Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Empire Wind Project, Offshore New York

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 240118-0017]</DEPDOC> <RIN>RIN 0648-BL97</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Empire Wind Project, Offshore New York</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule; notification of issuance of letter of authorization. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to Empire Offshore Wind, LLC (Empire Wind), a 50-50 partnership between Equinor, ASA (Equinor) and BP p.l.c., during the construction of an offshore wind energy project (the Project) in Federal and State waters off of New York, specifically 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-512) (referred to as the Lease Area) and along two export cable routes to sea-to-shore transition points (collectively, the Project Area), over the course of 5 years (February 22, 2024, through February 21, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during specific construction related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. Upon publication of this final rule and within 30 days, NMFS will issue a LOA to Empire Wind for the effective period of the final rule. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This rulemaking and issued LOA are effective from February 22, 2024, through February 21, 2029. </DATES> <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 Empire Wind's 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 final rule, as promulgated, provides 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 Empire Wind project within the Lease Area and along export cable corridors to landfall locations in New York. To allow this to occur, NMFS received a request from Empire Wind for 5-year regulations and a LOA that would authorize take of individuals of 17 species of marine mammals, comprising 18 stocks (two species by Level A harassment and Level B harassment and 17 species by Level B harassment only) incidental to Empire Wind's construction activities. No mortality or serious injury was requested, nor is it anticipated or authorized in this final rulemaking. Please see the <E T="03">Legal Authority for the Final Action</E> section below for definitions of harassment, serious injury, and incidental take. <HD SOURCE="HD2">Legal Authority for the Final Action</HD> As noted in the Changes from the Proposed to Final Rule section, we have added regulatory definitions for terms used in this final rule. These changes are described, in detail, in the sections below and, otherwise, the description of the legal authority has not changed since the proposed rule. 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, and on 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 authorized in this final 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); • <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 (see 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; 50 CFR 216.3); 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 this rule containing 5-year regulations and associated LOA. This final rule also establishes required mitigation, monitoring, and reporting requirements for Empire Wind's construction activities. <HD SOURCE="HD2">Summary of Major Provisions Within the Final Rule</HD> The major provisions within this final rule include: • The authorized take of marine mammals by Level A harassment and/or Level B harassment; • No mortality or serious injury of any marine mammal is authorized; • The establishment of a seasonal moratorium on impact pile driving foundation piles during the months of the highest presence of North Atlantic right whales ( <E T="03">Eubalaena glacialis</E> ) in the Project Area (January 1 to April 30 annually); • A requirement for both visual and passive acoustic monitoring (PAM) to occur by trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and PAM (where required) operators before, during, and after select activities; • The establishment of clearance and shutdown zones for all in-water construction activities to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment; • A requirement to use sound attenuation device(s) during all impact pile driving installation activities to reduce noise levels; • A delay to the start of foundation installation if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected; • A delay to the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones; • A requirement to shut down pile driving (if feasible) if a North Atlantic right whale is observed or if other marine mammals are observed entering their respective shutdown zones; • A requirement to implement sound field verification (SFV) requirements during impact pile driving of foundation piles to measure in situ noise levels for comparison against the modeled results; • A requirement to implement soft starts during impact pile driving using the least hammer energy necessary for installation; • A requirement to implement ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment; • A requirement for PSOs to continue to monitor for 30 minutes after any impact pile driving for foundation installation; • A requirement for the increased awareness of North Atlantic right whale presence through monitoring of the appropriate networks and Channel 16, as well as reporting any sightings to the sighting network; • A requirement to implement various vessel strike avoidance measures; • A requirement to implement measures during fisheries mon ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 601k characters. 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