[Federal Register Volume 87, Number 174 (Friday, September 9, 2022)]
[Notices]
[Pages 55409-55411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19514]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC342]


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the Empire Wind Project Offshore of New York

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; receipt of application for regulations and Letter of 
Authorization; request for comments and information.

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SUMMARY: NMFS has received a petition from Empire Offshore Wind LLC 
(Empire), a 50-50 partnership between Equinor and BP, requesting 
authorization to take small numbers of marine mammals incidental to 
activities associated with the Empire Wind Project in a designated 
lease area on the Outer Continental Shelf (OSC-A 0512) offshore of New 
York state over the course of 5 years beginning in 2024. Equinor will 
be the operator through the development, construction, and operations 
phase of the project. Pursuant to regulations implementing the Marine 
Mammal Protection Act (MMPA), NMFS is announcing receipt of Empire's 
request for the development and implementation of regulations governing 
the incidental taking of marine mammals and issuance of a Letter of 
Authorization (LOA). NMFS invites the public to provide information, 
suggestions, and comments on Empire's application and request.

DATES: Comments and information must be received no later than October 
11, 2022.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service and should be sent to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all

[[Page 55410]]

attachments, must not exceed a 25-megabyte file size. Attachments to 
electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable without change. 
All personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. An electronic copy of Empire's 
application may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these 
documents, please email the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
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 and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review. For requests under 
section 101(A)(5)(A) of the MMPA, NMFS is also required to begin the 
public review process by publishing a notice of receipt of a request 
for the implementation of regulations governing the incidental taking 
(50 CFR 216.104(b)(1)(ii)).
    An incidental take authorization shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance, which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) 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 (Level B harassment).

Summary of Request

    On December 7, 2021, NMFS received an application from Empire 
requesting authorization to take, by Level A harassment and Level B 
harassment, 16 species of marine mammals incidental to activities 
associated with the development of the Empire Wind Project offshore of 
New York in Commercial Lease (OCS-A-0512). In response to our comments, 
and following extensive information exchange with NMFS, Empire 
submitted a final, revised application on July 28, 2022, that we 
determined was adequate and complete on August 11, 2022. Empire 
requests the regulations and subsequent LOA be valid for 5 years 
beginning in 2024.
    Empire is proposing to develop the Empire Wind Project in two 
adjacent locations, Empire Wind 1 (EW 1) and Empire Wind 2 (EW 2), that 
are electrically isolated and independent from each other and will each 
be connected to their own points of interconnection via individual 
submarine export cable routes. There will be a maximum of 147 wind 
turbine generators (WTGs) supported by monopile foundations and two 
offshore substation (OSS) piled jacket foundations supported with 12 
pin piles each within the Lease Area. EW 1 would consist of up to 57 
WTG, and one OSS while EW 2 would consist of up to 90 WTGs and one OSS. 
EW 1 would require up to 116 nautical miles (nm) (214 kilometers (km)) 
of interarray cable and 40 nm (74 km) of submarine export cable with a 
cable landfall at South Brooklyn Marine Terminal (SBMT). EW 2 would 
consist of up to 144 nm (267 km) of interarray cable and up to 26 nm 
(48 km) of submarine export cable with two out of four proposed cable 
landfalls in Long Beach or Lido Beach, New York. Empire's Lease Area 
OCS-A-0512 is located approximately 12 nm (22 km) south of Long Island, 
New York, and 16.9 nm (31.4 km) east of Long Branch, New Jersey.
    Empire considered the following activities associated with 
development of the wind farm in its application: installation of WTGs 
and OSSs using impact driving; vibratory pile driving to install and 
remove temporary cofferdams to support horizontal directional drilling 
(HDD) at the export cable landfalls of the submarine export cables; 
goal post installation by impact hammer to assist with the installation 
of casing pipes for cable landfalls; and high-resolution geophysical 
(HRG) equipment during survey activities in support of the Project. 
Empire has determined that these activities may result in the taking, 
by Level A harassment and/or Level B harassment, of marine mammals. 
Therefore, Empire requests authorization to incidentally take marine 
mammals.

Specified Activities

    In Executive Order 14008, President Biden stated that it is the 
policy of the United States to organize and deploy the full capacity of 
its agencies to combat the climate crisis to implement a Government-
wide approach that reduces climate pollution in every sector of the 
economy; increases resilience to the impacts of climate change; 
protects public health; conserves our lands, waters, and biodiversity; 
delivers environmental justice; and spurs well-paying union jobs and 
economic growth, especially through innovation, commercialization, and 
deployment of clean energy technologies and infrastructure.
    Through a competitive leasing process under 30 CFR 585.211, Empire 
Wind was awarded Commercial Lease OCS-A 0512 offshore of New York and 
the exclusive right to submit a construction and operations plan (COP) 
for activities within the lease area. Empire submitted a COP to the 
Bureau of Ocean Energy Management (BOEM) proposing the construction, 
operation, maintenance, and conceptual decommissioning of the Empire 
Wind project within Lease Area OCS-A 04512.
    Empire has provided a complete description of the specified 
activities and their proposed mitigation, monitoring and reporting 
measures in their application. They have also included a description of 
estimated take methods and results. Empire anticipates the following 
activities may potentially result in harassment of marine mammals:

[[Page 55411]]

     up to 147 WTG monopile foundations which would not exceed 
11-meters (m) in diameter would be installed using impact hammers with 
energy level not to exceed 5,225 kiloJoules (kJ). Impact driving would 
not occur from January 1 through April 30 over the course of 2 years. 
In addition, impact pile driving would not occur from December 1 
through December 31, unless unanticipated delays due to weather or 
technical problems arise that necessitate extending pile driving into 
December;
     two OSS jacket foundations with up to 12 2.5 m (8.2 ft)-
diameter pin piles would be installed over 2 years using impact hammers 
with energy levels not to exceed 3,200 kJ. Impact driving of pin piles 
would be subject to the same work window restrictions as the WTG 
monopile foundations;
     installation and removal of up to 5 temporary cofferdams 
or 6-10 goal posts would occur over 2 years via vibratory driving at 
the exit points of the long-distance horizontal directional drilling 
(HDD) at each export cable landfall. Up to 60 sheet piles would be 
required per cofferdam and installation and removal of each cofferdam 
would require 6 days;
     using HRG equipment to survey approximately 103,475 (km) 
over 5 years (177.792 km/day x 582 vessel days between 2024-2028).
    Empire has indicated that these are the most accurate estimates for 
the durations of each planned activity, but that the schedule may shift 
over the course of the Project due to weather, mechanical, or other 
related delays.

Information Solicited

    Interested persons may submit information, suggestions, and 
comments concerning Empire's request (see ADDRESSES). NMFS will 
consider all information, suggestions, and comments related to the 
request during the development of proposed regulations governing the 
incidental taking of marine mammals by Empire, if appropriate.

    Dated: September 6, 2022.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-19514 Filed 9-8-22; 8:45 am]
BILLING CODE 3510-22-P