[Federal Register Volume 84, Number 65 (Thursday, April 4, 2019)]
[Notices]
[Pages 13246-13252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06598]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG879


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

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

ACTION: Notice; incidental harassment authorization; request for 
comments on proposed Renewal.

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SUMMARY: NMFS received a request from Equinor Wind US LLC (formerly 
Statoil Wind US LLC; Equinor) for the Renewal of their currently active 
incidental harassment authorization (IHA) to take marine mammals 
incidental to marine site characterization surveys off the coast of New 
York in the area of the Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS-A 
0512) and coastal waters where cable route corridors will be 
established. These activities are identical to those covered in the 
current authorization. Pursuant to the Marine Mammal Protection Act 
(MMPA), prior to issuing the currently active IHA, NMFS requested 
comments on both the proposed IHA and the potential for renewing the 
initial authorization if certain requirements were satisfied. The 
Renewal requirements have been satisfied, and NMFS is now providing an 
additional 15-day comment period to allow for any additional comments 
on the proposed Renewal not previously provided during the initial 30-
day comment period. Any comments received on the potential Renewal, 
along with relevant comments on the initial IHA, have been considered 
in the development of this proposed IHA Renewal, and a summary of 
agency responses to applicable comments is included in this notice. 
NMFS will

[[Page 13247]]

consider any additional public comments prior to making any final 
decision on the issuance of the requested Renewal, and agency responses 
will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than April 
19, 2019.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at 
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

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

SUPPLEMENTARY INFORMATION:

Background

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

National Environmental Policy Act

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

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preparation of a new NEPA document. Therefore, we have preliminarily 
determined that a new or supplemental EA or Environmental Impact 
Statement is unnecessary, and will, after review of public comments 
determine whether or not to rely on the existing EA and FONSI.

History of Request

    On April 24, 2018, NMFS issued an IHA to Statoil Wind US LLC, to 
take marine mammals incidental to marine site characterization surveys 
off the coast of New York in the area of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0512) and coastal waters where cable route 
corridors will be established, effective from April 24, 2018, through 
April 23, 2019 (83 FR 19532; May 3, 2018). On February 21, 2019, NMFS 
received an application for the Renewal of that IHA. As described in 
the application for Renewal, the activities authorized in the initial 
IHA would not be completed by the time that IHA expires and a second 
IHA would allow for completion of the activities beyond that described 
in the Dates and Duration section of the initial IHA. As required, the 
applicant also provided a preliminary monitoring report (available at 
www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york) which confirms 
that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted. Since the initial IHA was issued, Statoil Wind US 
LLC has changed the name under which the company operates to Equinor 
Wind US LLC (Equinor).

Description of the Specified Activities and Anticipated Impacts

    Equinor proposes to continue their marine site characterization 
surveys in the approximately 79,350-acre Lease Area located 
approximately 11.5 nautical miles (nm) from Jones Beach, New York and 
along cable route corridors between the Lease Area and New York. Water 
depths across the Lease Area range from approximately 22 to 41 meters 
(m) (72 to 135 feet (ft)) while the cable route corridors extend to 
shallow water areas near landfall locations. The specified activities 
described for this renewal are an identical subset of the activities 
covered by the initial 2018 IHA. The purpose of the surveys are to 
support the siting, design, and deployment of up to three 
meteorological data buoy deployment areas and to obtain a baseline 
assessment of seabed/sub-surface soil conditions in the Lease Area and 
cable route corridors to support the siting of a proposed offshore wind 
farm. NMFS previously published notices of proposed IHA (83 FR 7655; 
February 22, 2018) and issued IHA (83 FR 19532; May 3, 2018). These 
documents, as well as Equinor's initial IHA application and the 
preliminary monitoring report for the previously issued IHA, are 
available at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york.
    Similarly, the anticipated impacts are identical to those described 
in the initial IHA. Specifically, we anticipate the take of 11 marine 
mammal stocks (including nine cetacean and two pinniped stocks), by 
Level B harassment only, incidental to the site characterization 
surveys due to exposure to noise resulting from high resolution 
geophysical (HRG) survey equipment. Equinor was not able to complete 
the site characterization surveys analyzed in the initial IHA by the 
date that IHA is set to expire and anticipates the need for an 
additional 56 operational survey days to complete the survey campaign 
in 2019.
    The following documents are referenced in this notice and include 
important supporting information, and may be found at the indicated 
location:
     Initial Proposed IHA: Takes of Marine Mammals Incidental 
to Specified Activities; Taking Marine Mammals Incidental to Site 
Characterization Surveys off of New York (83 FR 7655; February 22, 
2018). Available at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york;
     Initial Final IHA. Takes of Marine Mammals Incidental to 
Specified Activities; Taking Marine Mammals Incidental to Site 
Characterization Surveys off of New York (83 FR 19532; May 3, 2018). 
Available at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york;
     Preliminary Monitoring Report from Initial IHA. Available 
at: www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york; and
     Environmental Assessment (EA). Issuance of an Incidental 
Harassment Authorization to Statoil Wind U.S. LLC for Site 
Characterization Surveys off the Coast of New York. Available at: 
www.fisheries.noaa.gov/action/incidental-take-authorization-statoil-wind-site-characterization-surveys-offshore-new-york.

Detailed Description of the Activity

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

Description of Marine Mammals

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

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Notice of issued IHA for the initial 
authorization. NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and

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determined that neither this nor any other new information affects our 
initial analysis of impacts on marine mammals and their habitat.

Estimated Take

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

       Table 1--Number of Takes Expected To Occur and Proposed for
 Authorization During the Remaining 56 Survey Days in 2019, and Proposed
                            for Authorization
------------------------------------------------------------------------
                                                     Level B     Total
                      Species                         takes      takes
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North Atlantic right whale........................          7          7
Humpback whale....................................          9          9
Fin whale.........................................         38         38
Sperm whale.......................................          2          2
Minke whale.......................................         15         15
Bottlenose dolphin................................        615        615
Common dolphin....................................        668        668
Atlantic white-sided dolphin......................        169        169
Harbor porpoise...................................        892        892
Harbor seal.......................................       1144       1144
Gray seal.........................................       1144       1144
------------------------------------------------------------------------

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Notice announcing the issuance of the initial IHA, and 
the discussion of the least practicable adverse impact included in that 
document remains accurate. The following measures are proposed for this 
renewal:

Marine Mammal Exclusion and Watch Zones

    As required in the BOEM lease, marine mammal exclusion zones (EZ) 
will be established around the HRG survey equipment and monitored by 
protected species observers (PSO) during HRG surveys as follows:
     50 m EZ for pinnipeds and delphinids (except harbor 
porpoises);
     100 m EZ for large whales including sperm whales and 
mysticetes (except North Atlantic right whales) and harbor porpoises;
     500 m EZ for North Atlantic right whales.
    In addition, PSOs will visually monitor for all marine mammals to 
the extent of a 500 m ``Watch Zone'' or as far as possible if the 
extent of the Watch Zone is not fully visible.

Visual Monitoring

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

Pre-Clearance of the Exclusion Zone

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

Passive Acoustic Monitoring

    As required in the BOEM lease, PAM will be required during HRG 
surveys conducted at night. In addition, PAM systems would be employed 
during daylight hours as needed to support system calibration and PSO 
and PAM team coordination, as well as in support of efforts to evaluate 
the effectiveness of the various mitigation techniques (i.e., visual 
observations during day and night, compared to the PAM detections/
operations). PAM operators will also be on call as necessary during 
daytime operations should visual observations become impaired. BOEM's 
lease stipulations require the use of PAM during nighttime operations. 
However, these requirements do not require that any mitigation action 
be taken upon acoustic detection of marine mammals. Given the range of 
species that could occur in the survey area, the PAM system will 
consist of an array of hydrophones with both broadband (sampling mid-
range frequencies of 2 kHz to 200 kHz) and at least one low-frequency 
hydrophone (sampling range frequencies of 75 Hz to 30 kHz). The

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PAM operator would monitor the hydrophone signals in real time both 
aurally (using headphones) and visually (via the monitor screen 
displays). The PAM operator would communicate detections to the Lead 
PSO on duty who will ensure the implementation of the appropriate 
mitigation procedures. A mitigation and monitoring communications flow 
diagram has been included as Appendix C of the IHA application.

Ramp-Up of Survey Equipment

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

Shutdown Procedures

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

Vessel Strike Avoidance

    Statoil will ensure that vessel operators and crew maintain a 
vigilant watch for cetaceans and pinnipeds by slowing down or stopping 
the vessel to avoid striking marine mammals. Survey vessel crew members 
responsible for navigation duties will receive site-specific training 
on marine mammal sighting/reporting and vessel strike avoidance 
measures. Vessel strike avoidance measures will include, but are not 
limited to, the following, as required in the BOEM lease, except under 
circumstances when complying with these requirements would put the 
safety of the vessel or crew at risk:
     All vessel operators and crew will maintain vigilant watch 
for cetaceans and pinnipeds, and slow down or stop their vessel to 
avoid striking these protected species;
     All vessel operators will comply with 10 knot (18.5 
kilometers (km)/hr) or less speed restrictions in any SMA per NOAA 
guidance. This applies to all vessels operating at any time of year;
     All vessel operators will reduce vessel speed to 10 knots 
(18.5 km/hr) or less when any large whale, any mother/calf pairs, pods, 
or large assemblages of non-delphinoid cetaceans are observed near 
(within 100 m (330 ft)) an underway vessel;
     All survey vessels will maintain a separation distance of 
500 m (1640 ft) or greater from any sighted North Atlantic right whale;
     If underway, vessels must steer a course away from any 
sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less 
until the 500 m (1640 ft) minimum separation distance has been 
established. If a North Atlantic right whale is sighted in a vessel's 
path, or within 100 m (330 ft) to an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral. Engines will 
not be engaged until the North Atlantic right whale has moved outside 
of the vessel's path and beyond 100 m. If stationary, the vessel must 
not engage engines until the North Atlantic right whale has moved 
beyond 100 m;
     All vessels will maintain a separation distance of 100 m 
(330 ft) or greater from any sighted non-delphinoid cetacean. If 
sighted, the vessel underway must reduce speed and shift the engine to 
neutral, and must not engage the engines until the non-delphinoid 
cetacean has moved outside of the vessel's path and beyond 100 m. If a 
survey vessel is stationary, the vessel will not engage engines until 
the non-delphinoid cetacean has moved out of the vessel's path and 
beyond 100 m;
     All vessels will maintain a separation distance of 50 m 
(164 ft) or greater from any sighted delphinoid cetacean. Any vessel 
underway will remain parallel to a sighted delphinoid cetacean's course 
whenever possible, and avoid excessive speed or abrupt changes in 
direction. Any vessel underway will reduce vessel speed to 10 knots 
(18.5 km/hr) or less when pods (including mother/calf pairs) or large 
assemblages of delphinoid cetaceans are observed. Vessels may not 
adjust course and speed until the delphinoid cetaceans have moved 
beyond 50 m and/or the abeam of the underway vessel;
     All vessels underway will not divert or alter course in 
order to approach any whale, delphinoid cetacean, or pinniped. Any 
vessel underway will avoid excessive speed or abrupt changes in 
direction to avoid injury to the sighted cetacean or pinniped; and
     All vessels will maintain a separation distance of 50 m 
(164 ft) or greater from any sighted pinniped.
    Confirmation of the training and understanding of the requirements 
will be documented on a training course log sheet. Signing the log 
sheet will certify that the crew members understand and will comply 
with the necessary requirements throughout the survey event.

Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team will consult 
NMFS' North Atlantic right whale reporting systems for the presence of 
North Atlantic right whales throughout survey operations. However, the 
survey activities will occur outside of the SMA located off the coasts 
of New Jersey and New York. Members of the monitoring team will monitor 
the NMFS North Atlantic right whale reporting systems for the 
establishment of a Dynamic Management Area (DMA). If NMFS should 
establish a DMA in the survey area, within 24 hours of the 
establishment of the DMA Statoil will work with NMFS to shut down and/
or alter the survey activities to avoid the DMA.

[[Page 13251]]

    The mitigation measures are designed to avoid the already low 
potential for injury in addition to some Level B harassment, and to 
minimize the potential for vessel strikes. There are no known marine 
mammal feeding areas, rookeries, or mating grounds in the survey area 
that would otherwise potentially warrant increased mitigation measures 
for marine mammals or their habitat (or both). The survey will occur in 
an area that has been identified as a biologically important area for 
migration for North Atlantic right whales. However, given the small 
spatial extent of the survey area relative to the substantially larger 
spatial extent of the right whale migratory area, the survey is not 
expected to appreciably reduce migratory habitat nor to negatively 
impact the migration of North Atlantic right whales, thus mitigation to 
address the survey's occurrence in North Atlantic right whale migratory 
habitat is not warranted. Further, we believe the mitigation measures 
are practicable for the applicant to implement.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that the mitigation measures provide the means of 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Public Comments

    As noted previously, NMFS published a notice of proposed IHA (83 FR 
7655; February 22, 2018) and solicited public comments on both our 
proposal to issue the initial IHA and on the potential for a Renewal, 
should certain requirements be met. All public comments were addressed 
in the notice announcing the issuance of the initial IHA. Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
Renewal of the 2018 IHA.
    Comment: The Marine Mammal Commission (Commission) requested 
clarification of certain issues associated with NMFS's notice that one-
year Renewals can be issued in certain limited circumstances and 
expressed concern that the process would bypass the public notice and 
comment requirements. The Commission also suggested that NMFS should 
discuss the possibility of Renewals through a more general route, such 
as a rulemaking, instead of notice in a specific authorization. The 
Commission further recommended that if NMFS did not pursue a more 
general route, that the agency provide the Commission and the public 
with a legal analysis supporting our conclusion that this process is 
consistent with the requirements of section 101(a)(5)(D) of the MMPA.
    Response: The notice of the proposed initial IHA expressly notified 
and invited comment from the public on the possibility that under 
certain, limited conditions the applicant could seek a Renewal IHA for 
an additional year. The notice described the conditions under which 
such a Renewal request could be considered and expressly sought public 
comment in the event such a Renewal were sought. Further, since 
issuance of the initial IHA NMFS has modified the Renewal process to 
provide notice through the Federal Register and an additional 15-day 
public comment period at the time the Renewal IHA is requested. NMFS 
also will provide direct notice of the proposed Renewal to those who 
commented on the initial IHA, to provide an opportunity to submit any 
additional comments.
    We appreciate the Commission's suggestion that NMFS discuss the 
potential for IHA Renewals through a more general route, such as a 
rulemaking. However, utilizing the public comment process associated 
with IHAs is more efficient for the agency, while still providing for 
appropriate public input into NMFS' decision-making. Further, NMFS' 
recent modification to the Renewal process (i.e., soliciting additional 
public comment at the time of a Renewal request) should alleviate the 
Commission's concern about the lack of additional public comment and 
need for a more general rulemaking.
    For more information, NMFS has published a description of the 
Renewal process on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

Preliminary Determinations

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    The NMFS Office of Protected Resources is proposing to authorize 
the incidental take of three species of marine mammals which are listed 
under the ESA: The North Atlantic right, fin, and sperm whale. BOEM 
consulted with NMFS GARFO under section 7 of the ESA on commercial wind 
lease issuance and site assessment activities on the

[[Page 13252]]

Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New 
York and New Jersey Wind Energy Areas. NMFS GARFO issued a programmatic 
Biological Opinion in 2013 concluding that these activities may 
adversely affect but are not likely to jeopardize the continued 
existence of the North Atlantic right, fin, and sperm whale. The 
Biological Opinion was later amended to include the Office of Protected 
Resources as an action agency. The Biological Opinion can be found 
online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The 
programmatic consultation established a procedure for reviewing future 
actions to determine if they and their effects fell within the scope of 
the Biological Opinion, and noted that for future MMPA authorizations 
for such activities, the Biological Opinion's incidental take statement 
(ITS) could be amended to exempt the take of ESA listed marine mammals. 
In April 2018, NMFS GARFO amended the ITS to exempt the take of right, 
sperm and fin whales as a result of the site characterization surveys 
authorized via the previously issued IHA.
    NMFS GARFO has determined that the 2013 Biological Opinion remains 
valid and that the proposed MMPA authorization provides no new 
information about the effects of the action, nor does it change the 
extent of effects of the action, or any other basis to require 
reinitiation of the opinion. The Biological Opinion meets the 
requirements of section 7(a)(2) of the ESA and implementing regulations 
at 50 CFR 402 for our proposed issuance of an IHA under the MMPA, and 
no further consultation is required. NMFS GARFO will issue an amended 
ITS and append it to the 2013 Biological Opinion.

Proposed Renewal and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA Renewal to Equinor for conducting marine site 
characterization surveys off the coast of New York and coastal waters 
where cable route corridors will be established, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed Renewal, and any other aspect of this Notice. Please include 
with your comments any supporting data or literature citations to help 
inform our final decision on the request for MMPA authorization.

    Dated: April 1, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-06598 Filed 4-3-19; 8:45 am]
 BILLING CODE 3510-22-P