Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Maryland Offshore Wind Project Offshore of Maryland

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 231206-0289]</DEPDOC> <RIN>RIN 0648-BM32</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Maryland Offshore Wind Project Offshore of Maryland</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS has received a request from US Wind, Inc., (US Wind) for Incidental Take Regulations (ITR) and an associated Letter of Authorization (LOA) pursuant to the Marine Mammal Protection Act (MMPA). The requested regulations would govern the authorization of take, by Level A harassment and Level B harassment, of small number of marine mammals over the course of 5 years (2025-2029) incidental to construction of the Maryland Offshore Wind Project offshore of Maryland within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0490 (Lease Area) and associated Export Cable Routes. Project activities likely to result in incidental take include impact pile driving and site assessment surveys using high-resolution geophysical (HRG) equipment. NMFS requests comments on its proposed rule. NMFS will consider public comments prior to making any final decision on the promulgation of the requested ITR and issuance of the LOA; agency responses to public comments will be summarized in the final notice of our decision. The proposed regulations, if issued, would be effective January 1, 2025 through December 31, 2029. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than February 5, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> and enter NOAA-NMFS-2023-0110 in the Search box. (note: copying and pasting the FDMS Docket Number directly from this document may not yield search results). Click on the “Comment” icon, complete the required fields, and enter or attach your comments. <E T="03">Instructions:</E> Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jessica Taylor, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Availability</HD> A copy of US Wind's Incidental Take Authorization (ITA) application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.</E> In case of problems accessing these documents, please call the contact listed above (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> This proposed rule would provide a framework under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) to allow for the authorization of take of marine mammals incidental to construction of the Maryland Offshore Wind Project (hereafter, “Project”) within the BOEM Renewable Energy Development Lease Area and along export cable corridors to landfall locations in Delaware. NMFS received a request from US Wind for 5-year regulations and a LOA that would authorize take of individuals of 19 species of marine mammals (5 species by Level A harassment and Level B harassment and 14 species by Level B harassment only), comprising 20 stocks, incidental to US Wind's construction activities. No mortality or serious injury is anticipated or proposed for authorization. Please see below for definitions of harassment. Please see the Estimated Take of Marine Mammals section below for definitions of relevant terms. <HD SOURCE="HD1">Legal Authority for the Proposed Action</HD> 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 <E T="03">et seq.</E> ) 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, regulations are promulgated (when applicable), and public notice and an opportunity for public comment are provided. 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, the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”), and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. As noted above, no serious injury or mortality is anticipated or proposed for authorization in this proposed rule. Relevant definitions of MMPA statutory and regulatory terms are included below: • <E T="03">Citizen</E> —individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 216.103); • <E T="03">Take</E> —to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362; 50 CFR 216.3); • <E T="03">Incidental taking</E> —an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable, or accidental (50 CFR 216.103); • <E T="03">Serious injury</E> —any injury that will likely result in mortality (50 CFR 216.3); • <E T="03">Level A harassment</E> —any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362); and • <E T="03">Level B harassment</E> —any act of pursuit, torment, or annoyance which 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 (16 U.S.C. 1362). Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for proposing and, if appropriate, issuing 5-year regulations and associated LOA. This proposed rule also establishes required mitigation, monitoring, and reporting requirements for US Wind's activities. <HD SOURCE="HD1">Summary of Major Provisions Within the Proposed Action</HD> The major provisions within this proposed rule are as follows: • Authorize take of marine mammals by Level A harassment and/or Level B harassment; • No mortality or serious injury of any marine mammal is proposed to be authorized; • Establish a seasonal moratorium on pile driving during the months of highest North Atlantic right whale ( <E T="03">Eubalaena glacialis</E> ) presence in the project area (December 1-April 30); • Require both visual and passive acoustic monitoring by trained, NMFS-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators before, during, and after impact pile driving and HRG surveys; • Require training for all US Wind personnel that would clearly articulate all relevant responsibilities, communication procedures, marine mammal monitoring and mitigation protocols, reporting protocols, safety, operational procedures, and requirements of the ITA and ensure that all requirements are clearly understood by all participating parties; • Require the use of sound attenuation device(s) during all foundation installation activities to reduce noise levels; • Delay the start of foundation installation if a North Atlantic right whale is observed at any distance by a PSO or acoustically detected within certain distances; • Delay the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones; • Shut down pile driving (if feasible) if a North Atlantic right whale is observed or if other marine mammals enter their respective shut down zones; • Shut down HRG survey equipment that may impact marine mammals if a marine mammal enters their respective shut down zones; • Conduct sound field verification during impact pile driving to ensure in situ noise levels are not exceeding those modeled; • Implement soft starts for impact pile driving; • Implement ramp-up for HRG site ch ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 616k characters. 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