[Federal Register Volume 89, Number 209 (Tuesday, October 29, 2024)]
[Notices]
[Pages 85944-85946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25090]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE185]


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

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 (MMPA) as 
amended, and implementing regulations, notification is hereby given 
that a Letter of Authorization (LOA) has been issued to Atlantic Shores 
Offshore Wind Project 1, LLC (Project Company 1), for the taking of 
marine mammals incidental to the construction of the Atlantic Shores 
South Project (hereafter known as the ``Project'').

DATES: The LOA is effective from January 1, 2025 through December 31, 
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 (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

[[Page 85945]]

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. NMFS promulgated 
regulations on January 23, 2024 (89 FR 4370) for the taking of marine 
mammals incidental to the construction of the Atlantic Shores South 
Project offshore of New Jersey. The LOA authorizes Project Company 1, 
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

    In response to their petition to promulgate incidental take 
regulations and issue an associated Letter of Authorization, on 
September 24, 2024, NMFS promulgated a final rule (89 FR 77972) 
establishing a framework for authorizing the taking of marine mammals 
by Project Company 1. Specifically, the rule allows for take of 16 
species of marine mammals comprising 17 stocks by Level B harassment 
(all 17 stocks) and by Level A harassment (9 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 Areas 
OCS-A 0499 and OCS-A-0570 (collectively, ``Lease Area'') and along two 
export cable routes to sea-to-shore transition points (collectively 
referred to as the ``Project Area''), over the course of 5 years 
(January 1, 2025 through December 31, 2029). The final rule included 
the following specified activities: the installation of up to 200 wind 
turbine generators (WTGs) on jacket and/or monopile foundations using 
impact pile driving; the installation of up to 10 offshore substations 
(OSSs) on multi-legged jacket foundations using pin piles using impact 
pile driving; the installation of one meteorological tower (Met Tower) 
on a monopile using impact pile driving; nearshore cable landfall work 
comprising of the installation and subsequent removal of nearshore 
temporary cofferdams at the sea-to-shore transition points located in 
Sea Girt, New Jersey (the Monmouth landfall site) and in Atlantic City, 
New Jersey (the Atlantic City landfall site) by vibratory pile driving; 
high-resolution geophysical (HRG) marine site characterization surveys 
using active acoustic sources; fishery and ecological monitoring 
surveys; the deployment of up to four temporary meteorological and 
oceanographic (metocean) buoys; the placement of scour protection; the 
installation of the export cable routes 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 
impact pile driving may be taken by Level A harassment, and marine 
mammals exposed to elevated noise levels during impact and vibratory 
pile driving and HRG site characterization surveys may be taken by 
Level B harassment. No mortality or serious injury of any marine mammal 
is anticipated or authorized.

Authorization

    In accordance with the MMPA, as amended, NMFS has issued a LOA to 
Project Company 1 authorizing the take, by harassment, of marine 
mammals incidental to specified activities within the specified 
geographical region. As previously stated, 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 (89 FR 77972, September 24, 2024). The 
number of takes, by species, authorized may be found in table 1 in the 
LOA, which is available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    Takes of marine mammals will be minimized through the following 
required 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 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 upon commencement 
of impact pile driving and ramp-up of certain acoustic sources during 
HRG surveys; (6) use of noise attenuation technology during foundation 
pile driving; (7) use of situational awareness monitoring for marine 
mammal presence; (8) use of sound field verification monitoring; (9) 
use of PAM within the vessel transit corridor for Project vessels to 
travel over 10 knots (11.5 miles per hour); (10) implementation of 
several vessel strike avoidance measures to avoid vessel strikes, 
including but not limited to, vessel speed restrictions and separation 
zones between marine mammals and project vessels; and (11) requirements 
for personal training, gear use, and actions required to be undertaken 
for trawl surveys during fishery monitoring surveys. Additionally, NMFS 
may modify the LOA's mitigation, monitoring, or reporting measures, 
based on new information. Project Company 1 is also required to submit

[[Page 85946]]

frequent and situational reports, as specified in the LOA.
    Based on the findings discussed in the preamble of the final rule, 
NMFS has determined that the take authorized in the LOA is of small 
numbers, 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 24, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-25090 Filed 10-28-24; 8:45 am]
BILLING CODE 3510-22-P