[Federal Register Volume 88, Number 201 (Thursday, October 19, 2023)]
[Notices]
[Pages 72048-72049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23087]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD374]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Ocean Wind 1 Project Offshore 
of New Jersey

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

ACTION: Notice of issuance of Letter of Authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) as 
amended, and implementing regulations, notification is hereby given 
that a Letter of Authorization (LOA) has been issued to Ocean Wind, LLC 
(Ocean Wind), a subsidiary wholly owned by Orsted Wind Power North 
America, LLC (Orsted), for the taking of marine mammals incidental to 
the construction of the Ocean Wind 1 Project.

DATES: The LOA is effective from October 13, 2023 through October 12, 
2028.

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 (see 
FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, 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 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. 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 September 13, 2023 (88 FR 62898) for the taking of 
marine mammals incidental to the construction of the Ocean Wind 1 
Project offshore of New Jersey. The LOA authorizes Ocean 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.

Summary of Request

    On September 13, 2023, NMFS promulgated a final rule (88 FR 62898) 
responding to a request from Ocean Wind for authorization to take 
marine mammals (17 species comprising 18 stocks) by Level B harassment 
(all 18 stocks) and by Level A harassment (10 stocks) incidental to 
construction activities occurring in Federal and State waters off of 
New Jersey, 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 0498 (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 (October 13, 2023 through October 12, 2028). 
The activities covered under the final rule include: the installation 
of 98 wind turbine generators (WTGs) and 3 offshore substations (OSSs) 
on monopile foundations by impact pile driving; the installation and 
subsequent removal of nearshore temporary cofferdams and goal posts by 
vibratory pile driving at the cable landfall sites in Ocean County, New 
Jersey and Cape May County, New Jersey; high-resolution geophysical 
(HRG) marine site characterization

[[Page 72049]]

surveys using active acoustic sources; the detonation of up to 10 
unexploded ordnance or munitions and explosives of concern (UXOs/MECs) 
of different charge weights; 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 transits within the specified geographical region to transport 
crew, supplies, and materials to support construction and operation.
    Marine mammals exposed to elevated noise levels during impact 
driving, or UXO/MEC detonations may be taken by Level A harassment, and 
marine mammals exposed to elevated noise levels during impact and 
vibratory pile driving, site characterization surveys, or UXO/MEC 
detonations may be taken by Level B harassment. No Level A harassment 
of North Atlantic right whales, blue whales, sperm whales, Atlantic 
spotted dolphins, Atlantic white-sided dolphins, common dolphins, long-
finned or short-finned pilot whales, or Risso's dolphins is anticipated 
or authorized. No mortality or serious injury of any marine mammal is 
anticipated or authorized.

Authorization

    In accordance with the final rule (88 FR 62898, September 13, 2023, 
see 50 CFR 217.266), we have issued a LOA to Ocean Wind authorizing the 
take, by harassment, of marine mammals incidental to specified 
construction activities within the specified geographical region. No 
mortality or serious injury of any marine mammal species is anticipated 
or authorized. The incidental takes authorized herein are the same as 
those analyzed and authorized in the final rule (88 FR 62898, September 
13, 2023). Takes of marine mammals will be minimized through the 
following planned mitigation and monitoring measures, as applicable for 
each specified activity: (1) implementation of 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; (6) use of soft-start 
prior to the start of impact pile driving; (7) use of noise attenuation 
technology during impact pile driving and UXO/MEC detonations; (8) use 
of situational awareness monitoring for marine mammal presence; (9) use 
of sound field verification monitoring; (10) use of soft-start impact 
pile driving and ramp-up acoustic sources during HRG surveys; (11) 
implementation of vessel separation zones between marine mammals and 
project vessels; (12) use of PAM within the vessel transit corridor for 
Project vessels to travel over 10 knots (11.5 miles per hour); and (13) 
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 
217.267(c)). Ocean 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: October 16, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-23087 Filed 10-18-23; 8:45 am]
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