Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <RIN>RIN 0648-BL73</RIN> <DEPDOC>[Docket No. 240827-0228]</DEPDOC> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Atlantic Shores South Project Offshore of New Jersey</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, the National Marine Fisheries Service (hereafter, “NMFS”) promulgates regulations to govern the incidental taking of marine mammals by Atlantic Shores Offshore Wind Project 1, LLC, the project company of the original applicant, Atlantic Shores Offshore Wind, LLC, a joint venture between EDF-RE Offshore Development LLC (a wholly owned subsidiary of EDF Renewables, Inc.) and Shell New Energies US LLC, during the construction of the Atlantic Shores South Project (hereafter, “Atlantic Shores South” or the “Project”), an offshore wind energy project located in Federal and State waters offshore of New Jersey, specifically within the Bureau of Ocean Energy Management (hereafter, “BOEM”) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (hereafter, “OCS”) Lease Areas OCS-A-0499 and OCS-A-0570 (hereafter, “Lease Areas”) and along export cable routes to sea-to-shore transition points. The Project will be divided into 2 projects in 2 areas: Project 1 and Project 2 (the combined hereafter referred to as the “Project Area”), over the course of 5 years (January 1, 2025, through December 31, 2029). Of note, the proposed rule for this action named only OCS-A-0499 and the parent company, Atlantic Shores Offshore Wind LLC, with 2 subsidiaries who control each component of the Project ( <E T="03">i.e.,</E> Project 1 is controlled by Atlantic Shores Offshore Wind Project 1, LLC, and Project 2 is controlled by Atlantic Shores Offshore Wind Project 2, LLC). However, after publication of the proposed rule, Atlantic Shores Offshore Wind LLC notified NMFS that this rulemaking should be issued for Atlantic Shores Offshore Wind Project 1, LLC (“Project Company 1”). Furthermore, Project Company 1 now maintains ownership of both Project 1 and Project 2, rather than 2 separate subsidiaries for each of Project 1 and Project 2. As a result of this, the applicant requested that the Letter of Authorization (hereafter, “LOA”), if issued, be issued to Project Company 1, which would oversee the construction of both Project 1 and Project 2 (where the latter Project would be operated by “Atlantic Shores Offshore Wind Project 2, LLC” (“Project Company 2”)). These regulations, which allow for the issuance of a 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> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective from January 1, 2025, through December 31, 2029. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Availability</HD> A copy of Project Company 1's Incidental Take Authorization (hereafter, “ITA”) application, 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 (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> ) for NMFS to allow the take of marine mammals incidental to construction of the Project within the Project Area. NMFS received a request from Project Company 1 to incidentally take 16 species of marine mammals, comprising 17 stocks ( <E T="03">i.e.,</E> 9 species by Level A harassment and Level B harassment and 7 species by Level B harassment only), incidental to Project Company 1's 5 years of construction activities. No mortality or serious injury is anticipated or allowed 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> 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. Allowing for and authorizing 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: (1) prescribe the permissible methods of taking; (2) analyze “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 (hereafter referred to as “mitigation”); and (3) enact requirements pertaining to the monitoring and reporting of such takings. As noted above, no serious injury or mortality is anticipated or allowed in this final rule. 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 (see 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 (see 50 CFR 216.103); • <E T="03">Serious Injury</E> —any injury that will likely result in mortality (see 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 (see 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 (see 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. This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Project Company 1's construction activities. <HD SOURCE="HD2">Summary of Major Provisions Within the Final Rule</HD> The major provisions of this final rule are: • The allowed take of marine mammals by Level A harassment and/or Level B harassment; • No allowed take of marine mammals by mortality or serious injury; • The establishment of a seasonal moratorium on pile driving of foundation piles during the months of the highest presence of North Atlantic right whales ( <E T="03">Eubalaena glacialis</E> ) in the Lease Areas (January 1st through April 30th, annually, and in December unless it is necessary to complete the Project and if it is approved by NMFS to minimize the number of North Atlantic right whale takes); • A requirement for NOAA Fisheries-approved Protected Species Observers (hereafter, “PSOs”) and Passive Acoustic Monitoring (hereafter, “PAM”) operators (where required) to conduct both visual and passive acoustic monitoring before, during, and after select activities; • A requirement for training for all Project Company 1 personnel to ensure marine mammal protocols and procedures are understood; • The establishment and implementation 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 devices during all foundation pile driving installation activities to reduce noise levels to those modele ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 615k characters. 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