[Federal Register Volume 89, Number 39 (Tuesday, February 27, 2024)]
[Notices]
[Pages 14442-14444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03887]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD740]


Takes of Marine Mammals Incidental to Specified Activities; 
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; issuance of Letter of Authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act

[[Page 14443]]

(MMPA) as amended, and implementing regulations, notification is hereby 
given that a Letter of Authorization (LOA) has been issued to Empire 
Offshore Wind, LLC (Empire Wind) for the taking of marine mammals 
incidental to the construction of the Empire Wind Project (hereafter 
known as the ``Project'').

DATES: The LOA is effective from February 22, 2024 through February 21, 
2029.

ADDRESSES: The LOA and supporting documentation are available online 
at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems 
accessing these documents, please call the contact listed below.

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

SUPPLEMENTARY INFORMATION:

Background

    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 
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, regulations are 
promulgated (when applicable), and public notice and an opportunity for 
public comment are provided.
    An authorization for incidental taking 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. The MMPA defines ``take'' to mean 
harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or 
kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.103). Level A 
harassment is defined as 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). Level B 
harassment is defined as 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 authorize NMFS to propose and, if appropriate, 
promulgate regulations and issue an associated LOA(s). NMFS promulgated 
regulations on February 14, 2024 (89 FR 11342) for the taking of marine 
mammals incidental to the construction of the Empire Wind Project 
offshore of New York. The LOA authorizes Empire Wind and those persons 
it authorizes or funds to conduct activities on its behalf to take 
marine mammals incidental to specified activities during the 
construction of the Project and requires them to implement mitigation, 
monitoring, and reporting requirements.
    On February 14, 2024, NMFS promulgated a final rule (89 FR 11342) 
responding to a request from Empire Wind for authorization to take 
small numbers of marine mammals (17 species comprising 18 stocks) by 
Level B harassment (all 17 stocks) and by Level A harassment (2 of the 
17 stocks) incidental to construction activities occurring in Federal 
and State waters off of New York, specifically within and around 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 0512 (Lease Area) and along 2 export cable 
routes to sea-to-shore transition points (collectively referred to as 
the ``Project Area''), over the course of 5 years (February 22, 2024 
through February 21, 2029). The activities covered under the final rule 
include the installation of 147 wind turbine generators (WTGs) on 
monopile foundations and 2 offshore substations (OSSs) on jacket 
foundations using pin piles by impact pile driving; nearshore cable 
landfall work comprising of the installation and subsequent removal of 
nearshore temporary cofferdams by vibratory pile driving or the 
installation and subsequent removal of casing pipes supported by goal 
posts by impact pile driving at the sea-to-shore transition points 
located on Long Island and Brooklyn, New York; removal of berthing 
piles and installation of marine bulkheads inshore of Long Island, New 
York; high-resolution geophysical (HRG) marine site characterization 
surveys using active acoustic sources; fishery and ecological 
monitoring surveys; the placement of scour protection; the installation 
of the export cable route from OSSs to shore-based converter stations 
and inter-array cables between turbines by trenching, laying, and 
burial activities; vessel transit within the specified geographical 
region to transport crew, supplies, and materials; and WTG operation.
    Marine mammals exposed to elevated noise levels during foundation 
pile driving, may be taken by Level A harassment (limited to fin whales 
and minke whale), and marine mammals exposed to elevated noise levels 
during impact and vibratory pile driving during cable landfall and 
marina construction activities and/or site characterization surveys may 
be taken by Level B harassment. No mortality or serious injury of any 
marine mammal is anticipated to occur or has been authorized.

Authorization

    In accordance with the final rule (89 FR 11342, February 14, 2024, 
see 50 CFR 217.286), we have issued a LOA to Empire Wind authorizing 
the take, by harassment, of marine mammals incidental to specified 
construction activities within the specified geographical region. As 
previously stated, no mortality or serious injury of any marine mammal 
species is anticipated to occur or has been authorized. The incidental 
takes authorized herein are the same as those analyzed and authorized 
in the final rule (89 FR 11342, February 14, 2024). Takes of marine 
mammals will be minimized through the following planned mitigation and 
monitoring measures, as applicable for each specified activity: (1) 
implementation of spatio-temporal seasonal/time of day work 
restrictions; (2) use of multiple NMFS-approved Protected Species 
Observers (PSOs) to visually observe for marine mammals (with any 
detection within specifically designated zones triggering a delay or 
shutdown, as applicable); (3) use of NMFS-approved passive acoustic 
monitoring (PAM) operators to acoustically detect marine mammals, with 
a focus on detecting baleen whales (with any detection within 
designated zones triggering a delay or shutdown, as applicable); (4) 
implementation of clearance and shutdown zones; (5) use of soft-start 
prior to the start of foundation pile driving; (6) use of noise 
attenuation technology during foundation pile

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driving; (7) use of situational awareness monitoring for marine mammal 
presence; (8) use of sound field verification monitoring; (9) use of 
ramp-up acoustic sources during HRG surveys; (10) implementation of 
vessel separation zones between marine mammals and project vessels; 
(11) use of PAM within the vessel transit corridor for Project vessels 
to travel over 10 knots (11.5 miles per hour); and (12) implementation 
of additional Vessel Strike Avoidance measures to reduce the risk of a 
vessel collision with a marine mammal. Additionally, NMFS may modify 
the LOA's mitigation, monitoring, or reporting measures, based on new 
information, when appropriate (see also 50 CFR 217.287(c)). Empire Wind 
is also required to submit reports, as specified in the final rule.
    Based on the findings and information discussed in the preamble of 
the final rule, the take authorized in the LOA will have a negligible 
impact on marine mammal stocks, will not have an unmitigable adverse 
impact on the availability of the affected marine mammal stock for 
subsistence uses, and the mitigation measures provide a means of 
affecting the least practicable adverse impact on the affected stocks 
and their habitat.

    Dated: February 21, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-03887 Filed 2-26-24; 8:45 am]
BILLING CODE 3510-22-P