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

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 240605-0153]</DEPDOC> <RIN>RIN 0648-BM11</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the SouthCoast Wind Project Offshore Massachusetts</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; proposed letter of authorization; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS received a request from SouthCoast Wind Energy LLC (SouthCoast) (formerly Mayflower Wind Energy LLC), 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 numbers of marine mammals over the course of five years (2027-2032) incidental to construction of the SouthCoast Wind Project (SouthCoast Project) offshore of Massachusetts 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 0521 (Lease Area) and associated Export Cable Corridors (ECCs). Specified activities expected to result in incidental take are pile driving (impact and vibratory), unexploded ordnance or munitions and explosives of concern (UXO/MEC) detonation, and site assessment surveys using high-resolution geophysical (HRG) equipment. NMFS requests comments on this 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 rule. The regulations, if promulgated, would be effective April 1, 2027 through March 31, 2032. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than July 29, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at <E T="03">https://www.regulations.gov/docket/</E> NOAA-NMFS-2024-0074. Submit all electronic public comments via the Federal e- Portal. Visit <E T="03">https://www.regulations.gov</E> and type NOAA-NMFS-2024-0074 in the Rulemaking Search box. 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). A copy of SouthCoast'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 below (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Carter Esch, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> This proposed rule, if promulgated, 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 SouthCoast Project within the Lease Area and along ECCs to landfall locations in Massachusetts. NMFS received a request from SouthCoast for 5-year regulations and a LOA that would authorize take of individuals of 16 species of marine mammals by harassment only (4 species by Level A harassment and Level B harassment and 12 species by Level B harassment only) incidental to SouthCoast's construction activities. No mortality or serious injury is anticipated or proposed for authorization. Please see the <E T="03">Legal Authority for the Proposed Action</E> section below for relevant definitions. <HD SOURCE="HD2">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, 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, 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">U.S. 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(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). <HD SOURCE="HD2">Summary of Major Provisions Within the Proposed Rule</HD> The major provisions of this proposed 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 incidental to the SouthCoast Project and prohibiting take of such species or stocks in any manner not permitted ( <E T="03">e.g.,</E> mortality or serious injury); • Establishing a seasonal moratorium on foundation installation within 20 kilometers (km) (12.4 miles (mi)) of the 30-m isobath on the western side of Nantucket Shoals which, for purposes of this proposed rule, is hereafter referred to as the North Atlantic Right Whale Enhanced Mitigation Area (NARW EMA), from October 16-May 31, annually; • Establishing a seasonal moratorium on foundation installation throughout the rest of the Lease Area January 1-May 15 and a restriction on foundation pile driving in December unless Southcoast requests and NMFS approves piling driving in December, which would require SouthCoast to implement enhanced mitigation and monitoring to minimize impacts to North Atlantic right whales ( <E T="03">Eubalaena glacialis</E> ); • Establishing enhanced North Atlantic right whale monitoring, clearance, and shutdown procedures SouthCoast must implement in the NARW EMA August 1-October 15, and throughout the rest of the Lease Area May 16-31 and December 1-31; • Establishing a seasonal moratorium on the detonation of unexploded ordnance or munitions and explosives of concern (UXO/MEC) December 1-April 30 to minimize impacts to North Atlantic right whales; • 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 Practicable (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 fo ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 799k characters. 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