Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys off the Coast of New York, 18801-18808 [2019-08949]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 85 (Thursday, May 2, 2019)]
[Notices]
[Pages 18801-18808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08949]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG879


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys off 
the Coast of New York

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

ACTION: Notice; issuance of an incidental harassment authorization 
Renewal.

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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)

[[Page 18802]]

Renewal to Equinor Wind US LLC to incidentally harass marine mammals 
incidental to marine site characterization surveys off the coast of New 
York 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 cable route corridors will be 
established.

DATES: This IHA Renewal is valid from April 25, 2019 through April 24, 
2020.

FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: 
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations indicated above and 
amended the definition of ``harassment'' as it applies to a ``military 
readiness activity.''
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity, and 
requested public comment on a potential Renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-year IHA Renewal when (1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned or (2) the activities would not be completed by the time the 
IHA expires and a second IHA would allow for completion of the 
activities beyond that described in the Dates and Duration section of 
the initial IHA. All of the following conditions must be met in order 
to issue a Renewal:
     A request for Renewal is received no later than 60 days 
prior to expiration of the current IHA;
     The request for Renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements; and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized;
     Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures remain the same and appropriate, 
and the initial findings remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On April 24, 2018, NMFS issued an IHA to Statoil Wind U.S. LLC, to 
take marine mammals incidental to marine site characterization surveys 
off the coast of New York 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 cable route 
corridors will be established, effective from April 24, 2018, through 
April 23, 2019 (83 FR 19532; May 3, 2018). On February 21, 2019, NMFS 
received an application for the Renewal of that IHA. As described in 
the application for Renewal, the activities authorized in the initial 
IHA would not be completed by the time that IHA expires and a second 
IHA would allow for completion of the activities beyond that described 
in the Dates and Duration section of the initial IHA. As required, the 
applicant also provided a preliminary monitoring report (available at 
www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york) which confirms 
that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted. Since the initial IHA was issued, Statoil Wind 
U.S. LLC has changed the name under which the company operates to 
Equinor Wind U.S. LLC (Equinor).

Description of the Specified Activities and Anticipated Impacts

    Equinor plans to continue their marine site characterization 
surveys in the approximately 79,350-acre Lease Area located 
approximately 11.5 nautical miles (nm) from Jones Beach, New York and 
along cable route corridors between the Lease Area and New York. Water 
depths across the Lease Area range from approximately 22 to 41 meters 
(m) (72 to 135 feet (ft)) while the cable route corridors extend to 
shallow water areas near landfall locations. The specified activities 
described for this renewal are an identical subset of the activities 
covered by the initial 2018 IHA. The purpose of the surveys are to 
support the siting, design, and deployment of up to three 
meteorological data buoy deployment

[[Page 18803]]

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 a proposed offshore wind farm. NMFS previously published 
notices of proposed IHA (83 FR 7655; February 22, 2018) and issued IHA 
(83 FR 19532; May 3, 2018). These documents, as well as Equinor's 
initial IHA application and the preliminary monitoring report for the 
previously issued IHA, are available at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york.
    Similarly, the anticipated impacts are identical to those described 
in the initial IHA. Specifically, we anticipate the take of 11 marine 
mammal stocks (including nine cetacean and two pinniped stocks), by 
Level B harassment only, incidental to the site characterization 
surveys due to exposure to noise resulting from high resolution 
geophysical (HRG) survey equipment. Equinor was not able to complete 
the site characterization surveys analyzed in the initial IHA by the 
date that IHA is set to expire and anticipates the need for an 
additional 56 operational survey days to complete the survey campaign 
in 2019.
    The following documents are referenced in this notice and include 
important supporting information, and may be found at the indicated 
location:
     Initial Proposed IHA: Takes of Marine Mammals Incidental 
to Specified Activities; Taking Marine Mammals Incidental to Site 
Characterization Surveys off of New York (83 FR 7655; February 22, 
2018). Available at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york;
     Initial Final IHA. Takes of Marine Mammals Incidental to 
Specified Activities; Taking Marine Mammals Incidental to Site 
Characterization Surveys off of New York (83 FR 19532; May 3, 2018). 
Available at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york;
     Preliminary Monitoring Report from Initial IHA. Available 
at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york; and
     Environmental Assessment (EA). Issuance of an Incidental 
Harassment Authorization to Statoil Wind U.S. LLC for Site 
Characterization Surveys off the Coast of New York. Available at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york.

Detailed Description of the Activity

    As described above, Equinor was not able to complete the surveys 
analyzed in the initial IHA by the date that IHA is set to expire 
(April 23, 2019). As such, the surveys Equinor plans to conduct in 2019 
would be a continuation of the surveys as described in the initial 2018 
IHA and would be identical to the activities analyzed in the initial 
IHA (same location, equipment, methods, and seasonality). The initial 
IHA analyzed the potential impacts to marine mammals from a total of 
142 survey days. Equinor completed a total of 86 operational survey 
days in 2018, and anticipates a total of 56 operational survey days 
will be required to complete the survey campaign in 2019 following 
issuance of the IHA Renewal, if renewed. Thus, the total duration of 
the surveys conducted in 2018 and 2019 combined would not exceed the 
total duration described and analyzed in the previously issued IHA (142 
days total).
    This Renewal is effective for a period of one year from the date of 
issuance.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is issued here (and listed in Table 1 
below), including information on abundance, status, distribution, and 
hearing, may be found in the Notice of issued IHA (83 FR 19532; May 3, 
2018) for the initial authorization. NMFS has reviewed the monitoring 
data from the initial IHA, recent draft Stock Assessment Reports, 
information on relevant Unusual Mortality Events, and other scientific 
literature, and determined that neither this nor any other new 
information affects which species or stocks have the potential to be 
affected or the pertinent information in the Description of the Marine 
Mammals in the Area of Specified Activities contained in the supporting 
documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
authorized here may be found in the Notice of issued IHA for the 
initial authorization. NMFS has reviewed the monitoring data from the 
initial IHA, recent draft Stock Assessment Reports, information on 
relevant Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects our 
initial analysis of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Notices of issued IHA 
for the initial authorization. The HRG equipment that may result in 
take, as well as the source levels, marine mammal stocks taken, marine 
mammal density data and the methods of take estimation applicable to 
this authorization remain unchanged from the previously issued IHA.
    As described above, Equinor completed 86 survey days in 2018 and 
anticipates the need for an additional 56 survey days in 2019 to 
complete their survey. As the number of survey days remaining is less 
than the number of survey days analyzed in the previous IHA, the number 
of takes estimated to occur in 2019, and authorized, has changed from 
the number of takes authorized in the initial IHA (Table 7 in the 
initial IHA).
    Equinor has already completed 60.5 percent of the planned total 
survey days that were analyzed in the initials IHA (i.e., 86 of a total 
of 142 total survey days). Thus 39.5 percent of the total survey days 
analyzed in the previous IHA remain to be completed in 2019 (i.e., 56 
of a total of 142 total survey days). We therefore anticipate that the 
number of takes that may occur as a result of the remaining survey days 
in 2019 will represent 39.5 percent of the total take that was expected 
to occur during the entire duration of the survey (total 142 days) and 
was authorized in the initial IHA. The number of takes expected to 
occur during the remaining 56 survey days in 2019, and authorized, are 
shown in Table 1.

                   Table 1--Number of Takes Authorized
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                         Species                           Level B takes
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North Atlantic right whale..............................               7
Humpback whale..........................................               9
Fin whale...............................................              38
Sperm whale.............................................               2
Minke whale.............................................              15
Bottlenose dolphin......................................             615
Common dolphin..........................................             668
Atlantic white-sided dolphin............................             169
Harbor porpoise.........................................             892
Harbor seal.............................................           1,144
Gray seal...............................................           1,144
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Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are

[[Page 18804]]

identical to those included in the Notice announcing the issuance of 
the initial IHA, and the discussion of the least practicable adverse 
impact included in that document remains accurate. The following 
measures are included in this IHA renewal:

Marine Mammal Exclusion and Watch Zones

    As required in the Bureau of Ocean Energy Management (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.

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 Passive Acoustic 
Monitoring (PAM) will be used.

Pre-Clearance of the Exclusion Zone

    For all HRG survey activities, Equinor will implement a 30-minute 
pre-clearance period of the relevant EZs prior to the initiation of HRG 
survey equipment. 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 will 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 will monitor the hydrophone signals in real time both aurally 
(using headphones) and visually (via the monitor screen displays). The 
PAM operator will 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

    Equinor will ensure that vessel operators and crew maintain a 
vigilant watch for cetaceans and pinnipeds by

[[Page 18805]]

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;
     All vessel operators will comply with 10 knot (18.5 
kilometers (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 (1640 ft) or greater from any sighted North Atlantic right whale;
     If underway, vessels must steer a course away from any 
sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less 
until the 500 m (1640 ft) minimum separation distance has been 
established. If a North Atlantic right whale is sighted in a vessel's 
path, or within 100 m (330 ft) to an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Engines will 
not be engaged until the North Atlantic right whale has moved outside 
of the vessel's path and beyond 100 m. If stationary, the vessel must 
not engage engines until the North Atlantic right whale has moved 
beyond 100 m;
     All vessels will maintain a separation distance of 100 m 
(330 ft) or greater from any sighted non-delphinoid cetacean. If 
sighted, the vessel underway must reduce speed and shift the engine to 
neutral, and must not engage the engines until the non-delphinoid 
cetacean has moved outside of the vessel's path and beyond 100 m. If a 
survey vessel is stationary, the vessel will not engage engines until 
the non-delphinoid cetacean has moved out of the vessel's path and 
beyond 100 m;
     All vessels will maintain a separation distance of 50 m 
(164 ft) or greater from any sighted delphinoid cetacean. Any vessel 
underway 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 Equinor 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 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.

Public Comments

    A notice of NMFS' proposal to issue a Renewal to Equinor was 
published in the Federal Register on April 4, 2019 (84 FR 13246). That 
notice either described, or referenced descriptions of, Equinor's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
proposed amount and manner of take, and proposed mitigation, monitoring 
and reporting measures. NMFS did not receive any substantive public 
comments. NMFS received comment letters from the Marine Mammal 
Commission (Commission) and a group of non-governmental organizations 
(including Natural Resources Defense Council, Wildlife Conservation 
Society, National Wildlife Federation, Southern Environmental Law 
Center, Mass Audubon, NY4WHALES, Whale and Dolphin Conservation, 
Defenders of Wildlife, Surfrider Foundation, Nassau Hiking & Outdoor 
Club, Conservation Law Foundation, and International Fund for Animal 
Welfare) (NGOs). The comments and our responses are summarized below.
    Comment 1: The NGOs stated that a commitment on the part of Equinor 
to limit vessel speeds to a maximum of 10 knots, to the extent 
possible, as well as when the survey area is designated as a Seasonal 
Management Area (SMA) or a Dynamic Management Area (DMA), should be 
incorporated by NMFS into the IHA.
    Response: NMFS has analyzed the potential for ship strike resulting 
from Equinor's activity and has determined that the mitigation measures 
specific to ship strike avoidance are sufficient to avoid the potential 
for ship strike, and it is not authorized. These include: A requirement 
that all vessel operators comply with 10 knot (18.5 kilometer (km)/hr) 
or less speed restriction in any Seasonal Management Area (SMA); a

[[Page 18806]]

requirement that Equinor must work with NMFS to alter survey activities 
to avoid any DMAs as appropriate; a requirement to reduce vessel speed 
to 10 knots 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; and a requirement that all survey vessels 
maintain a separation distance of 500 m or greater from any sighted 
North Atlantic right whale. 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 2: The NGOs recommended that NMFS require an exclusion zone 
(EZ) of at least 1,000 m for North Atlantic right whales.
    Response: The results of sound source verification conducted by 
Equinor during surveys in 2018 indicates that the largest isopleth 
distance to the Level B harassment threshold, among all types of HRG 
survey equipment that would be used during surveys planned in 2019, was 
37 m. Therefore, we have determined that the 500 m EZ for North 
Atlantic right whales, as required in the IHA, is sufficiently 
protective to ensure survey activities would shut down before right 
whales would have the potential to be exposed to levels of sound that 
would result in harassment, and to ensure the least practicable adverse 
impact on species or stocks and their habitat.
    Comment 3: The NGOs recommended that NMFS require that PAM be used 
24 hours per day during surveys.
    Response: Mitigation measures in the previous IHA, and proposed for 
this IHA renewal, include a requirement for at least one visual PSO on 
duty at all times and one PAM operator on duty at night. We have 
determined the requirements for visual and acoustic monitoring are 
sufficient to ensure the EZs and Watch Zone are adequately monitored 
and 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. 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 (especially given 
the small harassment zone) are considered in concert with the potential 
increased costs on the part of the applicant that would result from 
such a requirement, we have determined a requirement for 24-hour PAM 
operation is not warranted in this case.
    Comment 4: The NGOs recommended that 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 in the New York Bight and that NMFS address potential 
impacts to other species like endangered fin whales and blue whales.
    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.
    Equinor determined the planned duration of the survey based on 
their data acquisition needs, which are largely driven by 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 may 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 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. Finally, it should be noted 
that, given both the timing of the issuance of this IHA Renewal and the 
anticipated duration of remaining survey days (i.e., 56 days), it is 
unlikely that Equinor's planned surveys would occur for more than a few 
days (if at all) within the period that the commenters have recommended 
for seasonal closure (i.e., November through April).
    With respect to the recommendation that NMFS ``address potential 
impacts to other species like endangered fin whales and blue whales'', 
we note that we have thoroughly analyzed potential impacts to fin 
whales, as described in detail in the Federal Register notices of the 
original proposed and final authorizations; blue whales are not 
anticipated to occur in the project area.
    Comment 5: The NGOs recommended 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.
    Response: We acknowledge the limitations inherent in detection of 
marine mammals at night. However, restricting the ability of the 
applicant to conduct surveys only during daylight hours would have the 
likely result of an overall increase in survey duration. In the event 
that NMFS imposed the restriction suggested by the commenters, the 
survey vessel would be on the water introducing noise into the marine 
environment for an extended period of time and may result in increased 
costs incurred by Equinor. Given that the potential impacts to marine 
mammals from the survey activities would be limited to short-term 
behavioral responses, NMFS has determined that a shorter overall survey 
duration represents the least impactful scenario in terms of potential 
impacts to 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.
    Comment 6: The Commission questioned whether the public notice 
provisions for IHA Renewals fully satisfy the public notice and comment 
provision in the MMPA and discussed

[[Page 18807]]

the potential burden on reviewers of reviewing key documents and 
developing comments quickly. Therefore, the Commission recommended that 
NMFS use the IHA Renewal process sparingly and selectively for 
activities expected to have the lowest levels of impacts to marine 
mammals and that require less complex analysis.
    Response: NMFS has taken a number of steps to ensure the public has 
adequate notice, time, and information to be able to comment 
effectively on IHA Renewals within the limitations of processing IHA 
applications efficiently. The Federal Register notice for the initial 
proposed IHA (83 FR 7655; February 22, 2018) had previously identified 
the conditions under which a one-year Renewal IHA might be appropriate. 
This information is presented in the Request for Public Comments 
section of the initial proposed IHA and thus encourages submission of 
comments on the potential of a one-year renewal as well as the initial 
IHA during the 30-day comment period. In addition, when we receive an 
application for a Renewal IHA, we publish a notice of the proposed IHA 
Renewal in the Federal Register and provide an additional 15 days for 
public comment, for a total of 45 days of public comment. We will also 
directly contact all commenters on the initial IHA by email, phone, or, 
if the commenter did not provide email or phone information, by postal 
service to provide them the opportunity to submit any additional 
comments on the proposed Renewal IHA.
    NMFS also strives to ensure the public has access to key 
information needed to submit comments on a proposed IHA, whether an 
initial IHA or a Renewal IHA. The agency's website includes information 
for all projects under consideration, including the application, 
references, and other supporting documents. Each Federal Register 
notice also includes contact information in the event a commenter has 
questions or cannot find the information they seek.
    Regarding the Commission's comment that Renewal IHAs should be 
limited to certain types of projects, NMFS has explained on its website 
and in individual Federal Register notices that Renewal IHAs are 
appropriate where the continuing activities are identical, nearly 
identical, or a subset of the activities for which the initial 30-day 
comment period applied. Where the commenter has likely already reviewed 
and commented on the initial proposed IHA for these activities, the 
abbreviated additional comment period is sufficient for consideration 
of the results of the preliminary monitoring report and new information 
(if any) from the past year.
    Comment 7: The Commission noted that in light of required exclusion 
zones, the potential for marine mammals to be taken incidental to 
conducting the planned survey is very small, and that as NMFS looks to 
streamline and improve the efficiency of its authorization process, it 
should consider whether, in such situations, incidental harassment 
authorizations are necessary given the very small size of the Level A 
and B harassment zones and the added protection afforded by the BOEM 
lease-stipulated exclusion zones.
    Response: NMFS appreciates the point that the Commission makes and 
will take it into consideration, noting that multiple factors are 
analyzed in determining whether an incidental take authorization is 
warranted. We look forward to collaborating with the Commission in 
identifying where the MMPA incidental take authorization process can be 
streamlined further while ensuring that NMFS fulfills its statutory 
obligations under section 101(a)(5) of the MMPA.

National Environmental Policy Act

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), NMFS 
prepared an Environmental Assessment (EA) to consider the direct, 
indirect and cumulative effects to the human environment resulting from 
the issuance of the initial IHA in 2018. NMFS made the EA available to 
the public for review and comment. Also in compliance with NEPA and the 
CEQ regulations, NMFS signed a Finding of No Significant Impact (FONSI) 
on April 24, 2018. The 2018 NEPA documents are available at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york. We have reviewed 
Equinor's application for a Renewal of the 2018 IHA and the 2018 
monitoring report as well as comments received on our Notice of 
Proposed IHA Renewal (84 FR 13246; April 4, 2019). Based on that 
review, we have determined that the action follows closely the IHA 
issued and implemented in 2018 and does not present any substantial 
changes, or significant new circumstances or information relevant to 
environmental concerns which would require a supplement to the 2018 EA 
or preparation of a new NEPA document. Therefore, we have determined 
that a new or supplemental EA or Environmental Impact Statement is 
unnecessary, and will rely on the existing EA and FONSI.

Determinations

    Equinor's planned activity is identical to the activity analyzed in 
our previously issued notices of proposed IHA (83 FR 7655; February 22, 
2018) and issued IHA (83 FR 19532; May 3, 2018) (with the exception of 
the duration of the survey, which is less than the duration analyzed in 
those documents). We concluded that the initial IHA would have a 
negligible impact on all marine mammal stocks and species and that the 
taking would be small relative to population sizes. The marine mammal 
information, potential effects, and the mitigation and monitoring 
measures remain the same as those analyzed in the previously issued 
notices of proposed IHA and issued IHA, therefore the extensive 
analysis, as well as the associated findings, included in the prior 
documents remain applicable.
    The only differences between the initial IHA and this Renewal is 
that the duration of the survey and the numbers of incidental marine 
mammal take expected to occur are lower than the numbers analyzed and 
authorized in the previously issued IHA. As both the duration of the 
survey and the number of takes expected to occur, and authorized, are 
lower than in the initial IHA, we have concluded that the effects of 
the Renewal would be the same or less than those that were analyzed in 
the Notices of the initial proposed IHA and issued IHA.
    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. Based on the information and analysis contained here and 
in the referenced documents, NMFS has determined the following: (1) The 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) Equinor's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action, and; (5) appropriate 
monitoring and reporting requirements are included.

[[Page 18808]]

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    The NMFS Office of Protected Resources 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 programmatic Biological 
Opinion in 2013 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 was later 
amended to include the Office of Protected Resources as an action 
agency. The Biological Opinion can be found online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The programmatic 
consultation established a procedure for reviewing future actions to 
determine if they and their effects fell within the scope of the 
Biological Opinion, and noted that for future MMPA authorizations for 
such activities, the Biological Opinion's incidental take statement 
(ITS) could be amended to exempt the take of ESA listed marine mammals. 
In April 2018, NMFS GARFO amended the ITS to exempt the take of right, 
sperm and fin whales as a result of the site characterization surveys 
authorized via the previously issued IHA.
    NMFS GARFO has determined that the 2013 Biological Opinion remains 
valid and that this MMPA authorization provides no new information 
about the effects of the action, nor does it change the extent of 
effects of the action, or any other basis to require reinitiation of 
the opinion. The Biological Opinion meets the requirements of section 
7(a)(2) of the ESA and implementing regulations at 50 CFR 402 for our 
issuance of an IHA under the MMPA, and no further consultation is 
required.

Renewal

    NMFS has issued an IHA Renewal to Equinor for conducting marine 
site characterization surveys off the coast of New York and coastal 
waters where cable route corridors will be established, from April 24, 
2019 through April 23, 2020.

    Dated: April 29, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-08949 Filed 5-1-19; 8:45 am]
BILLING CODE 3510-22-P