Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Massachusetts, Rhode Island, Connecticut, New York and New Jersey, 60424-60444 [2020-21137]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 187 (Friday, September 25, 2020)]
[Notices]
[Pages 60424-60444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21137]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA396]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off of Massachusetts, Rhode Island, Connecticut, New York and 
New Jersey

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 
Equinor Wind, LLC (Equinor) to incidentally harass, by Level B 
harassment only, marine mammals during site characterization surveys 
off the coast in the Atlantic Ocean in the area of the Commercial 
Leases of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0520 and OCS-A 0512) and along potential 
submarine cable routes to a landfall location in Massachusetts, Rhode 
Island, Connecticut, New York or New Jersey.

DATES: This authorization is effective for one year from September 20, 
2020 to September 19, 2021.

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

SUPPLEMENTARY INFORMATION: 

Background

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

Summary of Request

    On January 30, 2020, NMFS received a request from Equinor for an 
IHA to take marine mammals incidental to marine site characterization 
surveys in the Atlantic Ocean in the area of the Commercial Leases of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0520 and OCS-A 0512) and along potential 
submarine cable routes to a landfall location in Massachusetts, Rhode 
Island, Connecticut, New York or New Jersey. A revised application was 
received on March 31, 2020. NMFS deemed that request to be adequate and 
complete. On May 22, 2020 Equinor notified NMFS of a revision to their 
planned activities and submitted a revised IHA application reflecting 
the change. Equinor's request is for the take of 17 marine mammal 
stocks by Level B harassment only. Neither Equinor 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 Activity

    Equinor plans to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) and geotechnical surveys, 
in the area of Commercial Leases of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf OCS-A 0520 and OCS-A 
0512 (Lease Areas) and along potential submarine cable routes offshore 
Massachusetts, Rhode Island, Connecticut, New York and New Jersey.
    The purpose of the planned surveys is to support the preliminary 
site characterization, siting, and engineering design of offshore wind 
project facilities and submarine cables within the Lease Areas and in 
export cable route areas (ECRAs). As many as two survey vessels may 
operate concurrently as part of the planned surveys. Underwater sound 
resulting from Equinor's planned surveys has the potential to result in 
the incidental take of marine mammals in the form of behavioral 
harassment.
    The HRG survey activities planned by Equinor are described in 
detail in the notice of proposed IHA (85 FR 37848; June 24, 2020). The 
HRG equipment planned for use is shown in Table 1.

                           Table 1--Summary of Vessel-Based HRG Survey Equipment Planned for Use by Equinor With the Potential To Result in the Take of Marine Mammals
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                                                                                                                                 Pulse duration
          HRG equipment type                    Equipment              Operating frequency        SL rms (dB re  SL pk (dB re 1      (milli-       Repetition         Beam width  (degrees)
                                                                                                  1  [mu]Pa m)      [mu]Pa m)        second)       rate  (Hz)
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Medium Sub-bottom Profiler \2\........  Geo-Source 400 Tip        0.25 to 3.25.................             203             213               2               4  Omni-directional.
                                         Sparker Source (800 J).
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\1\ Sound source characteristics from manufacturer specifications.

[[Page 60425]]

 
\2\ SLs as reported for the ELC820 sparker in Crocker and Fratantonio (2016) which represents the most applicable proxy to the Geo-Source 800-J sparker expected for use during Equinor's
  planned surveys.

    As described above, a detailed description of the planned HRG 
surveys is provided in the Federal Register notice for the proposed IHA 
(85 FR 37848; June 24, 2020). Since that time, no changes have been 
made to the planned HRG survey activities. Therefore, a detailed 
description is not provided here. Please refer to that Federal Register 
notice for the description of the specified activity. Mitigation, 
monitoring, and reporting measures are described in detail later in 
this document (please see Mitigation and Monitoring and Reporting 
below).

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to Equinor was 
published in the Federal Register on June 24, 2020 (85 FR 37848). That 
notice described, in detail, Equinor's activity, the marine mammal 
species that may be affected by the activity, and the anticipated 
effects on marine mammals. During the 30-day public comment period, 
NMFS received comment letters from the Marine Mammal Commission 
(Commission) and a group of environmental non-governmental 
organizations (ENGOs). The letter was submitted jointly by the Natural 
Resources Defense Council, National Wildlife Federation, Conservation 
Law Foundation, Mass Audubon, Wildlife Conservation Society, NY4WHALES, 
Defenders of Wildlife, Surfrider Foundation, Connecticut Audubon 
Society, WDC Whale and Dolphin Conservation, International Marine 
Mammal Project of Earth Island Institute, Inland Ocean Coalition, 
Gotham Whale, International Fund for Animal Welfare, Marine Mammal 
Alliance Nantucket, Oceanic Preservation Society, and Sanctuary 
Education Advisory Specialists. NMFS has posted the comments online at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. A summary of the 
public comments received from the Commission and ENGOs as well as NMFS' 
responses to those comments are below. Please see the comment letters, 
available online, for full details of the comments and rationale.
    Comment 1: The Commission recommended that NMFS use consistent 
source levels for the same equipment that operates under the same 
parameters amongst the various action proponents. The Commission noted 
that NMFS used inconsistent source levels for the GeoMarine Dual 400 
sparker 800J in the proposed notice and another recently proposed IHA. 
In the recently proposed IHA (85 FR 36537; June 17, 2020) the applicant 
(Dominion Energy) used a source level of 200 dB re 1 [mu]Pa root-mean-
square (rms) and 210 dB re 1 [mu]Pa peak based on manufacturers data. 
Equinor and NMFS proposed to use a source level of 203 dB re 1 
[micro]Pa rms and 213 dB re 1 [mu]Pa peak for this IHA based on source 
levels for the ELC820 sparker as listed in Crocker and Fratantonio 
(2016).
    Response: NMFS encourages applicants to use data from Crocker and 
Fratantonio (2016), as we believe it to be the best available data 
regarding source levels. If information for specific equipment is not 
available in that document, the applicant should use manufacturer data. 
In this instance, Equinor felt that the manufacturer's data did not 
accurately reflect how the device was going to be utilized and, 
therefore, an appropriate proxy source from Crocker and Fratantonio 
(2016) was used. Note that the specifications used by Equinor results 
in a Level B harassment isopleth (141 m) that is more conservative than 
is found in the proposed IHA for Dominion (100 m). No revisions to 
Equinor's final IHA are required. While NMFS appreciates the 
Commission's call for consistency in the application of available data 
across applicants, it would not be appropriate to assume that all 
surveys will use a particular source in the same way and, therefore, it 
may be appropriate (as is the case here) to use different data sources 
or values to address these differences.
    Comment 3: The Commission observed that neither Equinor nor NMFS 
specified in a separate table in the proposed IHA what input parameters 
and thresholds were used to estimate the Level A harassment zones, 
which is inconsistent with other recently proposed authorizations that 
used NMFS's user spreadsheet. The Commission noted that Equinor, and in 
turn NMFS, underestimated the Level A harassment zones. According to 
the Commission, the Level A harassment zones should have been based on 
the information provided in Table 2, an average vessel speed of 4 knots 
(85 FR 37848; June 24, 2020), and the impulsive thresholds and would 
have resulted in a Level A harassment zone of 1.2 m rather than <1 m 
for low frequency (LF) cetaceans and 8.4 m rather than <1 m for high 
frequency (HF) cetaceans for the cumulative sound exposure level 
thresholds. The Commission recommended that NMFS specify the input 
parameters and thresholds used to validate Level A harassment zones 
provided by the action proponent using NMFS's user spreadsheet.
    Response: NMFS has provided User Spreadsheet inputs for the 
GeoMarine Dual 400 sparker 800J as shown in Table 4. Inputs were not 
provided for the USBL since impacts to such devices are considered to 
be de minimis based on small zone sizes. This information requested by 
the commenter is contained in Equinor's application.
    Comment 4: The Commission recommended that NMFS use its revised 
user spreadsheet, in-beam source levels, the actual beamwidth, and the 
maximum water depth in the Survey Area to estimate the Level B 
harassment zones for all future proposed authorizations involving HRG 
sources.
    Response: NMFS concurs with the Commission's recommendation. NMFS' 
interim guidance for determining Level B harassment zones from HRG 
sources includes all of the parameters listed above. We recommend that 
applicants employ these tools, as we believe they are generally the 
best methodologies that are currently available.
    Comment 5: The Commission recommended that NMFS consult with its 
acoustic experts to determine how to estimate Level A harassment zones 
accurately, what Level A harassment zones are actually expected, and 
whether it is necessary to estimate Level A harassment zones for HRG 
surveys in general.
    Response: NMFS concurs with the Commission's recommendation and 
works with our acoustic experts to evaluate the appropriate methods for 
determining the potential for Level A harassment from HRG surveys.
    Comment 6: To ensure that in-situ data are collected and analyzed 
appropriately, the Commission recommended that NMFS and (Bureau of 
Ocean Energy Management (BOEM) expedite efforts to develop and finalize 
methodological and signal processing standards for HRG sources.
    Response: NMFS concurs with the Commission that methodological and 
signal processing standards for HRG sources is warranted and is working 
on developing such standards. However, the effort is resource-dependent 
and NMFS cannot ensure such standards will be developed within the 
Commission's preferred time frame.

[[Page 60426]]

    Comment 7: The Commission recommended that Level B harassment takes 
should be discounted for Equinor, consistent with the approach NMFS has 
taken for Dominion and considering that the revised Level B harassment 
zone is the same size or smaller than the shut-down zones. For the same 
reason, the Commission also recommended that NMFS follow a consistent 
approach across authorizations regarding the discounting of takes by 
Level B harassment.
    Response: NMFS generally concurs with the Commission's position 
regarding discounting Level B harassment takes for species in which the 
shut-down zones are equal to or greater than the Level B harassment 
zones. We agree that this tenet applies during daylight. However, 
during night operations it is possible that some unseen number of 
marine mammals could enter into the Level B harassment zone. 
Additionally, since shutdown is waived for certain dolphin genera, take 
of these species could occur during both day and night operations. Note 
that in Equinor's case the Level B harassment zone (141 m) was not 
revised for reasons stated in response to Comment 1 and is larger than 
the shutdown zone (100 m). Therefore, discount of takes by Level B 
harassment by Equinor and Dominion are not directly comparable.
    Comment 9: The Commission recommended that NMFS evaluate the 
impacts of sound sources consistently across all applications and 
provide notice in its guidance to applicants and to the public 
regarding those sources that it has determined to be de minimis.
    Response: NMFS concurs with the Commission's recommendation and is 
currently working together with BOEM to develop a tool to assist 
applicants and NMFS in more quickly and efficiently identifying 
activities and mitigation approaches that are unlikely to result in 
take of marine mammals.
    Comment 10: The Commission recommended that NMFS consider whether, 
in situations involving HRG surveys, incidental harassment 
authorizations are necessary given the small size of the Level B 
harassment zones, the various required shutdown requirements, and 
BOEM's lease-stipulated requirements. The Commission recommended that 
NMFS should evaluate whether take needs to be authorized for those 
sources that are not considered de minimis, including sparkers, and for 
which implementation of the various mitigation measures should be 
sufficient to avoid Level B harassment takes.
    Response: NMFS concurs with the Commission's recommendation. 
However, NMFS has evaluated whether taking needs to be authorized for 
those sources that are not considered de minimis, including sparkers 
and boomers, factoring into consideration the effectiveness of 
mitigation and monitoring measures, and we have determined that 
implementation of mitigation and monitoring measures cannot ensure that 
all take can be avoided during all HRG survey activities under all 
circumstances at this time. If and when we are able to reach such a 
conclusion, we will re-evaluate our determination that incidental take 
authorization is warranted for these activities.
    Comment 11: The Commission recommended that NMFS require Equinor to 
report as soon as possible and cease project activities immediately in 
the event of an unauthorized injury or mortality of a marine mammal, 
including from a vessel strike, until NMFS's Office of Protected 
Resources and the New England/Mid-Atlantic Regional Stranding 
Coordinator determine whether additional measures are necessary to 
minimize the potential for additional unauthorized takes.
    Response: NMFS has imposed a suite of measures in this IHA to 
reduce the risk of vessel strikes and does not anticipate, and has not 
authorized, any takes associated with vessel strikes. Further, in the 
event of a ship strike Equinor is required both to collect and report 
an extensive suite of information that NMFS has identified in order to 
evaluate the ship strike, and to notify OPR and the New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. At that 
point, as the Commission suggests, NMFS would work with the applicant 
to determine whether there are additional mitigation measures or 
modifications that could further reduce the likelihood of vessel strike 
for the activities. However, given the existing requirements and the 
very low likelihood of a vessel strike occurring, the protective value 
of ceasing operations while NMFS and Equinor discuss potential 
additional mitigations in order to avoid a second highly unlikely event 
during that limited period is unclear.
    NMFS does not expect that the proposed activities, including HRG 
surveys, cable-lay activities and offshore pile driving activities, 
have the potential to result in injury or mortality to marine mammals 
and therefore does not agree that a blanket requirement for project 
activities to cease would be warranted. While injury or mortality to 
marine mammals is possible due to vessel strike, NMFS does not agree 
that a requirement for a vessel that is operating on the open water to 
suddenly stop operating is practicable, and it is unclear what 
mitigation benefit would result from such a requirement in relation to 
vessel strike. The Commission does not suggest what measures other than 
those prescribed in this IHA would potentially prove more effective in 
reducing the risk of strike. Therefore, we have not included this 
requirement in the authorization. NMFS retains authority to modify the 
IHA and cease all activities immediately based on a vessel strike and 
will exercise that authority if warranted.
    Comment 12: The Commission considers the renewal process to be 
inconsistent with the statutory requirements under section 101(a)(5)(D) 
of the MMPA and recommend that NMFS refrain from issuing renewals for 
any authorization.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019), NMFS has explained how the Renewal 
process, as implemented, is consistent with the statutory requirements 
contained in section 101(a)(5)(D) of the MMPA and, therefore, we plan 
to continue to issue qualifying Renewals when the requirements outlined 
on our website are met. Thus, NMFS agrees with the Commission's 
recommendation that we should not issue a Renewal for any authorization 
unless it is consistent with the procedural requirements specified in 
section 101(a)(5)(D)(iii) of the MMPA.
    Additionally, regarding the recommendation to use abbreviated 
notices, we agree that they are a useful tool by which to increase 
efficiency in conjunction with the use of Renewals, but we disagree 
that their use alone would equally fulfill NMFS' goal to maximize 
efficiency and provide regulatory certainty for applicants, with no 
reduction in protections for marine mammals. The Renewal process, with 
its narrowly described qualifying actions, specific issuance criteria, 
and additional 15-day comment period, allows for NMFS to broadly commit 
to a 60-day processing time. This commitment, which would not be 
possible in the absence of this narrow definition and the 15-day 
additional comment period, provides both a meaningfully shortened 
processing time and regulatory certainty for planning purposes. 
Increasing the comment period for Renewals to 30 days would increase 
processing time by 25% and is unnecessary, given the legal sufficiency 
of the process as it stands, as described above, and no additional 
protections for marine mammals that would result. NMFS uses abbreviated 
notices when

[[Page 60427]]

proposed actions do not qualify for Renewals, but still allow for 
reliance upon previous documentation and analyses. These abbreviated 
notice projects, which deviate from the narrow qualifications of a 
Renewal, require some additional time for the analyst to appropriately 
review the small changes from the initial IHA and further necessitate 
the 30-day public review required for a new IHA. NMFS has evaluated the 
use of both the Renewal and abbreviated notice processes, as well as 
the associated workload for each, and determined that using both of 
these processes provides maximum efficiency for the agency and 
applicants, regulatory certainty, and appropriate protections for 
marine mammals consistent with the statutory standards. Using the 
abbreviated notice process, however, is unnecessary and unwarranted for 
projects that meet the narrow qualifications for a Renewal IHA.
    As previously noted, we have found that the Renewal process is 
consistent with the statutory requirements of the MMPA and, further, 
promotes NMFS' goals of improving conservation of marine mammals and 
increasing efficiency in the MMPA compliance process. Therefore, we 
intend to continue implementing the Renewal process.
    Comment 13. The NGOs objected to NMFS' process to consider 
extending any one-year IHA with a truncated 15-day comment period as 
contrary to the MMPA.
    Response: NMFS' IHA Renewal process meets all statutory 
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA, 
are valid for a period of not more than one year. And the public has at 
least 30 days to comment on all proposed IHAs, with a cumulative total 
of 45 days for IHA Renewals. As noted above, the Request for Public 
Comments section made clear that the agency was seeking comment on both 
the initial proposed IHA and the potential issuance of a Renewal for 
this project. Because any Renewal (as explained in the Request for 
Public Comments section) is limited to another year of identical or 
nearly identical activities in the same location (as described in the 
Description of Proposed Activity section) or the same activities that 
were not completed within the one-year period of the initial IHA, 
reviewers have the information needed to effectively comment on both 
the immediate proposed IHA and a possible one-year Renewal, should the 
IHA holder choose to request one in the coming months.
    While there will be additional documents submitted with a Renewal 
request, for a qualifying Renewal these will be limited to 
documentation that NMFS will make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS will also confirm, among other things, that the 
activities will occur in the same location; involve the same species 
and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The Renewal request 
will also contain a preliminary monitoring report, but that is to 
verify that effects from the activities do not indicate impacts of a 
scale or nature not previously analyzed. The additional 15-day public 
comment period provides the public an opportunity to review these few 
documents, provide any additional pertinent information and comment on 
whether they think the criteria for a Renewal have been met. Between 
the initial 30-day comment period on these same activities and the 
additional 15 days, the total comment period for a Renewal is 45 days.
    Comment 14: The ENGOs recommended NMFS establish seasonal 
restrictions on site assessment and characterization activities in the 
Project Area with the potential to injure or harass the North Atlantic 
right whale between November 1, 2020 and April 30, 2021. This 
recommendation is in addition to the existing seasonal restrictions 
detailed in the Proposed IHA (i.e., Off Race Point Seasonal Management 
Area (``SMA'') and Cape Cod Bay SMA from January through May and in the 
Great South Channel SMA from April through July 3).
    Response: NMFS appreciates the value of seasonal restrictions under 
certain circumstances. As part of the 2008 NOAA Ship Strike Rule (73 FR 
60173; October 10, 2008) NMFS has designated SMAs along the eastern 
seaboard based on known North Atlantic right whale movement, 
distribution, and aggregation patterns. Additionally, temporary dynamic 
management areas (DMAs) are established whenever an aggregation of 
three or more whales are sighted within 2-3 miles of each other outside 
of active SMAs. Note that SELC proposes to prohibit all HRG activities 
across an expansive area. Halting all HRG surveys for six months each 
year in an area with active offshore wind energy projects under 
development is simply not practicable. We also determined that seasonal 
restrictions are not warranted since impacts to North Atlantic right 
whales from HRG surveys would be limited to behavioral harassment 
(i.e., Level B harassment) in the form of temporary avoidance of the 
area. Such responses that are considered to be of low severity and with 
no lasting biological consequences (e.g., Ellison et al., 2012).
    NMFS has required applicants to observe seasonal restrictions when 
such actions are both warranted and practicable. NMFS issued an IHA to 
Vineyard Winds (85 FR 26940; May 6, 2020) for marine site 
characterization surveys off the southern New England coast. NMFS 
reviewed the best available North Atlantic right whale abundance data 
for the planned survey area (Roberts et al. 2017; Kraus et al. 2016) 
and determined that North Atlantic right whale abundance is 
significantly higher in the period starting in late winter and 
extending to late spring in specific sections of the survey area. Based 
on this information NMFS defined seasonal restriction areas that 
Vineyard Wind must follow when conducting HRG surveys. Survey 
activities may only occur in the Cape Cod Bay SMA and off of the Race 
Point SMA during the months of August and September to ensure 
sufficient buffer between the SMA restrictions (January to May 15) and 
known seasonal occurrence of North Atlantic right whales north and 
northeast of Cape Cod (fall, winter, and spring).
    Vineyard Wind planned to operate up to nine survey vessels 
concurrently but they must limit to three the number of survey vessels 
that will operate concurrently from March through June within the lease 
areas (OCS-A 0501 and 0487) and OECC areas north of the lease areas up 
to, but not including, coastal and bay waters. An additional seasonal 
restriction area was defined south of Nantucket and is effect from 
December to February in the area. The seasonal restrictions described 
above will help to reduce both the number and intensity of North 
Atlantic right whale takes. NMFS was concerned that operating more than 
three vessels concurrently within a relatively small area could 
negatively impact North Atlantic right whales. Given the elevated 
concentrations of North Atlantic right whales in the delineated areas, 
NMFS determined that seasonal restrictions were warranted. NMFS also 
worked with Vineyard Wind to ensure that the measures were practicable.

[[Page 60428]]

    Comment 15: The ENGOs recommended that NMFS should require 
developers to operate sub-bottom profilers at power settings that 
achieve the lowest practicable source level for the objective.
    Response: Equinor has selected the equipment necessary to achieve 
their objectives. We have evaluated the effects expected as a result of 
use of this equipment, made the necessary findings, and imposed 
mitigation requirements sufficient to achieve the least practicable 
adverse impact on the affected species and stocks of marine mammals. It 
is not within NMFS' purview to make judgments regarding what 
constitutes the ``lowest practicable source level'' for an operator's 
survey objectives.
    Comment 16: The ENGOs recommended that surveys should not be done 
at night or during times of poor visibility to maximize the probability 
that the North Atlantic right whale and other endangered and protected 
large whale species are detected and confirmed clear of the exclusion 
zone.
    Response: We acknowledge the limitations inherent in detection of 
marine mammals at night. However, no injury is expected to result even 
in the absence of mitigation, given the very small estimated Level A 
harassment zones. Any potential impacts to marine mammals authorized 
for take would be limited to short-term behavioral responses. 
Restricting surveys in the manner suggested by the commenters may 
reduce marine mammal exposures by some degree in the short term, but 
would not result in any significant reduction in either intensity or 
duration of noise exposure. Vessels would also potentially be on the 
water for an extended time introducing noise into the marine 
environment. The restrictions recommended by the ENGOs could result in 
the surveys spending increased time on the water, which may result in 
greater overall exposure to sound for marine mammals and increase the 
risk of a vessel strike; thus the commenters have not demonstrated that 
such a requirement would result in a net benefit. Additionally, 
restricting the applicant to daylight operations would have the 
potential to result in lengthy shutdowns of the survey equipment, which 
could result in the applicant failing to collect the data they have 
determined is necessary and, subsequently, the need to conduct 
additional surveys the following year. This would result in 
significantly increased costs incurred by the applicant. Thus, the 
restriction suggested by the commenters would not be practicable for 
the applicant to implement. In consideration of potential effectiveness 
of the recommended measure and its practicability for the applicant, 
NMFS has determined that restricting survey operations to daylight 
hours when visibility is unimpeded is not warranted or practicable in 
this case.
    Comment 17: The ENGOs recommended that developers should be 
required to monitor an exclusion zone (EZ) for the North Atlantic right 
whale of 1,000 m and 500 m for other endangered and protected large 
whale species.
    Response: Regarding the recommendation for 500-m EZ for endangered 
and protected marine mammals and 1,000-m EZ specifically for North 
Atlantic right whales, NMFS has determined that the 500-m EZ, as 
required in the IHA, is sufficiently protective. We note that the 500-m 
EZ for North Atlantic right whales exceeds the modeled distance to the 
largest Level B harassment isopleth distance (141 m) by a factor of 
more than three. Thus, we are not requiring shutdown if a North 
Atlantic right whale is sighted beyond 500-m or other marine mammal is 
observed beyond 100 m.
    Comment 18: The ENGO's recommended that monitoring should consist 
of a combination of visual monitoring by PSOs and passive acoustic 
monitoring at all times that survey work is underway.
    Response: There are several reasons why we do not agree that use of 
PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact for 
Equinor's proposed HRG survey activities is limited. First, for this 
activity, the area expected to be ensonified above the Level B 
harassment threshold is relatively small (a maximum of 141 m as 
described in the Estimated Take section)--this reflects the fact that, 
to start with, the source level is comparatively low and the intensity 
of any resulting impacts would be lower level and, further, it means 
that inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low--together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult. In addition, the ability of PAM to detect 
baleen whale vocalizations is further limited due to being deployed 
from the stern of a vessel, which puts the PAM hydrophones in proximity 
to propeller noise and low frequency engine noise which can mask the 
low frequency sounds emitted by baleen whales, including North Atlantic 
right whales. We also note that the effects to North Atlantic right 
whales, and all marine mammals, from the types of surveys authorized in 
this IHA are expected to be limited to low level behavioral harassment 
even in the absence of mitigation; no injury is expected or authorized.
    Additionally, since Equinor's PSOs will be on duty only during 
daylight operations night vision equipment is not required. This is 
standard practice during HRG surveys and is discussed in greater detail 
below.
    Comment 19: The ENGOs recommended that four PSOs should be required 
to implement a two-on/two-off shift schedule so no single PSO is 
responsible for monitoring more than 180[deg].
    Response: NMFS does not agree with the commenters that a minimum of 
four PSOs should be required, following a two-on/two-off rotation, to 
meet the MMPA requirement that mitigation must effect the least 
practicable adverse impact upon the affected species or stocks and 
their habitat. NMFS typically requires that a single PSO must be 
stationed at the highest vantage point and engaged in general 360-
degree scanning during daylight hours. The monitoring reports submitted 
to NMFS have demonstrated that PSOs active only during daylight 
operations are able to detect marine mammals and implement appropriate 
mitigation measures.
    Comment 20: The ENGOs suggested that it should be NMFS' top 
priority to consider any initial data from state monitoring efforts, 
passive acoustic monitoring data, opportunistic marine mammal sightings 
data, satellite telemetry, and other data sources, because the models 
used by NMFS do not adequately capture increased use of the survey 
areas by North Atlantic right whales. Further, these commenters state 
that the density models NMFS uses result in an underestimate of take, 
and do not fully reflect the abundance,

[[Page 60429]]

distribution, and density of marine mammals for the U.S. East Coast.
    Response: NMFS will review any recommended data sources and will 
continue to use the best available information. We welcome future input 
from interested parties on data sources that may be of use in analyzing 
the potential presence and movement patterns of marine mammals, 
including North Atlantic right whales, in New England waters. NMFS will 
review any recommended data sources and will continue to use the best 
available information. NMFS used the best scientific information 
available at the time the analyses for the proposed IHA were 
conducted--in this case the marine mammal density models developed by 
the Duke Marine Geospatial Ecology Lab (MGEL) (Roberts et al. 2016, 
2017, 2018)--to inform our determinations in the proposed IHA. The 
ENGOs are correct in their statement that North Atlantic right whale 
distribution has shifted in recent years. In fact, a new North Atlantic 
right whale density model was recently released by Roberts et al 
(2020). The model shows approximately double the density of North 
Atlantic right whales in the activity area as was considered in the 
proposed IHA. We have adjusted the take estimates accordingly in the 
final IHA.
    Comment 21: The ENGOs advised NMFS to develop a dataset that 
accurately reflects marine mammal presence for future IHAs.
    Response: NMFS has relied on the best available science in issuing 
this IHA, but we generally agree with the ENGOs and welcome the 
opportunity to participate in fora where implications of such data and 
development of a dataset would be discussed.
    Comment 22: The ENGOs recommended that NMFS should carefully 
analyze the cumulative impacts on the North Atlantic right whale and 
other protected species from the proposed survey activities and other 
survey activities contemplated in other lease areas.
    Response: The MMPA grants exceptions to its broad take prohibition 
for a ``specified activity.'' 16 U.S.C. 1371(a)(5)(A)(i). Cumulative 
impacts (also referred to as cumulative effects) is a term that appears 
in the context of the National Environmental Policy Act (NEPA) and the 
Endangered Species Act (ESA), but it is defined differently in those 
contexts. Neither the MMPA nor NMFS' codified implementing regulations 
address consideration of other unrelated activities and their impacts 
on populations. However, the preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989) states in response to 
comments that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Accordingly, NMFS here has factored 
into its negligible impact analysis the impacts of other past and 
ongoing anthropogenic activities via their impacts on the baseline 
(e.g., as reflected in the density/distribution and status of the 
species, population size and growth rate, and other relevant 
stressors).
    Comment 23: The ENGOs recommended that NMFS make available 
information regarding source levels and the reflection of sound from 
Surveyor Remotely Operated Vehicle (SROVs) to allow a full evaluation 
of the effectiveness of SROVs in entirely avoiding harassment of marine 
mammals.
    Response: SROVs contain the same types of HRG equipment that are 
commonly found on full-size survey vessels. Therefore, the source 
levels and directionality of specific equipment located on SROVs should 
be the same as when it is operating from a survey vessel. The operating 
parameters and specifications associated with HRG equipment is 
generally available from device manufacturers or can be found in 
studies that quantified characteristics of sounds radiated by 
commercial marine geophysical survey systems (e.g., Crocker and 
Fratantonio 2016). As the ENGOs noted, SROV sound sources are generally 
downward facing and located at a depth of no more than 6 m above the 
seabed while actively surveying. Given the beam direction and shallow 
operational depths, it is highly unlikely a marine mammal would swim 
directly under an SROV and be exposed to sound at levels that could 
result in injury or behavioral modification.
    Comment 24: The ENGOs noted that Equinor committed to a number of 
mitigation measures in the IHA application (e.g., passive acoustic 
monitoring, infrared equipment) that are not required by the Proposed 
IHA. The ENGOs recommended that NMFS incorporate these measures into 
the Final IHA.
    Response: NMFS does not necessarily include mitigation measures in 
IHAs that are mandated by other regulatory entities or which an 
applicant plans to voluntarily employ. We generally do not require 
mitigation measures that we do not believe are effective or 
practicable. We explained why we believe PAM is not warranted in 
response to another comment. As far as visual monitoring at night, we 
have not required night monitoring because it was presumed to be 
ineffective. However, as night vision technology continues to improve 
it may be considered effective at some point. If an applicant 
voluntarily proposes to employ PSOs at night, we include the measure as 
part of the IHA. Similarly, if pre-clearance and ramp-up operations are 
to be monitored at night, then PSOs should be provided with night 
vision equipment.
    Comment 25: The ENGOs recommended that NMFS develop, and 
subsequently require, a robust and effective real-time monitoring and 
mitigation system for North Atlantic right whales and other endangered 
and protected species (e.g., fin whales, sei whales, humpback whales).
    Response: NMFS is generally supportive of this concept. A network 
of near real-time baleen whale monitoring devices are active or have 
been tested in portions of New England and Canadian waters. These 
systems employ various digital acoustic monitoring instruments which 
have been placed on autonomous platforms including slocum gliders, wave 
gliders, profiling floats and moored buoys. Systems that have proven to 
be successful will likely see increased use as operational tools for 
many whale monitoring and mitigation applications.
    NOAA Fisheries recently published ``Technical Memorandum 
NMFS[hyphen]OPR[hyphen]64: North Atlantic Right Whale Monitoring and 
Surveillance: Report and Recommendations of the National Marine 
Fisheries Service's Expert Working Group'' which is available at: 
https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations. This 
report summarizes a workshop NOAA Fisheries convened to address 
objectives related to monitoring North Atlantic right whales and 
presents the Expert Working Group's recommendations for a comprehensive 
monitoring strategy to guide future analyses and data collection. Among 
the numerous recommendations found in the report, the Expert Working 
Group encouraged the widespread deployment of auto-buoys to provide 
near real-time detections of NARW calls that visual survey teams can 
then respond to for collection of identification photographs or 
biological samples. Equinor must consult NMFS' North Atlantic right 
whale reporting systems for the presence of North Atlantic right whales 
throughout survey operations for the establishment of a Dynamic 
Management Area (DMA) and is immediately report a sighting of a North

[[Page 60430]]

Atlantic right whale to the NMFS North Atlantic Right Whale Sighting 
Advisory System.
    Comment 26: The ENGOs asserted that the agency's assumptions 
regarding mitigation effectiveness are unfounded and cannot be used to 
justify any reduction in the number of takes authorized as was done for 
North Atlantic right whales. The reasons cited include: (i) the 
agency's reliance on a 160 dB threshold for behavioral harassment that 
is not supported by the best available scientific information; (ii) the 
agency relies on the assumption that marine mammals will take measures 
to avoid the sound even though studies have not found avoidance 
behavior to be generalizable among species and contexts and even though 
avoidance may itself constitute take under the MMPA; and (iii) the 
mitigation and monitoring protocols prescribed by the agency are 
inadequate at protecting marine mammals and do not comply with the 
MMPA.
    Response: The three comments provided by the ENGOs are addressed 
individually below.
    (i) NMFS acknowledges that the 160-dB rms step-function approach is 
simplistic, and that an approach reflecting a more complex 
probabilistic function may more effectively represent the known 
variation in responses at different levels due to differences in the 
receivers, the context of the exposure, and other factors. The 
commenters suggested that our use of the 160-dB threshold implies that 
we do not recognize the science indicating that animals may react in 
ways constituting behavioral harassment when exposed to lower received 
levels. However, we do recognize the potential for Level B harassment 
at exposures to received levels below 160 dB rms, in addition to the 
potential that animals exposed to received levels above 160 dB rms will 
not respond in ways constituting behavioral harassment (e.g., Malme et 
al., 1983, 1984, 1985, 1988; McCauley et al., 1998, 2000a, 2000b; 
Barkaszi et al., 2012; Stone, 2015a; Gailey et al., 2016; Barkaszi and 
Kelly, 2018). These comments appear to evidence a misconception 
regarding the concept of the 160-dB threshold. While it is correct that 
in practice it works as a step-function, i.e., animals exposed to 
received levels above the threshold are considered to be ``taken'' and 
those exposed to levels below the threshold are not, it is in fact 
intended as a sort of mid-point of likely behavioral responses (which 
are extremely complex depending on many factors including species, 
noise source, individual experience, and behavioral context). What this 
means is that, conceptually, the function recognizes that some animals 
exposed to levels below the threshold will in fact react in ways that 
are appropriately considered take, while others that are exposed to 
levels above the threshold will not. Use of the 160-dB threshold allows 
for a simplistic quantitative estimate of take, while we can 
qualitatively address the variation in responses across different 
received levels in our discussion and analysis.
    As behavioral responses to sound depend on the context in which an 
animal receives the sound, including the animal's behavioral mode when 
it hears sounds, prior experience, additional biological factors, and 
other contextual factors, defining sound levels that disrupt behavioral 
patterns is extremely difficult. Even experts have not previously been 
able to suggest specific new criteria due to these difficulties (e.g., 
Southall et al. 2007; Gomez et al., 2016).
    (ii) The ENGOS disagreed with NMFS' assumption that marine mammals 
move away from sound sources. The ENGOS claimed that studies have not 
found avoidance behavior to be generalizable among species and 
contexts, and even though avoidance may itself constitute take under 
the MMPA. Importantly, the commenters mistakenly seem to believe that 
the NMFS' does not consider avoidance as a take, and that the concept 
of avoidance is used as a mechanism to reduce overall take--this is not 
the case. Avoidance of loud sounds is a well-documented behavioral 
response, and NMFS often accordingly accounts for this avoidance by 
reducing the number of injurious exposures, which would occur in very 
close proximity to the source and necessitate a longer duration of 
exposure. However, when Level A harassment takes are reduced in this 
manner, they are changed to Level B harassment takes, in recognition of 
the fact that this avoidance or other behavioral responses occurring as 
a result of these exposures are still take, NMFS does not reduce the 
overall amount of take as a result of avoidance.
    (iii) The ENGOs questioned the effectiveness of the mitigation and 
monitoring measures proposed to be authorized. They specifically 
recommended that seasonal restrictions should be established and 
consideration should be given to species for which an unusual mortality 
event (UME) has been declared. Note that NMFS is requiring Equinor to 
comply with restrictions associated with identified seasonal management 
areas (SMA) and they must comply with dynamic management area 
restrictions (DMAs), if any DMAs are established near the Project Area. 
Furthermore, we have established a 500-m shutdown zone for North 
Atlantic right whales which is three times as large as the greatest 
Level B harassment isopleth calculated for the specified activities for 
this IHA (141 m). Additionally, similar mitigation and monitoring 
measures have previously been required in numerous HRG survey IHAs and 
have been successfully implemented.
    Comment 27: The ENGOs recommended that HRG surveys should commence, 
with ramp-up, during daylight hours only, to maximize the probability 
that North Atlantic right whales detected and confirmed clear of the 
exclusion zone.
    Response: We acknowledge the limitations inherent in detection of 
marine mammals at night. However, no injury is expected to result even 
in the absence of mitigation, given the very small estimated Level A 
harassment zones. Any potential impacts to marine mammals authorized 
for take would be limited to short-term behavioral responses. 
Restricting surveys in the manner suggested by the commenters may 
reduce marine mammal exposures by some degree in the short term, but 
would not result in any significant reduction in either intensity or 
duration of noise exposure. Vessels would also potentially be on the 
water for an extended time introducing noise into the marine 
environment. The restrictions recommended by the commenters could 
result in the surveys spending increased time on the water, which may 
result in greater overall exposure to sound for marine mammals and 
increase the risk of a vessel strike; thus the commenters have not 
demonstrated that such a requirement would result in a net benefit. 
Furthermore, restricting the applicant to ramp-up only during daylight 
hours would have the potential to result in lengthy shutdowns of the 
survey equipment, which could result in the applicant failing to 
collect the data they have determined is necessary and, subsequently, 
the need to conduct additional surveys the following year. This would 
result in significantly increased costs incurred by the applicant. 
Thus, the restriction suggested by the commenters would not be 
practicable for the applicant to implement. In consideration of 
potential effectiveness of the recommended measure and its 
practicability for the applicant, NMFS has determined that restricting 
survey start-ups to daylight hours when visibility is unimpeded is

[[Page 60431]]

not warranted or practicable in this case.
    Comment 28: The ENGOs recommended that all project vessels 
operating within or transiting to/from the Project Area, regardless of 
size, observe a mandatory 10 knot speed restriction during the entire 
survey period.
    Response: NMFS does not concur with these measures. NMFS has 
analyzed the potential for ship strike resulting from Equinor's 
activity and has determined that the mitigation measures specific to 
ship strike avoidance are sufficient to avoid the potential for ship 
strike. These include: A requirement that all vessel operators comply 
with 10 knot (18.5 km/hour) or less speed restrictions in any 
established DMA or SMA; a requirement that all vessel operators reduce 
vessel speed to 10 knots (18.5 km/hour) or less when any large whale, 
any mother/calf pairs, pods, or large assemblages of non-delphinoid 
cetaceans are observed within 100 m of an underway vessel; a 
requirement that all survey vessels maintain a separation distance of 
500-m or greater from any sighted North Atlantic right whale; a 
requirement that, if underway, vessels must steer a course away from 
any sighted North Atlantic right whale at 10 knots or less until the 
500-m minimum separation distance has been established; and a 
requirement that, if a North Atlantic right whale is sighted in a 
vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. We have 
determined that the ship strike avoidance measures are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. Furthermore, no documented vessel strikes have occurred 
for any HRG surveys which were issued IHAs from NMFS.

Changes From the Proposed IHA to Final IHA

    NMFS has included User Spreadsheet inputs in Table 4 that were used 
to determine Level A harassment isopleths. Table 5 was revised to 
illustrate Level A harassment isopleths based on inputs from Table 4. 
NMFS has added language to the Mitigation section exempting harbor and 
gray seals from shutdown if they approach the survey vessel or towed 
survey equipment. This language is identical to that found in another 
recent HRG IHA issued in July, 2020 to Mayflower Wind Energy, LLC. (85 
FR 45578; July 29, 2020). The Federal Register notice announcing our 
issuance of the IHA to Mayflower Wind Energy, LLC outlines the basis 
for these exceptions. NMFS increased the authorized number of takes of 
North Atlantic right whale by Level B harassment based on a new density 
model that was released after the publication of the proposed IHA in 
the Federal Register.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website. (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
authorized for this action, 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 Committee on Taxonomy (2020). PBR is defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic SARs. All values presented in Table 2 are the most 
recent available at the time of publication and are available in the 
2019 Atlantic and Gulf of Mexico Marine Mammal Stock Assessments (Hayes 
et al., 2020), available online at:
 www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.

                      Table 2--Marine Mammals Known To Occur in the Survey Area That May Be Affected by Equinor's Planned Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Stock abundance
                                                        MMPA and ESA     (CV, Nmin, most      Predicted
  Common name (scientific name)          Stock             status;      recent  abundance  abundance (CV)   PBR \4\   Annual M/   Occurrence in  project
                                                        strategic (Y/      survey) \2\           \3\                    SI \4\             area
                                                           N) \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Toothed whales (Odontoceti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter             North Atlantic.....  E; Y            4,349 (0.28;          5,353 (0.12)        6.9        0.0  Rare.
 macrocephalus).                                                        3,451; n/a).
Atlantic white-sided dolphin      W North Atlantic...  -; N            93,233 (0.71;        37,180 (0.07)        544         26  Common.
 (Lagenorhynchus acutus).                                               54,443; n/a).
Atlantic spotted dolphin          W North Atlantic...  -; N            39,921 (0.27;        55,436 (0.32)        320          0  Common.
 (Stenella frontalis).                                                  32,032; 2012).
Common dolphin (Delphinus         W North Atlantic...  -; N            172,825 (0.21;       86,098 (0.12)      1,452        419  Common.
 delphis).                                                              145,216; 2011).
Bottlenose dolphin (Tursiops      W North Atlantic,    -; N            62,851 (0.23;        97,476 (0.06)        519         28  Common offshore.
 truncatus).                       Offshore.                            51,914; 2011).                \5\
                                  W North Atlantic,    -; N            6,639 (0.41;                               48   6.1-13.2  Common nearshore.
                                   Northern Coastal                     4,759; 2015).
                                   Migratory.
Long-finned pilot whale           W North Atlantic...  -; N            39,215 (0.3;         18,977 (0.11)        306         21  Rare.
 (Globicephala melas).                                                  30,627; n/a).                 \5\

[[Page 60432]]

 
Risso's dolphin (Grampus          W North Atlantic...  -; N            35,493 (0.19;         7,732 (0.09)        303       54.3  Rare.
 griseus).                                                              30,289; 2011).
Harbor porpoise (Phocoena         Gulf of Maine/Bay    -; N            95,543 (0.31;        45,089 (0.12)        851        217  Common.
 phocoena).                        of Fundy.                            74,034; 2011).                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Baleen whales (Mysticeti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale (Balaenoptera           W North Atlantic...  E; Y            7,418 (0.25;          4,633 (0.08)         12       2.35  Year round in
 physalus).                                                             6,025; n/a).                                              continental shelf and
                                                                                                                                  slope waters.
Sei whale (Balaenoptera           Nova Scotia........  E; Y            6,292 (1.015;         717 (0.30) *        6.2        1.0  Year round in
 borealis).                                                             3,098; n/a).                                              continental shelf and
                                                                                                                                  slope waters.
Minke whale (Balaenoptera         Canadian East Coast  -; N            24,202 (0.3;        2,112 (0.05) *        8.0        7.0  Year round in
 acutorostrata).                                                        18,902; n/a).                                             continental shelf and
                                                                                                                                  slope waters.
Humpback whale (Megaptera         Gulf of Maine......  -; N            1,396 (0; 1,380; n/ 1,637 (0.07) *         22      12.15  Common year round.
 novaeangliae).                                                         a).
North Atlantic right whale        W North Atlantic...  E; Y            428 (0; 418; n/a).    535 (0.45) *        0.8       6.85  Occur seasonally.
 (Eubalaena glacialis).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Earless seals (Phocidae)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal \6\ (Halichoerus        W North Atlantic...  -; N            27,131 (0.19;                  n/a      1,389      5,410  Common.
 grypus).                                                               23,158; n/a).
Harbor seal (Phoca vitulina)....  W North Atlantic...  -; N            75,834 (0.15;                  n/a      2,006        350  Common.
                                                                        66,884; 2012).
Harp seal \7\ (Pagophilus         W North Atlantic...  -; N            Unknown (n/a; n/a;             n/a       unk.    232,422  Rare.
 groenlandicus).                                                        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\ Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at:
  www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate
  of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no
  associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have
  not yet been incorporated into the estimate. All values presented here are from the 2019 Atlantic SARs (Hayes et al., 2019).
\3\ This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016,
  2017, 2018). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic
  Ocean, and we provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean
  density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported
  development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance.
\4\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). Annual M/SI, found in NMFS' SARs,
  represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship
  strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented
  in the 2019 SARs (Hayes et al., 2020).
\5\ Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly,
  the habitat-based cetacean density models produced by Roberts et al. (2016, 2017, 2018) are based in part on available observational data which, in
  some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016, 2017, 2018) produced density models to genus level
  for Globicephala spp. and produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks.
\6\ NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.
\7\ Stock abundance estimate is not available in NMFS SARs and predicted abundance estimate is not provided in Roberts et al. (2016, 2017, 2018).

    A detailed description of the species for which take has been 
authorized, including brief introductions to the 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 (85 FR 37848; June 24, 
2020); since that time, we are not aware of any changes in the status 
of these species and stocks; therefore, detailed descriptions are not 
provided here. Please refer to that Federal Register notice for these 
descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Equinor's survey activities 
have the potential to result in take of marine mammals by harassment in 
the vicinity of the survey area. The Federal Register notice for the 
proposed IHA (85 FR 37848; June 24, 2020) included a discussion of the 
effects of anthropogenic noise on marine mammals and their habitat. 
That information and analysis is incorporated by reference into this 
final IHA determination and is not repeated here; please refer to the 
notice of proposed IHA (85 FR 37848; June 24, 2020).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance,

[[Page 60433]]

which (i) has the potential to injure a marine mammal or marine mammal 
stock in the wild (Level A harassment); or (ii) has the potential to 
disturb a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering (Level 
B harassment).
    Authorized takes would be by Level B harassment only in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to HRG sources. Based on the nature of the 
activity and the anticipated effectiveness of the mitigation measures 
(i.e., exclusion zones and shutdown measures), discussed in detail 
below in the Mitigation section, Level A harassment is neither 
anticipated nor authorized.
    As described previously, no injury or mortality is anticipated or 
authorized for this activity. Below we describe how the take is 
estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the authorized take 
estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g., 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources. Equinor's planned activity includes 
the use of intermittent sources (geophysical survey equipment) and 
therefore use of the 160 dB re 1 [mu]Pa (rms) threshold is applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). The components of Equinor's planned 
activity that may result in the take of marine mammals include the use 
of impulsive and non-impulsive intermittent sources.
    These thresholds are provided in Table 3 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The planned survey would entail the use of HRG equipment. The 
distance to the isopleth corresponding to the threshold for Level B 
harassment was calculated for all HRG equipment with the potential to 
result in harassment of

[[Page 60434]]

marine mammals. NMFS has developed an interim methodology for 
determining the rms sound pressure level (SPLrms) at the 
160-dB isopleth for the purposes of estimating take by Level B 
harassment resulting from exposure to HRG survey equipment (NMFS, 
2019). This methodology incorporates frequency and some directionality 
to refine estimated ensonified zones and is described below:
    If only peak source sound pressure level (SPLpk) is 
given, the SPLrms can be roughly approximated by:

(1) SPLrms = SPLpk + 10 log10 [tau]

Where [tau] is the pulse duration in second. If the pulse duration 
varies, the longest duration should be used, unless there is certainty 
regarding the portion of time a shorter duration will be used, in which 
case the result can be calculated/parsed appropriately.
    In order to account for the greater absorption of higher frequency 
sources, we recommend applying 20 log(r) with an absorption term 
[alpha][middot]r/1000 to calculate transmission loss (TL), as described 
in Eq.s (2) and (3) below:

(2) TL = 20 log10(r) + [alpha] [middot] r/1000 (dB)

Where r is the distance in meters, and [alpha] is absorption 
coefficient in dB/km.
    While the calculation of absorption coefficient varies with 
frequency, temperature, salinity, and pH, the largest factor driving 
the absorption coefficient is frequency. A simple formula to 
approximate the absorption coefficient (neglecting temperature, 
salinity, and pH) is provided by Richardson et al. (1995):

    (3) [alpha] [ap] 0.036[fnof]1.5 (dB/km)

Where [fnof] is frequency in kHz. When a range of frequencies, is being 
used, the lower bound of the range should be used for this calculation, 
unless there is certainty regarding the portion of time a higher 
frequency will be used, in which case the result can be calculated/
parsed appropriately.
    Further, if the beamwidth is less than 180[deg] and the angle of 
beam axis in respect to sea surface is known, the horizontal impact 
distance R should be calculated using
[GRAPHIC] [TIFF OMITTED] TN25SE20.000

    The interim methodology described above was used to estimate 
isopleth distances to the Level B harassment threshold for the planned 
HRG survey. NMFS considers the data provided by Crocker and Fratantonio 
(2016) to represent the best available information on source levels 
associated with HRG equipment and therefore recommends that source 
levels provided by Crocker and Fratantonio (2016) be incorporated in 
the method described above to estimate isopleth distances to the Level 
B harassment threshold. In cases when the source level for a specific 
type of HRG equipment is not provided in Crocker and Fratantonio 
(2016), NMFS recommends that either the source levels provided by the 
manufacturer be used, or, in instances where source levels provided by 
the manufacturer are unavailable or unreliable, a proxy from Crocker 
and Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
types that may be used during the planned vessel-based surveys that may 
result in take of marine mammals, and the sound levels associated with 
those HRG equipment types.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Equinor that has 
the potential to result in harassment of marine mammals, sound produced 
by the GeoSource 800 J sparker would propagate furthest to the Level B 
harassment threshold (Table 4); therefore, for the purposes of the 
exposure analysis, it was assumed the GeoSource 800 J 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 GeoSource 
800 J (estimated at 141 m; Table 5) was used as the basis of the take 
calculation for all marine mammals. We note that this is a conservative 
assumption as there may be times during the planned surveys when the 
GeoSource 800 J is not operated (Table 5).
    Predicted distances to Level A harassment isopleths, which vary 
based on marine mammal functional hearing groups (Table 5), were also 
calculated, though it is important to note that NMFS does not believe 
that occurrence of Level A harassment is a realistic outcome of use of 
these sources. The updated acoustic thresholds for impulsive sounds 
(such as are produced by sparkers) contained in the Technical Guidance 
(NMFS, 2018) were presented as dual metric acoustic thresholds using 
both cumulative sound exposure level (SELcum) and peak sound 
pressure level metrics. As dual metrics, NMFS considers onset of PTS 
(Level A harassment) to have occurred when either one of the two 
metrics is exceeded (i.e., the metric resulting in the largest 
isopleth). The SELcum metric considers both level and 
duration of exposure, as well as auditory weighting functions by marine 
mammal hearing group. Inputs to the User Spreadsheet are shown in Table 
4.

[[Page 60435]]



                    Table 4--User Spreadsheet Inputs
------------------------------------------------------------------------
               HRG system                   Medium sub-bottom profiler
------------------------------------------------------------------------
HRG Equipment..........................  Geo-Source 400 Tip Sparker
                                          Source (800 J).
User Spreadsheet Tab...................  F. Mobile Source: impulsive,
                                          Intermittent.
Source Level...........................  203 RMS/213 PK.
Weighting Factor Adjustment (kHz)......  3.25.
Source Velocity (m/sec)................  2.06.
Pulse Duration (seconds)...............  0.002.
1/repetition rate[caret] (seconds......  0.25.
Propagation (xLogR)....................  20.
------------------------------------------------------------------------


     Table 5--Modeled Radial Distances From HRG Survey Equipment to Isopleths Corresponding to Level A Harassment and Level B Harassment Thresholds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Radial distance to level A harassment threshold (m)                    Radial distance to
                                           ----------------------------------------------------------------------------------------  level B harassment
               Sound source                     Low frequency         Mid frequency        High frequency       Phocid pinnipeds        threshold (m)
                                            cetaceans (peak SPL/  cetaceans (peak SPL/  cetaceans (peak SPL/   (underwater) (peak  ---------------------
                                                   SELcum)               SELcum)               SELcum)             SPL/SELcum)       All marine mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Geo-Source 400 Tip Sparker (800 J)........                -/1.2                   -/0                 -/8.4                  -/<1                   141
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Modeled distances to isopleths corresponding to the Level A 
harassment thresholds are very small (<8.4 m) for all marine mammal 
species and stocks that may be impacted by the planned activities 
(Table 5). Based on the very small Level A harassment zones for all 
marine mammal species and stocks that may be impacted by the planned 
activities, the potential for any marine mammals to be taken by Level A 
harassment is considered so low as to be discountable. As NMFS has 
determined that the likelihood of take in the form of Level A 
harassment of any marine mammals as a result of the planned surveys is 
so low as to be discountable, we therefore do not propose to authorize 
the take by Level A harassment of any marine mammals.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    The habitat-based density models produced by the Duke University 
Marine Geospatial Ecology Laboratory (MGEL) (Roberts et al., 2016, 
2017, 2018) represent the best available information regarding marine 
mammal densities in the planned survey area. The density data presented 
by the Duke University MGEL incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates 
data from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated on the basis of 
additional data as well as certain methodological improvements. The 
updated models incorporate additional sighting data, including 
sightings from the NOAA Atlantic Marine Assessment Program for 
Protected Species (AMAPPS) surveys from 2010-2014 (NEFSC & SEFSC, 2011, 
2012, 2014a, 2014b, 2015, 2016), and include updated density data for 
North Atlantic right whales, including in Cape Cod Bay (Roberts et al., 
2018). Our evaluation of the changes leads to a conclusion that these 
represent the best scientific evidence available. More information is 
available online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/. 
Marine mammal density estimates in the project area (animals/km\2\) 
were obtained using these model results (Roberts et al., 2016, 2017, 
2018).
    For the exposure analysis, density data from the Duke University 
MGEL (Roberts et al. (2016, 2017, 2018)) were mapped using a geographic 
information system (GIS). The density coverages that included any 
portion of the planned project area were selected for all potential 
survey months. For each of the survey areas (i.e., ECRA-1, ECRA-2, 
ECRA-3 and ECRA-4), the densities of each species as reported by the 
Duke University MGEL (Roberts et al. (2016, 2017, 2018)) were averaged 
by season; thus, a density was calculated for each species for spring, 
summer, fall and winter. To be conservative, the greatest seasonal 
density calculated for each species be carried forward in the exposure 
analysis. Estimated seasonal densities (animals per km\2\) of all 
marine mammal species that may be taken by the surveys, for all seasons 
and all survey areas, are shown in Tables 6-2, 6-3, 6-4, 6-5 and 6-6 of 
the IHA application. The maximum seasonal density values used to 
estimate marine mammal exposure numbers are shown in Table 6 below. 
Note that Duke University MGEL density models do not differentiate by 
bottlenose dolphin stocks and instead provide estimates at the species 
level (Roberts et al. (2016, 2017, 2018)); the Western North Atlantic 
northern migratory coastal stock and the Western North Atlantic 
offshore stock of bottlenose dolphins may occur in the planned survey 
areas (Hayes et al. 2018). Similarly, the Duke University MGEL produced 
density models for all seals and did not differentiate by seal species 
(Roberts et al. (2018)); harbor, gray and harp seals may occur in the 
planned survey areas (Hayes et al. 2018).

[[Page 60436]]



Table 6--Seasonal Marine Mammal Densities (Number of Animals per 100 km\2\) in All Survey Areas Used in Exposure
                                                    Estimates
----------------------------------------------------------------------------------------------------------------
                     Species                          ECRA-1          ECRA-2          ECRA-3          ECRA-4
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \1\..................        0.006803        0.008907       0.0000913     0.007247667
Humpback whale..................................       0.0054269      0.00147951       0.0003133       0.0007076
Fin whale.......................................       0.0048318      0.00392609        0.000154       0.0029756
Sei whale.......................................       0.0003972      0.00028884      0.00002179        0.000146
Minke whale.....................................       0.0044061       0.0020292      0.00006959       0.0015375
Sperm Whale.....................................       0.0001033      0.00029419      0.00004323       0.0003508
Pilot whales....................................       0.0014728      0.00011263      0.00002895       0.0058357
Bottlenose dolphins.............................       0.0847306      0.02955662       0.0684936       0.0527685
Common dolphin..................................       0.0224355       0.2121851       0.0043119       0.1539656
Atlantic white-sided dolphin....................        0.057509      0.05269613       0.0015548       0.0305044
Atlantic spotted dolphin........................      0.00005057      0.00212995      0.00008059       0.0020008
Risso's dolphin.................................      0.00007374      0.00294218      0.00000215        0.000818
Harbor porpoise.................................         0.05438      0.07252193       0.1348293       0.0671625
Seals (all species).............................       0.3330293       0.0717368       0.0506316       0.0539549
----------------------------------------------------------------------------------------------------------------
Note: All density values, with the exeption North Atlantic right whales, were derived from Roberts et al. (2016,
  2017, 2018). Densities shown represent the maximum seasonal density values calculated, except pilot whales for
  which seasonal densities were not available.
\1\ Densities for North Atlantic right whales derived from Roberts et al. 2020, which was published after the
  Notice of Proposed IHA had published in the Federal Register.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to harassment thresholds 
are calculated, as described above. Those distances are then used to 
calculate the area(s) around the HRG survey equipment predicted to be 
ensonified to sound levels that exceed harassment thresholds. The area 
estimated to be ensonified to relevant thresholds in a single day is 
then calculated, based on areas predicted to be ensonified around the 
HRG survey equipment and the estimated trackline distance traveled per 
day by the survey vessel.
    Equinor estimates that planned surveys will achieve a maximum daily 
track line distance of 177.6 km (110.3 mi) per day during planned HRG 
surveys. We note that this is a conservative estimate as it accounts 
for the vessel traveling at approximately 4 knots and accounts for non-
active survey periods (i.e., it assumes HRG equipment would be active 
24 hours per day during all survey days when in fact there are likely 
to be periods when the equipment is not active). Based on the maximum 
estimated distance to the Level B harassment threshold of 141 m (Table 
5) and the maximum estimated daily track line distance of 177.6 km 
(110.3 mi), an area of 50.08 km\2\ would be ensonified to the Level B 
harassment threshold per day during Equinor's planned surveys. As 
stated above, this is a conservative assumption as there may be times 
during the planned surveys when the GeoSource 800 J is not operated; if 
this were the case, the ensonified area would be much smaller, based on 
the modeled Level B harassment threshold associated with the USBL.
    The number of marine mammals expected to be incidentally taken per 
day is then calculated by estimating the number of each species 
predicted to occur within the daily ensonified area (animals/km\2\), 
incorporating the estimated marine mammal densities as described above. 
Estimated numbers of each species taken per day are then multiplied by 
the total number of survey days. The product is then rounded, to 
generate an estimate of the total number of instances of harassment 
expected for each species over the duration of the survey. A summary of 
this method is illustrated in the following formula:

Estimated Take = D x ZOI x # of days

Where:

D = average species density (per km\2\) and ZOI = maximum daily 
ensonified area to relevant thresholds.

    In this case, the methodology described above was used to estimate 
marine mammal exposures separately in the four ECRAs. Thus, exposures 
were calculated separately for each of the four individual ECRAs based 
on estimated survey duration in each ECRA and using the maximum 
seasonal density estimates for each respective ECRA (Table 7).
    Note that after the Notice of Proposed IHA was published (June 24, 
2020; 85 FR 36537) a new North Atlantic right whale density model 
became available to the public (Roberts et al. 2020) which NMFS 
considers to be the best available information. The model integrated 
data from a number of aerial and vessel-based surveys between 2003 and 
2018. Equinor revised the North Atlantic right whale take calculations 
contained in the application and published in the Notice of Proposed 
IHA in response to the new Roberts et al. 2020 model data. Equinor 
revised the estimated duration of survey days in each export cable 
route area (ECRA) resulting in a total of 113 survey days reduced from 
218 days. Since Equinor is working under an existing LoC allowing 
daylight only operations, they have been able to reduce the remaining 
number of anticipated survey days. Additionally, Equinor used an overly 
conservative assumption of the daily survey trackline distance in their 
application, which NMFS then used in the proposed IHA, and which now 
appropriately has been reduced from 177.6 km/day to 110 km/day. 
Although likely still conservative it is more aligned with trackline 
distances presented in other recent HRG survey IHAs. Takes by Level B 
harassment of North Atlantic right whales were calculated based on the 
modeling approach described above and are shown in Table 7. In the 
Notice of Proposed IHA, Equinor determined that take of the species 
could be avoided due to mitigation and therefore did not request take 
authorization for the North Atlantic right whale. However, given the 
size of modeled Level B harassment zone, the duration of the planned 
surveys, and the fact that surveys will occur 24 hours per day, NMFS is 
not confident that all takes of North Atlantic right whales could be 
avoided due to mitigation, and we therefore proposed to authorize 50 
percent of the total number of exposures above the Level B harassment 
threshold that were modeled. We expect the required

[[Page 60437]]

mitigation measures, including a 500-m exclusion zone for North 
Atlantic right whales (which exceeds the Level B harassment zone by 
over 350-m), will be effective in reducing the potential for takes by 
Level B harassment, but there is still a risk that North Atlantic right 
whales may not be detected within the Level B harassment zone during 
periods of diminished visibility, particularly at night. For the 
reasons listed above, we are confident that the mitigation will avoid 
at least 50% of the take. Therefore, we have authorized 14 North 
Atlantic right whale takes by Level B harassment based on a total of 28 
calculated takes. No take by Level A harassment was proposed or has 
been authorized.

                                 Table 7-- Revised North Atlantic Right Whale Take Estimate Based on Roberts et al. 2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Maximum seasonal
                            ECRA                              Total days [d]      km/day        ZOI (km\2\)    density (indiv/    Estimated exposure or
                                                                                                                  km\2\) [D]       take = D x ZOI x (d)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...........................................................               5             110           31.12           0.006803                        1
2...........................................................              65             110           31.12        0.008907333                       18
3...........................................................               3             110           31.12          0.0000913                        0
4...........................................................              40             110           31.12        0.007247667                        9
                                                             -------------------------------------------------------------------------------------------
    Total...................................................  ..............  ..............  ..............  .................                       28
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Exposure estimates for the four survey areas as shown in Table 6 
and Table 7 were combined for a total estimated number of exposures 
(Table 8).

              Table 8--Numbers of Potential Incidental Take of Marine Mammals Authorized and Authorized Takes as a Percentage of Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Total
                                                            Estimated       Estimated       Estimated       Estimated    Total takes by     authorized
                                                         takes by level  takes by level  takes by level  takes by level      level B       instances of
                        Species                           B harassment    B harassment    B harassment    B harassment     harassment       take as a
                                                             ECRA-1          ECRA-2          ECRA-3          ECRA-4        authorized     percentage of
                                                                                                                                          population \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.............................               1              18               0               9          \2\ 14              3.1
Humpback whale.........................................               3               5               1               4              13              0.8
Fin whale..............................................               3              14               0              19              36              0.8
Sei whale..............................................               1               1               0               1               3              0.4
Minke whale............................................               3               7               0              10              20              0.9
Sperm Whale............................................               0               1               0               2               3              0.1
Long-finned Pilot Whale................................               1               1               0              37              39              0.2
Bottlenose dolphin \3\.................................              48             104              39             331             522              7.9
Common dolphin.........................................              13             747               2             966           1,728              2.0
Atlantic white-sided dolphin...........................              33             185               1             191             410              1.1
Atlantic spotted dolphin...............................               0               8               0              13              21              0.0
Risso's dolphin........................................               0              10               0               5              15              0.2
Harbor porpoise........................................              31             255              76             421             783              1.7
Seals \4\..............................................             188             253              29             338             808              1.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best available abundance estimate as shown in Table 2. In most cases the best available
  abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available, to maintain consistency with density estimates derived from
  Roberts et al. (2016, 2017, 2018). For North Atlantic right whales the best available abundance estimate is derived from the North Atlantic Right
  Whale Consortium 2019 Annual Report Card (Pettis et al., 2019). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a
  single abundance estimate and does not provide abundance estimates at the stock or species level (respectively), so abundance estimates used to
  estimate percentage of stock taken for bottlenose dolphins, gray, harbor and harp seals are derived from NMFS SARs (Hayes et al., 2019).
\2\ New Roberts et al. (2020) density estimates shows 28 North Atlantic right whale Level B harassment expsoures in the activity area as was considered
  in the proposed IHA. We have confidence in the effectiveness of mitigation and its ability to minimize right whale exposure and, therefore, in the
  Proposed IHA, we project that the mitigation will avoid at least 50% of the take. Therefore we are authorizing 14 North Atlantic Right Whale Takes by
  Level B harassment.
\3\ Either the Western North Atlantic coastal migratory stock or the Western North Atlantic offshore stock may be taken. Total authorized instances of
  take as a percentage of population shown for Western North Atlantic coastal migratory stock (based on all 522 authorized takes accruing to that
  stock). The total authorized instances of take as a percentage of population for the Western North Atlantic offshore stock is 0.8 (based on all 522
  authorized takes accruing to that stock).
\4\ Harbor, gray or harp seals may be taken. Total authorized instances of take as a percentage of population shown for harbor seals (based on all 808
  authorized takes accruing to that species). The total authorized instances of take as a percentage of population for gray seals and harp seals is 0.2
  and 0.0, respectively (based on all 808 authorized takes accruing to each species).

    As described above, the Duke University MGEL produced density 
models that did not differentiate by seal species. The underlying data 
in the Duke University MGEL seal models came almost entirely from 
AMAPPS aerial surveys which were unable to differentiate by seal 
species, with the majority of seal sightings reported as ``unidentified 
seal'' (Roberts et al., 2018). Given the fact that the in-water 
habitats of harbor seals and gray seals are not well described but 
likely overlap, and based on the few species identifications that were 
available, the Duke University MGEL did not attempt to classify the 
ambiguous ``unidentified seal'' sightings by species (Roberts et al., 
2018) and instead produced models for seals as a guild. The take 
calculation methodology described above resulted in an estimate of 808 
total seal takes. Based on this estimate, Equinor requested 808 takes 
each of harbor, gray and harp seals, based on an assumption that the 
modeled takes could accrue to any of the respective species. We instead 
propose to authorize 808 total takes of seals by Level B harassment. 
Based on the occurrence of harbor, gray and harp seals in the survey 
areas, we expect the authorized takes would accrue roughly equally to 
gray and harbor seals, with only a handful of takes of harp seals at 
most.

[[Page 60438]]

    The density models produced by the Duke University MGEL also did 
not differentiate by bottlenose dolphin stocks (Roberts et al. (2016, 
2017, 2018). The Western North Atlantic northern migratory coastal 
stock and the Western North Atlantic offshore stock occur in the 
planned survey areas. The northern migratory coastal stock occurs in 
coastal waters from the shoreline to approximately the 20-m isobath 
while the offshore stock occurs at depths of 20-m and greater (Hayes et 
al. 2019). The take calculation methodology described above resulted in 
an estimate of 522 total bottlenose dolphin takes. Depths across the 
planned survey areas range from very shallow waters near landfall 
locations to approximately 75-m in offshore survey locations. As 
planned surveys would occur in areas where either the northern 
migratory coastal stock or the offshore stock may occur, we expect the 
authorized takes would accrue roughly equally to both stocks.
    Equinor requested 39 total takes of pilot whales (either long-
finned or short-finned). However, the range of short-finned pilot 
whales does not extend north of Delaware (Hayes et al., 2019) and 
therefore short-finned pilot whales are not expected to occur in the 
planned survey areas. As such, we propose to authorize takes of long-
finned pilot whales only.
    As described above, NMFS has determined that the likelihood of take 
of any marine mammals in the form of Level A harassment occurring as a 
result of the planned surveys is so low as to be discountable; 
therefore, we do not propose to authorize take of any marine mammals by 
Level A harassment.

Mitigation

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

Mitigation Measures

    NMFS proposes the following mitigation measures be implemented 
during Equinor's planned marine site characterization surveys.

Marine Mammal Exclusion Zones, Buffer Zone and Monitoring Zone

    Marine mammal EZs would be established around the HRG survey 
equipment and monitored by PSOs during HRG surveys as follows:
     A 500-m EZ is required for North Atlantic right whales; 
and
     A 100-m EZ is required for all other marine mammal 
species.
    If a marine mammal is detected approaching or entering the EZs 
during the planned survey, the vessel operator must adhere to the 
shutdown procedures described below. In addition to the EZs described 
above, PSOs must visually monitor a 200 m Buffer Zone. During use of 
acoustic sources with the potential to result in marine mammal 
harassment (i.e., anytime the acoustic source is active, including 
ramp-up), occurrences of marine mammals within the Buffer Zone (but 
outside the EZs) must be communicated to the vessel operator to prepare 
for potential shutdown of the acoustic source. The Buffer Zone is not 
applicable when the EZ is greater than 100 meters. PSOs must also be 
required to observe a 500-m Monitoring Zone and record the presence of 
all marine mammals within this zone. The zones described above must be 
based upon the radial distance from the active equipment (rather than 
being based on distance from the vessel itself).

Visual Monitoring

    A minimum of one NMFS-approved PSO must be on duty and conducting 
visual observations at all times during daylight hours (i.e., from 30 
minutes prior to sunrise through 30 minutes following sunset). Visual 
monitoring must begin no less than 30 minutes prior to ramp-up of HRG 
equipment and must continue until 30 minutes after use of the acoustic 
source ceases or until 30 minutes past sunset. PSOs must establish and 
monitor the applicable EZs, Buffer Zone and Monitoring Zone as 
described above. Visual PSOs must coordinate to ensure 360[deg] visual 
coverage around the vessel from the most appropriate observation posts, 
and must conduct visual observations using binoculars and the naked eye 
while free from distractions and in a consistent, systematic, and 
diligent manner. PSOs must estimate distances to observed marine 
mammals. It is the responsibility of the Lead PSO on duty to 
communicate the presence of marine mammals as well as to communicate 
action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate. Position data must be 
recorded using hand-held or vessel global positioning system (GPS) 
units for each confirmed marine mammal sighting.

Pre-Clearance of the Exclusion Zones

    Prior to initiating HRG survey activities, Equinor must implement a 
30-minute pre-clearance period. During pre-clearance monitoring (i.e., 
before ramp-up of HRG equipment begins), the Buffer Zone must also act 
as an extension of the 100-m EZ in that observations of marine mammals 
within the 200-m Buffer Zone must also preclude HRG operations from 
beginning. During this period, PSOs must ensure that no marine mammals 
are observed within 200-m of the survey equipment (500-m in the case of 
North Atlantic right whales). HRG equipment must not start up until 
this 200-m zone (or, 500-m zone in the case of North Atlantic right 
whales) is clear of marine mammals for at least 30 minutes. The vessel 
operator must notify a designated PSO of the planned start of HRG 
survey equipment as agreed upon with the lead PSO; the notification 
time should not be less than 30 minutes prior to the planned initiation 
of HRG equipment order to allow the PSOs time to monitor the EZs and 
Buffer Zone for the 30 minutes of pre-clearance. A PSO

[[Page 60439]]

conducting pre-clearance observations must be notified again 
immediately prior to initiating active HRG sources.
    If a marine mammal were observed within the relevant EZs or Buffer 
Zone during the pre-clearance period, initiation of HRG survey 
equipment must not begin until the animal(s) has been observed exiting 
the respective EZ or Buffer Zone, or, until an additional time period 
has elapsed with no further sighting (i.e., minimum 15 minutes for 
small odontocetes and seals, and 30 minutes for all other species). The 
pre-clearance requirement must include small delphinoids that approach 
the vessel (e.g., bow ride). PSOs must also continue to monitor the 
zone for 30 minutes after survey equipment is shut down or survey 
activity has concluded. These requirements must be in effect only when 
the GeoSource 800 J sparker is being operated.

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure must be used for 
geophysical survey equipment capable of adjusting energy levels at the 
start or re-start of survey activities. The ramp-up procedure must 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 detect the presence of the survey and vacate the area 
prior to the commencement of survey equipment operation at full power. 
Ramp-up of the survey equipment must not begin until the relevant EZs 
and Buffer Zone has been cleared by the PSOs, as described above. HRG 
equipment must be initiated at their lowest power output and must be 
incrementally increased to full power. If any marine mammals are 
detected within the EZs or Buffer Zone prior to or during ramp-up, the 
HRG equipment must be shut down (as described below).

Shutdown Procedures

    The shutdown procedures described below are only in effect when the 
GeoSource 800 J sparker is being operated. If an HRG source is active 
and a marine mammal is observed within or entering a relevant EZ (as 
described above) an immediate shutdown of the HRG survey equipment is 
required. When shutdown is called for by a PSO, the acoustic source 
must be immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty must have the authority to delay the 
start of survey operations or to call for shutdown of the acoustic 
source if a marine mammal is detected within the applicable EZ. The 
vessel operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
HRG source(s) to ensure that shutdown commands are conveyed swiftly 
while allowing PSOs to maintain watch. Subsequent restart of the HRG 
equipment must only occur after the marine mammal has either been 
observed exiting the relevant EZ, or, until an additional time period 
has elapsed with no further sighting of the animal within the relevant 
EZ (i.e., 15 minutes for small odontocetes, pilot whales and seals, and 
30 minutes for large whales).
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable EZ (i.e., the animal is not required to fully 
exit the Buffer Zone where applicable), or, following a clearance 
period of 15 minutes for small odontocetes and seals and 30 minutes for 
all other species with no further observation of the marine mammal(s) 
within the relevant EZ. If the HRG equipment shuts down for brief 
periods (i.e., less than 30 minutes) for reasons other than mitigation 
(e.g., mechanical or electronic failure) the equipment may be re-
activated as soon as is practicable at full operational level, without 
30 minutes of pre-clearance, only if PSOs have maintained constant 
visual observation during the shutdown and no visual detections of 
marine mammals occurred within the applicable EZs and Buffer Zone 
during that time. For a shutdown of 30 minutes or longer, or if visual 
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
    The shutdown requirement is waived for certain genera of small 
delphinids (i.e., Delphinus, Lagenorhynchus, Stenella, and Tursiops) 
and pinnipeds (gray and harbor seals) under certain circumstances. If a 
delphinid(s) from these genera or seal(s) is visually detected 
approaching the vessel (i.e., to bow ride) or towed survey equipment, 
shutdown is not required. If there is uncertainty regarding 
identification of a marine mammal species (i.e., whether the observed 
marine mammal(s) belongs to one of the delphinid genera for which 
shutdown is waived), PSOs must use best professional judgment in making 
the decision to call for a shutdown.
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
area encompassing the Level B harassment isopleth while the sparker is 
operating (141 m), shutdown must occur.

Seasonal Restrictions

    To minimize the potential for impacts to North Atlantic right 
whales, vessel-based HRG survey activities would be prohibited in the 
Off Race Point SMA and Cape Cod Bay SMA from January through May and in 
the Great South Channel SMA from April through July.

Vessel Strike Avoidance

     Vessel strike avoidance measures would include, but would 
not be limited to, the following: Vessel operators and crews must 
maintain a vigilant watch for all protected species and slow down, stop 
their vessel, or alter course, as appropriate and regardless of vessel 
size, to avoid striking any protected species. A visual observer aboard 
the vessel must monitor a vessel strike avoidance zone around the 
vessel (distances stated below). Visual observers monitoring the vessel 
strike avoidance zone may be third-party observers (i.e., PSOs) or crew 
members, but crew members responsible for these duties must be provided 
sufficient training to (1) distinguish protected species from other 
phenomena and (2) broadly to identify a marine mammal as a North 
Atlantic right whale, other whale (defined in this context as sperm 
whales or baleen whales other than North Atlantic right whales), or 
other marine mammal.
     All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes: Any 
Dynamic Management Areas (DMAs) when in effect, and the Off Race Point 
SMA (in effect from January 1 through May 15), Cape Cod Bay SMA (in 
effect from March 1 through April 30), Great South Channel SMA (in 
effect from April 1 through July 31), Block Island Sound SMA (in effect 
from November 1 through April 30); and New York/New Jersey SMA (in 
effect from November 1 through April 30). See www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail regarding these areas.
     Vessel speeds must also be reduced to 10 knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from North Atlantic right whales. If a whale is observed but 
cannot be confirmed as a species other than a

[[Page 60440]]

North Atlantic right whale, the vessel operator must assume that it is 
a North Atlantic right whale and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from sperm whales and all other baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other protected species, with an understanding that at times this may 
not be possible (e.g., for animals that approach the vessel).
     When protected species are sighted while a vessel is 
underway, the vessel must take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If protected species are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
    These requirements do not apply in any case where compliance would 
create an imminent and serious threat to a person or vessel or to the 
extent that a vessel is restricted in its ability to maneuver and, 
because of the restriction, cannot comply.

Seasonal Operating Requirements

    As described above, the planned survey area partially overlaps with 
a portion of five North Atlantic right whale SMAs: Off Race Point SMA 
(in effect from January 1 through May 15); Cape Cod Bay SMA (in effect 
from March 1 through April 30); Great South Channel SMA (in effect from 
April 1 through July 31); Block Island Sound SMA (in effect from 
November 1 through April 30); and New York/New Jersey SMA (in effect 
from November 1 through April 30). All Equinor survey vessels, 
regardless of length, are required to adhere to vessel speed 
restrictions (<10 knots) when operating within the SMAs during times 
when the SMAs are in effect. In addition, between watch shifts, members 
of the monitoring team must consult NMFS's North Atlantic right whale 
reporting systems for the presence of North Atlantic right whales 
throughout survey operations. Members of the monitoring team must also 
monitor the NMFS North Atlantic right whale reporting systems for the 
establishment of DMA. If NMFS should establish a DMA in the survey area 
while surveys are underway, Equinor is required to contact NMFS within 
24 hours of the establishment of the DMA to determine whether 
alteration or restriction of survey activities was warranted within the 
DMA to minimize impacts to North Atlantic right whales.
    Also as described above, portions of the planned survey areas 
overlap spatially with designated critical habitat for North Atlantic 
right whales, which was established due to the area's significance for 
North Atlantic right whale foraging (81 FR 4837, January 27, 2016). To 
minimize potential impacts to North Atlantic right whales during the 
seasons when they occur in high numbers in the Gulf of Maine/Georges 
Bank critical habitat, vessel-based HRG survey activities are 
prohibited in the Off Race Point SMA and Cape Cod Bay SMA from January 
through May and in the Great South Channel SMA from April through July.
    The required mitigation measures are designed to avoid the already 
low potential for injury in addition to some instances of Level B 
harassment, and to minimize the potential for vessel strikes. Further, 
we believe the required mitigation measures are practicable for the 
applicant to implement.
    There are no known marine mammal rookeries or mating or calving 
grounds in the survey area that would otherwise potentially warrant 
increased mitigation measures for marine mammals or their habitat (or 
both). The planned survey areas will overlap spatially with an area 
that has been identified as a biologically important area for migration 
for North Atlantic right whales. However, while the potential survey 
areas across the ECRAs are relatively large, the actual areas that will 
ultimately be surveyed are relatively small compared to the 
substantially larger spatial extent of the North Atlantic right whale 
migratory area. We have required mitigation measures, including 
seasonal restrictions and vessel speed restrictions as described above, 
to minimize potential impacts to North Atlantic right whale migration. 
Thus, the survey is not expected to appreciably reduce migratory 
habitat nor to negatively impact the migration of North Atlantic right 
whales. As described above, some portions of the planned survey areas 
will overlap spatially with areas that are recognized as important for 
North Atlantic right whale foraging, including portions of areas that 
have been designated as critical habitat due to the significance of the 
area for North Atlantic right whale foraging. We have required 
mitigation measures, including seasonal restrictions and vessel speed 
restrictions as described above, to minimize potential impacts to North 
Atlantic right whale foraging. Thus, the survey is not expected to 
appreciably reduce foraging habitat nor to negatively impact North 
Atlantic right whales foraging.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
required mitigation measures provide the means effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

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

[[Page 60441]]

     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Monitoring Measures

    As described above, visual monitoring must be performed by 
qualified and NMFS-approved PSOs. Equinor must use independent, 
dedicated, trained PSOs, meaning that the PSOs must be employed by a 
third-party observer provider (with limited exceptions made only for 
inshore vessels), must have no tasks other than to conduct 
observational effort, collect data, and communicate with and instruct 
relevant vessel crew with regard to the presence of marine mammals and 
mitigation requirements (including brief alerts regarding maritime 
hazards), and must have successfully completed an approved PSO training 
course appropriate for their designated task. Equinor must provide 
resumes of all proposed PSOs (including alternates) to NMFS for review 
and approval prior to the start of survey operations.
    During survey operations (e.g., any day on which use of an HRG 
source is planned to occur), a minimum of one PSO must be on duty and 
conducting visual observations at all times on all active survey 
vessels during daylight hours (i.e., from 30 minutes prior to sunrise 
through 30 minutes following sunset). Visual monitoring must begin no 
less than 30 minutes prior to initiation of HRG survey equipment and 
must continue until one hour after use of the acoustic source ceases or 
until 30 minutes past sunset. PSOs must coordinate to ensure 360 degree 
visual coverage around the vessel from the most appropriate observation 
posts, and must conduct visual observations using binoculars and the 
naked eye while free from distractions and in a consistent, systematic, 
and diligent manner. PSOs may be on watch for a maximum of four 
consecutive hours followed by a break of at least two hours between 
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying 
concurrently, any observations of marine mammals must be communicated 
to PSOs on all survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distances to observed marine mammals. Reticulated binoculars 
will be available to PSOs for use as appropriate based on conditions 
and visibility to support the monitoring of marine mammals. Position 
data must be recorded using hand-held or vessel GPS units for each 
sighting. Observations must take place from the highest available 
vantage point on the survey vessel. General 360-degree scanning must 
occur during the monitoring periods, and target scanning by the PSO 
must occur when alerted of a marine mammal presence.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs must conduct 
observations when the acoustic source is not operating for comparison 
of sighting rates and behavior with and without use of the acoustic 
source and between acquisition periods. Any observations of marine 
mammals by crew members aboard any vessel associated with the survey 
must be relayed to the PSO team.
    Data on all PSO observations must be recorded based on standard PSO 
collection requirements. This include dates, times, and locations of 
survey operations; dates and times of observations, location and 
weather; details of marine mammal sightings (e.g., species, numbers, 
behavior); and details of any observed marine mammal take that occurs 
(e.g., noted behavioral disturbances).

Reporting Measures

    Within 90 days after completion of survey activities, a final 
technical report will be provided to NMFS that fully documents the 
methods and monitoring protocols, summarizes the data recorded during 
monitoring, summarizes the number of marine mammals estimated to have 
been taken during survey activities (by species, when known), (i.e., 
observations of marine mammals within the Level B harassment zone must 
be reported as potential takes by Level B harassment) summarizes the 
mitigation actions taken during surveys (including what type of 
mitigation and the species and number of animals that prompted the 
mitigation action, when known), and provides an interpretation of the 
results and effectiveness of all mitigation and monitoring. Any 
recommendations made by NMFS must be addressed in the final report 
prior to acceptance by NMFS.
    In addition to the final technical report, Equinor will provide the 
reports described below as necessary during survey activities. In the 
event that personnel involved in the survey activities covered by the 
authorization discover an injured or dead marine mammal, Equinor must 
report the incident to the NOAA Fisheries OPR (301-427-8401), and to 
the NOAA Fisheries New England/Mid-Atlantic Regional Stranding 
Coordinator (978-282-8478) as soon as feasible. The report must include 
the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the event of a vessel strike of a marine mammal by any vessel 
involved in the activities covered by the authorization, the Equinor 
must report the incident to NOAA Fisheries OPR (301-427-8401) and to 
the NOAA Fisheries New England/Mid-Atlantic Regional Stranding 
Coordinator (978-282-8478) as soon as feasible. The report must include 
the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

[[Page 60442]]

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and 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. To be conservative, our 
analyses assume that a total of 808 exposures above the Level B 
harassment threshold could accrue to all of the potentially impacted 
seal species (i.e., harbor, gray and harp seals), and that a total of 
522 exposures above the Level B harassment threshold could accrue to 
both bottlenose dolphin stocks that may be present (i.e., the Western 
North Atlantic offshore stock and the Western North Atlantic northern 
coastal migratory stock).
    NMFS does not anticipate that serious injury or mortality would 
occur as a result of Equinor's planned survey, even in the absence of 
mitigation, thus the authorization does not authorize any serious 
injury or mortality. As discussed in the Potential Effects of Specified 
Activities on Marine Mammals and their Habitat section, non-auditory 
physical effects and vessel strike are not expected to occur. 
Additionally and as discussed previously, given the nature of activity 
and sounds sources used and especially in consideration of the required 
mitigation, Level A harassment is neither anticipated nor authorized. 
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, reactions that are considered to be of low severity and with no 
lasting biological consequences (e.g., Southall et al., 2007).
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring). Most likely, individuals 
will simply move away from the sound source and temporarily avoid the 
area where the survey is occurring. We expect that any avoidance of the 
survey area by marine mammals would be temporary in nature and that any 
marine mammals that avoid the survey area during the survey activities 
would not be permanently displaced. Even repeated Level B harassment of 
some small subset of an overall stock is unlikely to result in any 
significant realized decrease in viability for the affected 
individuals, and thus would not result in any adverse impact to the 
stock as a whole. Instances of more severe behavioral harassment are 
expected to be minimized by required mitigation and monitoring 
measures.
    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. 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 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the planned survey 
area. As described above, the planned survey areas overlap spatially 
with 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 coasts of 
Massachusetts, Rhode Island, Connecticut, New York and New Jersey, this 
biologically important migratory area extends from the coast to beyond 
the shelf break. Due to the fact that that the planned survey is 
temporary and the spatial extent of sound produced by the survey would 
be very small relative to the spatial extent of the available migratory 
habitat in the area, and due to required mitigation measures including 
seasonal restrictions, North Atlantic right whale migration is not 
expected to be impacted by the planned survey. As described above, some 
portions of the planned survey areas overlap spatially with areas that 
are recognized as important for North Atlantic right whale foraging, 
including portions of areas that have been designated as ESA critical 
habitat due to the significance of the area for North Atlantic right 
whale feeding. Due to the fact that that the planned survey is 
temporary and the spatial extent of sound produced by the survey would 
very small relative to the spatial extent of the available foraging 
habitat in the area, as well as required mitigation measures including 
seasonal restrictions in areas and seasons when North Atlantic right 
whale foraging is predicted to occur, North Atlantic right whale 
foraging is not expected to be impacted by the planned surveys.
    As described above, North Atlantic right, humpback, and minke 
whales, and gray, harbor and harp seals are experiencing ongoing UMEs. 
For North Atlantic right whales, as described above, no injury as a 
result of the planned project is expected or authorization, and Level B 
harassment takes of North Atlantic right whales are expected to be in 
the form of avoidance of the immediate area of the planned survey. In 
addition, the number of takes authorized above the Level B harassment 
threshold are relatively low (i.e., 8), and the take numbers authorized 
do not account for the required mitigation measures, which would 
require shutdown of all survey equipment upon observation of a North 
Atlantic right whale prior to their entering the zone that would be 
ensonified above the Level B harassment threshold. As no injury or 
mortality is expected or authorized, and Level B harassment of North 
Atlantic right whales will be reduced to the level

[[Page 60443]]

of least practicable adverse impact through use of required mitigation 
measures, the authorized takes of North Atlantic right whales would not 
exacerbate or compound the ongoing UME in any way.
    Similarly, no injury or mortality is expected or authorized for any 
of the other species with UMEs, Level B harassment will be reduced to 
the level of least practicable adverse impact through use of required 
mitigation measures, and the authorized takes would not exacerbate or 
compound the ongoing UMEs. For minke whales, although the ongoing UME 
is under investigation (as occurs for all UMEs), this event does not 
provide cause for concern regarding population level impacts, as the 
likely population abundance is greater than 20,000 whales and annual M/
SI does not exceed the calculated PBR value for minke whales. With 
regard to humpback whales, the UME does not yet provide cause for 
concern regarding population-level impacts. Despite the UME, the 
relevant population of humpback whales (the West Indies breeding 
population, or DPS) remains healthy. The West Indies DPS, which 
consists of the whales whose breeding range includes the Atlantic 
margin of the Antilles from Cuba to northern Venezuela, and whose 
feeding range primarily includes the Gulf of Maine, eastern Canada, and 
western Greenland is not listed under the ESA. The status review 
identified harmful algal blooms, vessel collisions, and fishing gear 
entanglements as relevant threats for this DPS, but noted that all 
other threats are considered likely to have no or minor impact on 
population size or the growth rate of this DPS (Bettridge et al., 
2015). As described in Bettridge et al. (2015), the West Indies DPS has 
a substantial population size (i.e., approximately 10,000; Stevick et 
al., 2003; Smith et al., 1999; Bettridge et al., 2015), and appears to 
be experiencing consistent growth. With regard to gray, harbor and harp 
seals, although the ongoing UME is under investigation, the UME does 
not yet provide cause for concern regarding population-level impacts to 
any of these stocks. For harbor seals, the population abundance is over 
75,000 and annual M/SI (345) is well below PBR (2,006) (Hayes et al., 
2019). For gray seals, the population abundance in the United States is 
over 27,000, with an estimated abundance including seals in Canada of 
approximately 505,000, and abundance is likely increasing in the U.S. 
Atlantic EEZ as well as in Canada (Hayes et al., 2019). For harp seals, 
while PBR is unknown, the minimum population estimate is 6.9 million 
and the population appears to be stable (Hayes et al., 2019).
    The required 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 or more severe behavioral responses. 
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 Equinor's planned survey would 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 authorized 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 planned activity on marine 
mammals would primarily be in the form of temporary behavioral changes 
due to avoidance of the area around the survey vessel;
     The availability of alternate areas of similar habitat 
value (for foraging and migration) for marine mammals that may 
temporarily vacate the survey areas during the planned surveys to avoid 
exposure to sounds from the activity;
     The planned project area does not contain known areas of 
significance for mating or calving;
     Effects on species that serve as prey species for marine 
mammals from the planned survey would be minor and temporary and would 
not be expected to reduce the availability of prey or to affect marine 
mammal feeding;
     The required mitigation measures, including visual 
monitoring, exclusion zones, and shutdown measures, 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 required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    We propose to authorize incidental take of 17 marine mammal stocks. 
The total amount of taking authorized is less than one third for all 
stocks (Table 7), which we find are small numbers of marine mammals 
relative to the estimated overall population abundances for those 
stocks. To be conservative, our small numbers analysis assumes a total 
of 808 exposures above the Level B harassment threshold could accrue to 
any of the potentially impacted seal species (i.e., harbor, gray or 
harp seals) and a total of 522 exposures above the Level B harassment 
threshold could accrue to both bottlenose dolphin stocks that may be 
present (i.e., the Western North Atlantic offshore stock and the 
Western North Atlantic northern coastal migratory stock). Based on the 
analysis contained herein of the planned activity (including the 
proposed mitigation and monitoring measures) and the anticipated take 
of marine mammals, NMFS finds that small numbers of marine mammals will 
be taken relative to the population size of all affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or

[[Page 60444]]

stocks would not have an unmitigable adverse impact on the availability 
of such species or stocks for taking for subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with the Greater 
Atlantic Regional Field Office (GARFO).
    We requested initiation of consultation under section 7 of the ESA 
with NMFS GARFO for the issuance of this IHA. On July 30, 2020, NMFS 
GARFO determined our issuance of the IHA to Equinor was not likely to 
adversely affect the North Atlantic right, fin, sei, and sperm whale or 
the critical habitat of any ESA-listed species or result in take under 
the ESA.

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 planned action (i.e., the issuance of an IHA) with 
respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review.

Authorization

    NMFS has issued an IHA to Equinor for the potential harassment of 
small numbers of 17 marine mammal stocks incidental to the conducting 
marine site characterization surveys off the coast of Massachusetts, 
Rhode Island, Connecticut, New York or New Jersey in the area of the 
Commercial Leases of Submerged Lands for Renewable Energy Development 
on the Outer Continental Shelf (OCS-A 0520 and OCS-A 0512) and along 
potential submarine cable routes to a landfall locations.

    Dated: September 21, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-21137 Filed 9-24-20; 8:45 am]
BILLING CODE 3510-22-P