[Federal Register Volume 85, Number 88 (Wednesday, May 6, 2020)]
[Notices]
[Pages 26940-26962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09629]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XA132]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off of Massachusetts, Rhode Island, Connecticut, and New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Vineyard Wind, LLC (Vineyard Wind) to incidentally harass, by Level B
harassment only, marine mammals during marine site characterization
surveys off the coast of Massachusetts in the areas of the Commercial
Lease of Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0501 and OCS-A 0522) and along potential
submarine cable routes to a landfall location in Massachusetts, Rhode
Island, Connecticut, and New York.
DATES: This authorization is valid from June 1, 2020 through May 31,
2021.
FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the applications
and supporting documents, as well as a list of the references cited in
this document, may be obtained by visiting the internet at:
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of
problems accessing these documents, please call the contact listed
above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
[[Page 26941]]
(D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of
Commerce (as delegated to NMFS) to allow, upon request, the incidental,
but not intentional, taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region if certain findings are
made and either regulations are issued or, if the taking is limited to
harassment, a notice of a proposed incidental take authorization may be
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
Summary of Request
On October 24, 2019, NMFS received a request from Vineyard Wind for
an IHA to take marine mammals incidental to marine site
characterization surveys offshore of Massachusetts in the areas of the
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along
potential submarine offshore export cable corridors (OECC) to landfall
locations in Massachusetts, Rhode Island, Connecticut, and New York.
NMFS deemed that request to be adequate and complete on January 7,
2020. Vineyard Wind's request is for the take of 14 marine mammal
species by Level B harassment that would occur, using multiple
concurrently operating vessels, over the course of up to 365 calendar
days. Neither Vineyard Wind nor NMFS expects serious injury or
mortality to result from this activity and the activity is expected to
last no more than one year, therefore, an IHA is appropriate.
Description of the Specified Activity
Vineyard Wind plans to conduct high-resolution geophysical (HRG)
surveys in support of offshore wind development projects in the areas
of Commercial Lease of Submerged Lands for Renewable Energy Development
on the Outer Continental Shelf (#OCS-A 0501 and #OCS-A 0522) (Lease
Areas) and along potential submarine cable routes to landfall locations
in Massachusetts, Rhode Island, Connecticut, and New York.
The purpose of the marine site characterization surveys is to
obtain a baseline assessment of seabed/sub-surface soil conditions in
the Lease Area and cable route corridors to support the siting of
potential future offshore wind projects. Underwater sound resulting
from Vineyard Wind's planned site characterization surveys has the
potential to result in incidental take of marine mammals in the form of
behavioral harassment. The estimated duration of the activity is
expected to be up to 365 survey days starting in June, 2020. This
schedule is based on 24-hour operations and includes potential down
time due to inclement weather. A maximum of 736 vessel days are planned
with up to eight survey vessels operating concurrently. Survey vessels
will travel at an average speed of 3.5 knots (kn) and total distance
covered by each while actively operating HRG equipment is approximately
100 kilometers (km) per day. The notice of proposed IHA incorrectly
stated an average speed of 4 kn.
The HRG survey activities planned by Vineyard Wind are described in
detail in the notice of proposed IHA (85 FR 7952; February 12, 2020).
The HRG equipment planned for use is shown in Table 1.
Table 1--Summary of Geophysical Survey Equipment Planned for Use by Vineyard Wind
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Operating Beam Peak source level Pulse
HRG equipment category Specific HRG equipment frequency width Source level (dB re 1 [mu]Pa duration Repetition
(kHz) ([deg]) (dB rms) m) (ms) rate (Hz)
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Shallow subbottom profiler............... EdgeTech Chirp 216......... 2-10 65 178 182 2 3.75
Innomar SES 2000 Medium.... 85-115 2 241 247 2 40
Deep seismic profiler.................... Applied Acoustics AA251 0.2-15 180 205 212 0.9 2
Boomer.
GeoMarine Geo Spark 2000 0.25-5 180 206 214 2.8 1
(400 tip).
Underwater positioning (USBL)............ SonarDyne Scout Pro........ 35-50 180 188 191 Unknown Unknown
ixBlue Gaps................ 20-32 180 191 194 1 10
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As described above, detailed description of Vineyard Wind's planned
surveys is provided in the notice of proposed IHA (85 FR 7952; February
12, 2020). Since that time, no changes have been made to the
activities. Therefore, a detailed description is not provided here.
Please refer to that notice for the detailed description of the
specified activity. Mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Mitigation and
Monitoring and Reporting below).
Comments and Responses
A notice of proposed IHA was published in the Federal Register on
February 12, 2020 (85 FR 7952). During the 30-day public comment
period, NMFS received comment letters from: (1) The Marine Mammal
Commission (Commission); (2) a group of environmental non-governmental
organizations (ENGOs) including the Natural Resources Defense Council,
Conservation Law Foundation, and National Wildlife Federation; and (3)
the Rhode Island Fisherman's Advisory Board (FAB), which manages the
state's coastal program under the Coastal Zone Management Act. NMFS has
posted the comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. A summary of the public comments received from
the Commission, the ENGOs, and the FAB as well as NMFS' responses to
those comments are below.
Comment 1: The Commission recommended that NMFS incorporate the
actual beamwidth of 75[deg] rather than 180[deg] for the Applied
Acoustics AA251 boomer for Vineyard Wind and re-
[[Page 26942]]
estimate the Level A and B harassment zones accordingly.
Response: None of the HRG sources specified by the Commission's
comment were determined to be the dominant source in terms of Level A/B
harassment zones and therefore were not used for estimating relevant
ensonified zones. Additionally, the Commission's recommendations would
result in harassment zone sizes for these particular sources that would
be equal to, or lesser than, those described in the proposed IHA, and
therefore would not result in a change to the dominant source used to
estimate marine mammal exposures. As re-modeling these specific sources
would not result in any changes to marine mammal exposure estimates,
Level A or Level B harassment take numbers, or our determinations, we
have determined that taking these steps is not warranted for this
authorization. NMFS will take the Commission's comments into
consideration for future ITAs for similar activities and sources.
Comment 2: The Commission recommended that NMFS use the out-of-beam
source level of 187 dB re 1 [mu]Pa at 1 m from Subacoustech (2018) for
the Innomar SES-2000 Medium-100 parametric SBP and re-estimate the
Level A and B harassment zones. Otherwise, NMFS should use the in-beam
source level and beamwidth to revise the harassment zones accordingly
for the parametric SBP.
Response: With respect to the Innomar SES-2000 Medium-100
parametric SBP, NMFS has determined that, based on the very narrow beam
width of this source (i.e., 2 degrees), it is extremely unlikely that a
marine mammal would be exposed to sound emitted from this particular
source. In addition, baleen whales are unlikely to hear signals from
this source, which operates at 85-115 kHz. Therefore, we have
determined the potential for this source to result in take of marine
mammals is so low as to be discountable, and re-modeling harassment
isopleths for this source is therefore not warranted.
Comment 3: The Commission recommended that NMFS incorporate water
depth when considering the beamwidth for all sources, including in this
instance single-beam echosounders, shallow-penetration SBPs, and
boomers. The Level A and B harassment zones should be revised
accordingly.
Response: NMFS agrees with the Commission that water depth should
be incorporated in acoustic modeling for HRG sources and acknowledges
that depth was not incorporated in the modeling of HRG sources that was
used for modeling exposure estimates in the notice of proposed IHA (85
FR 7952; February 12, 2020). However, NMFS has confirmed using a
recently-developed spreadsheet tool that accompanies our interim HRG
guidance (NMFS, 2019), which incorporates water depth, that the
incorporation of water depth in modeling the HRG sources planned for
use by Vineyard Wind would result only in smaller harassment zones for
some sources, and would not result in larger zones for any sources. In
addition, for the source that was determined to be the dominant source
in terms of the Level B harassment zone and was therefore used to model
acoustic exposures (the GeoMarine Geo Spark 2000 (400 tip)), using our
interim guidance (NMFS, 2019) we determined incorporation of depth
resulted in no change to the modeled Level B harassment isopleth. As a
result, NMFS will take the Commission's comments into consideration for
future ITAs for similar activities and sources to ensure action
proponents incorporate depth into acoustic modeling (as we agree is
appropriate). However, as taking this step would not change the modeled
distances to relevant isopleths for dominant sources, and therefore
would result in no change to exposure estimates, authorized take
numbers, or our determinations, NMFS has determined that taking this
step for this particular authorization is not warranted. We note that
the recently-developed spreadsheet tool that accompanies the NMFS
interim HRG guidance, referred to above, was not publicly available at
the time the Vineyard Wind IHA application was submitted, but is now
available to the public upon request. We also note that the NMFS
interim HRG guidance did not previously incorporate water depth, but a
revised version has been developed since the notice of proposed IHA was
published, and this version will be shared with applicants from this
point onward. These recent developments will ensure water depth will be
incorporated in future IHAs issued for HRG surveys.
Comment 4: The Commission recommended that NMFS and BOEM expedite
efforts to develop and finalize, in the next six months, methodological
and signal processing standards for HRG sources. Those standards should
be used by action proponents that conduct HRG surveys and that either
choose to conduct in-situ measurements to inform an authorization
application or are required to conduct measurements to fulfill a lease
condition set forth by BOEM.
Response: NMFS agrees with the Commission that methodological and
signal processing standards for HRG sources is warranted and is working
on developing such standards. However, NMFS cannot ensure such
standards will be developed within the Commission's preferred time
frame.
Comment 5: The Commission recommended that NMFS (1) prohibit
Vineyard Wind and other action proponents from using the impulsive
Level A harassment thresholds for estimating the extents of the Level A
harassment zones for non-impulsive sources (i.e., echosounders,
shallow-penetration SBPs, pingers, etc.) and (2) require action
proponents to use the correct Level A harassment thresholds in all
future applications.
Response: NMFS concurs with the Commission's recommendation. As
described in the notice of proposed IHA, NMFS does not agree with
Vineyard Wind's characterization of certain HRG sources as impulsive
sources. However, this characterization results in more conservative
modeling results. Thus, we have assessed the potential for Level A
harassment to result from the proposed activities based on the modeled
Level A harassment zones with the acknowledgement that these zones are
likely conservative. This approach allows us to assess the impacts of
the proposed activity conservatively and is appropriate in this case.
Therefore, it is unnecessary to make any changes to the analysis for
this proposed activity. However, we will proactively work with action
proponents to require use of the correct Level A harassment thresholds
in all future applications.
Comment 6: The Commission recommended that NMFS (1) re-estimate all
of the Level A and Level B harassment zones for Vineyard Wind using its
User Spreadsheet that incorporates the operating frequency and
beamwidth and (2) provide the spreadsheet to all action proponents that
conduct HRG surveys, post it on NMFS's website, and require all action
proponents to use it for all future HRG-related authorizations.
Response: NMFS appreciates the Commission's comments and concurs
with this recommendation. However, the current Level A harassment User
Spreadsheet does not incorporate operating frequency or beam width as
inputs for assessing Level A harassment zones. The tool referenced by
the Commission is in development and will not be available for use
prior to making a decision regarding the issuance of this IHA. In
addition, re-estimating the isopleth distances for Level A harassment
with the incorporation of
[[Page 26943]]
operating frequency and beam width would result in smaller Level A
zones and would therefore not result in any change in our determination
as to whether Level A harassment is a likely outcome of the activity.
Therefore, the Level A harassment zones will not be recalculated. Note
that the current User Spreadsheet is available on our website. The
current interim guidance for determining Level B harassment zones does
incorporate operating frequency and beam width. We strongly recommend
that applicants employ these tools, as we believe they are best
currently available methodologies. However, applicants are free to
develop additional models or use different tools if they believe they
are more representative of real-world conditions.
Comment 7: The Commission recommended that NMFS: (1) Continue to
prohibit action proponents, including Vineyard Wind, from using a 100-
msec integration time to adjust the SPLrms-based source levels when
estimating the Level B harassment zones; (2) ensure that the Federal
Register notice for the final authorization for Vineyard Wind does not
incorrectly state that pulse duration was considered in the estimation
of the Level B harassment zones: And (3) require action proponents to
omit any related discussions regarding integration time from all future
applications to avoid unnecessary confusion and errors in future
Federal Register notices.
Response: As the Commission is aware, NMFS does not have the
authority to require action proponents to omit the discussion of
particular topics in ITA applications. We will, however, continue to
prohibit applicants from using a 100-msec integration time to adjust
the SPLrms-based source levels when estimating the Level B harassment
zones, as we have done in this IHA. NMFS has removed references to the
use of pulse duration for the estimation of Level B harassment zones.
Comment 8: The Commission recommended that NMFS evaluate the
impacts of sound sources consistently across all action proponents and
deem sources de minimis in a consistent manner for all proposed
incidental harassment authorizations and rulemakings. This has the
potential to reduce burdens on both action proponents and NMFS.
Response: NMFS concurs with the Commission's recommendation and
agrees that sound sources should be analyzed in a consistent manner and
agrees that sources determined to result in de minimis impact should
generally be considered unlikely to result in take under the MMPA. As
an example, NMFS has determined that most types of geotechnical survey
equipment are generally unlikely to result in the incidental take of
marine mammals (in the absence of site-specific or species-specific
circumstances that may warrant additional analysis). NMFS has not made
such a determination with respect to all HRG sources. As NMFS has not
made a determination that sound from all HRG sources would be
considered de minimis we cannot rule out the potential for these
sources to result in the incidental take of marine mammals.
Comment 9: The Commission recommended that NMFS consider whether,
in such situations involving HRG surveys, incidental harassment
authorizations are necessary given the small size of the Level B
harassment zones, the proposed shut-down requirements, and the added
protection afforded by the lease-stipulated exclusion zones.
Specifically, the Commission states that NMFS should evaluate whether
taking needs to be authorized for those sources that are not considered
de minimis, including sparkers and boomers, and for which
implementation of the various mitigation measures should be sufficient
to avoid Level B harassment takes.
Response: NMFS has evaluated whether taking needs to be authorized
for those sources that are not considered de minimis, including
sparkers and boomers, factoring into consideration the effectiveness of
mitigation and monitoring measures, and we have determined that
implementation of mitigation and monitoring measures cannot ensure that
all take can be avoided during all HRG survey activities under all
circumstances at this time. If and when we are able to reach such a
conclusion, we will re-evaluate our determination that incidental take
authorization is warranted for these activities.
Comment 10: The Commission and ENGOs recommended that NMFS provide
justification for reducing the number of Level B harassment takes for
North Atlantic right whales.
Response: NMFS understands that the required mitigation and
monitoring measures may not be 100 percent effective under all
conditions. Due to night time operations over an extended period (736
vessel days), NMFS acknowledges that a limited number of right whales
may enter into the Level B harassment zone without being observed.
Therefore, NMFS has conservatively authorized take of 10 right whales
by Level B harassment. The number of authorized takes was reduced from
the calculated take of 30 whales, which does not account for the
effectiveness of the required mitigation. There are several reasons
justifying this reduction. Vineyard Wind will establish and monitor a
shutdown zone at least 2.5 times (500-m) greater than the predicted
Level B harassment threshold distance (195 m). Take has also been
conservatively calculated based on the largest source, which will not
be operating at all times, and take is therefore likely over-estimated
to some degree. Furthermore, the potential for incidental take during
daylight hours is very low given that two PSOs are required for
monitoring.
Additionally, sightings of right whales have been uncommon during
previous HRG surveys. Bay State Wind submitted a marine mammal
monitoring report on July 19, 2019 describing PSO observations and
takes in Lease Area OCS-A500, which is adjacent to part of Vineyard
Wind's survey area covered under this IHA. The offshore export cable
corridor (OECC) areas for Bay State Wind and Vineyard Wind also
overlap. Over 376 vessel days, three separate survey ships recorded a
total of 496 marine mammal detections between May 11, 2018 and March
14, 2019. Nevertheless, there were no confirmed observations of right
whales on any of the survey ships during the entire survey period.
There were a number of unidentifiable whales reported, and it is
possible that some of these unidentified animals may have been right
whales. Vineyard Wind's marine mammal monitoring report included Lease
Areas OCS-A 0501 and OCS-A 0522 from May 31, 2019 through January 7,
2020. No right whales were observed although unidentifiable whales,
some of them possibly right whales, were recorded. However, the lack of
confirmed observations by both Bay State Wind and Vineyard Wind within
or near the Lease Areas included in this issued IHA indicates that
right whale sightings have not been common in this region during
previous survey work. In summary, the aforementioned factors lead NMFS
to conclude that the unadjusted modeled exposure estimate is likely a
significant overestimate of actual potential exposure. Accordingly,
NMFS has made a reasonable adjustment to conservatively account for
these expected impacts on actual taking of right whales.
Comment 11: The Commission recommended that NMFS authorize up to
four Level B harassment takes of sei whales, consistent with Table 1 in
the draft authorization.
Response: NMFS concurs with the recommendation and has authorized
four sei whale takes by Level B
[[Page 26944]]
harassment as shown in Table 5 to match the number of takes included in
the draft and issued IHA.
Comment 12: The Commission recommended that NMFS require Vineyard
Wind to report as soon as possible and cease project activities
immediately in the event of an unauthorized injury or mortality of a
marine mammal from a vessel strike until NMFS's Office of Protected
Resources and the New England/Mid-Atlantic Regional Stranding
Coordinator determine whether additional measures are necessary to
minimize the potential for additional unauthorized takes.
Response: NMFS has imposed a suite of measures in this IHA to
reduce the risk of vessel strikes and has not authorized any takes
associated with vessel strikes. However, NMFS does not concur and does
not adopt the recommendation. NMFS does not agree that a blanket
requirement for project activities to cease would be practicable for a
vessel that is operating on the open water, and it is unclear what
mitigation benefit would result from such a requirement in relation to
vessel strike. The Commission does not suggest what measures other than
those prescribed in this IHA would potentially prove more effective in
reducing the risk of strike. Therefore, we have not included this
requirement in the authorization. NMFS retains authority to modify the
IHA and cease all activities immediately based on a vessel strike and
will exercise that authority if warranted.
Comment 13: The Commission recommended that NMFS refrain from
issuing renewals for any authorization and instead use its abbreviated
Federal Register notice process. That process is similarly expeditious
and fulfills NMFS's intent to maximize efficiencies, and that NMFS (1)
stipulate that a renewal is a one-time opportunity (a) in all Federal
Register notices requesting comments on the possibility of a renewal,
(b) on its web page detailing the renewal process, and (c) in all draft
and final authorizations that include a term and condition for a
renewal and, (2) if NMFS refuses to stipulate a renewal being a one-
time opportunity, explain why it will not do so in its Federal Register
notices, on its web page, and in all draft and final authorizations.
Response: NMFS does not agree with the Commission and, therefore,
does not adopt the Commission's recommendation. As explained in
response to Comment 21, NMFS believes renewals can be issued in certain
limited circumstances. NMFS will provide a more detailed explanation of
its decision within 120 days, as required by section 202(d) of the
MMPA.
Comment 14: The Commission recommends that, for all authorizations
and rulemakings, NMFS provide separate, detailed explanations for not
following or adopting any Commission recommendation.
Response: NMFS agrees that section 202(d) of the MMPA requires that
any recommendations made by the Commission be responded to within 120
days of receipt, and that response to recommendations that are not
followed or adopted must be accompanied by a detailed explanation of
the reasons why. Therefore, NMFS concurs with the Commission's
recommendation that NMFS provide detailed explanations for not
following or adopting any Commission recommendation.
However, NMFS disagrees with the Commission's underlying allegation
that we have not provided the necessary responses, as required by the
MMPA. Section 202(d) requires NMFS to provide detailed explanations of
the reasons why recommendations are not adopted within 120 days,
however it does not provide the Commission with the authority to assess
the adequacy of NMFS' response, and NMFS believes that the explanations
provided are sufficient. Regarding certain examples where NMFS does
acknowledge having yet to provide the requisite detailed explanation,
the Commission notes that it has been ``over a month'' with no
response. However, as noted accurately by the Commission, the statute
requires only that the explanation be provided within 120 days.
Comment 15: The ENGOs recommended a seasonal restriction on site
assessment and characterization activities in the Project Areas with
the potential to harass North Atlantic right whales between November 1,
2020 and May 14, 2021.
Response: In evaluating how mitigation may or may not be
appropriate to ensure the least practicable adverse impact on species
or stocks and their habitat, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat; and
(2) the practicability of the measures for applicant implementation,
which may consider such things as relative cost and impact on
operations.
NMFS is concerned about the status of the North Atlantic right
whale population given that an unusual mortality event (UME) has been
in effect for this species since June of 2017 and that there have been
a number of recent mortalities. While the ensonified areas contemplated
for any single HRG vessel are comparatively small and the anticipated
resulting effects of exposure relatively lower-level, the potential
impacts of multiple HRG vessels (up to 8 according to Vineyard Wind)
operating simultaneously in areas of higher right whale density are not
well-documented and warrant caution.
NMFS agrees with the recommendation to include a seasonal
restriction on survey activity, as described below and determined by
NMFS to be both warranted and practicable. NMFS reviewed the best
available right whale abundance data for the planned survey area
(Roberts et al. 2017; Kraus et al. 2016). We determined that right
whale abundance is significantly higher in the period starting in late
winter and extending to late spring in specific sections of the survey
area.
Based on this information NMFS has defined seasonal restriction
areas that Vineyard Wind must follow when conducting HRG surveys.
Survey activities may only occur in the Cape Cod Bay Seasonal
Management Area (SMA) and off of the Race Point SMA during the months
of August and September to ensure sufficient buffer between the SMA
restrictions (January to May 15) and known seasonal occurrence of right
whales north and northeast of Cape Cod (fall, winter, and spring).
Vineyard Wind will limit to three the number of survey vessels that
will operate concurrently from March through June within the lease
areas (OCS-A 0501 and 0487) and OECC areas north of the lease areas up
to, but not including, coastal and bay waters. An additional seasonal
restriction area has been defined south of Nantucket and will be in
effect from December to February in the area delineated by the Dynamic
Management Area (DMA) that was effective from January 31, 2020 through
February 15, 2020. DMAs have been established during this time frame in
this area for the last several years. DMAs are temporary protection
zones that are triggered when three or more whales are sighted within
2-3 miles of each other outside of active SMAs. The size of a DMA is
larger if more whales are present.
Vineyard Wind is permitted to operate no more than three survey
vessels concurrently in the areas described above during the December-
February and March-June timeframes when right whale densities are
greatest. The seasonal restrictions described above will help to reduce
both the
[[Page 26945]]
number and intensity of right whale takes. Regarding practicability,
the timing of Vineyard Wind's surveys is driven by a complex suite of
factors including availability of vessels and equipment (which are used
for other surveys and by other companies), other permitting timelines,
and the timing of certain restrictions associated with fisheries gear,
among other things. Vineyard Wind has indicated that there is enough
flexibility to revise their survey plan such that they can both
accommodate this measure and satisfy their permitting and operational
obligations, and we do not anticipate that these restrictions will
impact Vineyard Wind's ability to execute their survey plan within the
planned 736 vessel days. Therefore, NMFS determined that this required
mitigation measure is sufficient to ensure the least practicable
adverse impact on species or stocks and their habitat.
Comment 16: The ENGOs recommended a prohibition on the commencement
of geophysical surveys at night or during times of poor visibility.
They stated that ramp up should occur during daylight hours only, to
maximize the probability that North Atlantic right whales are detected
and confirmed clear of the exclusion zone.
Response: We acknowledge the limitations inherent in detection of
marine mammals at night. However, no injury is expected to result even
in the absence of mitigation, given the very small estimated Level A
harassment zones. Any potential impacts to marine mammals authorized
for take would be limited to short-term behavioral responses.
Restricting surveys in the manner suggested by the commenters may
reduce marine mammal exposures by some degree in the short term, but
would not result in any significant reduction in either intensity or
duration of noise exposure. Vessels would also potentially be on the
water for an extended time introducing noise into the marine
environment. The restrictions recommended by the commenters could
result in the surveys spending increased time on the water, which may
result in greater overall exposure to sound for marine mammals; thus
the commenters have not demonstrated that such a requirement would
result in a net benefit. Furthermore, restricting the ability of the
applicant to ramp-up only during daylight hours would have the
potential to result in lengthy shutdowns of the survey equipment, which
could result in the applicant failing to collect the data they have
determined is necessary and, subsequently, the need to conduct
additional surveys the following year. This would result in
significantly increased costs incurred by the applicant. Thus the
restriction suggested by the commenters would not be practicable for
the applicant to implement. In consideration of potential effectiveness
of the recommended measure and its practicability for the applicant,
NMFS has determined that restricting survey start-ups to daylight hours
when visibility is unimpeded is not warranted or practicable in this
case.
Comment 17: The ENGOs recommended that NMFS require monitoring an
exclusion zone (EZ) for North Atlantic right whales of at least 500
meters (m), and ideally 1,000 m, around each vessel conducting
activities with noise levels that could result in injury or harassment
to this species.
Response: Regarding the recommendation for a 1,000 m EZ
specifically for North Atlantic right whales, we have determined that
the 500-m EZ, as required in the IHA, is sufficiently protective. We
note that the 500-m EZ exceeds the modeled distance to the largest
Level B harassment isopleth distance (195 m) by a substantial margin.
Thus, we are not requiring shutdown if a right whale is observed beyond
500-m.
Comment 18: The ENGOs recommended a requirement that four PSOs
adhere to a two-on/two-off shift schedule to ensure no individual PSO
is responsible for monitoring more than 180[deg] of the exclusion zone
at any one time.
Response: NMFS typically requires a single PSO to be on duty during
daylight hours and 30 minutes prior to and during nighttime ramp-ups
for HRG surveys. Vineyard Wind proposed, and has voluntarily committed,
to a minimum of two (2) NMFS-approved PSOs on duty and conducting
visual observations on all survey vessels at all times when HRG
equipment is in use (i.e., daylight and nighttime operations). NMFS
adopted Vineyard Wind's PSO proposal. Even in the absence of the
mitigation provided by PSOs, the impacts of this survey are quite low
and Vineyard Wind has proposed more PSOs monitoring when HRG equipment
is in use than NMFS typically requires. We have determined that the PSO
requirements in the IHA are sufficient to ensure the least practicable
adverse impact on the affected species or stocks and their habitat.
Comment 19: The ENGOs recommended that a combination of visual
monitoring by PSOs and passive acoustic monitoring (PAM) should be used
at all times. Since PSOs are unable to visually monitor the exclusion
area during nighttime hours, the ENGOs also recommended that NMFS
require, for efforts that continue into the nighttime, a combination of
night-vision, thermal imaging, and PAM.
Response: There are several reasons why we do not agree that use of
PAM is warranted for 24-hour HRG surveys such as the one planned by
Vineyard Wind. While NMFS agrees that PAM can be an important tool for
augmenting detection capabilities in certain circumstances, its utility
in further reducing impact for Vineyard Wind's HRG survey activities is
limited. First, for this activity, the area expected to be ensonified
above the Level B harassment threshold is relatively small (a maximum
of 195 m as described in the Estimated Take section)--this reflects the
fact that, to start with, the source level is comparatively low and the
intensity of any resulting impacts would be lower level and, further,
it means that inasmuch as PAM will only detect a portion of any animals
exposed within a zone (see below), the overall probability of PAM
detecting an animal in the harassment zone is low--together these
factors support the limited value of PAM for use in reducing take with
smaller zones. PAM is only capable of detecting animals that are
actively vocalizing, while many marine mammal species vocalize
infrequently or during certain activities, which means that only a
subset of the animals within the range of the PAM would be detected
(and potentially have reduced impacts). Additionally, localization and
range detection can be challenging under certain scenarios. For
example, odontocetes are fast moving and often travel in large or
dispersed groups which makes localization difficult. In addition, the
ability of PAM to detect baleen whale vocalizations is further limited
due to being deployed from the stern of a vessel, which puts the PAM
hydrophones in proximity to propeller noise and low frequency engine
noise which can mask the low frequency sounds emitted by baleen whales,
including right whales.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for right whales and other low frequency cetaceans, species
for which PAM has limited efficacy), and the cost and impracticability
of implementing a full-time PAM program, we have determined the current
requirements for visual
[[Page 26946]]
monitoring are sufficient to ensure the least practicable adverse
impact on the affected species or stocks and their habitat. However, we
note that Vineyard Wind will voluntarily implement PAM during night
operations as an added precautionary measure even though this is not a
NMFS requirement.
As stated in the draft IHA, Vineyard Wind is required to use night-
vision equipment (i.e., night-vision goggles and/or infrared
technology) during night time monitoring.
Comment 20: The ENGOs recommended a requirement that all project
vessels (regardless of size) either transiting to/from or operating
within the Lease Areas observe a 10 knot speed restriction during
times, at minimum, when mother-calf pairs, pregnant females, surface
active groups, or aggregations of three or more whales are confirmed
or, based on multi-year sightings data, expected to be in the area. The
commenters also recommend that a compulsory 10 knot vessel speed
restriction should also be required of all project vessels (not just
survey vessels) within a DMA established by NMFS. To the extent that
any project vessel of any size may exceed a speed of 10 knots, the
ENGOs state that this should only be allowed if multiple monitoring
measures are in place, including aerial surveys or a combination of
vessel-based visual observers and passive acoustic monitoring.
Response: NMFS has analyzed the potential for ship strike resulting
from Vineyard Wind's activity and has determined that the mitigation
measures specific to ship strike avoidance are sufficient to avoid the
potential for ship strike. These include: A requirement that all vessel
operators comply with 10 knot (18.5 kilometer (km)/hour) or less speed
restrictions in any SMA or DMA; a requirement that all vessel operators
reduce vessel speed to 10 knots (18.5 km/hour) or less when any large
whale, any mother/calf pairs, pods, or large assemblages of non-
delphinoid cetaceans are observed within 100 m of an underway vessel; a
requirement that all survey vessels maintain a separation distance of
500-m or greater from any sighted North Atlantic right whale; a
requirement that, if underway, vessels must steer a course away from
any sighted North Atlantic right whale at 10 knots or less until the
500-m minimum separation distance has been established; and a
requirement that, if a North Atlantic right whale is sighted in a
vessel's path, or within 500 m of an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral. We have
determined that the ship strike avoidance measures are sufficient to
ensure the least practicable adverse impact on species or stocks and
their habitat. As noted previously, occurrence of vessel strike during
surveys is extremely unlikely based on the low vessel speed of
approximately 3.5 knots (6.5 km/hour) while transiting survey lines.
Furthermore, no documented vessel strikes have occurred for any HRG
surveys which were issued IHAs from NMFS.
Comment 21: The ENGOs objected to NMFS' process to consider
extending any one-year IHA with a truncated 15-day comment period as
contrary to the MMPA.
Response: NMFS' IHA Renewal process meets all statutory
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA,
are valid for a period of not more than one year. And the public has at
least 30 days to comment on all proposed IHAs, with a cumulative total
of 45 days for IHA Renewals. As noted above, the Request for Public
Comments section made clear that the agency was seeking comment on both
the initial proposed IHA and the potential issuance of a Renewal for
this project. Because any Renewal (as explained in the Request for
Public Comments section) is limited to another year of identical or
nearly identical activities in the same location (as described in the
Description of Proposed Activity section) or the same activities that
were not completed within the one-year period of the initial IHA,
reviewers have the information needed to effectively comment on both
the immediate proposed IHA and a possible one-year Renewal, should the
IHA holder choose to request one in the coming months.
While there will be additional documents submitted with a Renewal
request, for a qualifying Renewal these will be limited to
documentation that NMFS will make available and use to verify that the
activities are identical to those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS will also confirm, among other things, that the
activities will occur in the same location; involve the same species
and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The Renewal request
will also contain a preliminary monitoring report, but that is to
verify that effects from the activities do not indicate impacts of a
scale or nature not previously analyzed. The additional 15-day public
comment period provides the public an opportunity to review these few
documents, provide any additional pertinent information and comment on
whether they think the criteria for a Renewal have been met. Between
the initial 30-day comment period on these same activities and the
additional 15 days, the total comment period for a Renewal is 45 days.
In addition to the IHA Renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for Renewals in the regulations, description of the process
and express invitation to comment on specific potential Renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
Renewals respectively, NMFS has ensured that the public ``is invited
and encouraged to participate fully in the agency decision-making
process.''
Comment 22: The ENGOs suggested that it should be NMFS' top
priority to consider any initial data from State monitoring efforts,
passive acoustic monitoring data, opportunistic marine mammal sightings
data, satellite telemetry, and other data sources. Further, commenters
state that NMFS should take steps now to develop a dataset that more
accurately reflects marine mammal presence so that it is in hand for
future IHA authorizations and other work.
Response: NMFS will review any recommended data sources and will
continue to use the best available information. We welcome future input
from interested parties on data sources that may be of use in analyzing
the potential presence and movement patterns of marine mammals,
including North Atlantic right whales, in New England waters.
Comment 23: The ENGOs stated that the agency's assumptions
regarding mitigation effectiveness are unfounded and cannot be used to
justify any reduction in the number of takes authorized as was done for
right whales. The reasons cited include: (i) The agency's reliance on a
160 dB threshold for behavioral harassment that is not supported by the
best available
[[Page 26947]]
scientific information in other low- to mid-frequency sources (which
commenters assert demonstrates Level B harassment takes will occur with
near certainty at exposure levels well below the 160 dB threshold);
(ii) the geographic and temporal extent, as well as the 24-hour nature
of the survey activities proposed to be authorized; and (iii) the
reliance on the assumption that marine mammals will avoid sound despite
studies that have found avoidance behavior is not generalizable among
species and contexts.
Response: The three comments provided by the ENGOs are addressed
individually below.
(i) NMFS acknowledges that the potential for behavioral response to
an anthropogenic source is highly variable and context-specific and
acknowledges the potential for Level B harassment at exposures to
received levels below 160 dB rms. Alternatively, NMFS acknowledges the
potential that not all animals exposed to received levels above 160 dB
rms will respond in ways constituting behavioral harassment. There are
a variety of studies indicating that contextual variables play a very
important role in response to anthropogenic noise, and the severity of
effects are not necessarily linear when compared to a received level
(RL). The studies cited in the comment (Nowacek et al., 2004 and
Kastelein et al., 2012 and 2015) showed there were behavioral responses
to sources below the 160 dB threshold, but also acknowledge the
importance of context in these responses. For example, Nowacek et al.,
2004 reported the behavior of five out of six North Atlantic right
whales was disrupted at RLs of only 133-148 dB re 1 [micro]Pa
(returning to normal behavior within minutes) when exposed to an alert
signal. However, the authors also reported that none of the whales
responded to noise from transiting vessels or playbacks of ship noise
even though the RLs were at least as strong, and contained similar
frequencies, to those of the alert signal. The authors state that a
possible explanation for why whales responded to the alert signal and
did not respond to vessel noise is that the whales may have been
habituated to vessel noise, while the alert signal was a novel sound.
In addition, the authors noted differences between the characteristics
of the vessel noise and alert signal which may also have played a part
in the differences in responses to the two noise types. Therefore, it
was concluded that the signal itself, as opposed to the RL, was
responsible for the response. DeRuiter et al. (2012) also indicate that
variability of responses to acoustic stimuli depends not only on the
species receiving the sound and the sound source, but also on the
social, behavioral, or environmental contexts of exposure. Finally,
Gong et al. (2014) highlighted that behavioral responses depend on many
contextual factors, including range to source, RL above background
noise, novelty of the signal, and differences in behavioral state.
Similarly, Kastelein et al., 2015 (cited in the comment) examined
behavioral responses of a harbor porpoise to sonar signals in a quiet
pool, but stated behavioral responses of harbor porpoises at sea would
vary with context such as social situation, sound propagation, and
background noise levels.
NMFS uses 160 dB (rms) as the exposure level for estimating Level B
harassment takes, while acknowledging that the 160 db rms step-function
approach is a simplistic approach. However, there appears to be a
misconception regarding the concept of the 160 dB threshold. While it
is correct that in practice it works as a step-function, i.e., animals
exposed to received levels above the threshold are considered to be
``taken'' and those exposed to levels below the threshold are not, it
is in fact intended as a sort of mid-point of likely behavioral
responses (which are extremely complex depending on many factors
including species, noise source, individual experience, and behavioral
context). What this means is that, conceptually, the function
recognizes that some animals exposed to levels below the threshold will
in fact react in ways that are appropriately considered take, while
others that are exposed to levels above the threshold will not. Use of
the 160-dB threshold allows for a simplistic quantitative estimate of
take, while we can qualitatively address the variation in responses
across different received levels in our discussion and analysis.
Overall, we emphasize the lack of scientific consensus regarding
what criteria might be more appropriate. Defining sound levels that
disrupt behavioral patterns is difficult because responses depend on
the context in which the animal receives the sound, including an
animal's behavioral mode when it hears sounds (e.g., feeding, resting,
or migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can
be difficult to predict (Southall et al., 2007; Ellison et al., 2012;
Bain and Williams, 2006). Further, we note that the sounds sources and
the equipment used in the specified activities are outside (higher
than) of the most sensitive range of mysticete hearing.
There is currently no agreement on these complex issues, and NMFS
followed the practice at the time of submission and review of this
application in assessing the likelihood of disruption of behavioral
patterns by using the 160 dB threshold. This threshold has remained in
use in part because of the practical need to use a relatively simple
threshold based on available information that is both predictable and
measurable for most activities. We note that the seminal review
presented by Southall et al. (2007) did not suggest any specific new
criteria due to lack of convergence in the data. NMFS is currently
evaluating available information towards development of guidance for
assessing the effects of anthropogenic sound on marine mammal behavior.
However, undertaking a process to derive defensible exposure-response
relationships is complex (e.g., NMFS previously attempted such an
approach, but is currently re-evaluating the approach based on input
collected during peer review of NMFS (2016)). A recent systematic
review by Gomez et al. (2016) was unable to derive criteria expressing
these types of exposure-response relationships based on currently
available data.
NMFS acknowledges that there may be methods of assessing likely
behavioral response to acoustic stimuli that better capture the
variation and context-dependency of those responses than the simple 160
dB step-function used here, but there is no agreement on what that
method should be or how more complicated methods may be implemented by
applicants. NMFS is committed to continuing its work in developing
updated guidance with regard to acoustic thresholds, but pending
additional consideration and process is reliant upon an established
threshold that is reasonably reflective of available science.
(ii) Given the geographic and temporal extent of the survey area as
well as continuous 24-hour operations, the ENGOs question the
effectiveness of the mitigation measures proposed to be authorized.
They specifically recommended that seasonal restrictions should be
established and consideration should be given to species for which a
UME has been declared. Note that NMFS is requiring Vineyard Wind to
comply with seasonal restrictions as described in the response to
Comment
[[Page 26948]]
15. Furthermore, we have established a 500-m shutdown zone for right
whales which is precautionary considering the Level B harassment
isopleth for the largest source utilized in the specified activities
for this IHA is estimated at 195 m. Actual isopleths are no greater
than 195 m and are considerably less for a number of other HRG devices
employing downward facing beams at various angles. After accounting for
these small harassment zones and examining previous marine mammal
monitoring reports from nearby areas, the calculated right whale
exposures decreased from 30 to 10 animals (as discussed in greater
detail in response to Comment 10). At these distances, monitoring by
PSOs is expected to be highly effective. Given these factors, we are
confident in our decision to authorize 10 takes by Level B harassment.
Additionally, similar mitigation measures have been required in several
previous HRG survey IHAs and have been successfully implemented.
(iii) The commenters disagreed with NMFS' assumption that marine
mammals move away from sound sources. The ENGOs claimed that studies
have not found avoidance behavior to be generalizable among species and
contexts, and even though avoidance may itself constitute take under
the MMPA. Importantly, the commenters mistakenly seem to believe that
the NMFS' does not consider avoidance as a take, and that the concept
of avoidance is used as a mechanism to reduce overall take--this is not
the case. Avoidance of loud sounds is a well-documented behavioral
response, and NMFS often accordingly accounts for this avoidance by
reducing the number of injurious exposures, which would occur in very
close proximity to the source and necessitate a longer duration of
exposure. However, when Level A harassment takes are reduced in this
manner, they are changed to Level B harassment takes, in recognition of
the fact that this avoidance or other behavioral responses occurring as
a result of these exposures are still take. NMFS does not reduce the
overall amount of take as a result of avoidance.
Comment 24: The ENGOs recommended that the agency must carefully
analyze the cumulative impacts from the survey activities and other
survey activities contemplated in the other lease areas on the North
Atlantic right whale and other protected species.
Response: The MMPA grants exceptions to its broad take prohibition
for a ``specified activity.'' 16 U.S.C. 1371(a)(5)(A)(i). Cumulative
impacts (also referred to as cumulative effects) is a term that appears
in the context of NEPA and the ESA, but it is defined differently in
those different contexts. Neither the MMPA nor NMFS's codified
implementing regulations address consideration of other unrelated
activities and their impacts on populations. However, the preamble for
NMFS's implementing regulations (54 FR 40338; September 29, 1989)
states in response to comments that the impacts from other past and
ongoing anthropogenic activities are to be incorporated into the
negligible impact analysis via their impacts on the environmental
baseline. Accordingly, NMFS here has factored into its negligible
impact analysis the impacts of other past and ongoing anthropogenic
activities via their impacts on the baseline (e.g., as reflected in the
density/distribution and status of the species, population size and
growth rate, and other relevant stressors (such as incidental mortality
in commercial fisheries)).
Comment 25: The FAB indicated that NMFS did not adequately justify
authorized take numbers, particularly in allowing incidental take of 10
North Atlantic right whale. They also felt that the other numbers for
allowed take are unjustified, referring to them as a percentage of the
entire population. As NMFS stated in its Notice for the Proposed IHA,
``[a]n estimate of the number of takes alone is not enough information
on which to base an impact determination.''
Response: In the Estimated Take section, NMFS describes in detail
how authorized take for each species is calculated using the best
available scientific data. Please refer to that section. Justification
for the authorized take of ten right whales by Level B harassment as
well as the take of other species may be found in the response to
Comment 23.
Comment 26: The FAB indicated that the assessment of whether there
are ``small numbers'' affected, and whether there is only a
``negligible impact,'' should be assessed in further detail rather than
simply listing the percentages of potentially-impacted individuals
compared to the species as a whole, particularly for North Atlantic
Right Whales.
Response: The Negligible Impact Analysis and Determination section
of the proposed IHA (85 FR 7952; February 12, 2020) provides a detailed
qualitative discussion supporting NMFS's determination that any
anticipated impacts from this action would be negligible. The section
contains a number of factors that were considered by NMFS based on the
best available scientific data and why we concluded that impacts
resulting from the specified activity are not reasonably expected to,
or reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival.
The MMPA does not define small numbers. NMFS's practice for making
small numbers determinations is to compare the number of individuals
estimated and authorized to be taken (often using estimates of total
instances of take, without regard to whether individuals are exposed
more than once) against the best available abundance estimate for that
species or stock. In other words, consistent with past practice, when
the estimated number of individual animals taken (which may or may not
be assumed as equal to the total number of takes, depending on the
available information) is up to, but not greater than, one third of the
species or stock abundance, NMFS will determine that the numbers of
marine mammals taken of a species or stock are small.
In summary, when quantitative take estimates of individual marine
mammals are available or inferable through consideration of additional
factors, and the number of animals taken is one third or less of the
best available abundance estimate for the species or stock, NMFS
considers it to be of small numbers. NMFS may appropriately find that
one or two predicted group encounters will result in small numbers of
take relative to the range and distribution of a species, regardless of
the estimated proportion of the abundance. Additional information on
NMFS' interpretation of the small numbers finding may be found in the
Federal Register notice published on December 7, 2018 (83 FR 63268) and
we refer the reader to that document.
Comment 27: The FAB stated that a more detailed description of the
study equipment planned for use and the potential effects on marine
mammals should have been included in the proposed IHA.
Response: The applicant provided detailed descriptions of HRG
equipment planned for use. Information pertaining to specific device
characteristics necessary to assess impacts to marine mammals including
equipment category, source levels, operating frequencies, beam width,
pulse duration and repetition rate was provided. Note that the HRG
equipment described in the proposed IHA also serves as a proxy for
similar equipment types that may be utilized. The potential impacts
associated with use of HRG equipment
[[Page 26949]]
may be found in the Potential Effects of Specified Activities on Marine
Mammals and Their Habitat section of the proposed IHA. The commenter
did not provide specific recommendations regarding what additional
information is necessary.
Comment 28: The FAB argued that the IHA's revocation language
requires amendment because 16 U.S.C. 1539(a)(2)(C) states that NMFS
shall revoke the permit if it finds the permittee is not complying with
the terms and conditions of the permit; thus, the language of the draft
IHA should reflect this instead of saying that ``[t]his Authorization
may be modified, suspended or withdrawn if the holder fails to abide by
the conditions prescribed herein. . .''
Response: We do not believe the current discretionary language in
the IHA precludes NMFS from complying 16 U.S.C. 1539(a)(2)(C). We also
note that the use of the term ``shall'' in a statute can be either
mandatory or directory depending on the context and legislative intent.
Comment 29: The FAB indicated that the draft IHA does not
adequately discuss whether nighttime survey activity can be effectively
monitored by the two required Protected Species Observers using night-
vision goggles and/or infrared technology. While these may work under
some conditions, the FAB stated it is unlikely they would be sufficient
for sea states above a flat calm. Information regarding the efficacy of
using night-vision equipment in monitoring marine mammals in the area
should be included and addressed.
Response: Currently, there are no existing standards that NMFS
could use to approve night vision and infrared equipment. Right whales
can be seen at night from a considerable distance, depending on
conditions. Note that in a recent IHA monitoring report submitted to
NMFS after completion of an HRG survey off the coast of Delaware
(Deepwater Wind, 83 FR 28808, June 21, 2018) a single confirmed right
whale and a second probable right whale were observed at night by
infra-red cameras at distances of 1,251 m and approximately 800 m
respectively. Research studies have concluded that the use of IR
(thermal) imaging technology may allow for the detection of marine
mammals at night as well as improve the detection during all periods
through the use of automated detection algorithms (Weissenberger 2011).
While we acknowledge that no technology is 100% effective either during
daylight or nighttime hours, the equipment used here will enhance PSO's
ability to detect marine mammals at night and the fact that not all
will be detected is accounted for in the authorized take.
Changes From the Proposed IHA to Final IHA
As described above, the following items have been incorporated in
the issued IHA:
Based on recently analyzed Atlantic Marine Assessment
Program for Protected Species (AMAPPS) survey data from 2010 through
2018, NMFS has revised the mean group size for Risso's dolphins to 5.9
dolphins which represent a reduction from 30 dolphins in the proposed
IHA (NOAA Fisheries Northeast and Southeast Fisheries Science Centers,
2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011). Based on this
information NMFS has reduced authorized take of Risso's dolphins from
30 to 6.
NMFS rounded up the calculated take of 3.23 sei whales to
an authorized take number of 4 sei whales as shown in Table 5.
None of these modifications affect our negligible impact or small
numbers determinations.
Description of Marine Mammals in the Area of Specified Activity
Sections 3 and 4 of the IHA application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history, of the potentially affected
species. Additional information regarding population trends and threats
may be found in NMFS' Stock Assessment Reports (SARs;
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (www.fisheries.noaa.gov/find-species).
Table 2 summarizes information related to the population or stock,
including regulatory status under the MMPA and ESA and potential
biological removal (PBR), where known. For taxonomy, we follow
Committee on Taxonomy (2019). PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS'
SARs). While no mortality is anticipated or authorized here, PBR is
included here as a gross indicator of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic SARs. All values presented in Table 2 are the most
recent available at the time of publication and are available in the
2019 draft Atlantic SARs (Hayes et al., 2019), available online at:
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.
Table 2--Marine Mammals Known To Occur in the Project Area That May Be Affected by Vineyard Wind's Planned Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
MMPA and ESA Stock abundance (CV, Predicted
Common name (scientific name) Stock status; strategic Nmin, most recent abundance (CV) PBR \4\ Annual M/
(Y/N) \1\ abundance survey) \2\ \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Toothed whales (Odontoceti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter macrocephalus).. North Atlantic........... E; Y 4,349 (0.28; 3,451; n/a) 5,353 (0.12) 6.9 0.0
Long-finned pilot whale (Globicephala W North Atlantic......... --; N 39,215 (0.3; 30,627; n/ \5\ 18,977 306 21
melas). a). (0.11)
Atlantic white-sided dolphin W North Atlantic......... --; N 93,233(0.71; 54,443; n/ 37,180 (0.07) 544 26
(Lagenorhynchus acutus). a).
Bottlenose dolphin (Tursiops W North Atlantic, --; N 62,851 (0.23; 51,914; \5\ 97,476 519 28
truncatus). Offshore. 2011). (0.06)
[[Page 26950]]
Common dolphin (Delphinus delphis).... W North Atlantic......... --; N 172,825 (0.21; 145,216; 86,098 (0.12) 1,452 419
2011).
Risso's dolphin (Grampus griseus)..... W North Atlantic......... --; N 35,493 (0.19; 30,289; 7,732 (0.09) 303 54.3
2011).
Harbor porpoise (Phocoena phocoena)... Gulf of Maine/Bay of --; N 95,543 (0.31; 74,034; * 45,089 (0.12) 851 217
Fundy. 2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baleen whales (Mysticeti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale (Eubalaena W North Atlantic......... E; Y 428 (0; 418; n/a)....... * 535 (0.45) 0.8 6.85
glacialis).
Humpback whale (Megaptera Gulf of Maine............ --; N 1,396 (0; 1,380; n/a)... * 1,637 (0.07) 22 12.15
novaeangliae).
Fin whale (Balaenoptera physalus)..... W North Atlantic......... E; Y 7,418 (0.25; 6,025; n/a) 4,633 (0.08) 12 2.35
Sei whale (Balaenoptera borealis)..... Nova Scotia.............. E; Y 6,292 (1.015; 3,098; n/ * 717 (0.30) 6.2 1.0
a).
Minke whale (Balaenoptera Canadian East Coast...... --; N 24,202 (0.3; 18,902; n/ * 2,112 (0.05) 8.0 7.0
acutorostrata). a).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Earless seals (Phocidae)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal \6\ (Halichoerus grypus).... W North Atlantic......... --; N 27,131 (0.19; 23,158; n/ ................ 1,389 5,410
a).
Harbor seal (Phoca vitulina).......... W North Atlantic......... --; N 75,834 (0.15; 66,884; ................ 2,006 350
2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see
footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at:
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate
of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no
associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have
not yet been incorporated into the estimate. All values presented here are from the 2019 draft Atlantic SARs (Hayes et al., 2019).
\3\ This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016,
2017, 2018). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic
Ocean, and we provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean
density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported
development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance.
\4\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). Annual M/SI, found in NMFS' SARs,
represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship
strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented
in the draft 2019 SARs (Hayes et al., 2019).
\5\ Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly,
the habitat-based cetacean density models produced by Roberts et al. (2016, 2017, 2018) are based in part on available observational data which, in
some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016, 2017, 2018) produced density models to genus level
for Globicephala spp. and produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks.
\6\ NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.
Four marine mammal species that are listed under the Endangered
Species Act (ESA) may be present in the survey area and are included in
the take request: The North Atlantic right whale, fin whale, sei whale,
and sperm whale. We consulted under section 7 of the ESA with the NMFS
Greater Atlantic Regional Fisheries Office (GARFO) on our authorization
of take for these species; please see the Endangered Species Act
section below.
A detailed description of the species likely to be affected by
Vineyard Wind's surveys, including brief introductions to the species
and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the notice of proposed IHA (85 FR 7952;
February 12, 2020). Since that time, we are not aware of any changes in
the status of these species and stocks; therefore, detailed
descriptions are not provided here. Please refer to that notice for
these descriptions. Please also refer to NMFS' website
(www.fisheries.noaa.gov/find-species) for generalized species accounts.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from Vineyard Wind's survey
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the survey area. The notice of
proposed IHA (85 FR 7952; February 12, 2020) included a discussion of
the effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from Vineyard Wind's survey activities on
marine mammals and their habitat. That information and analysis is
incorporated by reference into this final IHA determination and is not
repeated here; please refer to the notice of proposed IHA (85 FR 7952;
February 12, 2020).
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of ``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to HRG sources. Based on the nature of the
activity and the anticipated effectiveness of the mitigation measures
(i.e., exclusion
[[Page 26951]]
zones and shutdown measures), discussed in detail below in the
Mitigation section, Level A harassment is neither anticipated nor
authorized.
As described previously, no mortality is anticipated or authorized
for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a 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 take estimate.
Acoustic Thresholds
Using the best available science, NMFS has developed acoustic
thresholds that identify the received level of underwater sound above
which exposed marine mammals would be reasonably expected to be
behaviorally harassed (equated to Level B harassment) or to incur PTS
of some degree (equated to Level A harassment).
Level B Harassment--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 impulsive and/or intermittent sources (e.g., impact pile driving)
and 120 dB rms for continuous sources (e.g., vibratory driving).
Vineyard Wind's planned activity includes the use of intermittent
sources (geophysical survey equipment) therefore use of the 160 dB re 1
[mu]Pa (rms) threshold is applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(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). The
components of Vineyard Wind's planned activity that may result in the
take of marine mammals include the use of impulsive sources. We note
that sources that operate with a repetition rate greater than 10 Hz
were assessed by Vineyard Wind with the non-impulsive (intermittent)
source criteria and sources with a repetition rate equal to or less
than 10 Hz were assessed with the impulsive source criteria. This
resulted in all echosounders, sparkers, boomers and sub-bottom
profilers (with the exception of one: The Innomar SES-2000 Medium-100
parametric sub-bottom profiler) being categorized as impulsive for
purposes of modeling Level A harassment zones.
Predicted distances to Level A harassment isopleths, which vary
based on marine mammal functional hearing groups were calculated. The
updated acoustic thresholds for impulsive sounds (such as HRG survey
equipment) contained in the Technical Guidance (NMFS, 2018) were
presented as dual metric acoustic thresholds using both
SELcum and peak sound pressure level metrics. As dual
metrics, NMFS considers onset of PTS (Level A harassment) to have
occurred when either one of the two metrics is exceeded (i.e., metric
resulting in the largest isopleth). The SELcum metric
considers both level and duration of exposure, as well as auditory
weighting functions by marine mammal hearing group.
These thresholds are provided in Table 3 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS 2018 Technical Guidance, which may be accessed at:
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
[[Page 26952]]
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
The proposed survey would entail the use of HRG equipment. The
distance to the isopleth corresponding to the threshold for Level B
harassment was calculated for all HRG equipment with the potential to
result in harassment of marine mammals. NMFS has developed an interim
methodology for determining the rms sound pressure level
(SPLrms) at the 160-dB isopleth for the purposes of
estimating take by Level B harassment resulting from exposure to HRG
survey equipment (NMFS, 2019). This methodology incorporates frequency
and some directionality to refine estimated ensonified zones. Vineyard
Wind used the methods specified in the interim methodology (NMFS, 2019)
with additional modifications to incorporate a seawater absorption
formula and a method to account for energy emitted outside of the
primary beam of the source. For sources that operate with different
beam widths, the maximum beam width was used. The lowest frequency of
the source was used when calculating the absorption coefficient. The
formulas used to apply the methodology are described in detail in
Appendix B of the IHA application. As described above, NMFS
acknowledges that water depth should also be incorporated in modeling
of HRG sources but was not incorporated in the modeling of HRG sources
in the notice of proposed IHA (85 FR 7952; February 12, 2020). However,
also as noted above, NMFS has confirmed using a recently-developed
spreadsheet tool that accompanies the NMFS interim HRG guidance (NMFS,
2019), which incorporates water depth, that the incorporation of water
depth in modeling the HRG sources proposed for use by Vineyard Wind
would result only in smaller harassment zones for some sources, and
would not result in larger zones for any sources.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and therefore recommends that source levels provided
by Crocker and Fratantonio (2016) be incorporated in the method
described above to estimate isopleth distances to the Level B
harassment threshold. 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 planned surveys and the sound levels
associated with those HRG equipment types. Table A-3 in Appendix A of
the IHA application shows the literature sources for the sound source
levels that were incorporated into the model.
Results of modeling described above indicated that sound produced
by the GeoMarine Geo Spark 2000 would propagate furthest to the Level B
harassment threshold; therefore, for the purposes of the exposure
analysis, it was assumed the GeoMarine Geo Spark 2000 would be active
during the entirety of the survey. The distance to the isopleth
corresponding to the threshold for Level B harassment for the GeoMarine
Geo Spark 2000 (estimated at 195 m; Table 4) was used as the basis of
the take calculation for all marine mammals. Note that this likely
provides a conservative estimate of the total ensonified area resulting
from the planned activities. Vineyard Wind may not operate the
GeoMarine Geo Spark 2000 during the entirety of the planned survey, and
for any survey segments in which it is not used the distance to the
Level B harassment threshold would be less than 195 m and the
corresponding ensonified area would also decrease. The model also
assumed that the sparker (GeoMarine Geo Spark 2000) is omnidirectional.
This assumption, which is made because the beam pattern is unknown,
results in precautionary estimates of received levels generally, and in
particular is likely to overestimate both SPL and PK. This
overestimation of the SPL likely results in an overestimation of the
number of takes by Level B harassment for this type of equipment.
Table 4--Modeled Radial Distances From HRG Survey Equipment to Isopleths Corresponding to Level A Harassment and Level B Harassment Thresholds \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
HRG survey equipment Level A harassment horizontal impact distance (m) Level B
harassment
horizontal
impact
distance (m)
--------------------------------------------------------------------------------------------------------------
Low frequency Mid frequency High frequency Phocid All
cetaceans cetaceans cetaceans pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shallow subbottom profilers.............. EdgeTech Chirp 216......... <1 <1 <1 <1 4
Shallow subbottom profilers.............. Innomar SES 2000 Medium.... <1 <1 60 <1 116
Deep seismic profilers................... Applied Acoustics AA251 <1 <1 60 <1 178
Boomer.
Deep seismic profilers................... GeoMarine Geo Spark 2000 <1 <1 6 <1 195
(400 tip).
Underwater positioning (USBL)............ SonarDyne Scout Pro........ (*) (*) (*) (*) 24
Underwater positioning (USBL)............ ixBlue Gaps................ <1 m <1 m 55 <1 m 35
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note that SELcum was greater than peak SPL in all instances.
Predicted distances to Level A harassment isopleths, which vary
based on marine mammal functional hearing groups (Table 3), were also
calculated. The updated acoustic thresholds for impulsive sounds (such
as HRG survey equipment) contained in the Technical Guidance (NMFS,
2018) were presented as dual metric acoustic thresholds using both
cumulative sound exposure level (SELcum) and peak sound
pressure level metrics. As dual metrics, NMFS considers onset of PTS
(Level A harassment) to have occurred when either one of the two
metrics is exceeded (i.e., the metric resulting in the largest
isopleth). The SELcum metric considers both level and
duration of exposure, as well as auditory weighting functions by marine
mammal hearing group.
Modeling of distances to isopleths corresponding to the Level A
harassment threshold was performed for all types of HRG equipment
proposed for use with the potential to result in harassment of marine
mammals.
[[Page 26953]]
Vineyard Wind used a new model developed by JASCO to calculate
distances to Level A harassment isopleths based on both the peak SPL
and the SELcum metric. For the peak SPL metric, the model is
a series of equations that accounts for both seawater absorption and
HRG equipment beam patterns (for all HRG sources with beam widths
larger than 90[deg], it was assumed these sources were
omnidirectional). For the SELcum metric, a model was
developed that accounts for the hearing sensitivity of the marine
mammal group, seawater absorption, and beam width for downwards-facing
transducers. Details of the modeling methodology for both the peak SPL
and SELcum metrics are provided in Appendix A of the IHA
application. This model entails the following steps:
1. Weighted broadband source levels were calculated by assuming a
flat spectrum between the source minimum and maximum frequency,
weighted the spectrum according to the marine mammal hearing group
weighting function (NMFS 2018), and summed across frequency.
2. Propagation loss was modeled as a function of oblique range.
3. Per-pulse SEL was modeled for a stationary receiver at a fixed
distance off a straight survey line, using a vessel transit speed of
3.5 knots and source-specific pulse length and repetition rate. The
off-line distance is referred to as the closest point of approach (CPA)
and was performed for CPA distances between 1 m and 10 km. The survey
line length was modeled as 10 km long (analysis showed longer survey
lines increased SEL by a negligible amount). SEL is calculated as SPL +
10 log10 T/15 dB, where T is the pulse duration.
4. The SEL for each survey line was calculated to produce curves of
weighted SEL as a function of CPA distance.
5. The curves from Step 4 above were used to estimate the CPA
distance to the impact criteria.
We note that in the modeling methods described above and in
Appendix A of the IHA application, sources that operate with a
repetition rate greater than 10 Hz were assessed with the non-impulsive
(intermittent) source criteria while sources with a repetition rate
equal to or less than 10 Hz were assessed with the impulsive source
criteria. This resulted in all echosounders, sparkers, boomers and sub-
bottom profilers (with the exception of one: The Innomar SES-2000
Medium-100 parametric sub-bottom profiler) being categorized as
impulsive for purposes of modeling Level A harassment zones. As noted
above, NMFS does not agree with this step in the modeling assessment,
which results in nearly all HRG sources being classified as impulsive.
However, we note that the classification of the majority of HRG sources
as impulsive results in more conservative modeling results. Therefore,
we are retaining the analysis of Level A harassment zones from the
notice of proposed IHA (85 FR 7952; February 12, 2020), though this
analysis does incorporate a 10 Hz repetition rate as a cutoff between
impulsive and non-impulse sources. We acknowledge that this modeling
approach results in zones are likely conservative for some sources.
Modeled isopleth distances to Level A harassment thresholds for all
types of HRG equipment and all marine mammal functional hearing groups
are shown in Table 4. The dual criteria (peak SPL and
SELcum) were applied to all HRG sources using the modeling
methodology as described above, and the largest isopleth distances for
each functional hearing group were then carried forward in the exposure
analysis to be conservative. For all HRG sources the SELcum
metric resulted in larger isopleth distances. Distances to the Level A
harassment threshold based on the larger of the dual criteria (peak SPL
and SELcum) are shown in Table 4.
Modeled distances to isopleths corresponding to the Level A
harassment threshold are very small (<1 m) for three of the four marine
mammal functional hearing groups that may be impacted by the proposed
activities (i.e., low frequency and mid frequency cetaceans, and phocid
pinnipeds; see Table 4). Based on the very small Level A harassment
zones for these functional hearing groups, the potential for species
within these functional hearing groups to be taken by Level A
harassment is considered so low as to be discountable. These three
functional hearing groups encompass all but one of the marine mammal
species listed in Table 2 that may be impacted by the proposed
activities. There is one species (harbor porpoise) within the high
frequency functional hearing group that may be impacted by the proposed
activities. The largest modeled distance to the Level A harassment
threshold for the high frequency functional hearing group was 60 m
(Table 4). However, as noted above, modeled distances to isopleths
corresponding to the Level A harassment threshold are assumed to be
conservative. Level A harassment would also be more likely to occur at
close approach to the sound source or as a result of longer duration
exposure to the sound source, and mitigation measures--including a 100-
m exclusion zone for harbor porpoises--are expected to minimize the
potential for close approach or longer duration exposure to active HRG
sources. In addition, harbor porpoises are a notoriously shy species
which is known to avoid vessels, and would also be expected to avoid a
sound source prior to that source reaching a level that would result in
injury (Level A harassment). Therefore, we have determined that the
potential for take by Level A harassment of harbor porpoises is so low
as to be discountable. As NMFS has determined that the likelihood of
take of any marine mammals in the form of Level A harassment occurring
as a result of the planned surveys is so low as to be discountable, we
therefore do not authorize the take by Level A harassment of any marine
mammals.
Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
The habitat-based density models produced by the Duke University
Marine Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018)
represent the best available information regarding marine mammal
densities in the planned survey area. The density data presented by
Roberts et al. (2016, 2017, 2018) incorporates aerial and shipboard
line-transect survey data from NMFS and other organizations and
incorporates data from 8 physiographic and 16 dynamic oceanographic and
biological covariates, and controls for the influence of sea state,
group size, availability bias, and perception bias on the probability
of making a sighting. These density models were originally developed
for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated on the basis of
additional data as well as certain methodological improvements. Our
evaluation of the changes leads to a conclusion that these represent
the best scientific evidence available. More information is available
online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/. Marine mammal
density estimates in the project area (animals/km\2\) were obtained
using these model results (Roberts et al., 2016, 2017, 2018). The
updated models incorporate additional sighting data, including
sightings from the NOAA Atlantic Marine Assessment Program for
Protected Species (AMAPPS) surveys from 2010-2014 (NEFSC & SEFSC, 2011,
2012, 2014a, 2014b, 2015, 2016).
For purposes of the exposure analysis, density data from Roberts et
al. (2016, 2017, 2018) were mapped using a
[[Page 26954]]
geographic information system (GIS). The density coverages that
included any portion of the planned project area were selected for all
survey months. Monthly density data for each species were then averaged
over the year to come up with a mean annual density value for each
species. The mean annual density values used to estimate take numbers
are shown in Table 5 below.
Roberts et al. (2018) produced density models for all seals and did
not differentiate by seal species. Because the seasonality and habitat
use by gray seals roughly overlaps with that of harbor seals in the
survey areas, it was assumed that modeled takes of seals could occur to
either of the respective species, thus the total number of modeled
takes for seals was applied to each species. This approach represents a
double-counting of expected total seal takes and is therefore
conservative.
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 is
then calculated, based on areas predicted to be ensonified around the
HRG survey equipment and the estimated trackline distance traveled per
day by the survey vessel. Vineyard Wind estimates that survey vessels
will achieve a maximum daily track line distance of 100 km per day
during planned HRG surveys. This distance accounts for the vessel
traveling at roughly 3.5 kn during active survey periods. Based on the
maximum estimated distance to the Level B harassment threshold of 195 m
(Table 5) and the maximum estimated daily track line distance of 100
km, an area of 39.12 km\2\ would be ensonified to the Level B
harassment threshold per day during Vineyard Wind's planned HRG
surveys. As described above, this is a conservative estimate as it
assumes the HRG sources that result in the greatest isopleth distances
to the Level B harassment threshold would be operated at all times
during all 736 vessel days.
The number of marine mammals expected to be incidentally taken per
day is then calculated by estimating the number of each species
predicted to occur within the daily ensonified area (animals/km\2\) by
incorporating the estimated marine mammal densities as described above.
Estimated numbers of each species taken per day are then multiplied by
the total number of vessel days (i.e., 736). 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 # of days
Where: D = average species density (per km\2\) and ZOI = maximum
daily ensonified area to relevant thresholds.
Using this method to calculate take, Vineyard wind estimated that
there would be take of several species by Level A harassment including
Atlantic White-sided dolphin, bottlenose dolphin, common dolphin,
harbor porpoise, gray seal, and harbor seal in the absence of
mitigation (see Table 10 in the IHA application for the estimated
number of Level A harassment takes for all potential HRG equipment
types). However, as described above, due to the very small estimated
distances to Level A harassment thresholds (Table 4), and in
consideration of the mitigation measures, the likelihood of survey
activities resulting in take in the form of Level A harassment is
considered so low as to be discountable; therefore, we did not
authorize take of any marine mammals by Level A harassment. Authorized
take numbers by Level B harassment are shown in Table 5.
Table 5--Total Numbers of Authorized Incidental Takes of Marine Mammals and Takes as a Percentage of Population
----------------------------------------------------------------------------------------------------------------
Estimated
Annual density Level B Authorized %
Species mean (km-2) harassment takes by Level Population\1\
takes B harassment
----------------------------------------------------------------------------------------------------------------
Fin whale....................................... 0.0023 67.28 67 1.4
Humpback whale.................................. 0.0016 45.73 46 2.8
Minke whale..................................... 0.001 41.20 41 1.9
North Atlantic right whale...................... 0.001 30.32 10 1.9
Sei whale....................................... 0.000 3.23 4 0.06
Atlantic white sided dolphin.................... 0.0351 1,011.19 1,011 2.7
Bottlenose dolphin (WNA Offshore)............... 0.0283 814.91 815 0.8
Pilot whales.................................... 0.0049 141.98 142 0.7
Risso's dolphin................................. 0.000 5.74 6 0.08
Common dolphin.................................. 0.071 2,035.87 2,036 2.3
Sperm whale..................................... 0.000 3.82 4 0.07
Harbor porpoise................................. 0.0363 1,044.87 1,045 2.3
Gray seal....................................... 0.1404 4,043.67 4,044 14.9
Harbor seal..................................... 0.1404 4,043.67 4,044 5.3
----------------------------------------------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best available abundance estimate as shown in
Table 23. In most cases the best available abundance estimate is provided by Roberts et al. (2016, 2017,
2018), when available, to maintain consistency with density estimates derived from Roberts et al. (2016, 2017,
2018). For North Atlantic right whales the best available abundance estimate is derived from the North
Atlantic Right Whale Consortium 2019 Annual Report Card (Pettis et al., 2019). For bottlenose dolphins and
seals, Roberts et al. (2016, 2017, 2018) provides only a single abundance estimate and does not provide
abundance estimates at the stock or species level (respectively), so abundance estimates used to estimate
percentage of stock taken for bottlenose dolphins, gray and harbor seals are derived from NMFS SARs (Hayes et
al., 2019).
For the North Atlantic right whale, NMFS required a 500-m EZ which
substantially exceeds the distance to the level B harassment isopleth
(195 m). However, Vineyard Wind will be operating up to 24 hours per
day for a
[[Page 26955]]
total of 736 vessel days. Even with the implementation of mitigation
measures (including night-vision goggles and thermal clip-ons) it is
reasonable to assume that night time operations for an extended period
could result in a limited number of right whales being exposed to
underwater sound at Level B harassment levels. Given the fact that take
has been conservatively calculated based on the largest source, which
will not be operating at all times, and is thereby likely over-
estimated to some degree, the fact that Vineyard Wind will implement a
shutdown zone 2.5 times the predicted Level B harassment threshold
distance (see below) for that largest source (and significantly more
than that for the smaller sources), and the fact that night vision
goggles with thermal clips will be used for nighttime operations, NMFS
predicts that no more than 10 right whales may be taken by Level B
harassment.
Additionally, sightings of right whales have been uncommon during
previous HRG surveys. Bay State Wind submitted a marine mammal
monitoring report HRG survey on July 19, 2019 described PSO
observations and takes in Lease Area OCS-A500, which is part of the
survey area covered under this IHA as well as along several ECR
corridors closer to shore. Over 376 vessel days, three separate survey
ships recorded a total of 496 marine mammal detections between May 11,
2018 and March 14, 2019. There were no confirmed observations of right
whales on any of the survey ships during the entire survey period.
There were a number of unidentifiable whales reported, and it is
possible that some of these unidentified animals may have been right
whales. However, the lack of confirmed observations indicates that
right whale sightings are not common in this region during previous
survey work.
Vineyard Wind provided a marine mammal monitoring report associated
with survey activity for which Vineyard Wind determined that no take of
marine mammals was reasonably anticipated to occur, and therefore no
incidental take authorization requested. The survey activity covered
the Renewable Lease Numbers OCS-A 0501 and OCS-A 0522 (Lease) and
associated potential cable routes located offshore of Massachusetts.
These are the same Lease Areas covered by the IHA NMFS has issued to
Vineyard Wind. Survey operations began on May 31, 2019 and concluded on
January 7, 2020. Six survey vessels were employed and engaged in both
day and night survey operations. There was a total of 412 marine mammal
sightings but no marine mammals were observed within Level B harassment
zones estimated by Vineyard Wind. Similar to the Bay State Wind
findings, no confirmed observations of right whales on any of the
survey ships occurred during the entire survey period. While some of
the unidentified animals could also have been right whales, the absence
of verified sightings demonstrates that right whale observations are
uncommon.
In summary, given the low observation rate, and expected efficacy
of the required mitigation measures, we believe a reduction of 30
calculated right whale exposures down to 10 authorized takes by Level B
harassment is reasonable.
Mitigation
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable impact on
such species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting such
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as 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 Measures
NMFS has required that the following mitigation measures be
implemented during Vineyard Wind's planned marine site characterization
surveys.
Marine Mammal Exclusion Zones, Buffer Zone and Monitoring Zone
Marine mammal exclusion zones (EZ) would be established around the
HRG survey equipment and monitored by protected species observers (PSO)
during HRG surveys as follows:
A 500-m EZ would be required for North Atlantic right
whales.
A 100-m EZ would be required for all other marine mammals
(with the exception of certain small dolphin species specified below).
If a marine mammal is detected approaching or entering the EZs
during the planned survey, the vessel operator would adhere to the
shutdown procedures described below. In addition to the EZs described
above, PSOs would visually monitor a 200-m Buffer Zone. During use of
acoustic sources with the potential to result in marine mammal
harassment (i.e., anytime the acoustic source is active, including
ramp-up), occurrences of marine mammals within the Buffer Zone (but
outside the EZs) would be communicated to the vessel operator to
prepare for potential shutdown of the acoustic source. The Buffer Zone
is not applicable when the EZ is greater than 100 meters. PSOs would
also be required to observe a 500-m Monitoring Zone and record the
presence of all marine mammals within this zone. In addition,
observation of any marine mammals within the Level B harassment zone
will be documented. The zones described above would be based upon the
radial distance from the active equipment (rather than being based on
distance from the vessel itself).
Visual Monitoring
NMFS only requires a single PSO to be on duty during daylight hours
and 30 minutes prior to and during nighttime ramp-ups for HRG surveys.
Vineyard Wind proposed, and has voluntarily committed, to a minimum of
two (2) NMFS-approved PSOs on duty and conducting visual observations
on all survey vessels at all times when HRG equipment is in use (i.e.,
daylight and nighttime operations). Visual monitoring would begin no
less than 30 minutes prior to ramp-up of HRG
[[Page 26956]]
equipment and would continue until 30 minutes after use of the acoustic
source ceases or until 30 minutes past sunset. However, as noted,
Vineyard Wind has committed to 24-hr use of PSOs. PSOs would establish
and monitor the applicable EZs, Buffer Zone and Monitoring Zone as
described above. Visual PSOs would coordinate to ensure 360[deg] visual
coverage around the vessel from the most appropriate observation posts,
and would conduct visual observations using binoculars and the naked
eye while free from distractions and in a consistent, systematic, and
diligent manner. PSOs would estimate distances to marine mammals
located in proximity to the vessel and/or relevant using range finders.
It would be the responsibility of the Lead PSO on duty to communicate
the presence of marine mammals as well as to communicate and enforce
the action(s) that are necessary to ensure mitigation and monitoring
requirements are implemented as appropriate. Position data would be
recorded using hand-held or vessel global positioning system (GPS)
units for each confirmed marine mammal sighting.
Pre-Clearance of the Exclusion Zones
Prior to initiating HRG survey activities, Vineyard Wind would
implement a 30-minute pre-clearance period. During pre-clearance
monitoring (i.e., before ramp-up of HRG equipment begins), the Buffer
Zone would also act as an extension of the 100-m EZ in that
observations of marine mammals within the 200-m Buffer Zone would also
preclude HRG operations from beginning. During this period, PSOs would
ensure that no marine mammals are observed within 200 m of the survey
equipment (500 m in the case of North Atlantic right whales). HRG
equipment would not start up until this 200-m zone (or, 500-m zone in
the case of North Atlantic right whales) is clear of marine mammals for
at least 30 minutes. The vessel operator would notify a designated PSO
of the proposed start of HRG survey equipment as agreed upon with the
lead PSO; the notification time should not be less than 30 minutes
prior to the planned initiation of HRG equipment order to allow the
PSOs time to monitor the EZs and Buffer Zone for the 30 minutes of pre-
clearance. A PSO conducting pre-clearance observations would be
notified again immediately prior to initiating active HRG sources.
If a marine mammal were observed within the relevant EZs or Buffer
Zone during the pre-clearance period, initiation of HRG survey
equipment would not begin until the animal(s) has been observed exiting
the respective EZ or Buffer Zone, or, until an additional time period
has elapsed with no further sighting (i.e., minimum 15 minutes for
small odontocetes and seals, and 30 minutes for all other species). The
pre-clearance requirement would include small delphinids that approach
the vessel (e.g., bow ride). PSOs would also continue to monitor the
zone for 30 minutes after survey equipment is shut down or survey
activity has concluded.
Ramp-Up of Survey Equipment
When technically feasible, a ramp-up procedure would be used for
geophysical survey equipment capable of adjusting energy levels at the
start or re-start of survey activities. 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 Project Area by
allowing them to detect the presence of the survey and vacate the area
prior to the commencement of survey equipment operation at full power.
Ramp-up of the survey equipment would not begin until the relevant EZs
and Buffer Zone has been cleared by the PSOs, as described above. HRG
equipment would be initiated at their lowest power output and would be
incrementally increased to full power. If any marine mammals are
detected within the EZs or Buffer Zone prior to or during ramp-up, the
HRG equipment would be shut down (as described below).
Shutdown Procedures
If an HRG source is active and a marine mammal is observed within
or entering a relevant EZ (as described above) an immediate shutdown of
the HRG survey equipment would be required. When shutdown is called for
by a PSO, the acoustic source would be immediately deactivated and any
dispute resolved only following deactivation. Any PSO on duty would
have the authority to delay the start of survey operations or to call
for shutdown of the acoustic source if a marine mammal is detected
within the applicable EZ. The vessel operator would establish and
maintain clear lines of communication directly between PSOs on duty and
crew controlling the HRG source(s) to ensure that shutdown commands are
conveyed swiftly while allowing PSOs to maintain watch. Subsequent
restart of the HRG equipment would only occur after the marine mammal
has either been observed exiting the relevant EZ, or, until an
additional time period has elapsed with no further sighting of the
animal within the relevant EZ (i.e., 15 minutes for small odontocetes
and seals, and 30 minutes for all other species).
Upon implementation of shutdown, the HRG source may be reactivated
after the marine mammal that triggered the shutdown has been observed
exiting the applicable EZ (i.e., the animal is not required to fully
exit the Buffer Zone where applicable) or, following a clearance period
of 15 minutes for small odontocetes and seals and 30 minutes for all
other species with no further observation of the marine mammal(s)
within the relevant EZ. If the HRG equipment shuts down for brief
periods (i.e., less than 30 minutes) for reasons other than mitigation
(e.g., mechanical or electronic failure) the equipment may be re-
activated as soon as is practicable at full operational level, without
30 minutes of pre-clearance, only if PSOs have maintained constant
visual observation during the shutdown and no visual detections of
marine mammals occurred within the applicable EZs and Buffer Zone
during that time. For a shutdown of 30 minutes or longer, or if visual
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
The shutdown requirement would be waived for certain genera of
small delphinids (i.e., Delphinus, Lagenorhynchus, and Tursiops) under
certain circumstances. If a delphinid(s) from these genera is visually
detected approaching the vessel (i.e., to bow ride) or towed survey
equipment, shutdown would not be required. 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 would use best professional judgment in
making the decision to call for a shutdown.
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
area encompassing the Level B harassment isopleth (195 m), shutdown
would occur.
Vessel Strike Avoidance
Vessel strike avoidance measures would include, but would not be
limited to, the following, except under circumstances when complying
with these requirements would put the safety of the vessel or crew at
risk:
All vessel operators and crew will maintain vigilant watch
for cetaceans and pinnipeds, and slow down or stop their vessel to
avoid striking these protected species;
[[Page 26957]]
All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the
protection of North Atlantic right whales from vessel strikes: Any DMAs
when in effect, and the Block Island Seasonal Management Area (SMA)
(from November 1 through April 30), Cape Cod Bay SMA (from January 1
through May 15), Off Race Point SMA (from March 1 through April 30) and
Great South Channel SMA (from April 1 through July 31). Note that this
requirement includes vessels, regardless of size, to adhere to a 10
knot speed limit in SMAs and DMAs, not just vessels 65 ft or greater in
length.
All vessel operators will reduce vessel speed to 10 knots
(18.5 km/hr) or less when any large whale, any mother/calf pairs, large
assemblages of non-delphinoid cetaceans are observed near (within 100 m
(330 ft)) an underway vessel;
All vessels will maintain a separation distance of 500 m
(1640 ft) or greater from any sighted North Atlantic right whale;
If underway, vessels must steer a course away from any
sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less
until the 500-m (1640 ft) minimum separation distance has been
established. If a North Atlantic right whale is sighted in a vessel's
path, or within 100 m (330 ft) to an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral. Engines will
not be engaged until the North Atlantic right whale has moved outside
of the vessel's path and beyond 100 m. If stationary, the vessel must
not engage engines until the North Atlantic right whale has moved
beyond 100 m;
All vessels will maintain a separation distance of 100 m
(330 ft) or greater from any sighted non-delphinoid cetacean. If
sighted, the vessel underway must reduce speed and shift the engine to
neutral, and must not engage the engines until the non-delphinoid
cetacean has moved outside of the vessel's path and beyond 100 m. If a
survey vessel is stationary, the vessel will not engage engines until
the non-delphinoid cetacean has moved out of the vessel's path and
beyond 100 m;
All vessels will maintain a separation distance of 50 m
(164 ft) or greater from any sighted delphinoid cetacean. Any vessel
underway remain parallel to a sighted delphinoid cetacean's course
whenever possible, and avoid excessive speed or abrupt changes in
direction. Any vessel underway reduces vessel speed to 10 knots (18.5
km/hr) or less when pods (including mother/calf pairs) or large
assemblages of delphinoid cetaceans are observed. Vessels may not
adjust course and speed until the delphinoid cetaceans have moved
beyond 50 m and/or the abeam of the underway vessel;
All vessels will maintain a separation distance of 50 m
(164 ft) or greater from any sighted pinniped; and
All vessels underway will not divert or alter course in
order to approach any whale, delphinoid cetacean, or pinniped. Any
vessel underway will avoid excessive speed or abrupt changes in
direction to avoid injury to the sighted cetacean or pinniped.
Project-specific training will be conducted for all vessel crew
prior to the start of survey activities. Confirmation of the training
and understanding of the requirements will be documented on a training
course log sheet. Signing the log sheet will certify that the crew
members understand and will comply with the necessary requirements
throughout the survey activities.
Seasonal Operating Requirements
Vineyard Wind will conduct HRG survey activities in the Cape Cod
Bay SMA and Off Race Point SMA only during the months of August and
September to ensure sufficient buffer between the SMA restrictions
(January to May 15) and known seasonal occurrence of the NARW north and
northeast of Cape Cod (fall, winter, and spring). Vineyard Wind will
also limit to three the number survey vessels that will operate
concurrently from March through June within the lease areas (OCS-A 0501
and 0487) and OECC areas north of the lease areas up to, but not
including, coastal and bay waters. The boundaries of this area are
delineated by a polygon with the following vertices: 40.746 N 70.748 W;
40.953 N 71.284 W; 41.188 N 71.284 W; 41.348 N 70.835 W; 41.35 N 70.455
W; 41.097 N 70.372 W; and 41.021 N 70.37 W. This area is delineated by
the dashed line shown in Figure 1. Another seasonal restriction area
south of Nantucket will be in effect from December to February in the
area delineated by the DMA that was effective from January 31, 2020
through February 15, 2020. The winter seasonal restriction area is
delineated by latitudes and longitudes of 41.183 N; 40.366 N; 69.533 W;
and 70.616 W. This area is delineated by the solid line in Figure 1.
[[Page 26958]]
[GRAPHIC] [TIFF OMITTED] TN06MY20.000
Vineyard Wind would operate no more than three survey vessels
concurrently in the areas described above during the December-February
and March-June timeframes when right whale densities are greatest. The
seasonal restrictions described above will help to reduce both the
number and intensity of right whale takes.
Although not required by NMFS, Vineyard Wind would also employ
passive acoustic monitoring (PAM) to support monitoring during night
time operations to provide for acquisition of species detections at
night.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, Section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
planned action area. Effective reporting is critical both to compliance
as well as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density).
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas).
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat).
Mitigation and monitoring effectiveness.
Monitoring Measures
As described above, visual monitoring would be performed by
qualified and NMFS-approved PSOs. Vineyard Wind would use independent,
dedicated, trained PSOs, meaning that the PSOs must be employed by a
third-party observer provider, must have no tasks other than to conduct
observational
[[Page 26959]]
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
must have successfully completed an approved PSO training course
appropriate for their designated task. Vineyard Wind would provide
resumes of all proposed PSOs (including alternates) to NMFS for review
and approval prior to the start of survey operations.
During survey operations (e.g., any day on which use of an HRG
source is planned to occur), a minimum of two PSOs must be on duty and
conducting visual observations at all times on all active survey
vessels when HRG equipment is operating, including both daytime and
nighttime operations. Visual monitoring would begin no less than 30
minutes prior to initiation of HRG survey equipment and would continue
until one hour after use of the acoustic source ceases. Note that NMFS
only requires that a minimum of one PSO must be on duty and conducting
visual observations during daylight hours (i.e., from 30 minutes prior
to sunrise through 30 minutes following sunset) and during nighttime
ramp-ups of HRG equipment. PSOs would coordinate to ensure 360[deg]
visual coverage around the vessel from the most appropriate observation
posts, and would conduct visual observations using binoculars and the
naked eye while free from distractions and in a consistent, systematic,
and diligent manner. PSOs may be on watch for a maximum of four
consecutive hours followed by a break of at least two hours between
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals would be communicated
to PSOs on all survey vessels.
PSOs would be equipped with binoculars and have the ability to
estimate distances to marine mammals located in proximity to the vessel
and/or exclusion zone using range finders. Reticulated binoculars will
also be available to PSOs for use as appropriate based on conditions
and visibility to support the monitoring of marine mammals. Position
data would be recorded using hand-held or vessel GPS units for each
sighting. Observations would take place from the highest available
vantage point on the survey vessel. General 360-degree scanning would
occur during the monitoring periods, and target scanning by the PSO
would occur when alerted of a marine mammal presence.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs would conduct
observations when the acoustic source is not operating for comparison
of sighting rates and behavior with and without use of the acoustic
source and between acquisition periods. 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
take that occurs (e.g., noted behavioral disturbances).
Reporting Measures
Within 90 days after completion of survey activities, a final
technical report will be provided to NMFS that fully documents the
methods and monitoring protocols, summarizes the data recorded during
monitoring, summarizes the number of marine mammals estimated to have
been taken during survey activities (by species, when known),
summarizes the mitigation actions taken during surveys (including what
type of mitigation and the species and number of animals that prompted
the mitigation action, when known), and provides an interpretation of
the results and effectiveness of all mitigation and monitoring. Any
recommendations made by NMFS must be addressed in the final report
prior to acceptance by NMFS.
In the event that Vineyard Wind personnel discover an injured or
dead marine mammal, Vineyard Wind shall report the incident to the
Office of Protected Resources (OPR), NMFS and to the New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. The report
must include the following information:
Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
Species identification (if known) or description of the
animal(s) involved;
Condition of the animal(s) (including carcass condition if
the animal is dead);
Observed behaviors of the animal(s), if alive;
If available, photographs or video footage of the
animal(s); and
General circumstances under which the animal was
discovered.
In the event of a ship strike of a marine mammal by any vessel
involved in the activities covered by the authorization, the IHA-holder
shall report the incident to OPR, NMFS and to the New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. The report
must include the following information:
Time, date, and location (latitude/longitude) of the
incident;
Species identification (if known) or description of the
animal(s) involved;
Vessel's speed during and leading up to the incident;
Vessel's course/heading and what operations were being
conducted (if applicable);
Status of all sound sources in use;
Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
Estimated size and length of animal that was struck;
Description of the behavior of the marine mammal
immediately preceding and following the strike;
If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
To the extent practicable, photographs or video footage of
the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as ``an impact resulting from
the specified activity that cannot be reasonably expected to, and is
not 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
[[Page 26960]]
(e.g., critical reproductive time or location, migration), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS's implementing regulations (54 FR
40338; September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the environmental baseline (e.g., as reflected in the
regulatory status of the species, population size and growth rate where
known, ongoing sources of human-caused mortality, or ambient noise
levels).
To avoid repetition, our analysis applies to all the species listed
in Table 2, given that NMFS expects the anticipated effects of the
planned survey to be similar in nature. As discussed in the ``Potential
Effects of the Specified Activity on Marine Mammals and Their Habitat''
section of the proposed notice, PTS, masking, non-auditory physical
effects, and vessel strike are not expected to occur.
The majority of impacts to marine mammals are expected to be short-
term disruption of behavioral patterns, primarily in the form of
avoidance or potential interruption of foraging. Marine mammal feeding
behavior is not likely to be significantly impacted.
Regarding impacts to marine mammal habitat, prey species are
mobile, and are broadly distributed throughout the Project Area and the
footprint of the activity is small; 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 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. The HRG survey equipment itself will not
result in physical habitat disturbance. Avoidance of the area around
the HRG survey activities by marine mammal prey species is possible.
However, any avoidance by prey species would be expected to be short
term and temporary.
ESA-listed species for which takes are authorized are right, fin,
sei, and sperm whales, and these effects are anticipated to be limited
to lower level behavioral effects. NMFS does not anticipate that
serious injury or mortality would occur to any species, even in the
absence of mitigation and no serious injury or mortality is authorized.
As discussed in the Potential Effects section, non-auditory physical
effects and vessel strike are not expected to occur. We expect that
most 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 were occurring), reactions that
are considered to be of low severity and with no lasting biological
consequences (e.g., Southall et al., 2007). The planned survey is not
anticipated to affect the fitness or reproductive success of individual
animals. Since impacts to individual survivorship and fecundity are
unlikely, the planned survey is not expected to result in population-
level effects for any ESA-listed species or alter current population
trends of any ESA-listed species.
The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits additional analysis. NMFS has
rigorously assessed potential impacts to right whales from this survey.
We have established a 500-m shutdown zone for right whales which is
precautionary considering the Level B harassment isopleth for the
largest source utilized (i.e., GeoMarine Geo Spark 2000 (400 tip) is
estimated to be 195 m.
NMFS is also requiring Vineyard Wind to limit the number of survey
vessels operating concurrently to no more than three in specified areas
during periods when right whale densities are likely to be elevated.
This includes a specified area approximately 31 miles due south of
Nantucket including Lease Area OCS-A 0522 from December to February as
well as Lease Area OCS-A 0501 and surrounding Project Areas south and
southwest of Martha's Vineyard from March to June. Numerous right whale
aggregations have been reported in these areas during the winter and
spring. Furthermore, surveys in right whale critical habitat area will
be limited to August and September when the whales are unlikely to be
present. Due to the length of the survey and continuous night
operations, it is conceivable that a limited number of right whales
could enter into the Level B harassment zone without being observed.
Any potential impacts to right whales would consist of, at most, low-
level, short-term behavioral harassment in a limited number of animals.
The authorized takes of right whales would not exacerbate or compound
the ongoing UME in any way.
The planned Project Area encompasses or is in close proximity to
feeding BIAs for right whales (February-April), humpback whales (March-
December), fin whales (March-October), and sei whales (May-November) as
well as a migratory BIA or right whales (March-April and November-
December. Most of these feeding BIAs are extensive and sufficiently
large (705 km\2\ and 3,149 km\2\ for right whales; 47,701 km\2\ for
humpback whales; 2,933 km\2\ for fin whales; and 56,609 km\2\ for sei
whales), and the acoustic footprint of the planned survey is
sufficiently small that feeding opportunities for these whales would
not be reduced appreciably. Any whales temporarily displaced from the
planned Project Area would be expected to have sufficient remaining
feeding habitat available to them, and would not be prevented from
feeding in other areas within the biologically important feeding
habitat. In addition, any displacement of whales from the BIA or
interruption of foraging bouts would be expected to be temporary in
nature. Therefore, we do not expect whales with feeding BIAs to be
negatively impacted by the planned survey.
A migratory BIA for North Atlantic right whales (effective March-
April and November-December) extends from Massachusetts to Florida
(LaBrecque, et al., 2015). Off the south coast of Massachusetts and
Rhode Island, this BIA extends from the coast to beyond the shelf
break. The fact that the spatial acoustic footprint of the planned
survey is very small relative to the spatial extent of the available
migratory habitat means that right whale migration is not expected to
be impacted by the survey. Required vessel strike avoidance measures
will also decrease risk of ship strike during migration. NMFS is
expanding the standard avoidance measures by requiring that all
vessels, regardless of size, adhere to a 10 knot speed limit in SMAs
and DMA. Additionally, limited take by Level B harassment of North
Atlantic right whales has been authorized as HRG survey operations are
required to shut down at 500 m to minimize the potential for behavioral
harassment of this species.
As noted previously, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine through Florida since
January 2016. Of the cases examined, approximately half had evidence of
human interaction (ship strike or entanglement). The UME does not yet
provide cause for concern regarding population-level impacts. Despite
the UME, the relevant population of humpback whales (the West Indies
breeding population, or distinct population segment (DPS)) remains
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healthy. Beginning in January 2017, elevated minke whale strandings
have occurred along the Atlantic coast from Maine through South
Carolina, with highest numbers in Massachusetts, Maine, and New York.
This event does not provide cause for concern regarding population
level impacts, as the likely population abundance is greater than
20,000 whales. Elevated North Atlantic right whale mortalities began in
June 2017, primarily in Canada. Overall, preliminary findings support
human interactions, specifically vessel strikes or rope entanglements,
as the cause of death for the majority of the right whales. Elevated
numbers of harbor seal and gray seal mortalities were first observed in
July, 2018 and have occurred across Maine, New Hampshire and
Massachusetts. Based on tests conducted so far, the main pathogen found
in the seals is phocine distemper virus although additional testing to
identify other factors that may be involved in this UME are underway.
The UME for seals does not yet provide cause for concern regarding
population-level impacts to any of these stocks. For harbor seals, the
population abundance is over 75,000 and annual M/SI (345) is well below
PBR (2,006) (Hayes et al., 2018). For gray seals, the population
abundance in the United States is over 27,000, with an estimated
abundance including seals in Canada of approximately 505,000, and
abundance is likely increasing in the U.S. Atlantic EEZ as well as in
Canada (Hayes et al., 2018).
Direct physical interactions (ship strikes and entanglements)
appear to be responsible for many of the UME humpback and right whale
mortalities recorded. The HRG survey will require ship strike avoidance
measures which would minimize the risk of ship strikes while fishing
gear and in-water lines will not be employed as part of the survey.
Furthermore, the planned activities are not expected to promote the
transmission of infectious disease among marine mammals. The survey is
not expected to result in the deaths of any marine mammals or combine
with the effects of the ongoing UMEs to result in any additional
impacts not analyzed here. Accordingly, Vineyard Wind did not request,
and NMFS is not authorizing, take of marine mammals by serious injury,
or mortality.
The required mitigation measures are expected to reduce the number
and/or severity of takes by giving animals the opportunity to move away
from the sound source before HRG survey equipment reaches full energy
and preventing animals from being exposed to sound levels that have the
potential to cause injury (Level A harassment) and more severe Level B
harassment during HRG survey activities, even in the biologically
important areas described above. No Level A harassment is anticipated
or authorized.
NMFS expects that most takes would primarily be in the form of
short-term Level B behavioral harassment in the form of brief startling
reaction and/or temporary vacating of the area, or decreased foraging
(if such activity were occurring)--reactions that (at the scale and
intensity anticipated here) are considered to be of low severity and
with no lasting biological consequences. Since both the source and the
marine mammals are mobile, only a smaller area would be ensonified by
sound levels that could result in take for only a short period.
Additionally, required mitigation measures would reduce exposure to
sound that could result in more severe behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
No mortality or serious injury is anticipated or
authorized;
No Level A harassment is anticipated or authorized;
Any foraging interruptions are expected to be short term
and unlikely to cause significant impacts;
Impacts on marine mammal habitat and species that serve as
prey species for marine mammals are expected to be minimal and the
alternate areas of similar habitat value for marine mammals are readily
available;
Take is anticipated to be primarily Level B behavioral
harassment consisting of brief startling reactions and/or temporary
avoidance of the ensonified area;
Survey activities would occur in such a comparatively
small portion of the biologically important areas for North Atlantic
right whale migration, including a small area of designated critical
habitat, that any avoidance of the Project Area due to activities would
not affect migration. In addition, mitigation measures to shut down at
500 m to minimize potential for Level B behavioral harassment would
limit both the number and severity of take of the species.
Similarly, due to the relatively small footprint of the
survey activities in relation to the size of a biologically important
areas for right, humpback, fin, and sei whales foraging, the survey
activities would not affect foraging behavior of this species; and
Required mitigation measures, including visual monitoring
and shutdowns, are expected to minimize the intensity of 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 required monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
Vineyard Wind's planned HRG survey activities will have a negligible
impact on the affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. Additionally, other qualitative
factors may be considered in the analysis, such as the temporal or
spatial scale of the activities.
The numbers of marine mammals that we have authorized for take, for
all species and stocks, would be considered small relative to the
relevant stocks or populations (less than 15 percent for all species
and stocks) as shown in Table 5. Based on the analysis contained herein
of the planned activity (including the required mitigation and
monitoring measures) and the anticipated take of marine mammals, NMFS
finds that small numbers of marine mammals will be taken relative to
the population size of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
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)
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216-6A, NMFS must evaluate our proposed action (i.e., the promulgation
of regulations and subsequent issuance of incidental take
authorization) and alternatives with respect to potential impacts on
the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the proposed action qualifies to be categorically excluded from
further NEPA review.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally, in this case with the NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we propose to authorize
take for endangered or threatened species.
The NMFS Office of Protected Resources Permits and Conservation
Division is authorizing the incidental take of four species of marine
mammals which are listed under the ESA: The North Atlantic right, fin,
sei and sperm whale. We requested initiation of consultation under
Section 7 of the ESA with NMFS GARFO on February 12, 2020, for the
issuance of this IHA. BOEM consulted with NMFS GARFO under section 7 of
the ESA on commercial wind lease issuance and site assessment
activities on the Atlantic Outer Continental Shelf in Massachusetts,
Rhode Island, New York and New Jersey Wind Energy Areas. The NMFS GARFO
issued a Biological Opinion concluding that these activities may
adversely affect but are not likely to jeopardize the continued
existence of the North Atlantic right, fin, sei and sperm whale. Upon
request from the NMFS Office of Protected Resources, NMFS GARFO issued
an amended incidental take statement associated with this Biological
Opinion to include the take of the ESA-listed marine mammal species
authorized through this IHA in April, 2020.
Authorization
NMFS has issued an IHA to Vineyard Winds for conducting marine site
characterization surveys offshore of Massachusetts in the areas of the
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along
potential submarine offshore export cable corridors (OECC) to landfall
locations in Massachusetts, Rhode Island, Connecticut, and New York
from June 1, 2020 through May 31, 2021, provided the previously
mentioned mitigation, monitoring, and reporting requirements are
incorporated.
Dated: April 30, 2020.
Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2020-09629 Filed 5-5-20; 8:45 am]
BILLING CODE 3510-22-P