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

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration </SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 240501-0124]</DEPDOC> <RIN>RIN 0648-BL67</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm 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. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates regulations to govern the incidental taking of marine mammals incidental to Sunrise Wind, LLC (Sunrise Wind), a 50/50 joint venture between Ørsted North America, Inc. (Ørsted) and Eversource Investment, LLC, construction of the Sunrise Wind Offshore Wind Farm Project (hereafter known as the “Project”) in Federal and State waters offshore 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-0487 (Lease Area) and along one export cable route to sea-to-shore transition points in Shirley, New York (collectively referred to as the “Project Area”), over the course of 5 years (June 21, 2024—June 20, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during 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. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This rule is effective from June 21, 2024, through June 20, 2029. </DATES> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Availability</HD> A copy of Sunrise Wind's application and supporting documents, received public comments, and the proposed rulemaking 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 ( <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> ) for NMFS to authorize the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Sunrise Wind to incidentally take a small number of marine mammals from 16 species of marine mammals, comprising 16 stocks (7 stocks by Level A harassment and Level B harassment; 9 stocks by Level B harassment only), incidental to Sunrise Wind's 5 years of construction activities. Sunrise Wind did not request authorization for, and NMFS neither anticipates nor allows, take by serious injury or mortality incidental to the specified activities to be authorized under this final rulemaking. <HD SOURCE="HD2">Legal Authority for the Final 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). If such findings are made, NMFS must prescribe the permissible methods of taking, 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 monitoring and reporting of such takings. As noted above, Sunrise Wind did not request for authorization of, and NMFS neither anticipates nor allows, take by serious injury or mortality incidental to the specified activities to be authorized under this final rulemaking. Relevant definitions of MMPA statutory and regulatory terms are included below: • <E T="03">U.S. Citizens</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(13); 50 CFR 216.3); • <E T="03">Incidental Harassment, Incidental Taking and Incidental, but not Intentional, 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(18); 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(18); 50 CFR 216.3). 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 regulations and an associated LOA(s). This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Sunrise Wind's construction activities. <HD SOURCE="HD2">Summary of Major Provisions Within the Final Rule</HD> The major provisions of this final rule are: • Allowing NMFS to authorize, under a LOA, the take of small numbers of marine mammals by Level A harassment and/or Level B harassment (50 CFR 217.312) incidental to the Project and prohibiting take of such species or stocks in any manner not permitted (50 CFR 217.313) ( <E T="03">e.g.,</E> mortality or serious injury); • Establishing a seasonal moratorium for foundation impact pile driving from January 1 through April 30 annually and requirements to avoid, to the maximum extent practicable, foundation impact pile driving in December and to obtain NMFS prior approval to minimize impacts to the North Atlantic right whale (NARW) ( <E T="03">Eubalaena glacialis</E> ); • Establishing a seasonal moratorium on the detonation of unexploded ordnance or munitions and explosives of concern (UXO/MEC) from December 1 through April 30 annually to minimize impacts to NARW; • Requirements for UXO/MEC detonations to only occur if all other means of removal are exhausted ( <E T="03">i.e.,</E> As Low As Reasonably Practical (ALARP) risk mitigation procedure) and conducting UXO/MEC detonations during daylight hours only and limiting detonations to 1 per 24-hour period; • Conducting both visual and passive acoustic monitoring (PAM) by trained, NMFS-approved Protected Species Observers (PSOs) and PAM operators before, during, and after select in-water construction activities; • Requiring training for all Project personnel to ensure marine mammal protocols and procedures are understood; • Establishing 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, including a delay or shutdown of foundation impact pile driving and delay to UXO/MEC detonation if a NARW is observed at any distance by PSOs or acoustically detected within certain distances; • Establishing minimum visibility and PAM monitoring zones during foundation impact pile driving; • Requiring use of at least two sound attenuation devices during all foundation impact pile driving installation activities and UXO/MEC detonations to reduce noise levels to those modeled assuming a broadband 10 decibel (dB) attenuation; • Requiring sound field verification (SFV) monitoring during impact pile driving of foundation piles and during UXO/MEC detonations to measure <E T="03">in situ</E> noise levels for comparison against the modeled results and ensure noise levels assuming 10 dB attenuation are not exceeded; • Requiring SFV during the operational phase of the Project; • Implementing soft-starts during impact pile driving and ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment; • ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 524k characters. 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