Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Off of New York, 19532-19547 [2018-09367]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 86 (Thursday, May 3, 2018)]
[Notices]
[Pages 19532-19547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09367]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF850


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys Off 
of 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 
Statoil Wind U.S. LLC (Statoil) to incidentally harass, by Level B 
harassment only, marine mammals during marine site characterization 
surveys off the coast of New York as part of the Empire Wind Project in 
the area of the Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf (OCS-A 0512) (Lease 
Area) and coastal waters where one or more cable route corridors will 
be established.

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

FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the applications 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained by visiting the internet at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
above.

SUPPLEMENTARY INFORMATION:

[[Page 19533]]

Background

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

Summary of Request

    On November 9, 2017, NMFS received a request from Statoil for an 
IHA to take marine mammals incidental to marine site characterization 
surveys off the coast of New York as part of the Empire Wind Project in 
the area of the Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf (OCS-A 0512) and 
coastal waters where one or more cable route corridors will be 
established. A revised application was received on January 8, 2018. 
NMFS deemed that request to be adequate and complete. Statoil's request 
is for take of 11 marine mammal species by Level B harassment. Neither 
Statoil 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

    Statoil plans to conduct marine site characterization surveys in 
the marine environment of the approximately 79,350-acre Lease Area 
located approximately 11.5 nautical miles (nm) from Jones Beach, New 
York (see Figure 1 in the IHA application). Additionally, one or more 
cable route corridors will be established between the Lease Area and 
New York, identified as the Cable Route Area (see Figure 1 in the IHA 
application). Cable route corridors are anticipated to be 152 meters 
(m, 500 feet (ft)) wide and may have an overall length of as much as 
135 nm. For the purpose of this IHA, the survey area is designated as 
the Lease Area and cable route corridors. Water depths across the Lease 
Area range from approximately 22 to 41 m (72 to 135 ft) while the cable 
route corridors will extend to shallow water areas near landfall 
locations. Surveys will last for approximately 20 weeks. This schedule 
is based on 24-hour operations and includes potential down time due to 
inclement weather.
    The purpose of the surveys are to support the siting, design, and 
deployment of up to three meteorological data buoy deployment areas and 
to obtain a baseline assessment of seabed/sub-surface soil conditions 
in the Lease Area and cable route corridors to support the siting of 
the proposed offshore wind farm. Underwater sound resulting from 
Statoil's site characterization surveys has the potential to result in 
incidental take of marine mammals in the form of behavioral harassment.
    A detailed description of the planned survey activities, including 
types of survey equipment planned for use, is provided in the Federal 
Register notice for the proposed IHA (83 FR 7655; February 22, 2018). 
Since that time, no changes have been made to the planned activities. 
Therefore, a detailed description is not repeated here. Please refer to 
that Federal Register notice for the description of the specific 
activity.

Comments and Responses

    NMFS published a notice of proposed IHA in the Federal Register on 
February 22, 2018 (83 FR 7655). During the 30-day public comment 
period, NMFS received a comment letter from the Marine Mammal 
Commission (Commission) and a comment letter from a group of non-
governmental organizations (NGOs), including Natural Resources Defense 
Council, the Wildlife Conservation Society, the National Wildlife 
Federation, the Conservation Law Foundation, Defenders of Wildlife, 
Surfrider Foundation, International Fund for Animal Welfare, the Nature 
Conservancy, and Southern Environmental Law Center. NMFS has posted the 
comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The following is a summary of the public comments received 
and NMFS's responses.
    Comment 1: The Commission expressed concern that the method used to 
estimate the numbers of takes, which summed fractions of takes for each 
species across project days, does not account for and negates the 
intent of NMFS' 24-hour reset policy and recommended that NMFS share 
the rounding criteria with the Commission in an expeditious manner.
    NMFS Response: NMFS appreciates the Commission's ongoing concern in 
this matter. Calculating predicted takes is not an exact science and 
there are arguments for taking different mathematical approaches in 
different situations, and for making qualitative adjustments in other 
situations. We believe, however, that the methodology used for take 
calculation in this IHA remains appropriate and is not at odds with the 
24-hour reset policy the Commission references. We look forward to 
continued discussion with the Commission on this matter and will share 
the rounding guidance as soon as it is ready for public review.
    Comment 2: The Commission recommended that, until behavioral 
thresholds are updated, NMFS require applicants to use the 120-decibel 
(dB) re 1 micropascal ([mu]Pa), rather than 160-dB re 1[mu]Pa, 
threshold for acoustic, non-impulsive sources (e.g., sub-bottom 
profilers/chirps, echosounders, and other sonars including side-scan 
and fish-finding).
    NMFS Response: Certain sub-bottom profiling systems are 
appropriately considered to be impulsive sources (e.g., boomers, 
sparkers); therefore, the threshold of 160 dB re 1[mu]Pa will continue 
to be used for those sources. Other source types referenced by the 
Commission (e.g., chirp sub-bottom profilers, echosounders, and other 
sonars including side-scan and fish-finding) produce signals that are 
not necessarily strictly impulsive; however, NMFS finds that the 160-dB 
rms threshold is most appropriate for use in evaluating potential 
behavioral impacts

[[Page 19534]]

to marine mammals because the temporal characteristics (i.e., 
intermittency) of these sources are better captured by this threshold. 
The 120-dB threshold is associated with continuous sources and was 
derived based on studies examining behavioral responses to drilling and 
dredging. Continuous sounds are those whose sound pressure level 
remains above that of the ambient sound, with negligibly small 
fluctuations in level (NIOSH, 1998; ANSI, 2005). Examples of sounds 
that NMFS would categorize as continuous are those associated with 
drilling or vibratory pile driving activities. Intermittent sounds are 
defined as sounds with interrupted levels of low or no sound (NIOSH, 
1998). Thus, signals produced by these source types are not continuous 
but rather intermittent sounds. With regard to behavioral thresholds, 
we consider the temporal and spectral characteristics of signals 
produced by these source types to more closely resemble those of an 
impulse sound rather than a continuous sound. The threshold of 160 dB 
re 1[mu]Pa is typically associated with impulsive sources, which are 
inherently intermittent. Therefore, the 160 dB threshold (typically 
associated with impulsive sources) is more appropriate than the 120 dB 
threshold (typically associated with continuous sources) for estimating 
takes by behavioral harassment incidental to use of such sources.
    Comment 3: The Commission requested clarification regarding certain 
issues associated with NMFS's notice that one-year renewals could be 
issued in certain limited circumstances and expressed concern that the 
process would bypass the public notice and comment requirements. The 
Commission also suggested that NMFS should discuss the possibility of 
renewals through a more general route, such as a rulemaking, instead of 
notice in a specific authorization. The Commission further recommended 
that if NMFS did not pursue a more general route, that the agency 
provide the Commission and the public with a legal analysis supporting 
our conclusion that this process is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA.
    NMFS Response: The process of issuing a renewal IHA does not bypass 
the public notice and comment requirements of the MMPA. The notice of 
the proposed IHA expressly notifies the public that under certain, 
limited conditions an applicant could seek a renewal IHA for an 
additional year. The notice describes the conditions under which such a 
renewal request could be considered and expressly seeks public comment 
in the event such a renewal is sought. Importantly, such renewals would 
be limited to circumstances where: the activities are identical or 
nearly identical to those analyzed in the proposed IHA; monitoring does 
not indicate impacts that were not previously analyzed and authorized; 
and, the mitigation and monitoring requirements remain the same, all of 
which allow the public to comment on the appropriateness and effects of 
a renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as they are for 
all IHAs. Last, NMFS will publish on our website a description of the 
renewal process before any renewal is issued utilizing the new process.
    Comment 4: The commenters expressed concern regarding the marine 
mammal density estimates used to calculate take. Specifically, the 
commenters stated the estimates derived from models presented in 
Roberts et al. (2016) may underrepresent density and seasonal presence 
of large whales in the New York Bight region, and recommended that NMFS 
consider additional data sources in density modeling for future 
analyses of estimated take, including initial data from the newly 
launched New York Bight whale monitoring program and other State 
efforts, existing passive acoustic monitoring data, and opportunistic 
marine mammal sightings data available from whale watching records. The 
commenters further asserted that the method used to estimate densities 
of North Atlantic right whales does not account for the potentially 
elevated seasonal presence of right whales in the New York Bight during 
March and April and recommended that NMFS adjust density estimates it 
derived from Roberts et al. (2016) to account for the higher relative 
presence of right whales in the New York Bight for the months when the 
surveys are expected to occur.
    NMFS Response: NMFS has determined that the data provided by 
Roberts et al. (2016) represents the best available information 
concerning marine mammal density in the survey area and has used it 
accordingly. NMFS has considered other available information, including 
that cited by the commenters, and determined that it does not 
contradict the information provided by Roberts et al. (2016). The 
information discussed by the commenters does not provide data in a 
format that is directly usable in an acoustic exposure analysis and the 
commenters make no useful recommendation regarding how to do so. We 
will review the data sources recommended by the commenters and will 
consider their suitability for inclusion in future analyses, as 
requested by the commenters. Regarding the method used to estimate 
cetacean densities, NMFS determined the method used is conservative in 
that the highest seasonal density estimate was used to estimate take 
over the duration of the entire survey, including during seasons that 
would be expected to have lower densities. In the case of the North 
Atlantic right whale, the season with the highest predicted density was 
Spring, thus right whale density in March and April was in fact used to 
predict the species' density for the duration of the survey.
    Comment 5: Regarding mitigation measures, the NGOs recommended NMFS 
impose a restriction on site assessment and characterization activities 
that have the potential to injure or harass the North Atlantic right 
whale from November 1st to April 30th.
    NMFS Response: In evaluating how mitigation may or may not be 
appropriate to ensure the least practicable adverse impact on species 
or stocks and their habitat, we carefully consider two primary factors: 
(1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat; and 
(2) the practicability of the measures for applicant implementation, 
which may consider such things as relative cost and impact on 
operations.
    Statoil determined the planned duration of the survey based on 
their data acquisition needs, which are largely driven by the Bureau of 
Ocean Energy Management's (BOEM's) data collection requirements prior 
to required submission of a construction and operations plan (COP). Any 
effort on the part of NMFS to restrict the months during which the 
survey could operate would likely have the effect of forcing the 
applicant to conduct additional months of surveys the following year, 
resulting in increased costs incurred by the applicant and additional 
time on the water with associated additional production of underwater 
noise which could have further potential impacts to marine mammals. 
Thus the time and area

[[Page 19535]]

restrictions recommended by the commenters would not be practicable for 
the applicant to implement and would to some degree offset the benefit 
of the recommended measure. In addition, our analysis of the potential 
impacts of the survey on right whales does not indicate that such 
closures are warranted, as potential impacts to right whales from the 
survey activities would be limited to short-term behavioral responses; 
no marine mammal injury is expected as a result of the survey, nor is 
injury authorized in the IHA. Thus, in this case, the limited potential 
benefits of time and area restrictions, when considered in concert with 
the impracticability and increased cost on the part of the applicant 
that would result from such restrictions, suggests time and area 
restrictions are not warranted in this case. Existing mitigation 
measures, including exclusion zones, ramp-up of survey equipment, and 
vessel strike avoidance measures, are sufficiently protective to ensure 
the least practicable adverse impact on species or stocks and their 
habitat.
    Comment 6: Regarding mitigation measures, the NGOs recommended that 
NMFS require that geophysical surveys commence, with ramp-up, during 
daylight hours only to maximize the probability that North Atlantic 
right whales are detected and confirmed clear of the exclusion zone, 
and that, if a right whale were detected in the exclusion zone during 
nighttime hours and the survey is shut down, developers should be 
required to wait until daylight hours for ramp-up to commence.
    NMFS Response: We acknowledge the limitations inherent in detection 
of marine mammals at night. However, similar to the discussion above 
regarding time and area closures, restricting the ability of the 
applicant to ramp-up surveys only during daylight hours would have the 
potential to result in lengthy shutdowns of the survey equipment, which 
could result in the applicant failing to collect the data they have 
determined is necessary, which could result in the need to conduct 
additional surveys the following year. This would result in 
significantly increased costs incurred by the applicant. Thus the 
restriction suggested by the commenters would not be practicable for 
the applicant to implement. In addition, as described above, potential 
impacts to marine mammals from the survey activities would be limited 
to short-term behavioral responses. Restricting surveys in the manner 
suggested by the commenters may reduce marine mammal exposures by some 
degree in the short term, but would not result in any significant 
reduction in either intensity or duration of noise exposure. No injury 
is expected to result even in the absence of mitigation, given the very 
small estimated Level A harassment zones. In the event that NMFS 
imposed the restriction suggested by the commenters, potentially 
resulting in a second survey season of surveys required for the 
applicant, vessels would be on the water introducing noise into the 
marine environment for a significantly extended period of time. 
Therefore, in addition to practicability concerns for the applicant, 
the restrictions recommended by the commenters could result in the 
surveys spending increased time on the water, which may result in 
greater overall exposure to sound for marine mammals; thus the 
commenters have failed to demonstrate that such a requirement would 
even result in a net benefit for affected marine mammals. Therefore, in 
consideration of potential effectiveness of the recommended measure and 
its practicability for the applicant, NMFS does not believe that 
restricting survey start-ups to daylight hours is warranted in this 
case.
    However, in recognition of the concerns raised by the commenters, 
we have added a mitigation requirement to the IHA that shutdown of 
geophysical survey equipment is required upon confirmed passive 
acoustic monitoring (PAM) detection of a North Atlantic right whale at 
night, even in the absence of visual confirmation, except in cases 
where the acoustic detection can be localized and the right whale can 
be confirmed as being beyond the 500 m exclusion zone (EZ); equipment 
may be re-started no sooner than 30 minutes after the last confirmed 
acoustic detection.
    Comment 7: The NGOs recommended that NMFS require a 500 m EZ for 
marine mammals and sea turtles (with the exception of dolphins that 
voluntarily approach the vessel). Additionally, the NGOs recommended 
that protected species observers (PSOs) monitor to an extended 1,000 m 
EZ for North Atlantic right whales.
    NMFS Response: Regarding the recommendation for a 1,000 m EZ 
specifically for North Atlantic right whales, we have determined that 
the 500 m EZ, as required in the IHA, is sufficiently protective. We 
note that mitigation measures also require that PSOs monitor to the 
extent of the Level B zone (in this case, 1,160 m), or as far as 
possible if the extent of the level B zone is not visible, thus PSOs 
would be aware of any right whales within 1,000 m of the vessel and 
would be able to call for shutdown if a right whale were approaching 
the 500 m EZ. Regarding the commenters' recommendation to require a 500 
m EZ for all marine mammals (except dolphins that approach the vessel) 
we have determined the EZs as currently required in the IHA (described 
in Mitigation Measures, below) are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. The 
EZs would prevent all potential instances of marine mammal injury 
(though in this instance, injury would not be an expected outcome even 
in the absence of mitigation due to very small predicted isopleths 
corresponding to the Level A harassment threshold (Table 4) and would 
further prevent some instances of behavioral harassment, as well as 
limiting the intensity and/or duration of behavioral harassment that 
does occur. As NMFS has determined the EZs currently required in the 
IHA to be sufficiently protective, we do not think expanded EZs, beyond 
what is required in the IHA, are warranted. With respect to EZs for sea 
turtles, we do not have the statutory authority under the MMPA to 
require mitigation measures specific to sea turtles.
    Comment 8: The NGOs recommended that NMFS should not allow 
modifications of the radii of the EZs based on sound source validation 
data, except in the event that sound source validation data support the 
extension of the EZs.
    NMFS Response: Our analyses, including the analysis of the 
mitigation measures that would ensure the least practicable adverse 
impact on species or stocks and their habitat, are based on the best 
available information. At the time of Statoil's submission of the IHA 
application, we determined the data presented in Crocker and 
Fratantonio (2016) represented the best available information on sound 
levels associated with high-resolution geophysical (HRG) survey 
equipment planned for use by Statoil. If new information on sound 
levels associated with HRG survey used by Statoil becomes available, 
including data from field verification studies, we will determine at 
that time whether that new information represents the best available 
information, and if so, whether that information warrants revision of 
marine mammal EZs. The commenters requested that any modification of 
the EZs be limited to potential expansion of the EZs, but provide no 
substantive rationale for why a zone should not be modified to be 
contracted if sound source verification indicates that such a 
modification is warranted; therefore there is no basis to think that 
such a

[[Page 19536]]

limitation would satisfy the standard that mitigation measures must 
ensure the least practicable adverse impact on species or stocks and 
their habitat.
    Comment 9: The NGOs recommended that a combination of visual 
monitoring by PSOs and PAM should be required 24 hours per day, and 
that a combination of PAM and continual visual monitoring using night 
vision and infra-red should be required at night. The NGOs further 
recommended that at least two PSOs should be required to be on shift at 
any one time during daylight hours.
    NMFS Response: Per the terms of BOEM's lease stipulations, the 
applicant is required to implement marine mammal monitoring, including 
having four visual PSOs and two PAM operators available, with at least 
one visual PSO on duty at all times and at least one PAM operator on 
duty at night. We have reviewed these minimum requirements and find 
that they are sufficient to meet the MMPA standard that mitigation 
measures must ensure the least practicable adverse impact on species or 
stocks and their habitat. We have determined the requirements for 
visual and acoustic monitoring are sufficient to ensure the EZs and 
Watch Zone are adequately monitored. While PAM can be beneficial to 
supplement visual monitoring, especially in low-visibility conditions, 
its utility is limited in that it is only beneficial when animals are 
vocalizing. When potential benefits of a 24 hour PAM requirement are 
considered in concert with the potential increased costs on the part of 
the applicant that would result from such a requirement, we determined 
a requirement for 24 hour PAM operation is not warranted in this case.
    Comment 10: The NGOs recommended that NMFS incentivize offshore 
wind developers to partner with scientists to collect data that would 
increase the understanding of the effectiveness of night vision and 
infra-red technologies in the New York Bight and broader region, with a 
view towards greater reliance on these technologies to commence surveys 
during nighttime hours in the future.
    NMFS Response: NMFS agrees with the NGOs that improved data on 
relative effectiveness of night vision and infra-red technologies would 
be beneficial and could help to inform future efforts at detection of 
marine mammals during nighttime activities. We have no authority to 
incentivize such partnerships under the MMPA. However, we will 
encourage coordination and communication between offshore wind 
developers and researchers on effectiveness of night vision and infra-
red technologies. In recognition of the commenters' concerns, we have 
also added a requirement that the final report submitted to NMFS must 
include an assessment of the effectiveness of night vision equipment 
used during nighttime surveys, including comparisons of relative 
effectiveness among the different types of night vision equipment used.
    Comment 11: The NGOs recommended that NMFS require a 10 knot speed 
restriction on all project-related vessels transiting to/from the 
survey area from March 1st through April 30th and that all project 
vessels operating within the survey area should be required to maintain 
a speed of 10 knots or less during the entire survey period.
    NMFS Response: NMFS has analyzed the potential for ship strike 
resulting from Statoil's activity and has determined that the 
mitigation measures specific to ship strike avoidance are sufficient to 
avoid the potential for ship strike. These include: A requirement that 
all vessel operators comply with 10 knot (18.5 kilometer (km)/hr) or 
less speed restrictions in any Seasonal Management Area (SMA) or 
Dynamic Management Area (DMA); a requirement that all vessel operators 
reduce vessel speed to 10 knots (18.5 km/hr) or less when any large 
whale, any mother/calf pairs, pods, or large assemblages of non-
delphinoid cetaceans are observed within 100 m of an underway vessel; a 
requirement that all survey vessels maintain a separation distance of 
500 m or greater from any sighted North Atlantic right whale; a 
requirement that, if underway, vessels must steer a course away from 
any sighted North Atlantic right whale at 10 knots or less until the 
500 m minimum separation distance has been established; and a 
requirement that, if a North Atlantic right whale is sighted in a 
vessel's path, or within 100 m to an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Additional 
measures to prevent the potential for ship strike are discussed in more 
detail below (see the Mitigation section). We have determined that the 
ship strike avoidance measures are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. We 
also note that vessel strike during surveys is extremely unlikely based 
on the low vessel speed; the survey vessel would maintain a speed of 
approximately 4 knots (7.4 kilometers per hour) while transiting survey 
lines.
    Comment 12: The NGOs recommended that NMFS account for the 
potential for indirect ship strike risk resulting from habitat 
displacement in our analyses.
    NMFS Response: NMFS determined that habitat displacement was not an 
expected outcome of the specified activity, therefore an analysis of 
potential impacts to marine mammals from habitat displacement is not 
warranted in this case.
    Comment 13: The NGOs recommended that NMFS fund analyses of 
recently collected marine mammal sighting and acoustic data from 2016 
and continue to fund and expand surveys and studies to (i) improve our 
understanding of distribution and habitat use of marine mammals in the 
New York Bight and the broader mid-Atlantic region, and (ii) enhance 
the resolution of population genetic structure for humpback, fin, and 
blue whales. The NGOs also recommended that NMFS support an expert 
workshop to consider the data referred to in Comment 8, and any new 
information necessary to inform seasonal restrictions and mitigation 
measures in time for the November 2018 North Atlantic right whale 
migration period.
    NMFS Response: We agree with the NGOs that analyses of recently 
collected sighting and acoustic data, as well as continued marine 
mammal surveys, are warranted, and we welcome the opportunity to 
participate in fora where implications of such data for potential 
mitigation measures would be discussed; however, we have no statutory 
authority or ability to require funding of such analyses and surveys, 
nor do we have the ability or authority to fund such a workshop. We 
note that NMFS is undertaking numerous efforts relative to recovering 
right whales; these include expert working groups focused on specific 
aspects of recovery such as ship strike mitigation and entanglement 
mitigation, including two subgroups under the Atlantic Large Whale Take 
Reduction Plan which both met within the previous month, with a further 
full team meeting planned for fall 2018.

Description of Marine Mammals in the Area of Specified Activity

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

[[Page 19537]]

behavioral descriptions) may be found on NMFS's website 
(www.fisheries.noaa.gov/species-directory).
    Table 1 lists all species with expected potential for occurrence in 
the survey area and summarizes information related to the population or 
stock, including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. For taxonomy, we follow the 
Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS's 
SARs). While no mortality is anticipated or authorized here, PBR is 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. 2017 draft SARs (e.g., Hayes et al., 2018). All values 
presented in Table 1 are the most recent available at the time of 
publication and are available in the 2017 draft SARs (Hayes et al., 
2018).

                            Table 1--Marine Mammals Known To Occur in the Survey Area
----------------------------------------------------------------------------------------------------------------
                                                     NMFS MMPA   Stock  abundance
                                                      and ESA     (CV,Nmin, most                 Occurrence and
          Common name                 Stock           status;    recent abundance    PBR \3\     seasonality in
                                                   strategic (Y/    survey) \2\                 the NW  Atlantic
                                                      N) \1\                                           OCS
----------------------------------------------------------------------------------------------------------------
                                           Toothed whales (Odontoceti)
----------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin    W North Atlantic.  -; N          48,819 (0.61;     304          rare.
 (Lagenorhynchus acutus).                                         30,403; n/a).
Atlantic spotted dolphin        W North Atlantic.  -; N          44,715 (0.43;     316          rare.
 (Stenella frontalis).                                            31,610; n/a).
Bottlenose dolphin (Tursiops    W North Atlantic,  -; N          77,532 (0.40;     561          Common year
 truncatus).                     Offshore.                        56,053; 2011).                 round.
Clymene dolphin (Stenella       W North Atlantic.  -; N          Unknown (unk;     Undet        rare.
 clymene).                                                        unk; n/a).
Pantropical Spotted dolphin     W North Atlantic.  -; N          3,333 (0.91;      17           rare.
 (Stenella attenuata).                                            1,733; n/a).
Risso's dolphin (Grampus        W North Atlantic.  -; N          18,250 (0.46;     126          rare.
 griseus).                                                        12,619; n/a).
Short-beaked common dolphin     W North Atlantic.  -; N          70,184 (0.28;     557          Common year
 (Delphinus delphis).                                             55,690; 2011).                 round.
Striped dolphin (Stenella       W North Atlantic.  -; N          54,807 (0.3;      428          rare.
 coeruleoalba).                                                   42,804; n/a).
Spinner Dolphin (Stenella       W North Atlantic.  -; N          Unknown (unk;     Undet        rare.
 longirostris).                                                   unk; n/a).
White-beaked dolphin            W North Atlantic.  -; N          2,003 (0.94;      10           rare.
 (Lagenorhynchus albirostris).                                    1,023; n/a).
Harbor porpoise (Phocoena       Gulf of Maine/Bay  -; N          79,833 (0.32;     706          Common year
 phocoena).                      of Fundy.                        61,415; 2011).                 round.
Killer whale (Orcinus orca)...  W North Atlantic.  -; N          Unknown (unk;     Undet        rare.
                                                                  unk; n/a).
False killer whale (Pseudorca   W North Atlantic.  -; Y          442 (1.06; 212;   2.1          rare.
 crassidens).                                                     n/a).
Long-finned pilot whale         W North Atlantic.  -; Y          5,636 (0.63;      35           rare.
 (Globicephala melas).                                            3,464; n/a).
Short-finned pilot whale        W North Atlantic.  -; Y          21,515 (0.37;     159          rare.
 (Globicephala macrorhynchus).                                    15,913; n/a).
Sperm whale (Physeter           North Atlantic...  E; Y          2,288 (0.28;      3.6          Year round in
 macrocephalus).                                                  1,815; n/a).                   continental
                                                                                                 shelf and slope
                                                                                                 waters, occur
                                                                                                 seasonally to
                                                                                                 forage.
Pygmy sperm whale \4\ (Kogia    W North Atlantic.  -; N          3,785 (0.47;      26           rare.
 breviceps).                                                      2,598; n/a).
Dwarf sperm whale \4\ (Kogia    W North Atlantic.  -; N          3,785 (0.47;      26           rare.
 sima).                                                           2,598; n/a).
Cuvier's beaked whale (Ziphius  W North Atlantic.  -; N          6,532 (0.32;      50           rare.
 cavirostris).                                                    5,021; n/a).
Blainville's beaked whale \5\   W North Atlantic.  -; N          7,092 (0.54;      46           rare.
 (Mesoplodon densirostris).                                       4,632; n/a).
Gervais' beaked whale \5\       W North Atlantic.  -; N          7,092 (0.54;      46           rare.
 (Mesoplodon europaeus).                                          4,632; n/a).
True's beaked whale \5\         W North Atlantic.  -; N          7,092 (0.54;      46           rare.
 (Mesoplodon mirus).                                              4,632; n/a).
Sowerby's Beaked Whale \5\      W North Atlantic.  -; N          7,092 (0.54;      46           rare.
 (Mesoplodon bidens).                                             4,632; n/a).
Rough-toothed dolphin (Steno    W North Atlantic.  -; N          271 (1.0; 134;    1.3          rare.
 bredanensis).                                                    2013).
Melon-headed whale              W North Atlantic.  -; N          Unknown (unk;     Undet        rare.
 (Peponocephala electra).                                         unk; n/a).
Northern bottlenose whale       W North Atlantic.  -; N          Unknown (unk;     Undet        rare.
 (Hyperoodon ampullatus).                                         unk; n/a).
Pygmy killer whale (Feresa      W North Atlantic.  -; N          Unknown (unk;     Undet        rare.
 attenuata).                                                      unk; n/a).
----------------------------------------------------------------------------------------------------------------
                                            Baleen whales (Mysticeti)
----------------------------------------------------------------------------------------------------------------
Minke whale (Balaenoptera       Canadian East      -; N          2,591 (0.81;      162          Year round in
 acutorostrata).                 Coast.                           1,425; n/a).                   continental
                                                                                                 shelf and slope
                                                                                                 waters, occur
                                                                                                 seasonally to
                                                                                                 forage.
----------------------------------------------------------------------------------------------------------------
Blue whale (Balaenoptera        W North Atlantic.  E; Y          Unknown (unk;     0.9          Year round in
 musculus).                                                       440; n/a).                     continental
                                                                                                 shelf and slope
                                                                                                 waters, occur
                                                                                                 seasonally to
                                                                                                 forage.
Fin whale (Balaenoptera         W North Atlantic.  E; Y          1,618 (0.33;      2.5          Year round in
 physalus).                                                       1,234; n/a).                   continental
                                                                                                 shelf and slope
                                                                                                 waters, occur
                                                                                                 seasonally to
                                                                                                 forage.
Humpback whale (Megaptera       Gulf of Maine....  -; N          823 (0; 823; n/   2.7          Common year
 novaeangliae).                                                   a).                            round.
North Atlantic right whale      W North Atlantic.  E; Y          458 (0; 455; n/   1.4          Year round in
 (Eubalaena glacialis).                                           a).                            continental
                                                                                                 shelf and slope
                                                                                                 waters, occur
                                                                                                 seasonally to
                                                                                                 forage.

[[Page 19538]]

 
Sei whale (Balaenoptera         Nova Scotia......  E; Y          357 (0.52; 236;   0.5          Year round in
 borealis).                                                       n/a).                          continental
                                                                                                 shelf and slope
                                                                                                 waters, occur
                                                                                                 seasonally to
                                                                                                 forage.
----------------------------------------------------------------------------------------------------------------
                                            Earless seals (Phocidae)
----------------------------------------------------------------------------------------------------------------
Gray seal \6\ (Halichoerus      W North Atlantic.  -; N          27,131 (0.10;     1,554        Unlikely
 grypus).                                                         25,908; n/a).
----------------------------------------------------------------------------------------------------------------
Harbor seal (Phoca vitulina)..  W North Atlantic.  -; N          75,834 (0.15;     2,006        Common year
                                                                  66,884; 2012).                 round.
Hooded seal (Cystophora         W North Atlantic.  -; N          Unknown (unk;     Undet        rare.
 cristata).                                                       unk; n/a).
Harp seal (Phoca groenlandica)  North Atlantic...  -; N          Unknown (unk;     Undet        rare.
                                                                  unk; n/a).
----------------------------------------------------------------------------------------------------------------
\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\ 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 2016 Atlantic SARs.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural
  mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its
  optimum sustainable population size (OSP).
\4\ Abundance estimate includes both dwarf and pygmy sperm whales.
\5\ Abundance estimate includes all species of Mesoplodon in the Atlantic.
\6\ Abundance estimate applies to U.S. population only, actual abundance is believed to be much larger.

    All species that could potentially occur in the survey area are 
included in Table 1. However, the temporal and/or spatial occurrence of 
26 of the 37 species listed in Table 1 is such that take of these 
species is not expected to occur, and they are not discussed further 
beyond the explanation provided here. Take of these species is not 
anticipated either because they have very low densities in the project 
area, are known to occur further offshore than the project area, or are 
considered very unlikely to occur in the project area during the survey 
due to the species' seasonal occurrence in the area.
    A detailed description of the species likely to be affected by 
Statoil's survey, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (83 FR 
7655; February 22, 2018); since that time, we are not aware of any 
changes in the status of these species and stocks; therefore, detailed 
descriptions are not repeated here. Please refer to that Federal 
Register notice for these descriptions. Please also refer to NMFS' 
website (www.fisheries.noaa.gov/species-directory) for generalized 
species accounts.
    Information concerning marine mammal hearing, including marine 
mammal functional hearing groups, was provided in the Federal Register 
notice for the proposed IHA (83 FR 7655; February 22, 2018), therefore 
that information is not repeated here; please refer to that Federal 
Register notice for this information. For further information about 
marine mammal functional hearing groups and associated frequency 
ranges, please see NMFS (2016) for a review of available information. 
Eleven marine mammal species (nine cetacean and two pinniped (both 
phocid) species) have the reasonable potential to co-occur with the 
survey activities (Table 7). Of the cetacean species that may be 
present, four are classified as low-frequency cetaceans (i.e., North 
Atlantic right whale, humpback whale, fin whale, and minke whale), four 
are classified as mid-frequency cetaceans (i.e., sperm whale, 
bottlenose dolphin, common dolphin and Atlantic white-sided dolphin), 
and one is classified as a high-frequency cetacean (i.e., harbor 
porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Statoil's survey activities 
have the potential to result in behavioral harassment of marine mammals 
in the vicinity of the survey area. The Federal Register notice for the 
proposed IHA (83 FR 7655; February 22, 2018) included a discussion of 
the effects of anthropogenic noise on marine mammals and their habitat, 
therefore that information is not repeated here; please refer to that 
Federal Register notice for that information. No instances of hearing 
threshold shifts, injury, serious injury, or mortality are expected as 
a result of the planned activities.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which informs 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, the MMPA defines ``harassment'' as any act of pursuit, torment, 
or annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).
    Authorized takes are by Level B harassment, as use of the survey 
equipment has the potential to result in disruption of behavioral 
patterns for individual marine mammals. NMFS has determined take by 
Level A harassment is not an expected outcome of the activity and thus 
we do not authorize the take of any marine mammals by Level A 
harassment. This is discussed in greater detail below. As described 
previously, no mortality or serious injury is anticipated or authorized 
for this activity. Below we describe how the take is estimated for this 
project.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be

[[Page 19539]]

behaviorally harassed or incur some degree of permanent hearing 
impairment; (2) the area or volume of water that will be ensonified 
above these levels in a day; (3) the density or occurrence of marine 
mammals within these ensonified areas; and, (4) and the number of days 
of activities. Below, we describe these components in more detail and 
present the take estimate.

Acoustic Thresholds

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

            Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift in Marine Mammals
----------------------------------------------------------------------------------------------------------------
                                                                    PTS onset thresholds
              Hearing group               ----------------------------------------------------------------------
                                                   Impulsive *                        Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.............  Lpk,flat: 219 dB;            LE,LF,24h: 199 dB.
                                            LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans.............  Lpk,flat: 230 dB;            LE,MF,24h: 198 dB.
                                            LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans............  Lpk,flat: 202 dB;            LE,HF,24h: 173 dB.
                                            LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).......  Lpk,flat: 218 dB;            LE,PW,24h: 201 dB.
                                            LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)......  Lpk,flat: 232 dB;            LE,OW,24h: 219 dB.
                                            LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
Note: *Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa2s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into estimating the area ensonified above the 
acoustic thresholds.
    The survey would entail the use of HRG survey equipment. The 
distance to the isopleth corresponding to the threshold for Level B 
harassment was calculated for all HRG survey equipment with the 
potential to result in harassment of marine mammals (i.e., the USBL and 
the sub-bottom profilers) based on source characteristics as described 
in Crocker and Fratantonio (2016) using the practical transmission loss 
(TL) equation: TL = 15log10. Of the survey equipment planned 
for use that has the potential to result in harassment of marine 
mammals, acoustic modeling indicated the Sig ELC 820 Sparker (a type of 
sub-bottom profiler) would be expected to produce sound that would 
propagate the furthest in the water (Table 3); therefore, for the 
purposes of the take calculation, it was assumed the Sig ELC 820 
Sparker would be active during the entirety of the survey. Thus the 
distance to the isopleth corresponding to the threshold for Level B 
harassment for the Sig ELC 820 Sparker (1,166 m; Table 3) was used as 
the basis of the Level B take calculation for all marine mammals.

[[Page 19540]]



  Table 3--Predicted Radial Distances (m) From HRG Sources to Isopleths
              Corresponding to Level B Harassment Threshold
------------------------------------------------------------------------
                                                     Modeled distance to
          HRG system             Survey equipment     threshold (160 dB
                                                         re 1 [mu]Pa)
------------------------------------------------------------------------
Subsea Positioning/USBL......  Sonardyne Ranger 2                     74
                                USBL.
Shallow penetration sub-       EdgeTech 512i.......                   18
 bottom profiler.
Medium penetration sub-bottom  SIG ELC 820 Sparker.                1,166
 profiler.
------------------------------------------------------------------------

    Predicted distances to Level A harassment isopleths, which vary 
based on marine mammal functional hearing groups (Table 4), were also 
calculated by Statoil. The updated acoustic thresholds for impulsive 
sounds (such as HRG survey equipment) contained in the Technical 
Guidance (NMFS, 2016) were presented as dual metric acoustic thresholds 
using both 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., metric resulting in the largest isopleth). 
The SELcum metric considers both level and duration of 
exposure, as well as auditory weighting functions by marine mammal 
hearing group. In recognition of the fact that calculating Level A 
harassment ensonified areas could be more technically challenging to 
predict due to the duration component and the use of weighting 
functions in the new SELcum thresholds, NMFS developed an 
optional User Spreadsheet that includes tools to help predict a simple 
isopleth that can be used in conjunction with marine mammal density or 
occurrence to facilitate the estimation of take numbers. Statoil used 
the NMFS optional User Spreadsheet to calculate distances to Level A 
harassment isopleths based on SELcum (shown in Appendix A of 
the IHA application) and used the practical spreading loss model 
(similar to the method used to calculate Level B isopleths as described 
above) to calculate distances to Level A harassment isopleths based on 
peak pressure. Modeled distances to isopleths corresponding to Level A 
harassment thresholds for the Sig ELC 820 Sparker are shown in Table 4.

   Table 4--Modeled Radial Distances (m) to Isopleths Corresponding to
                      Level A Harassment Thresholds
------------------------------------------------------------------------
  Functional hearing group (Level A harassment   SELcum \1\      Peak
                  thresholds)                                  SPLflat
------------------------------------------------------------------------
Low frequency cetaceans (Lpk,flat: 219 dB;             9.8         n/a
 LE,LF,24h: 183 dB)............................
Mid frequency cetaceans (Lpk,flat: 230 dB;               0         n/a
 LE,MF,24h: 185 dB)............................
High frequency cetaceans (Lpk,flat: 202 dB;            3.6         7.3
 LE,HF,24h: 155 dB)............................
Phocid Pinnipeds (Underwater) (Lpk,flat: 218           2.6         n/a
 dB; LE,HF,24h: 185 dB)........................
------------------------------------------------------------------------
\1\ Distances to isopleths based on SELcum were calculated in the NMFS
  optional User Spreadsheet based on the following inputs: Source level
  of 206 dB rms, source velocity of 2.06 meters per second, pulse
  duration of 0.008 seconds, repetition rate of 0.25 seconds, and
  weighting factor adjustment of 1.4 kHz. Isopleths shown for SELcum are
  different than those shown in the IHA application as one of the inputs
  used by the applicant was incorrect which resulted in outputs that
  were not accurate: The applicant entered an incorrect repetition rate
  of 4 seconds rather than the correct repetition rate of 0.25 seconds.
  NMFS therefore used the NMFS optional User Spreadsheet to calculate
  isopleths for SELcum for the Sig ELC 820 Sparker using the correct
  repetition rate.

    In this case, due to the very small estimated distances to Level A 
harassment thresholds for all marine mammal functional hearing groups, 
based on both SELcum and peak SPL (Table 4), and in 
consideration of the mitigation measures, including marine mammal 
exclusion zones that greatly exceed the largest modeled isopleths to 
Level A harassment thresholds (see the Mitigation section for more 
detail) NMFS determined that the likelihood of Level A take of marine 
mammals occurring as a result of the survey is so low as to be 
discountable.
    We note that because of some of the assumptions included in the 
methods used, isopleths produced may be overestimates to some degree. 
The acoustic sources planned for use in Statoil's survey do not radiate 
sound equally in all directions but were designed instead to focus 
acoustic energy directly toward the sea floor. Therefore, the acoustic 
energy produced by these sources is not received equally in all 
directions around the source but is instead concentrated along some 
narrower plane depending on the beamwidth of the source. However, the 
calculated distances to isopleths do not account for this 
directionality of the sound source and are therefore conservative. For 
mobile sources, such as Statoil's planned survey, the User Spreadsheet 
predicts the closest distance at which a stationary animal would not 
incur PTS if the sound source traveled by the animal in a straight line 
at a constant speed.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    The best available scientific information was considered in 
conducting marine mammal exposure estimates (the basis for estimating 
take). For cetacean species, densities calculated by Roberts et al. 
(2016) were used. The density data presented by Roberts et al. (2016) 
incorporates aerial and shipboard line-transect survey data from NMFS 
and from other organizations collected over the period 1992-2014. 
Roberts et al. (2016) modeled density from 8 physiographic and 16 
dynamic oceanographic and biological covariates, and controlled for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. In general, NMFS 
considers the models produced by Roberts et al. (2016) to be the best 
available source of data regarding cetacean density in the Atlantic 
Ocean. More information, including the model results and supplementary 
information for each model, is available online at: 
seamap.env.duke.edu/models/Duke-EC-GOM-2015/.
    For the purposes of the take calculations, density data from 
Roberts et al. (2016) were mapped within the boundary of the survey 
area for each survey segment (i.e., the Lease Area survey segment and 
the cable route area survey segment; See Figure 1 in the IHA 
application) using a geographic information system. Monthly density 
data for all cetacean species potentially

[[Page 19541]]

taken by the planned survey was available via Roberts et al. (2016). 
Monthly mean density within the survey area, as provided in Roberts et 
al. (2016), were averaged by season (i.e., Winter (December, January, 
February), Spring (March, April, May), Summer (June, July, August), 
Fall (September, October, November)) to provide seasonal density 
estimates. For the Lease Area survey segment, the highest average 
seasonal density as reported by Roberts et al. (2016) was used based on 
the planned survey dates of March through July. For the cable route 
area survey segment, the average spring seasonal densities within the 
maximum survey area were used, given the planned start date and 
duration of the survey within the cable route area.
    Systematic, offshore, at-sea survey data for pinnipeds are more 
limited than those for cetaceans. The best available information 
concerning pinniped densities in the planned survey area is the U.S. 
Navy's Navy Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 
2007). These density models utilized vessel-based and aerial survey 
data collected by NMFS from 1998-2005 during broad-scale abundance 
studies. Modeling methodology is detailed in DoN (2007). The NODEs 
density estimates do not include density data for gray seals. For the 
purposes of this IHA, gray seal density in the project area was assumed 
to be the same as harbor seal density. Mid-Atlantic OPAREA Density 
Estimates (DoN, 2007) as reported for the spring and summer season were 
used to estimate pinniped densities for the purposes of the take 
calculations.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to harassment thresholds 
are calculated, as described above. Those distances are then used to 
calculate the area(s) around the HRG survey equipment predicted to be 
ensonified to sound levels that exceed harassment thresholds. The area 
estimated to be ensonified to relevant thresholds in a single day of 
the survey is then calculated, based on areas predicted to be 
ensonified around the HRG survey equipment and estimated trackline 
distance traveled per day by the survey vessel. The estimated daily 
vessel track line distance was determined using the estimated average 
speed of the vessel (4 knot) multiplied by 24 (to account for the 24 
hour operational period of the survey). Using the maximum distance to 
the Level B harassment threshold of 1,166 m (Table 3) and estimated 
daily track line distance of approximately 177.8 km (110.5 mi), it was 
estimated that an area of 418.9 km\2\ (161.7 mi\2\) per day would be 
ensonified to the Level B harassment threshold.
    The number of marine mammals expected to be incidentally taken per 
day is then calculated by estimating the number of each species 
predicted to occur within the daily ensonified area, using estimated 
marine mammal densities as described above. In this case, estimated 
marine mammal density values varied between the Lease Area and cable 
route corridor survey areas, therefore the estimated number of each 
species taken per survey day was calculated separately for the Lease 
Area survey area and cable route corridor survey area. Estimated 
numbers of each species taken per day are then multiplied by the number 
of survey days to generate an estimate of the total number of each 
species expected to be taken over the duration of the survey. In this 
case, as the estimated number of each species taken per day varied 
depending on survey area (Lease Area and cable route corridor), the 
number of each species taken per day in each respective survey area was 
multiplied by the number of survey days anticipated in each survey area 
(i.e., 123 survey days in the Lease Area portion of the survey and 19 
survey days in the cable route corridor portion of the survey) to get a 
total number of takes per species in each respective survey area. Total 
take numbers for each respective survey area (Lease Area and cable 
route corridor) were then rounded. These numbers were then summed to 
get a total number of each species expected to be taken over the 
duration of all surveys (Table 7).
    As described above, due to the very small estimated distances to 
Level A harassment thresholds (based on both SELcum and peak 
SPL; Table 4), and in consideration of the mitigation measures, the 
likelihood of the survey resulting in take in the form of Level A 
harassment is considered so low as to be discountable, therefore we do 
not authorize take of any marine mammals by Level A harassment. 
Authorized take numbers are shown in Tables 5, 6, and 7. Take numbers 
authorized (Tables 5, 6, and 7) are slightly different than those 
requested in the IHA application (Table 7 in the IHA application) due 
to slight differences in take calculation methods.

  Table 5--Numbers of Potential Incidental Take of Marine Mammals Authorized in Cable Route Corridor Portion of
                                                     Survey
----------------------------------------------------------------------------------------------------------------
                                                    Density (#/
                     Species                       1,000 km\2\)   Level A  takes  Level B  takes   Total  takes
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................            0.04               0               3               3
Humpback whale..................................            0.02               0               2               2
Fin whale.......................................             0.1               0               8               8
Sperm whale.....................................            0.01               0               1               1
Minke whale.....................................            0.03               0               2               2
Bottlenose dolphin..............................            9.65               0             768             768
Short-beaked common dolphin.....................            1.42               0             113             113
Atlantic white-sided dolphin....................            0.32               0              25              25
Harbor porpoise.................................            1.91               0             152             152
Harbor seal.....................................            4.87               0             388             388
Gray seal.......................................            4.87               0             388             388
----------------------------------------------------------------------------------------------------------------


[[Page 19542]]


   Table 6--Numbers of Potential Incidental Take of Marine Mammals Authorized in Lease Area Portion of Survey
----------------------------------------------------------------------------------------------------------------
                                                    Density (#/
                     Species                       1,000 km\2\)   Level A  takes  Level B  takes   Total  takes
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................            0.03               0              15              15
Humpback whale..................................            0.04               0              21              21
Fin whale.......................................            0.17               0              88              88
Sperm whale.....................................            0.01               0               5               5
Minke whale.....................................            0.07               0              36              36
Bottlenose dolphin..............................            1.53               0             788             788
Short-beaked common dolphin.....................            3.06               0           1,577           1,577
Atlantic white-sided dolphin....................            0.78               0             402             402
Harbor porpoise.................................            4.09               0           2,107           2,107
Harbor seal.....................................            4.87               0           2,509           2,509
Gray seal.......................................            4.87               0           2,509           2,509
----------------------------------------------------------------------------------------------------------------


  Table 7--Total Numbers of Potential Incidental Take of Marine Mammals Authorized and Takes as a Percentage of
                                                   Population
----------------------------------------------------------------------------------------------------------------
                                                                                                    Total takes
                                                                                                       as a
                     Species                      Level A  takes  Level B  takes   Total  takes    percentage of
                                                                                                    population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................               0              18              18             4.1
Humpback whale..................................               0              23              23             2.8
Fin whale.......................................               0              96              96             5.9
Sperm whale.....................................               0               6               6             0.3
Minke whale.....................................               0              38              38             1.5
Bottlenose dolphin..............................               0           1,556           1,556             2.0
Short-beaked common dolphin.....................               0           1,690           1,690             2.4
Atlantic white-sided dolphin....................               0             427             427             0.9
Harbor porpoise.................................               0           2,259           2,259             2.8
Harbor seal.....................................               0           2,897           2,897             3.8
Gray seal.......................................               0           2,897           2,897             0.6
----------------------------------------------------------------------------------------------------------------

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) and the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as relative cost and 
impact on operations.

Mitigation Measures

    With NMFS' input during the application process, and as per the 
BOEM Lease, Statoil proposed the following mitigation measures during 
their site characterization surveys.

Marine Mammal Exclusion and Watch Zones

    As required in the BOEM lease, marine mammal exclusion zones (EZ) 
will be established around the HRG survey equipment and monitored by 
protected species observers (PSO) during HRG surveys as follows:
     50 m EZ for pinnipeds and delphinids (except harbor 
porpoises);
     100 m EZ for large whales including sperm whales and 
mysticetes (except North Atlantic right whales) and harbor porpoises;
     500 m EZ for North Atlantic right whales.
    In addition, PSOs will visually monitor for all marine mammals to 
the extent of a 500 m ``Watch Zone'' or as far as possible if the 
extent of the Watch Zone is not fully visible.
    Statoil intends to submit a sound source verification report 
showing sound levels associated with HRG survey equipment. If results 
of the sound source verification report indicate that actual distances 
to isopleths corresponding to harassment thresholds are larger than the 
EZs and/or Level B monitoring zones, NMFS may modify the zone(s) 
accordingly. If results of source verification indicate that actual 
distances to isopleths corresponding to harassment thresholds are less 
than the EZs and/or Level B monitoring zones, Statoil has indicated

[[Page 19543]]

an intention to request modification of the zone(s), as appropriate. 
NMFS would review any such request and may modify the zone(s) depending 
on review of the report on source verification. Any such modification 
may be superseded by EZs required by BOEM.

Visual Monitoring

    As per the BOEM lease, visual and acoustic monitoring of the 
established exclusion and monitoring zones will be performed by 
qualified and NMFS-approved PSOs. It will be the responsibility of the 
Lead PSO on duty to communicate the presence of marine mammals as well 
as to communicate and enforce the action(s) that are necessary to 
ensure mitigation and monitoring requirements are implemented as 
appropriate. PSOs will be equipped with binoculars and have the ability 
to estimate distances to marine mammals located in proximity to the 
vessel and/or exclusion zone using range finders. Reticulated 
binoculars will also be available to PSOs for use as appropriate based 
on conditions and visibility to support the siting and monitoring of 
marine species. Digital single-lens reflex camera equipment will be 
used to record sightings and verify species identification. During 
surveys conducted at night, night-vision equipment and infrared 
technology will be available for PSO use, and PAM (described below) 
will be used.

Pre-Clearance of the Exclusion Zone

    For all HRG survey activities, Statoil will implement a 30-minute 
pre-clearance period of the relevant EZs prior to the initiation of HRG 
survey equipment (as required by BOEM). During this period the EZs will 
be monitored by PSOs, using the appropriate visual technology for a 30-
minute period. HRG survey equipment will not be initiated if marine 
mammals are observed within or approaching the relevant EZs during this 
pre-clearance period. If a marine mammal is observed within or 
approaching the relevant EZ during the pre-clearance period, ramp-up 
will not begin until the animal(s) has been observed exiting the EZ or 
until an additional time period has elapsed with no further sighting of 
the animal (15 minutes for small delphinoid cetaceans and pinnipeds and 
30 minutes for all other species). This pre-clearance requirement will 
include small delphinoids that approach the vessel (e.g., bow ride). 
PSOs will also continue to monitor the zone for 30 minutes after survey 
equipment is shut down or survey activity has concluded.

Passive Acoustic Monitoring

    As required in the BOEM lease, PAM will be required during HRG 
surveys conducted at night. In addition, PAM systems would be employed 
during daylight hours as needed to support system calibration and PSO 
and PAM team coordination, as well as in support of efforts to evaluate 
the effectiveness of the various mitigation techniques (i.e., visual 
observations during day and night, compared to the PAM detections/
operations). PAM operators will also be on call as necessary during 
daytime operations should visual observations become impaired. BOEM's 
lease stipulations require the use of PAM during nighttime operations. 
However, these requirements do not require that any mitigation action 
be taken upon acoustic detection of marine mammals. Given the range of 
species that could occur in the survey area, the PAM system will 
consist of an array of hydrophones with both broadband (sampling mid-
range frequencies of 2 kHz to 200 kHz) and at least one low-frequency 
hydrophone (sampling range frequencies of 75 Hz to 30 kHz). The PAM 
operator would monitor the hydrophone signals in real time both aurally 
(using headphones) and visually (via the monitor screen displays). The 
PAM operator would communicate detections to the Lead PSO on duty who 
will ensure the implementation of the appropriate mitigation 
procedures. A mitigation and monitoring communications flow diagram has 
been included as Appendix C of the IHA application.

Ramp-Up of Survey Equipment

    As required in the BOEM lease, where technically feasible, a ramp-
up procedure will be used for HRG survey equipment capable of adjusting 
energy levels at the start or re-start of HRG survey activities. The 
ramp-up procedure will be used at the beginning of HRG survey 
activities in order to provide additional protection to marine mammals 
near the survey area by allowing them to vacate the area prior to the 
commencement of survey equipment use at full energy. A ramp-up will 
begin with the power of the smallest acoustic equipment at its lowest 
practical power output appropriate for the survey. When technically 
feasible the power will then be gradually turned up and other acoustic 
sources added in a way such that the source level would increase 
gradually.

Shutdown Procedures

    As required in the BOEM lease, if a marine mammal is observed 
within or approaching the relevant EZ (as described above) an immediate 
shutdown of the survey equipment is required. Subsequent restart of the 
survey equipment may only occur after the animal(s) has either been 
observed exiting the relevant EZ or until an additional time period has 
elapsed with no further sighting of the animal (e.g.,15 minutes for 
delphinoid cetaceans and pinnipeds and 30 minutes for all other 
species). HRG survey equipment may continue operating if small 
delphinids voluntarily approach the vessel (e.g., to bow ride) when HRG 
survey equipment is operating.
    As required in the BOEM lease, if the HRG equipment shuts down for 
reasons other than mitigation (i.e., mechanical or electronic failure) 
resulting in the cessation of the survey equipment for a period greater 
than 20 minutes, a 30 minute pre-clearance period (as described above) 
will precede the restart of the HRG survey equipment. If the pause is 
less than 20 minutes, the equipment may be restarted as soon as 
practicable at its full operational level only if visual surveys were 
continued diligently throughout the silent period and the EZs remained 
clear of marine mammals during that entire period. If visual surveys 
were not continued diligently during the pause of 20 minutes or less, a 
30-minute pre-clearance period (as described above) will precede the 
re-start of the HRG survey equipment. Following a shutdown, HRG survey 
equipment may be restarted following pre-clearance of the zones as 
described above.

Vessel Strike Avoidance

    Statoil will ensure that vessel operators and crew maintain a 
vigilant watch for cetaceans and pinnipeds by slowing down or stopping 
the vessel to avoid striking marine mammals. Survey vessel crew members 
responsible for navigation duties will receive site-specific training 
on marine mammal sighting/reporting and vessel strike avoidance 
measures. Vessel strike avoidance measures will include, but are not 
limited to, the following, as required in the BOEM lease, except under 
circumstances when complying with these requirements would put the 
safety of the vessel or crew at risk:
     All vessel operators and crew will maintain vigilant watch 
for cetaceans and pinnipeds, and slow down or stop their vessel to 
avoid striking these protected species;

[[Page 19544]]

     All vessel operators will comply with 10 knot (18.5 km/hr) 
or less speed restrictions in any SMA per NOAA guidance. This applies 
to all vessels operating at any time of year;
     All vessel operators will reduce vessel speed to 10 knots 
(18.5 km/hr) or less when any large whale, any mother/calf pairs, pods, 
or large assemblages of non-delphinoid cetaceans are observed near 
(within 100 m (330 ft)) an underway vessel;
     All survey vessels will maintain a separation distance of 
500 m (1,640 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 (1,640 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 will remain parallel to a sighted delphinoid cetacean's course 
whenever possible, and avoid excessive speed or abrupt changes in 
direction. Any vessel underway will reduce 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 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; and
     All vessels will maintain a separation distance of 50 m 
(164 ft) or greater from any sighted pinniped.
    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 event.

Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team will consult 
NMFS' North Atlantic right whale reporting systems for the presence of 
North Atlantic right whales throughout survey operations. However, the 
survey activities will occur outside of the SMA located off the coasts 
of New Jersey and New York. Members of the monitoring team will monitor 
the NMFS North Atlantic right whale reporting systems for the 
establishment of a Dynamic Management Area (DMA). If NMFS should 
establish a DMA in the survey area, within 24 hours of the 
establishment of the DMA Statoil will work with NMFS to shut down and/
or alter the survey activities to avoid the DMA.
    The mitigation measures are designed to avoid the already low 
potential for injury in addition to some Level B harassment, and to 
minimize the potential for vessel strikes. There are no known marine 
mammal feeding areas, rookeries, or mating grounds in the survey area 
that would otherwise potentially warrant increased mitigation measures 
for marine mammals or their habitat (or both). The survey will occur in 
an area that has been identified as a biologically important area for 
migration for North Atlantic right whales. However, given the small 
spatial extent of the survey area relative to the substantially larger 
spatial extent of the right whale migratory area, the survey is not 
expected to appreciably reduce migratory habitat nor to negatively 
impact the migration of North Atlantic right whales, thus mitigation to 
address the survey's occurrence in North Atlantic right whale migratory 
habitat is not warranted. Further, we believe the mitigation measures 
are practicable for the applicant to implement.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that the mitigation measures provide the means of 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, requirements pertaining to 
the monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
survey area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring Measures

    As described above, visual monitoring of the EZs and monitoring 
zone will be performed by qualified and NMFS-approved PSOs. Observer 
qualifications

[[Page 19545]]

will include direct field experience on a marine mammal observation 
vessel and/or aerial surveys and completion of a PSO and/or PAM 
training program, as appropriate. As proposed by the applicant and 
required by BOEM, an observer team comprising a minimum of four NMFS-
approved PSOs and a minimum of two certified PAM operator(s), operating 
in shifts, will be employed by Statoil during the surveys. PSOs and PAM 
operators will work in shifts such that no one monitor will work more 
than 4 consecutive hours without a 2 hour break or longer than 12 hours 
during any 24-hour period. During daylight hours the PSOs will rotate 
in shifts of one on and three off, while during nighttime operations 
PSOs will work in pairs. The PAM operators will also be on call as 
necessary during daytime operations should visual observations become 
impaired. Each PSO will monitor 360 degrees of the field of vision.
    Also as described above, PSOs will be equipped with binoculars and 
have the ability to estimate distances to marine mammals located in 
proximity to the vessel and/or exclusion zone using range finders. 
Reticulated binoculars will also be available to PSOs for use as 
appropriate based on conditions and visibility to support the siting 
and monitoring of marine species. Digital single-lens reflex camera 
equipment will be used to record sightings and verify species 
identification. During night operations, PAM, night-vision equipment, 
and infrared technology will be used to increase the ability to detect 
marine mammals. Position data will be recorded using hand-held or 
vessel global positioning system (GPS) units for each sighting. 
Observations will take place from the highest available vantage point 
on the survey vessel. General 360-degree scanning will occur during the 
monitoring periods, and target scanning by the PSO will occur when 
alerted of a marine mammal presence.
    Data on all PAM/PSO observations will be recorded based on standard 
PSO collection requirements. This will include dates and locations of 
survey operations; time of observation, location and weather; details 
of the sightings (e.g., species, age classification [if known], 
numbers, behavior); and details of any observed ``taking'' (behavioral 
disturbances). The data sheet will be provided to NMFS for review and 
approval prior to the start of survey activities. In addition, prior to 
initiation of survey work, all crew members will undergo environmental 
training, a component of which will focus on the procedures for 
sighting and protection of marine mammals. A briefing will also be 
conducted between the survey supervisors and crews, the PSOs, and 
Statoil. The purpose of the briefing will be to establish 
responsibilities of each party, define the chains of command, discuss 
communication procedures, provide an overview of monitoring purposes, 
and review operational procedures.
    Acoustic Field Verification-- As described above, field 
verification of sound levels associated with survey equipment will be 
conducted. Results of the field verification may be used to request 
modification of the EZs and monitoring zones. The details of the 
applicant's plan for field verification of sound levels are provided as 
Appendix B to the IHA application.

Reporting Measures

    Statoil will provide the following reports as necessary during 
survey activities:
     The Applicant will contact NMFS within 24 hours of the 
commencement of survey activities and again within 24 hours of the 
completion of the activity.
     Notification of Injured or Dead Marine Mammals--In the 
unanticipated event that the specified HRG and geotechnical activities 
lead to an injury of a marine mammal (Level A harassment) or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), Statoil 
would immediately cease the specified activities and report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources and the NMFS Greater Atlantic Stranding 
Coordinator. The report would include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the event. NMFS would work with Statoil to minimize 
reoccurrence of such an event in the future. Statoil would not resume 
activities until notified by NMFS.
    In the event that Statoil discovers an injured or dead marine 
mammal and determines that the cause of the injury or death is unknown 
and the death is relatively recent (i.e., in less than a moderate state 
of decomposition), Statoil would immediately report the incident to the 
Chief of the Permits and Conservation Division, Office of Protected 
Resources and the NMFS Greater Atlantic Stranding Coordinator. The 
report would include the same information identified in the paragraph 
above. Activities would be able to continue while NMFS reviews the 
circumstances of the incident. NMFS would work with Statoil to 
determine if modifications in the activities are appropriate.
    In the event that Statoil discovers an injured or dead marine 
mammal and determines that the injury or death is not associated with 
or related to the activities authorized in the IHA (e.g., previously 
wounded animal, carcass with moderate to advanced decomposition, or 
scavenger damage), Statoil would report the incident to the Chief of 
the Permits and Conservation Division, Office of Protected Resources, 
and the NMFS Greater Atlantic Regional Stranding Coordinator, within 24 
hours of the discovery. Statoil would provide photographs or video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS. Statoil may continue its operations under such a 
case.
     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, estimates the number of marine mammals estimated to 
have been taken during survey activities, and provides an 
interpretation of the results and effectiveness of all mitigation and 
monitoring. Any recommendations made by NMFS must be addressed in the 
final report prior to acceptance by NMFS.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival. A negligible impact 
finding is based on the lack of likely adverse effects on annual rates 
of recruitment or survival (i.e., population-level effects). An

[[Page 19546]]

estimate of the number of takes alone is not enough information on 
which to base an impact determination. In addition to considering 
estimates of the number of marine mammals that might be ``taken'' 
through harassment, NMFS considers other factors, such as the likely 
nature of any responses (e.g., intensity, duration), the context of any 
responses (e.g., critical reproductive time or location, migration), as 
well as effects on habitat, and the likely effectiveness of the 
mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 7, given that NMFS expects the anticipated effects of the 
planned survey to be similar in nature.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result of Statoil's survey, even in the absence of 
mitigation. Thus the authorization does not authorize any serious 
injury or mortality. As discussed in the Potential Effects section, 
non-auditory physical effects and vessel strike are not expected to 
occur.
    We expect that all potential takes would be in the form of short-
term Level B behavioral harassment in the form of temporary avoidance 
of the area 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).
    Potential impacts to marine mammal habitat were discussed 
previously in the Federal Register notice for the proposed IHA (83 FR 
7655; February 22, 2018). Marine mammal habitat may be impacted by 
elevated sound levels, but these impacts would be temporary. In 
addition to being temporary and short in overall duration, the acoustic 
footprint of the planned survey is small relative to the overall 
distribution of the animals in the area and their use of the area. 
Feeding behavior is not likely to be significantly impacted, as no 
areas of biological significance for marine mammal feeding are known to 
exist in the survey area. Prey species are mobile and are broadly 
distributed throughout the project area; therefore, marine mammals that 
may be temporarily displaced during survey activities are expected to 
be able to resume foraging once they have moved away from areas with 
disturbing levels of underwater noise. Because of the temporary nature 
of the disturbance, the availability of similar habitat and resources 
in the surrounding area, and the lack of important or unique marine 
mammal feeding habitat, the impacts to marine mammals and the food 
sources that they utilize are not expected to cause significant or 
long-term consequences for individual marine mammals or their 
populations. In addition, there are no rookeries or mating or calving 
areas known to be biologically important to marine mammals within the 
survey area. The survey area is within a biologically important 
migratory area for North Atlantic right whales (effective March-April 
and November-December) that extends from Massachusetts to Florida 
(LaBrecque, et al., 2015). Off the coast of New York, this biologically 
important migratory area extends from the coast to the shelf break. Due 
to the fact that that the planned survey is temporary and short in 
overall duration, and the fact that the spatial acoustic footprint of 
the planned survey is very small relative to the spatial extent of the 
available migratory habitat in the area, right whale migration is not 
expected to be impacted by the planned survey.
    The mitigation measures are expected to reduce the number and/or 
severity of takes by (1) giving animals the opportunity to move away 
from the sound source before HRG survey equipment reaches full energy; 
(2) preventing animals from being exposed to sound levels that may 
otherwise result in injury. Additional vessel strike avoidance 
requirements will further mitigate potential impacts to marine mammals 
during vessel transit to and within the survey area.
    NMFS concludes that exposures to marine mammal species and stocks 
due to Statoil's survey will result in only short-term (temporary and 
short in duration) effects to individuals exposed. Marine mammals may 
temporarily avoid the immediate area, but are not expected to 
permanently abandon the area. Major shifts in habitat use, 
distribution, or foraging success are not expected. NMFS does not 
anticipate the take estimates to impact annual rates of recruitment or 
survival.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality, serious injury, or Level A harassment is 
anticipated or authorized;
     The anticipated impacts of the activity on marine mammals 
would be temporary behavioral changes due to avoidance of the area 
around the survey vessel;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the survey to avoid exposure to sounds from the activity;
     The project area does not contain areas of significance 
for feeding, mating or calving;
     Effects on species that serve as prey species for marine 
mammals from the survey are not expected;
     The mitigation measures, including visual and acoustic 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    The numbers of marine mammals authorized to be taken, for all 
species and stocks, would be considered small relative to the relevant 
stocks or populations (less than 6 percent of each species and stock). 
See Table 7. Based on the analysis contained herein of the activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative

[[Page 19547]]

to the population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we authorize take for 
endangered or threatened species.
    The NMFS Office of Protected Resources is authorizing the 
incidental take of three species of marine mammals which are listed 
under the ESA: The North Atlantic right, fin, and sperm whale. 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. 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, and sperm whale. The Biological Opinion can be found online 
at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Upon 
request from the NMFS Office of Protected Resources, NMFS GARFO has 
issued an amended incidental take statement associated with this 
Biological Opinion to include the takes of the ESA-listed marine mammal 
species authorized through this IHA.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    Accordingly, NMFS prepared an Environmental Assessment (EA) and 
analyzed the potential impacts to marine mammals that would result from 
the project. A Finding of No Significant Impact (FONSI) was signed on 
April 25, 2018. A copy of the EA and FONSI is available on the internet 
at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Authorization

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

    Dated: April 30, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-09367 Filed 5-2-18; 8:45 am]
BILLING CODE 3510-22-P