[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Notices]
[Pages 30278-30280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09947]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC892]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off the Coast of Delaware

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: NMFS has received a request from [Oslash]rsted Wind Power 
North America, LLC ([Oslash]rsted) and its designees, Garden State 
Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC 
(Skipjack), for the re-issuance of a previously issued incidental 
harassment authorization (IHA) with the only change being effective 
dates. The initial IHA authorized take of marine mammals incidental to 
marine site characterization surveys in coastal waters off of Delaware 
and New Jersey. The project has been delayed and none of the work 
covered in the initial IHA has been conducted. The scope of the 
activities and anticipated effects remain the same, authorized take 
numbers are not changed, and the required mitigation, monitoring, and 
reporting remains the same as included in the initial IHA. NMFS is, 
therefore, issuing a second identical IHA to cover the incidental take 
analyzed and authorized in the initial IHA.

DATES: This authorization is effective from May 10, 2023, through May 
9, 2024. The initial IHA was effective from May 10, 2022, through May 
9, 2023. [Oslash]rsted has requested issuance with new effective dates 
of May 10, 2023, through May 9, 2024.

ADDRESSES: An electronic copy of the final 2022 IHA previously issued 
to [Oslash]rsted, [Oslash]rsted's application, and the Federal Register 
notices proposing and issuing the initial IHA may be obtained by 
visiting https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site. In case 
of problems accessing these documents, please call the contact listed 
below (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act 
(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.
    An authorization for incidental takings 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.

[[Page 30279]]

    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 September 16, 2021, NMFS published final notice of our issuance 
of an IHA authorizing take of 16 species of marine mammals incidental 
to marine site characterization surveys in coastal waters off of 
Delaware in the areas of the Bureau of Ocean Energy Management (BOEM) 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS)-A 0482 and 0519 and along potential 
export cable routes to landfall locations in Delaware and New Jersey 
(87 FR 30182). The effective dates of that IHA were May 10, 2022, 
through May 9, 2023. On February 23, 2023, [Oslash]rsted informed NMFS 
that the project was delayed. None of the work identified in the 
initial IHA (i.e., geophysical, geotechnical, and geohazard data 
collection) has occurred. [Oslash]rsted submitted a request to re-issue 
the IHA, which would be effective from May 10, 2023, through May 9, 
2024, in order to conduct the marine site characterization survey work 
that was analyzed and authorized through the previously issued IHA.

Summary of Specified Activity and Anticipated Impacts

    The planned activities (including mitigation, monitoring, and 
reporting), authorized incidental take, and anticipated impacts on the 
affected stocks are the same as those analyzed and authorized through 
the previously issued IHA.
    As part of their overall marine site characterization survey 
operations, [Oslash]rsted plans to conduct high-resolution geophysical 
(HRG) and geotechnical surveys in Lease Areas OCS-A 0482 and 0519, and 
the associated export cable route areas. The purpose of the marine site 
characterization surveys is to collect data concerning seabed 
(geophysical, geotechnical, and geohazard), ecological, and 
archeological conditions within the footprint of offshore wind facility 
development. Surveys are also conducted to support engineering design 
and to map Unexploded Ordnance (UXO).
    The location, timing, and nature of the activities, including the 
types of equipment planned for use, are identical to those described 
for the initial IHA. The mitigation and monitoring are also as 
prescribed in the initial IHA.
    Species that have the potential to be taken by the planned 
activities can be found in the initial 2022 Federal Register notices 
(87 FR 15922; 87 FR 30182). A description of the methods and inputs 
used to estimate take anticipated to occur and, ultimately, the take 
that was authorized is found in the previous documents referenced 
above. NMFS has reviewed recent Stock Assessment Reports, information 
on relevant Unusual Mortality Events, and recent scientific literature, 
and determined that no new information affects our original analysis of 
impacts under the initial IHA.
    We refer to the documents related to the previously issued IHA, 
which include the Federal Register notice of the issuance of the 
initial 2022 IHA for [Oslash]rsted's construction work (87 FR 30182), 
[Oslash]rsted's application, the Federal Register notice of the 
proposed IHA (87 FR 15922), and all associated references and 
documents.
    On August 1, 2022, NMFS announced proposed changes to the existing 
NARW vessel speed regulations to further reduce the likelihood of 
mortalities and serious injuries to endangered NARWs from vessel 
collisions, which are a leading cause of the species' decline and a 
primary factor in an ongoing Unusual Mortality Event (87 FR 46921). 
Should a final vessel speed rule be issued and become effective during 
the effective period of this IHA (or any other MMPA incidental take 
authorization), the authorization holder would be required to comply 
with any and all applicable requirements contained within the final 
rule. Specifically, where measures in any final vessel speed rule are 
more protective or restrictive than those in this or any other MMPA 
authorization, authorization holders would be required to comply with 
the requirements of the rule. Alternatively, where measures in this or 
any other MMPA authorization are more restrictive or protective than 
those in any final vessel speed rule, the measures in the MMPA 
authorization would remain in place. The responsibility to comply with 
the applicable requirements of any vessel speed rule would become 
effective immediately upon the effective date of any final vessel speed 
rule and, when notice is published of the effective date, NMFS would 
also notify COSW if the measures in the speed rule were to supersede 
any of the measures in the MMPA authorization such that they were no 
longer applicable.

Determinations

    [Oslash]rsted will conduct activities as analyzed in the initial 
2022 IHA. As described above, the number of authorized takes of the 
same species and stocks of marine mammals are identical to the numbers 
that were found to meet the negligible impact and small numbers 
standards and authorized under the initial IHA and no new information 
has emerged that would change those findings. The issued 2023 IHA 
includes identical required mitigation, monitoring, and reporting 
measures as the initial IHA, and there is no new information suggesting 
that our analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) the required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) 
[Oslash]rsted's activities will not have an unmitigable adverse impact 
on taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action with respect to environmental 
consequences on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review.

[[Page 30280]]

NMFS has determined that the application of this categorical exclusion 
remains appropriate for this IHA.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS Office of Protected Resources previously determined that 
issuance of the initial 2022 IHA falls within the scope of activities 
analyzed in NMFS Greater Atlantic Regional Fisheries Office's 
programmatic consultation regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021).

Authorization

    NMFS has issued an IHA to [Oslash]rsted for marine site 
characterization survey activities associated with the specified 
activity from May 10, 2023, through May 9, 2024. All previously 
described mitigation, monitoring, and reporting requirements from the 
initial 2022 IHA are incorporated.

    Dated: May 5, 2023.
Kimberley Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-09947 Filed 5-10-23; 8:45 am]
BILLING CODE 3510-22-P