.e., information 
regarding current Unusual Mortality Events (UMEs) and important habitat 
areas).

North Atlantic Right Whale

    The North Atlantic right whale ranges from calving grounds in the 
southeastern United States to feeding grounds in New England waters and 
into Canadian waters (Hayes et al. 2018). Surveys have demonstrated the 
existence of seven areas where North Atlantic right whales congregate 
seasonally, including north and east of the proposed survey area in 
Georges Bank, off Cape Cod, and in Massachusetts Bay (Hayes et al. 
2018). In the late fall months (e.g., October), right whales are 
generally thought to depart from the feeding grounds in the North 
Atlantic and move south to their calving grounds off Georgia and 
Florida. However, recent research indicates our understanding of their 
movement patterns remains incomplete (Davis et al. 2017). A review of 
passive acoustic monitoring (PAM) data from 2004 to 2014 throughout the 
western North Atlantic demonstrated nearly continuous year-round right 
whale

[[Page 19869]]

presence across their entire habitat range (for at least some 
individuals), including in locations previously thought of as migratory 
corridors, suggesting that not all of the population undergoes a 
consistent annual migration (Davis et al. 2017). However, given that 
Dominion Energy's surveys would occur off of Virginia, any right whales 
in the vicinity of the survey areas are expected to be transient, most 
likely migrating through the area.
    The western North Atlantic population demonstrated overall growth 
of 2.8 percent per year between 1990 to 2010, despite a decline in 1993 
and no growth between 1997 and 2000 (Pace et al. 2017). However, since 
2010 the population has been in decline, with a 99.99 percent 
probability of a decline of just under 1 percent per year (Pace et al. 
2017). Between 1990 and 2015, calving rates varied substantially, with 
low calving rates coinciding with all three periods of decline or no 
growth (Pace et al. 2017). On average, North Atlantic right whale 
calving rates are estimated to be roughly half that of southern right 
whales (Eubalaena australis; Pace et al. 2017), which are increasing in 
abundance (NMFS, 2015). In 2018, no new North Atlantic right whale 
calves were documented in their calving grounds; this represented the 
first time since annual NOAA aerial surveys began in 1989 that no new 
right whale calves were observed. Eighteen right whale calves were 
documented in 2021. As of March 13, 2022 and the writing of this 
proposed notice, 15 North Atlantic right whale calves have documented 
to have been born during this calving season. Presently, the best 
available population estimate for North Atlantic right whales is 386 
per the 2021 draft Atlantic SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).
    The proposed survey area overlaps part of the migratory corridor 
Biologically Important Area (BIA) for North Atlantic right whales 
(effective March-April and November-December) that extends from 
Massachusetts to Florida (LeBrecque et al. 2015). Off the coast of 
Virginia, the migratory BIA extends from the coast to beyond the shelf 
break. This important migratory area is approximately 269,488 km\2\ in 
size and is comprised of the waters of the continental shelf offshore 
the East Coast of the United States, extending from Florida through 
Massachusetts. NMFS' regulations at 50 CFR part 224.105 designated 
nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. 
Seasonal Management Areas (SMA) for right whales in 2008. SMAs were 
developed to reduce the threat of collisions between ships and right 
whales around their migratory route and calving grounds. The proposed 
survey area is in the vicinity of the SMA off of the Chesapeake Bay 
that is active from November 1 through April 30 of each year. Within 
SMAs, the regulations require a mandatory vessel speed (less than 10 
kn) for all vessels greater than 65 ft.
    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017, along the U.S. and Canadian coast. This event has been 
declared an Unusual Mortality Event (UME), with human interactions, 
including entanglement in fixed fishing gear and vessel strikes, 
implicated in at least 15 of the mortalities thus far. As of March 13, 
2022, a total of 34 confirmed dead stranded whales (21 in Canada; 13 in 
the United States) have been documented. The cumulative total number of 
animals in the North Atlantic right whale UME has been updated to 49 
individuals to include both the confirmed mortalities (dead stranded or 
floaters; n=34) and seriously injured free-swimming whales (n=15) to 
better reflect the confirmed number of whales likely removed from the 
population during the UME and more accurately reflect the population 
impacts. More information is available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-north-atlantic-right-whale-unusual-mortality-event.
    Information on right whale Slow Zones can be found on NMFS' website 
(https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales).

Fin Whale

    Fin whales are common in waters of the U.S. Atlantic Exclusive 
Economic Zone (EEZ), principally from Cape Hatteras northward (Waring 
et al. 2016). Fin whales are present in the Mid-Atlantic region during 
all four seasons, although sighting data indicate that they are more 
prevalent during winter, spring, and summer (Hayes et al. 2019). While 
fall is the season of lowest overall abundance off Virginia, they do 
not depart the area entirely. Fin whales, much like humpback whales, 
seem to exhibit habitat fidelity to feeding areas (Kenney and Vigness-
Raposa 2010; Hayes et al. 2019). While fin whales typically feed in the 
Gulf of Maine and the waters surrounding New England, mating and 
calving (and general wintering) areas are largely unknown (Hayes et al. 
2019).

Humpback Whale

    Humpback whales are found worldwide in all oceans. Humpback whales 
were listed as endangered under the Endangered Species Conservation Act 
(ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks 
continued to be listed as endangered. On September 8, 2016, NMFS 
divided the species into 14 distinct population segments (DPS), removed 
the current species-level listing, and in its place listed four DPSs as 
endangered and one DPS as threatened (81 FR 62259; September 8, 2016). 
The remaining nine DPSs were not listed. The West Indies DPS, which is 
not listed under the ESA, is the only DPS of humpback whale that is 
expected to occur in the survey area, though these individuals are not 
necessarily from the Gulf of Maine feeding population managed as a 
stock by NMFS. Barco et al. (2002) estimated that, based on photo-
identification, only 39 percent of individual humpback whales observed 
along the mid- and south Atlantic U.S. coast are from the Gulf of Maine 
stock. Bettridge et al. (2015) estimated the size of this West Indies 
DPS population at 12,312 (95 percent CI 8,688-15,954) whales in 2004-
05, which is consistent with previous population estimates of 
approximately 10,000-11,000 whales (Stevick et al. 2003; Smith et al. 
1999) and the increasing trend for the West Indies DPS (Bettridge et 
al. 2015).
    Although humpback whales are migratory between feeding areas and 
calving areas, individual variability in the timing of migrations may 
result in the presence of individuals in high-latitude areas throughout 
the year (Straley, 1990). Records of humpback whales off the U.S. mid-
Atlantic coast (New Jersey to North Carolina) from January through 
March suggest these waters may represent a supplemental winter feeding 
ground used by juvenile and mature humpback whales of the U.S. and 
Canadian North Atlantic stocks (LaBrecque et al., 2015).
    Three previous UMEs involving humpback whales have occurred since 
2000, in 2003, 2005, and 2006. Since January 2016, elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine to 
Florida. Partial or full necropsy examinations have been conducted on 
approximately half of the 157 known cases (as of March 13, 2022). Of 
the whales examined, about 50 percent had evidence of human 
interaction, either ship strike or entanglement. While a portion of the 
whales have shown evidence of pre-mortem vessel strike, this finding is 
not

[[Page 19870]]

consistent across all whales examined and more research is needed. NOAA 
is consulting with researchers that are conducting studies on the 
humpback whale populations, and these efforts may provide information 
on changes in whale distribution and habitat use that could provide 
additional insight into how these vessel interactions occurred. More 
information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2022-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude 
waters. The Canadian East Coast stock can be found in the area from the 
western half of the Davis Strait (45[deg] W) to the Gulf of Mexico 
(Waring et al. 2016). This species generally occupies waters less than 
100 m deep on the continental shelf. Little is known about minke 
whales' specific movements through the mid-Atlantic region; however, 
there appears to be a strong seasonal component to minke whale 
distribution, with acoustic detections indicating that they migrate 
south in mid-October to early November, and return from wintering 
grounds starting in March through early April (Risch et al. 2014). 
Northward migration appears to track the warmer waters of the Gulf 
Stream along the continental shelf, while southward migration is made 
farther offshore (Risch et al. 2014).
    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 122 strandings at the time of publication of this notice. 
There have been eight recorded strandings in Virginia and two in North 
Carolina. This event has been declared a UME. Full or partial necropsy 
examinations were conducted on more than 60 percent of the whales. 
Preliminary findings in several of the whales have shown evidence of 
human interactions or infectious disease, but these findings are not 
consistent across all of the whales examined, so more research is 
needed. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast.

Sei Whale

    The Nova Scotia stock of sei whales occurs in deeper waters of the 
continental shelf edge waters of the eastern United States and 
northeastward to south of Newfoundland. The southern portion of the 
stock's range during spring and summer includes the Gulf of Maine and 
Georges Bank. Spring is the period of greatest abundance in U.S. 
waters, with sightings concentrated along the eastern margin of Georges 
Bank and into the Northeast Channel area, and along the southwestern 
edge of Georges Bank in the area of Hydrographer Canyon (Waring et al. 
2015). In the waters off of Virginia, sei whales are uncommon; however, 
a 2018 aerial survey conducted by the U.S. Navy recorded sei whales in 
the area surrounding Norfolk Canyon (U.S. Navy n.d.).

Atlantic White-Sided Dolphin

    Atlantic white-sided dolphins occur in temperate and sub-polar 
waters of the North Atlantic, primarily in continental shelf waters to 
the 100 m depth contour from central West Greenland to North Carolina 
(Waring et al. 2017). The Gulf of Maine stock is most common in 
continental shelf waters from Hudson Canyon to Georges Bank, and in the 
Gulf of Maine and lower Bay of Fundy. Sighting data indicate seasonal 
shifts in distribution (Northridge et al. 1997). During January to May, 
low numbers of white-sided dolphins occur from Georges Bank to Jeffreys 
Ledge (off New Hampshire), with even lower numbers south of Georges 
Bank, as documented by a few strandings collected on beaches of 
Virginia to South Carolina. From June through September, large numbers 
of white-sided dolphins occur from Georges Bank to the lower Bay of 
Fundy. From October to December, white-sided dolphins occur at 
intermediate densities from southern Georges Bank to southern Gulf of 
Maine. Infrequent Virginia and North Carolina observations appear to 
represent the southern extent of the species' range during the winter 
months (Hayes et al. 2019).

Bottlenose Dolphin

    The population of bottlenose dolphins in the North Atlantic 
consists of a complex mosaic of dolphin stocks (Waring et al. 2016). 
There are two stocks that may be found in the vicinity of the Survey 
Area--the western North Atlantic Offshore Stock (WNAOS) and the 
Southern Coastal Migratory Stock (SCMS). There are two distinct 
bottlenose dolphin morphotypes: Coastal and offshore. The coastal 
morphotype resides in waters typically less than 20 m (65.6 ft) deep, 
along the inner continental shelf (within 7.5 km [4.6 miles] of shore; 
Hayes et al. 2018). This coastal population was further subdivided into 
seven stocks based largely upon spatial distribution (Waring et al. 
2016). The SCMS is the coastal stock found south of Assateague, 
Virginia, to northern Florida and is the stock most likely to be 
encountered in the vicinity of the export cable portion of the Survey 
Area. Seasonally, SCMS movements indicate they are mostly found in 
southern North Carolina (Cape Lookout) from October to December; they 
continue to move farther south from January to March to as far south as 
northern Florida and move back north to coastal North Carolina from 
April to June. SCMS bottlenose dolphins occupy waters north of Cape 
Lookout, North Carolina, to as far north as Chesapeake Bay from July to 
August. An observed shift in spatial distribution during a summer 2004 
survey indicated that the northern boundary for the SCMS may vary from 
year to year (Hayes et al. 2018). The offshore population consists of 
one stock (WNAOS) in the western North Atlantic Ocean distributed 
primarily along the outer continental shelf and continental slope, and 
distributed widely during the spring and summer from Georges Bank to 
the Florida Keys with late summer and fall incursions as far north the 
Gulf of Maine depending on water temperatures (Kenney 1990; Hayes et 
al. 2017). The WNAOS generally occurs seaward of 34 km (21 miles) and 
in deeper waters.
    A combined genetic and logistic regression analysis that 
incorporated depth, latitude, and distance from shore was used to model 
the probability that a particular common bottlenose dolphin group seen 
in coastal waters was of the coastal versus offshore morphotype 
(Garrison et al. 2017a). North of Cape Hatteras during summer months, 
there is strong separation between the coastal and offshore morphotypes 
(Kenney 1990; Garrison et al. 2017a), and the coastal morphotype is 
nearly completely absent in waters >20 m depth. South of Cape Hatteras, 
the regression analysis indicated that the coastal morphotype is most 
common in waters <20 m deep, but occurs at lower densities over the 
continental shelf, in waters >20 m deep, where it overlaps to some 
degree with the offshore morphotype. For the purposes of defining stock 
boundaries, estimating abundance, and identifying bycaught samples, the 
offshore boundary of the SMCS is defined as the 20-m isobath north of 
Cape Hatteras and the 200-m isobath south of Cape Hatteras. In summary, 
this stock is best delimited in warm water months, when it overlaps 
least with other stocks, as common bottlenose dolphins of the coastal 
morphotype that occupy coastal waters from the shoreline to 200 m depth 
from Cape Lookout to Cape Hatteras, North Carolina, and coastal waters 
0-20 m in depth from Cape

[[Page 19871]]

Hatteras to Assateague, Virginia, including Chesapeake Bay (Hayes et 
al. 2018).

Pilot Whale

    Long-finned and short-finned pilot whales occur in the Western 
Atlantic. Both species of pilot whale are more generally found along 
the edge of the continental shelf at depths of 100 to 1,000 m (330 to 
3,300 ft), choosing areas of high relief or submerged banks. Long-
finned pilot whales in the western North Atlantic are more pelagic, 
occurring in especially high densities in winter and early spring over 
the continental slope, then moving inshore and onto the shelf in summer 
and autumn following squid and mackerel populations (Reeves et al. 
2002). They frequently travel into the central and northern Georges 
Bank, Great South Channel, and northward into the Gulf of Maine areas 
during the late spring through late fall (Hayes et al. 2019). Short-
finned pilot whales prefer tropical, subtropical, and warm temperate 
waters (Jefferson et al. 2015). The short-finned pilot whale mostly 
ranges from New Jersey south through Florida, the northern Gulf of 
Mexico, and the Caribbean without any seasonal movements or 
concentrations (Hayes et al. 2019). The latitudinal ranges of the two 
species remain uncertain, although south of Cape Hatteras, most pilot 
whale sightings are expected to be short-finned pilot whales, while 
north of ~42[deg] N most pilot whales are expected to be long-finned 
pilot whales (Hayes et al. 2019).

Risso's Dolphin

    Risso's dolphins are distributed worldwide in tropical and 
temperate seas and in the Northwest Atlantic occur from Florida to 
eastern Newfoundland. The species has an apparent preference for steep, 
shelf-edge habitats between about 400 to 1,000 m (1,312 to 3,280 ft) 
deep (Baird 2009). Risso's dolphin of the western North Atlantic stock 
prefers temperate to tropical waters typically from 15 to 20 [deg]C (59 
to 68 [deg]F) and are rarely found in waters below 10 [deg]C (50 
[deg]F). Off the northeastern U.S. coast, Risso's dolphins are 
distributed along the continental shelf edge from Cape Hatteras 
northward to Georges Bank during spring, summer, and autumn. In winter, 
the range is in the mid-Atlantic Bight and extends outward into oceanic 
waters. In general, the population occupies the mid-Atlantic 
continental shelf edge year round (Hayes et al. 2019).

Common Dolphin

    The common dolphin is found world-wide in temperate to subtropical 
seas. In the North Atlantic, common dolphins are commonly found over 
the continental shelf between the 200 m and 2,000 m isobaths and over 
prominent underwater topography and east to the mid-Atlantic Ridge. 
Common dolphins have been noted to be associated with Gulf Stream 
features (CETAP 1982; Selzer and Payne 1988; Waring et al. 1992). The 
species is seasonally found in abundance between Cape Hatteras and 
Georges Bank from mid-January to May. Between mid-summer and fall they 
migrate onto Georges Bank and the Scotian Shelf, and large aggregations 
occur on Georges Bank in fall (Reeves et al. 2002; Hayes et al. 2019). 
The species is less common south of Cape Hatteras, although schools 
have been reported as far south as the Georgia/South Carolina border 
(Hayes et al. 2019).

Sperm Whale

    The distribution of the sperm whale in the U.S. EEZ occurs on the 
continental shelf edge, over the continental slope, and into mid-ocean 
regions (Waring et al. 2019). The basic social unit of the sperm whale 
appears to be the mixed school of adult females plus their calves and 
some juveniles of both sexes, normally numbering 20-40 animals in all. 
There is evidence that some social bonds persist for many years 
(Christal et al. 1998). This species forms stable social groups, site 
fidelity, and latitudinal range limitations in groups of females and 
juveniles (Whitehead, 2002). In winter, sperm whales concentrate east 
and northeast of Cape Hatteras. In spring, distribution shifts 
northward to east of Delaware and Virginia, and is widespread 
throughout the central Mid-Atlantic Bight and the southern part of 
Georges Bank. In the fall, sperm whale occurrence on the continental 
shelf south of New England reaches peak levels, and there remains a 
continental shelf edge occurrence in the Mid-Atlantic Bight (Waring et 
al. 2015). Off the coast of Virginia, sperm whales have recently been 
observed spending a significant amount of time near Norfolk Canyon and 
in waters over 1,800 m deep (6,000 ft; U.S. Navy n.d. 2017).

Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate 
waters along the continental shelf from 10 to 200 m (33 to 650 ft) deep 
to slope waters greater than 500 m (1,640 ft). Their range extends from 
southern New England, south to Gulf of Mexico and the Caribbean to 
Venezuela (Waring et al. 2014). This stock regularly occurs in 
continental shelf waters south of Cape Hatteras and in continental 
shelf edge and continental slope waters north of this region (Waring et 
al. 2014). There are two forms of this species, with the larger ecotype 
inhabiting the continental shelf and is usually found inside or near 
the 200 m isobaths (Waring et al. 2014).

Harbor Porpoise

    The harbor porpoise inhabits shallow, coastal waters, often found 
in bays, estuaries, and harbors. In the western Atlantic, they occur 
from Cape Hatteras north to Greenland. During summer (July to 
September), harbor porpoises are concentrated in the northern Gulf of 
Maine and southern Bay of Fundy region, generally in waters less than 
150 m deep with a few sightings in the upper Bay of Fundy and on 
Georges Bank. During fall (October-December) and spring (April-June), 
harbor porpoises are widely dispersed from New Jersey to Maine, with 
lower densities farther north and south. They occur from the coastline 
to deep waters (>1,800 m), although the majority of the population 
occurs over the continental shelf. The harbor porpoise is likely to 
occur in the waters of the mid-Atlantic during winter months, as this 
species prefers cold temperate and subarctic waters (Hayes et al. 
2019). Harbor porpoise generally move out of the Mid-Atlantic during 
spring, migrating north to the Gulf of Maine. There does not appear to 
be a temporally coordinated migration or a specific migratory route to 
and from the Bay of Fundy region (Hayes et al. 2018).

Gray Seal

    The gray seal occurs on both coasts of the Northern Atlantic Ocean 
and are divided into three major populations (Hayes et al. 2019). The 
western north Atlantic stock occurs in eastern Canada and the 
northeastern United States, occasionally as far south as North 
Carolina. Gray seals inhabit rocky coasts and islands, sandbars, ice 
shelves and icebergs (Hayes et al. 2019). In the United States, gray 
seals congregate in the summer to give birth at four established 
colonies in Massachusetts and Maine (Hayes et al. 2019). From September 
through May, they disperse and can be abundant as far south as New 
Jersey. The range of gray seals appears to be shifting as they are 
regularly being reported further south than they were historically 
(Rees et al. 2016).
    Gray seals are uncommon in Virginia and the Chesapeake Bay. Only 15 
gray seal strandings were documented in

[[Page 19872]]

Virginia from 1988 through 2013 (Barco and Swingle 2014). They are 
rarely found resting on the rocks around the portal islands of the 
Chesapeake Bay Bridge Tunnel (CBBT) from December through April 
alongside harbor seals. Seal observation surveys conducted at the CBBT 
recorded one gray seal in each of the 2014/2015 and 2015/2016 seasons 
while no gray seals were reported during the 2016/2017 and 2017/2018 
seasons (Rees et al. 2016, Jones et al. 2018).

Harbor Seal

    Harbor seals are the most abundant seals in the waters of the 
eastern United States and are commonly found in all nearshore waters of 
the Atlantic Ocean from Newfoundland, Canada southward to northern 
Florida (Hayes et al. 2019). While harbor seals occur year-round north 
of Cape Cod, they only occur south of Cape Cod (southern New England to 
New Jersey) during winter migration, typically September through May 
(Kenney and Vigness-Raposa 2010; Hayes et al. 2019). During the summer, 
most harbor seals can be found north of Massachusetts within the 
coastal waters of central and northern Maine as well as the Bay of 
Fundy (Hayes et al. 2019).
    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire and 
Massachusetts. This event has been declared a UME. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers. Therefore the UME investigation now 
encompasses all seal strandings from Maine to Virginia. As of March, 
2020 there a total of 3,152 reported strandings (of all species), 
though only 10 occurred in Virginia while 8 were recorded in Maryland. 
Full or partial necropsy examinations have been conducted on some of 
the seals and samples have been collected for testing. Based on tests 
conducted thus far, the main pathogen found in the seals is phocine 
distemper virus. NMFS is performing additional testing to identify any 
other factors that may be involved in this UME. This UME is non-active 
and pending closure, and therefore, it is not discussed further in this 
notice. Information on this UME is available online at: 
www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et al. 
1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 1.

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

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

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. Detailed descriptions of the potential effects of 
similar specified activities have been provided in other recent Federal 
Register notices, including for survey activities using the same 
methodology, over a similar amount of time, and occurring in the Mid-
Atlantic region, including waters off of North Carolina and Virginia 
(e.g., 85 FR 36537, June 17, 2020; 86 FR 43212, August 6, 2021). No 
significant new information is available, and we refer the reader to 
these documents rather than repeating the details here. The Estimated 
Take section includes a quantitative analysis of the number of 
individuals that are

[[Page 19873]]

expected to be taken by Dominion Energy's activity. The Negligible 
Impact Analysis and Determination section considers the potential 
effects of the specified activity, the Estimated Take section, and the 
Proposed Mitigation section, to draw conclusions regarding the likely 
impacts of these activities on the reproductive success or survivorship 
of individuals and how those impacts on individuals are likely to 
impact marine mammal species or stocks.

Background on Active Acoustic Sound Sources and Acoustic Terminology

    This subsection contains a brief technical background on sound, on 
the characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to the summary of the potential effects of the specified 
activity on marine mammals. For general information on sound and its 
interaction with the marine environment, please see, e.g., Au and 
Hastings (2008); Richardson et al. (1995); Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz or cycles per second. Wavelength is the distance 
between two peaks or corresponding points of a sound wave (length of 
one cycle). Higher frequency sounds have shorter wavelengths than lower 
frequency sounds, and typically attenuate (decrease) more rapidly, 
except in certain cases in shallower water. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound and is typically 
described using the relative unit of the decibel. A sound pressure 
level (SPL) in dB is described as the ratio between a measured pressure 
and a reference pressure (for underwater sound, this is 1 microPascal 
([mu]Pa)), and is a logarithmic unit that accounts for large variations 
in amplitude. Therefore, a relatively small change in dB corresponds to 
large changes in sound pressure. The source level (SL) represents the 
SPL referenced at a distance of 1 m from the source (referenced to 1 
[mu]Pa), while the received level is the SPL at the listener's position 
(referenced to 1 [mu]Pa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy in a stated frequency band over a stated 
time interval or event and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse, 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event. Peak sound pressure (also referred to 
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous 
sound pressure measurable in the water at a specified distance from the 
source and is represented in the same units as the rms sound pressure.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be either 
directed in a beam or beams or may radiate in all directions 
(omnidirectional sources), as is the case for sound produced by the 
pile driving activity considered here. The compressions and 
decompressions associated with sound waves are detected as changes in 
pressure by aquatic life and man-made sound receptors such as 
hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al. 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz 
and, if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 dB from day to day (Richardson et al. 1995). The result 
is that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Details of source types are described in the following text.
    Sounds are often considered to fall into one of two general types: 
Pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al. 2007). Please see Southall 
et al. (2007) for an in-depth discussion of these concepts. The 
distinction between these two sound types is not always obvious, as 
certain signals share properties of both pulsed and non-

[[Page 19874]]

pulsed sounds. A signal near a source could be categorized as a pulse, 
but due to propagation effects as it moves farther from the source, the 
signal duration becomes longer (e.g., Greene and Richardson, 1988).
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems. The 
duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment.
    Sparkers and boomers produce pulsed signals with energy in the 
frequency ranges specified in Table 1. The amplitude of the acoustic 
wave emitted from sparker sources is equal in all directions (i.e., 
omnidirectional), while other sources planned for use during the 
proposed surveys have some degree of directionality to the beam, as 
specified in Table 1.

Summary on Specific Potential Effects of Acoustic Sound Sources

    Underwater sound from active acoustic sources can include one or 
more of the following: Temporary or permanent hearing impairment, non-
auditory physical or physiological effects, behavioral disturbance, 
stress, and masking. The degree of effect is intrinsically related to 
the signal characteristics, received level, distance from the source, 
and duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for prolonged periods, can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Finneran, 2015). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is not 
fully recoverable, or temporary (TTS), in which case the animal's 
hearing threshold would recover over time (Southall et al. 2007).
    Animals in the vicinity of Dominion Energy's proposed HRG survey 
activity are unlikely to incur even TTS due to the characteristics of 
the sound sources, which include relatively low source levels (176 to 
205 dB re 1 [micro]Pa-m) and generally very short pulses and potential 
duration of exposure. These characteristics mean that instantaneous 
exposure is unlikely to cause TTS, as it is unlikely that exposure 
would occur close enough to the vessel for received levels to exceed 
peak pressure TTS criteria, and that the cumulative duration of 
exposure would be insufficient to exceed cumulative sound exposure 
level (SEL) criteria. Even for high-frequency cetacean species (e.g., 
harbor porpoises), which have the greatest sensitivity to potential 
TTS, individuals would have to make a very close approach and also 
remain very close to vessels operating these sources in order to 
receive multiple exposures at relatively high levels, as would be 
necessary to cause TTS. Intermittent exposures--as would occur due to 
the brief, transient signals produced by these sources--require a 
higher cumulative SEL to induce TTS than would continuous exposures of 
the same duration (i.e., intermittent exposure results in lower levels 
of TTS). Moreover, most marine mammals would more likely avoid a loud 
sound source rather than swim in such close proximity as to result in 
TTS. Kremser et al. (2005) noted that the probability of a cetacean 
swimming through the area of exposure when a sub-bottom profiler emits 
a pulse is small--because if the animal was in the area, it would have 
to pass the transducer at close range in order to be subjected to sound 
levels that could cause TTS and would likely exhibit avoidance behavior 
to the area near the transducer rather than swim through at such a 
close range. Further, the restricted beam shape of many of HRG survey 
devices planned for use (Table 1) makes it unlikely that an animal 
would be exposed more than briefly during the passage of the vessel.
    Behavioral disturbance may include a variety of effects, including 
subtle changes in behavior (e.g., minor or brief avoidance of an area 
or changes in vocalizations), more conspicuous changes in similar 
behavioral activities, and more sustained and/or potentially severe 
reactions, such as displacement from or abandonment of high-quality 
habitat. Behavioral responses to sound are highly variable and context-
specific and any reactions depend on numerous intrinsic and extrinsic 
factors (e.g., species, state of maturity, experience, current 
activity, reproductive state, auditory sensitivity, time of day), as 
well as the interplay between factors. Available studies show wide 
variation in response to underwater sound; therefore, it is difficult 
to predict specifically how any given sound in a particular instance 
might affect marine mammals perceiving the signal.
    In addition, sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, navigation). Masking occurs when the receipt of a 
sound is interfered with by another coincident sound at similar 
frequencies and at similar or higher intensity, and may occur whether 
the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., shipping, sonar, seismic 
exploration) in origin. Marine mammal communications would not likely 
be masked appreciably by the acoustic signals given the directionality 
of the signals for most HRG survey equipment types planned for use 
(Table 1) and the brief period when an individual mammal is likely to 
be exposed.
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, zooplankton; i.e., effects to marine mammal 
habitat). Prey species exposed to sound might move away from the sound 
source, experience TTS, experience masking of biologically relevant 
sounds, or show no obvious direct effects. The most likely impacts (if 
any) for most prey species in a given area would be temporary avoidance 
of the area. Surveys using active acoustic sound sources move through 
an area relatively quickly, limiting exposure to multiple pulses. In 
all cases, sound levels would return to ambient once a survey ends and 
the noise source is shut down and, when exposure to sound ends, 
behavioral and/or physiological responses are expected to end 
relatively quickly. Finally, the HRG survey equipment will not have 
significant impacts to the seafloor and does not represent a source of 
pollution.

[[Page 19875]]

Vessel Strike

    Vessel collisions with marine mammals, or ship strikes, can result 
in death or serious injury of the animal. These interactions are 
typically associated with large whales, which are less maneuverable 
than are smaller cetaceans or pinnipeds in relation to large vessels. 
Ship strikes generally involve commercial shipping vessels, which are 
generally larger and of which there is much more traffic in the ocean 
than geophysical survey vessels. Jensen and Silber (2004) summarized 
ship strikes of large whales worldwide from 1975-2003 and found that 
most collisions occurred in the open ocean and involved large vessels 
(e.g., commercial shipping). For vessels used in geophysical survey 
activities, vessel speed while towing gear is typically only 4-5 knots 
(7.4-9.3 km/hr). At these speeds, both the possibility of striking a 
marine mammal and the possibility of a strike resulting in serious 
injury or mortality are so low as to be discountable. At average 
transit speed for geophysical survey vessels, the probability of 
serious injury or mortality resulting from a strike is less than 50 
percent. However, the likelihood of a strike actually happening is 
again low given the smaller size of these vessels and generally slower 
speeds. Notably in the Jensen and Silber study, no strike incidents 
were reported for geophysical survey vessels during that time period.
    The potential effects of Dominion Energy's specified survey 
activity are expected to be limited to Level B behavioral harassment. 
No permanent or temporary auditory effects, or significant impacts to 
marine mammal habitat, including prey, are expected.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization 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 HRG sources. Based primarily on the 
characteristics of the signals produced by the acoustic sources planned 
for use, Level A harassment is neither anticipated (even absent 
mitigation) nor proposed to be authorized. Consideration of the 
anticipated effectiveness of the mitigation measures (i.e., exclusion 
zones (EZs) and shutdown measures) discussed in detail below in the 
Proposed Mitigation section, further strengthens the conclusion that 
Level A harassment is not a reasonably anticipated outcome of the 
survey activity. As described previously, no serious injury or 
mortality is anticipated or proposed to be authorized for this 
activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the proposed take 
estimate.

Acoustic Thresholds

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

Ensonified Area

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This

[[Page 19876]]

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

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory and the Marine-life Data and Analysis 
Team, based on the best available marine mammal data from 1992-2019 
obtained in a collaboration between Duke University, the Northeast 
Regional Planning Body, the University of North Carolina Wilmington, 
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et 
al. 2016a; Curtice et al. 2018), represent the best available 
information regarding marine mammal densities in the survey area. More 
recently, these data have been updated with new modeling results and 
include density estimates for pinnipeds (Roberts et al. 2016, 2017, 
2018, 2020, 2021).
    The density data presented by Roberts et al. (2016b, 2017, 2018, 
2020, 2021) incorporates aerial and shipboard line-transect survey data 
from NMFS and other organizations and incorporates data from eight 
physiographic and 16 dynamic oceanographic and biological covariates, 
and controls for the influence of sea state, group size, availability 
bias, and perception bias on the probability of making a sighting. 
These density models were originally developed for all cetacean taxa in 
the U.S. Atlantic (Roberts et al. 2016). In subsequent years, certain 
models have been updated based on additional data as well as certain 
methodological improvements. More information is available online at 
https://seamap.env.duke.edu/models/Duke/EC/. 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. 2016, 2017, 
2018, 2020, 2021), with the exception of the North Atlantic right whale 
(discussed below). The updated models incorporate additional sighting 
data, including sightings from NOAA's Atlantic Marine Assessment 
Program for Protected Species (AMAPPS) surveys.
    For the exposure analysis, the density data from Roberts et al. 
(2016, 2017, 2018, 2020, 2021) were mapped using a geographic 
information system (GIS). For the full survey area, Dominion Energy 
averaged the densities of each species as reported by Roberts et al. 
(2016, 2017, 2018, 2020, 2021) by season; thus, a density was 
calculated for each species for spring, summer, fall and winter. To be 
conservative, the greatest seasonal density calculated for each species 
was then carried forward in the exposure analysis. The largest 
estimated seasonal densities (animals per km\2\) of all marine mammal 
species that may be taken by the proposed survey, for all survey areas, 
is shown in Table 4, below. Below, we discuss how densities were 
assumed to apply to specific species for which the Roberts et al. 
(2016b, 2017, 2018, 2020, 2021) models provide results at the genus or 
guild level. Additional data regarding average group sizes from survey 
effort in the region was considered to ensure take estimates are 
adequate to account for anticipated real-world encounter rates.
    For bottlenose dolphin densities, Roberts et al. (2016b, 2017, 
2018) does not differentiate by stock. Given the southern coastal 
migratory stock's propensity to occur in waters shallower than the 25 m 
(82 ft) isobath north of Cape Hatteras (Reeves et al. 2002; Hayes et 
al. 2018), the project's offshore export cable route corridor segment 
was roughly divided along the 25 m (82 ft) isobath. Roughly 90 percent 
of the cable corridor is 25 m (82 ft) or less in depth. The Lease Area 
is mostly located within depths exceeding 25 m (82 ft), where the 
southern coastal migratory stock would be unlikely to occur. Roughly 25 
percent of the Lease Area survey segment is 25 m (82 ft) or less in 
depth. Therefore, to account for the potential for mixed stocks within 
the Project's offshore export cable route corridor, 90 percent of the 
estimated take calculation in that area is assumed to be of individuals 
in the southern coastal migratory stock and the remaining applied to 
the Western North Atlantic offshore stock within the Project's offshore 
export cable route corridor survey area. Within the Lease Area, 25 
percent of the estimated take calculation is assumed to be of 
individuals from the southern coastal migratory stock and the remaining 
applied to the Western North Atlantic offshore stock.
    The seasonality, feeding preferences, and habitat use by gray seals 
often overlaps with that of harbor seals in the survey areas. The 
density models produced by Roberts et al. (2016b, 2017, 2018) do not 
differentiate between gray seals and harbor seals. Rather, the model 
provides one density estimate for ``seals.'' Therefore, for the density 
values reported in the IHA application, Dominion Energy assumed that 
half of the seals were gray seals, and the other half harbor seals.
    Dominion Energy used model Version 10 (Roberts et al. 2021) to 
estimate the density of North Atlantic right whales. While two more 
recent versions (Version 11 and Version 11.1) of the model are 
available, the updates in these versions do not affect the densities in 
the project area. The update in Version 11 pertains to Cape Cod Bay 
only, which is outside of the CVOW project area. Density surfaces in 
Version 11.1 did not change from Version 11; rather Version 11.1 
includes uncertainty surfaces as well as density surfaces.

[[Page 19877]]



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

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. In order to estimate 
the number of marine mammals predicted to be exposed to sound levels 
that would result in harassment, radial distances to predicted 
isopleths corresponding to harassment thresholds are calculated, as 
described above. Those distances are then used to calculate the area(s) 
around the HRG survey equipment predicted to be ensonified to sound 
levels that exceed harassment thresholds. The area estimated to be 
ensonified to relevant thresholds in a single day (zone of influence 
(ZOI)) is then calculated, based on areas predicted to be ensonified 
around the HRG survey equipment (i.e., 141 m) and the estimated 
trackline distance traveled per day by the survey vessel (i.e., 58 km). 
Based on the maximum estimated distance to the Level B harassment 
threshold of 141 m (Geo Marine Dual 400 Sparker 800J) and the maximum 
estimated daily track line distance of 58 km, the ZOI is estimated to 
be 16.4 km\2\ during Dominion Energy's planned HRG surveys. As 
described above, this is a conservative estimate as it assumes the HRG 
source that results in the greatest distance to the Level B harassment 
isopleth would be operated at all times during all vessel days.

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

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

    Estimated Take = D x ZOI x vessel days

    Where D = average species density (animals/km\2\), ZOI = maximum 
daily ensonified area to relevant threshold, and vessel days = 244.
    Take by Level B harassment proposed for authorization is shown in 
Table 5.

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


[[Page 19878]]

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

Proposed Mitigation

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

Mitigation for Marine Mammals and Their Habitat

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

Marine Mammal Exclusion Zones and Harassment Zones

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

Pre-Start Clearance

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

Ramp-Up of Survey Equipment

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
acoustic source when technically feasible. The ramp-up procedure would 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the survey area by 
allowing them to vacate the area prior to the commencement of survey

[[Page 19879]]

equipment operation at full power. Operators should ramp up sources to 
half power for 5 minutes and then proceed to full power.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective exclusion zone. Ramp-up will continue if the animal has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e, 15 minutes for 
small odontocetes and seals and 30 minutes for all other species).
    Ramp-up may occur at times of poor visibility, including nighttime, 
if appropriate visual monitoring has occurred with no detections of 
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic 
source activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.

Shutdown Procedures

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

Vessel Strike Avoidance

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

[[Page 19880]]

as other measures considered by NMFS, NMFS has preliminarily determined 
that the proposed 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.

Proposed 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 
proposed 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.

Proposed Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Dominion Energy would 
employ independent, dedicated, trained PSOs, meaning that the PSOs must 
(1) be employed by a third-party observer provider, (2) have no tasks 
other than to conduct observational effort, collect data, and 
communicate with and instruct relevant vessel crew with regard to the 
presence of marine mammals and mitigation requirements (including brief 
alerts regarding maritime hazards), and (3) have successfully completed 
an approved PSO training course appropriate for their designated task. 
On a case-by-case basis, non-independent observers may be approved by 
NMFS for limited, specific duties in support of approved, independent 
PSOs on smaller vessels with limited crew capacity operating in 
nearshore waters. Section 5 of the draft IHA contains further details 
regarding PSO approval.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established exclusion zones 
during survey activities. It will be the responsibility of the Lead PSO 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) would ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and would conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least 2 hours between 
watches and may conduct a maximum of 12 hours of observation per 24-hr 
period. In cases where multiple vessels are surveying concurrently, any 
observations of marine mammals would be communicated to PSOs on all 
nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would 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 would 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 would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements. This would 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).

Proposed Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a draft technical report will be 
provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys (including what type of mitigation and the species and number 
of animals that prompted the mitigation action, when known), and 
provides an interpretation of the results and effectiveness of all 
mitigation and monitoring. A final report must be submitted within 30 
days following resolution of any comments on the draft report. All 
draft and final

[[Page 19881]]

marine mammal and acoustic monitoring reports must be submitted to 
[email protected] and [email protected]. The report 
must contain at minimum, the following:
     PSO names and affiliations;
     Dates of departures and returns to port with port name;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-start 
clearance survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during surveys or during vessel 
transit, Dominion Energy must immediately report sighting information 
to the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 
755-6622. North Atlantic right whale sightings in any location may also 
be reported to the U.S. Coast Guard via channel 16.
    In the event that Dominion Energy personnel discover an injured or 
dead marine mammal, Dominion Energy will report the incident to the 
NMFS Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would 
include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Dominion 
Energy would report the incident to the NMFS OPR and the NMFS New 
England/Mid-Atlantic Stranding Coordinator as soon as feasible. The 
report would include the following information:
     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 
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

[[Page 19882]]

ongoing anthropogenic activities are incorporated into this analysis 
via their impacts on the environmental baseline (e.g., as reflected in 
the regulatory status of the species, population size and growth rate 
where known, ongoing sources of human-caused mortality, or ambient 
noise levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 2, given that NMFS expects the anticipated effects of the 
proposed survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
NMFS does not anticipate that serious injury or mortality would occur 
as a result from HRG surveys, even in the absence of mitigation, and no 
serious injury or mortality is proposed to be authorized. As discussed 
in the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section, non-auditory physical effects and vessel strike 
are not expected to occur. NMFS expects that all potential takes 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. Although this distance is assumed 
for all survey activity in estimating take numbers proposed for 
authorization and evaluated here, in reality, the Geo Marine Dual 400 
Sparker would likely not be used across the entire 24-hour period and 
across all 244 vessel days. The other acoustic sources operating below 
200 kHz that Dominion Energy has included in their application produce 
Level B harassment zones below 22 m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the survey 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the proposed survey 
area and there are no feeding areas known to be biologically important 
to marine mammals within the proposed survey area. There is no 
designated critical habitat for any ESA-listed marine mammals in the 
proposed survey area.

North Atlantic Right Whales

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

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Dominion Energy's proposed 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 DPS) remains 
stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    The required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in Table 2, 
including those with active UMEs, to the level of least practicable 
adverse impact. In

[[Page 19883]]

particular, they would provide animals the opportunity to move away 
from the sound source throughout the survey area before HRG survey 
equipment reaches full energy, thus preventing them from being exposed 
to sound levels that have the potential to cause injury (Level A 
harassment) or more severe Level B harassment. As discussed previously, 
take by Level A harassment (injury) is considered unlikely, even absent 
mitigation, based on the characteristics of the signals produced by the 
acoustic sources planned for use, and is not proposed for 
authorization. Implementation of required mitigation would further 
reduce this potential.
    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 preliminary 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 proposed 
to be authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed for authorization;
     Foraging success is not likely to be impacted as effects 
on species that serve as prey species for marine mammals from the 
survey are expected to be minimal;
     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 by Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the survey area;
     While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, the activities would occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities would not affect migration. In addition, mitigation 
measures require shutdown at 500 m (almost four times the size of the 
Level B harassment isopleth (141 m), which minimizes the effects of the 
take on the species; and
     The proposed mitigation measures, including effective 
visual monitoring, and shutdowns are expected to minimize potential 
impacts to marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed 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 fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take (by Level B harassment 
only) of 16 marine mammal species (with 17 managed stocks). The total 
amount of takes proposed for authorization relative to the best 
available population abundance is less than 33 percent for all stocks 
(Table 5).
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS Office of Protected Resources (OPR) consults internally whenever 
we propose to authorize take for endangered or threatened species.
    NMFS OPR is proposing to authorize the incidental take of North 
Atlantic right, sei, fin, sperm whales, which are listed under the ESA. 
NMFS has determined that this activity falls within the scope of 
activities analyzed in NMFS GARFO's programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021).

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Dominion Energy authorizing take, by Level B 
harassment, incidental to conducting marine site characterization 
surveys off of Virginia from May 2022 to May 2023, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed 
surveys. We also request at this time comment on the potential Renewal 
of this proposed IHA as described in the paragraph below. Please 
include with your comments any supporting data or literature citations 
to help inform decisions on the request for this IHA or a subsequent 
Renewal IHA.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
Renewal IHA following notice to the public providing an additional 15 
days for public

[[Page 19884]]

comments when (1) up to another year of identical or nearly identical, 
or nearly identical, activities as described in the Description of 
Proposed Activities section of this notice is planned or (2) the 
activities as described in the Description of Proposed Activities 
section of this notice would not be completed by the time the IHA 
expires and a Renewal would allow for completion of the activities 
beyond that described in the Dates and Duration section of this notice, 
provided all of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for Renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: April 1, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-07258 Filed 4-5-22; 8:45 am]
BILLING CODE 3510-22-P