11342 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 240118–0017] 

RIN 0648–BL97 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Empire 

Wind Project, Offshore New York 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of 

issuance of letter of authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA), as 

amended, notification is hereby given 

that NMFS promulgates regulations to 

govern the incidental taking of marine 

mammals incidental to Empire Offshore 

Wind, LLC (Empire Wind), a 50–50 

partnership between Equinor, ASA 

(Equinor) and BP p.l.c., during the 

construction of an offshore wind energy 

project (the Project) in Federal and State 

waters off of New York, specifically 

within 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–512) (referred to as the Lease 

Area) and along two export cable routes 

to sea-to-shore transition points 

(collectively, the Project Area), over the 

course of 5 years (February 22, 2024, 

through February 21, 2029). These 

regulations, which allow for the 

issuance of a Letter of Authorization 

(LOA) for the incidental take of marine 

mammals during specific construction 

related activities within the Project Area 

during the effective dates of the 

regulations, prescribe the permissible 

methods of taking and other means of 

effecting the least practicable adverse 

impact on marine mammal species or 

stocks and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

Upon publication of this final rule and 

within 30 days, NMFS will issue a LOA 

to Empire Wind for the effective period 

of the final rule. 

DATES: This rulemaking and issued LOA 

are effective from February 22, 2024, 

through February 21, 2029. 

FOR FURTHER INFORMATION CONTACT: 

Jessica Taylor, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of Empire Wind’s application 

and supporting documents, as well as a 

list of the references cited in this 

document, may be obtained online at: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable. In case of 

problems accessing these documents, 

please call the contact listed above (see 

FOR FURTHER INFORMATION CONTACT). 

Purpose and Need for Regulatory 

Action 

This final rule, as promulgated, 

provides a framework under the 

authority of the MMPA (16 U.S.C. 1361 

et seq.) to allow for the authorization of 

take of marine mammals incidental to 

construction of the Empire Wind project 

within the Lease Area and along export 

cable corridors to landfall locations in 

New York. To allow this to occur, 

NMFS received a request from Empire 

Wind for 5-year regulations and a LOA 

that would authorize take of individuals 

of 17 species of marine mammals, 

comprising 18 stocks (two species by 

Level A harassment and Level B 

harassment and 17 species by Level B 

harassment only) incidental to Empire 

Wind’s construction activities. No 

mortality or serious injury was 

requested, nor is it anticipated or 

authorized in this final rulemaking. 

Please see the Legal Authority for the 

Final Action section below for 

definitions of harassment, serious 

injury, and incidental take. 

Legal Authority for the Final Action 

As noted in the Changes from the 

Proposed to Final Rule section, we have 

added regulatory definitions for terms 

used in this final rule. These changes 

are described, in detail, in the sections 

below and, otherwise, the description of 

the legal authority has not changed 

since the proposed rule. 

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. 

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). Further, NMFS must prescribe 

the permissible methods of taking and 

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 

mitigation, monitoring and reporting of 

the takings are set forth. 

As noted above, no serious injury or 

mortality is anticipated or authorized in 

this final rule. Relevant definitions of 

MMPA statutory and regulatory terms 

are included below: 

• Citizen—individual U.S. citizens or 

any corporation or similar entity if it is 

organized under the laws of the United 

States or any governmental unit defined 

in 16 U.S.C. 1362(13) (50 CFR 216.103); 

• Take—to harass, hunt, capture, or 

kill, or attempt to harass, hunt, capture, 

or kill any marine mammal (16 U.S.C. 

1362); 

• Incidental taking—an accidental 

taking. This does not mean that the 

taking is unexpected, but rather it 

includes those takings that are 

infrequent, unavoidable or accidental 

(see 50 CFR 216.103); 

• Serious Injury—any injury that will 

likely result in mortality (50 CFR 216.3); 

• Level A harassment—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; 50 CFR 216.3); 

and 

• Level B harassment—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). 

Section 101(a)(5)(A) of the MMPA and 

the implementing regulations at 50 CFR 

part 216, subpart I, provide the legal 

basis for proposing and, if appropriate, 

issuing this rule containing 5-year 

regulations and associated LOA. This 

final rule also establishes required 

mitigation, monitoring, and reporting 

requirements for Empire Wind’s 

construction activities. 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11343 

Summary of Major Provisions Within 

the Final Rule 

The major provisions within this final 

rule include: 

• The authorized take of marine 

mammals by Level A harassment and/or 

Level B harassment; 

• No mortality or serious injury of 

any marine mammal is authorized; 

• The establishment of a seasonal 

moratorium on impact pile driving 

foundation piles during the months of 

the highest presence of North Atlantic 

right whales (Eubalaena glacialis) in the 

Project Area (January 1 to April 30 

annually); 

• A requirement for both visual and 

passive acoustic monitoring (PAM) to 

occur by trained, NOAA Fisheriesapproved Protected Species Observers 

(PSOs) and PAM (where required) 

operators before, during, and after select 

activities; 

• The establishment of clearance and 

shutdown zones for all in-water 

construction activities to prevent or 

reduce the risk of Level A harassment 

and to minimize the risk of Level B 

harassment; 

• A requirement to use sound 

attenuation device(s) during all impact 

pile driving installation activities to 

reduce noise levels; 

• A delay to the start of foundation 

installation if a North Atlantic right 

whale is observed at any distance by 

PSOs or acoustically detected; 

• A delay to the start of foundation 

installation if other marine mammals 

are observed entering or within their 

respective clearance zones; 

• A requirement to shut down pile 

driving (if feasible) if a North Atlantic 

right whale is observed or if other 

marine mammals are observed entering 

their respective shutdown zones; 

• A requirement to implement sound 

field verification (SFV) requirements 

during impact pile driving of foundation 

piles to measure in situ noise levels for 

comparison against the modeled results; 

• A requirement to implement soft 

starts during impact pile driving using 

the least hammer energy necessary for 

installation; 

• A requirement to implement rampup during the use of high-resolution 

geophysical (HRG) marine site 

characterization survey equipment; 

• A requirement for PSOs to continue 

to monitor for 30 minutes after any 

impact pile driving for foundation 

installation; 

• A requirement for the increased 

awareness of North Atlantic right whale 

presence through monitoring of the 

appropriate networks and Channel 16, 

as well as reporting any sightings to the 

sighting network; 

• A requirement to implement 

various vessel strike avoidance 

measures; 

• A requirement to implement 

measures during fisheries monitoring 

surveys, such as removing gear from the 

water if marine mammals are 

considered at-risk or are interacting 

with gear; and 

• A requirement for frequently 

scheduled and situational reporting 

including, but not limited to, 

information regarding activities 

occurring, marine mammal observations 

and acoustic detections, and SFV 

monitoring results. 

Under section 105(a)(1) of the MMPA, 

failure to comply with these 

requirements or any other requirements 

in a regulation or permit implementing 

the MMPA may result in civil monetary 

penalties. Pursuant to 50 CFR 216.106, 

violations may also result in suspension 

or withdrawal of the LOA for the 

Project. Knowing violations may result 

in criminal penalties, under section 

105(b) of the MMPA. 

Fixing America’s Surface 

Transportation Act (FAST–41) 

This project is covered under title 41 

of the Fixing America’s Surface 

Transportation Act, or ‘‘FAST–41.’’ 

FAST–41 includes a suite of provisions 

designed to expedite the environmental 

review for covered infrastructure 

projects, including enhanced 

interagency coordination as well as 

milestone tracking on the public-facing 

Permitting Dashboard. FAST–41 also 

places a 2-year limitations period on 

any judicial claim that challenges the 

validity of a Federal agency decision to 

issue or deny an authorization for a 

FAST–41 covered project (42 U.S.C. 

4370m–6(a)(1)(A)). 

The Project is listed on the Permitting 

Dashboard, where milestones and 

schedules related to the environmental 

review and permitting for the Project 

can be found at https://

www.permits.performance.gov/ 

permitting-project/fast-41-coveredprojects/empire-wind-energy-project. 

Summary of Request 

On December 7, 2021, Empire Wind 

submitted a request for the 

promulgation of regulations and 

issuance of an associated 5-year LOA to 

take marine mammals incidental to 

construction activities associated with 

implementation of the Project (offshore 

of New York in BOEM Lease Area OCS– 

A–0512. The request was for the 

incidental, but not intentional, taking of 

a small number of 17 marine mammal 

species (comprising 18 stocks). Neither 

Empire Wind nor NMFS expects any 

serious injury or mortality to result from 

the specified activities, nor has NMFS 

authorized any. 

In response to our questions and 

comments, and following extensive 

information exchange between Empire 

Wind and NMFS, Empire Wind 

submitted a final, revised application on 

August 8, 2022. NMFS deemed it 

adequate and complete on August 11, 

2022. This final application is available 

on NMFS’ website at https://

www.fisheries.noaa.gov/protectedresource-regulations. 

On September 9, 2022, NMFS 

published a notice of receipt (NOR) of 

Empire Wind’s adequate and complete 

application in the Federal Register (87 

FR 55409), requesting public comments 

and information on Empire Wind’s 

request during a 30-day public comment 

period. During the NOR public 

comment period, NMFS received 

comment letters from an environmental 

non-governmental organization 

(Responsible Offshore Development 

Alliance) and a corporate entity (Allco 

Renewable Energy Limited). NMFS has 

reviewed all submitted material and has 

taken these into consideration during 

the drafting of this final rule. 

In June 2022, new scientific 

information was released regarding 

marine mammal densities (Roberts et 

al., 2023). In response, Empire 

submitted a final addendum to the 

application on January 25, 2023, which 

included revised marine mammal 

densities and take estimates based on 

Roberts et al. (2023). The addendum 

also identified a revision to the density 

calculation methodology. Both of these 

revisions were recommended by NMFS. 

Empire requests the regulations and 

subsequent LOA be valid for 5 years 

beginning in the first quarter of 2024 

(February 22) through the first quarter of 

2029 (February 21). Neither Empire 

Wind nor NMFS expects serious injury 

or mortality to result from the specified 

activities. Empire’s complete 

application and associated addendum 

are available on NMFS’ website at: 

https://www.fisheries.noaa.gov/action/ 

incidental-take-authorization-empireoffshore-wind-llc-construction-empirewind-project-ew1?check_logged_in=1. 

On April 13, 2023, NMFS published 

a proposed rule in the Federal Register 

for the Project (88 FR 22696). In the 

proposed rule, NMFS synthesized all of 

the information provided by Empire 

Wind, all best available scientific 

findings and literature relevant to the 

proposed project, and outlined, in 

detail, proposed mitigation, monitoring, 

and reporting measures designed to 

effect the least practicable adverse 

impacts on marine mammal species and 


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11344 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

stocks. The public comment period on 

the proposed rule was open for 30 days 

on https://www.regulations.gov starting 

on April 13, 2023, and closed after May 

13, 2023. Specific details on the public 

comments received during this 30-day 

period are described in the Comments 

and Responses section. 

NMFS previously issued three 

Incidental Harassment Authorizations 

(IHAs) to Equinor and its predecessors 

for related work regarding high 

resolution site characterization surveys 

(see 83 FR 19532, May 3, 2018; 84 FR 

18801, May 2, 2019 (renewal); 85 FR 

60424, September 25, 2020). To date, 

Equinor has complied with all the 

requirements (e.g., mitigation, 

monitoring, and reporting) of the 

previous IHAs and information 

regarding their monitoring results may 

be found in the Estimated Take section. 

These monitoring reports can be found 

on NMFS’ website: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable. 

On August 1, 2022, NMFS announced 

proposed changes to the existing North 

Atlantic right whale vessel speed 

regulations (87 FR 46921, August 1, 

2022) to further reduce the likelihood of 

mortalities and serious injuries to 

endangered right whales from vessel 

collisions, which are a leading cause of 

the species’ decline and a primary factor 

in an ongoing Unusual Mortality Event 

(UME). Should a final vessel speed rule 

be issued and become effective during 

the effective period of this incidental 

take regulation (ITR)—or any other 

MMPA incidental take authorization 

(ITA)—the authorization holder will 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 

will 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 

will remain in place. The responsibility 

to comply with the applicable 

requirements of any vessel speed rule 

will become effective immediately upon 

the effective date of any final vessel 

speed rule and, when notice is 

published on the effective date, NMFS 

will also notify Empire Wind if the 

measures in the speed rule were to 

supersede any of the measures in the 

MMPA authorization such that they 

were no longer required. 

Description of the Specified Activity 

Overview 

Empire Wind plans to construct and 

operate two offshore wind projects 

within OCS–A 0512: Empire Wind 1 

(western portion of Lease Area) and 

Empire Wind 2 (eastern portion of Lease 

Area). The two projects combined will 

produce a total of approximately 2,076 

megawatts (MW) of renewable energy to 

New York. Empire Wind 1 (816 MW) 

and Empire Wind 2 (1,260 MW) will be 

electrically isolated and independent of 

each other and each will be connected 

to their own points of interconnection 

via individual submarine export cable 

routes. 

The Project will consist of several 

different types of permanent offshore 

infrastructure, including wind turbine 

generators (WTGs) and associated 

foundations, offshore substations 

(OSSs), inter-array cables, submarine 

export cables and scour protection. 

Specifically, activities to construct the 

Project include the installation of up to 

147 WTGs and two OSSs by impact pile 

driving (total of 149 foundations). 

Additional activities will include cable 

installation, site preparation activities 

(e.g., dredging), HRG surveys, 

installation of cofferdams or casing 

pipes supported by goal post piles, 

removal of berthing piles and 

performing marina bulkhead work; and 

conducting several types of fishery and 

ecological monitoring surveys. Multiple 

vessels will transit within the Project 

Area and between ports and the wind 

farm to perform the work and transport 

crew, supplies, and materials. All 

offshore cables will connect to onshore 

export cables, substations, and grid 

connections on Long Island and 

Brooklyn, New York. Marine mammals 

exposed to elevated noise levels during 

impact and vibratory pile driving or site 

characterization surveys may be taken 

by Level A harassment and/or Level B 

harassment, depending on the specified 

activity. A detailed description of the 

construction project is provided in the 

proposed rule as published in the 

Federal Register (88 FR 22696, April 13, 

2023). 

Activities Not Considered in Empire 

Wind’s Request for Authorization 

During construction, Empire will 

receive equipment and materials to be 

staged and loaded onto installation 

vessels at one or more existing thirdparty port facilities. Empire has not yet 

finalized the selection of all facilities, 

although they will include the South 

Brooklyn Marine Terminal (SBMT) in 

Brooklyn, New York. SBMT has been 

selected as the location for export cable 

landfall and the onshore substation for 

Empire Wind 1. Empire also has leased 

portions of SBMT for Empire Wind 1 

and Empire Wind 2 for laydown and 

staging of wind turbine blades, turbines, 

and nacelles; foundation transition 

pieces; or other facility parts during 

construction of the offshore wind farm. 

The final port selection(s) for staging 

and construction will be determined 

based upon whether the ports are able 

to accommodate Empire Wind’s 

schedule, workforce, and equipment 

needs. Any port improvement 

construction activities to facilitate 

laydown and staging would be 

conducted by a separate entity, would 

serve the broader offshore wind 

industry in addition to the Project, and 

are not addressed further. 

Empire Wind is not planning on 

detonating any unexploded ordnance 

(UXO) or munitions and explosives of 

concern (MEC) during the effective 

period of the rule. Hence, Empire Wind 

did not analyze or request, and NMFS 

is not authorizing, take associated with 

this activity. Other means of removing 

UXO/MEC may occur (e.g., lift and 

shift). As UXO/MEC detonation will not 

occur, it is not discussed further in this 

analysis. 

Dates and Duration 

Empire Wind anticipates activities 

resulting in harassment to marine 

mammals occurring throughout all 5 

years of the final rule (table 1). Offshore 

Project activities are expected to begin 

in March 2024, after issuance of the 5- 

year LOA, and continue through March 

2029. Empire Wind anticipates the 

following construction schedule over 

the five-year period. Empire Wind has 

noted that these are the best and 

conservative estimates for activity 

durations, but that the schedule may 

shift due to weather, mechanical, or 

other related delays. Additional 

information on dates and activityspecific durations can be found in the 

proposed rule and are not repeated here. 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11345 

TABLE 1—ACTIVITY SCHEDULE TO CONSTRUCT AND OPERATE THE PROJECT

Project activity Expected timing 

Empire Wind 1 

Expected timing 

Empire Wind 2 

Submarine Export Cables .................................................................... Q3 2024; Q3 2025 ................................................... Q3–Q4 2025. 

OSS Jacket Foundation and Topside ................................................. Q2 1–Q4 2025 .......................................................... Q2 1–Q4 2025; Q21– 

Q4 2026.2

Monopile Foundation Installation ......................................................... Q2 1–Q4 2025 .......................................................... Q2 1–Q4 2025; Q21– 

Q4 2026. 

WTG Installation .................................................................................. Q4 2025–Q2 2026 ................................................... Q4 2026–Q3 2027. 

Interarray Cables ................................................................................. Q2–Q4 2025 ............................................................ Q2–Q3 2026. 

HRG Surveys ....................................................................................... Q1 2024–Q4 2028 ................................................... Q1 2024–Q4 2028. 

Cable Landfall Construction ................................................................ Q1–Q4 2024 3 .......................................................... Q1 2024–Q4 2025.3

Marina Activities ................................................................................... n/a ............................................................................ Q1–Q4 2024. 

Barnum Channel Cable Bridge Construction ...................................... n/a ............................................................................ Q4 2024–Q2 2025. 

Note: Project activities are anticipated to start no earlier than Q1 2024. Q1 = January through March; Q2 = April through June; Q3 = July 

through September; Q4 = October through December. 1 Impact driving of foundation piles is prohibited between January 1 and April 30. During Q2 such activities could not start until May 1. 

2Empire Wind 2 OSS jacket installation is planned for 2025, only Empire Wind 2 topside work is planned for 2026. 

3While cable landfall construction could occur at any time during the time period identified would only occur for approximately 30 days. 

Specific Geographic Region 

A detailed description of the Specific 

Geographic Region, defined as the MidAtlantic Bight, is provided in the 

proposed rule as published in the 

Federal Register (88 FR 22696, April 13, 

2023). Since the proposed rule was 

published, no changes have been made 

to the Specified Geographic Region. 

Generally, most of Empire Wind’s 

specified activities (i.e., impact pile 

driving of WTGs and OSS monopile 

foundations; vibratory pile driving 

(installation and removal) of temporary 

cofferdams and goal posts; vibratory pile 

and removal of sheet piles and bulkhead 

piles; placement of scour protection; 

trenching, laying, and burial activities 

associated with the installation of the 

export cable route and inter-array 

cables; HRG site characterization 

surveys; and WTG operation) are 

concentrated in the Lease Area and 

cable corridor. 


ddrumheller on DSK120RN23PROD with RULES2ER14FE24.087</GPH>

Figure 1 -- Project Area 

EMPIRE OFFSHORE WIND 

LEASE: 0CS-A 0512 

EMPIRE WINO PROJECT 

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11346 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

Comments and Responses 

A notice of proposed rulemaking was 

published in the Federal Register on 

April 13, 2023 (88 FR 22696). The 

proposed rulemaking described, in 

detail, Empire Wind’s specified 

activities, the specific geographic region 

of the specified activities, the marine 

mammal species that may be affected by 

these activities, and the anticipated 

effects on marine mammals. In the 

proposed rule, we requested that 

interested persons submit relevant 

information, suggestions, and comments 

on Empire Wind’s request for the 

promulgation of regulations and 

issuance of an associated LOA described 

therein, our estimated take analyses, the 

preliminary determinations, and the 

proposed regulations. The proposed rule 

was available for a 30-day public 

comment period. 

NMFS received 328 comment 

submissions, comprising 319 individual 

comments from private citizens and 8 

comment letters from organizations or 

public groups, including, but not 

limited to, the Marine Mammal 

Commission (the Commission), Clean 

Ocean Action, Oceana, Inc., Responsible 

Offshore Development Alliance, Friends 

of Animals, Lido Beach Civic 

Association, Defend Brigantine Beach, 

and the Natural Resources Defense 

Council. Some of the comments 

received were considered out-of-scope, 

including, but not limited to: comments 

related to impacts to the coastal 

ecosystem and local community; 

concerns for other species outside of 

NMFS’ jurisdiction (e.g., birds); 

maintenance of the permanent 

structures; costs associated with 

offshore wind development; distance of 

the Project from shore; and other 

projects that are not the Project. These 

are not described herein or discussed 

further. Moreover, where comments 

recommended that we include measures 

that were already contained within the 

proposed rule, we have not included 

them here if the final rule carries over 

the same measure as those comments 

are considered adequately addressed. In 

addition, if a comment received was 

unclear and therefore did not raise a 

significant point, the comment is not 

responded to herein. 

The comment letters received during 

the public comment period which 

contained substantive information were 

considered by NMFS in its estimated 

take analysis; required mitigation, 

monitoring, and reporting measures; 

final determinations; and final 

regulations. These comments are 

described and responded to below. All 

substantive comments and letters are 

available on NMFS’ website: https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. Please 

review the corresponding public 

comment link for full details regarding 

the comments and letters. 

Public Comments and Responses 

Modeling and Take Estimates 

Comment 1: The Commission has 

stated that, due to uncertainty in how 

NMFS will be addressing their 

previously submitted comments for 

other final offshore wind rulemakings, 

they are not providing ‘‘an exhaustive 

letter regarding similar issues’’ for 

Empire Wind’s action. They have stated 

that, in lieu of this, they incorporate by 

reference all previously submitted 

comment letters for past proposed rules 

(i.e., Sunrise Wind, Revolution Wind, 

Ocean Wind 1) and that NMFS should 

specifically review these previously 

submitted letters (i.e., Sunrise Wind (88 

FR 8996, February 10, 2023), Revolution 

Wind (87 FR 79072, December 23, 

2022), and Ocean Wind 1 (87 FR 64868, 

October 26, 2022) and incorporate, 

where applicable, relevant information 

in the context of the Project. They 

specifically noted that these general 

concerns could include 

‘‘underestimated numbers of Level A 

and B harassment takes (including 

failing to round up to group size), 

incomplete SFV measurement 

requirements, insufficient mitigation 

and monitoring measures, errors and 

omissions in the preamble to and the 

proposed rule, and the general issue of 

quality control and quality assurance in 

NMFS’s preparation of proposed 

incidental take authorizations.’’ 

Response: NMFS acknowledges the 

receipt of a comment letter on the 

proposed Project by the Commission, as 

well as receipt of comment letters from 

the Commission for the Sunrise Wind 

(88 FR 8996, February 10, 2023), 

Revolution Wind (87 FR 79072, 

December 23, 2022), and Ocean Wind 1 

(87 FR 64868, October 26, 2022) 

proposed projects. We appreciate that, 

in the past, the Commission has 

provided very specific and detailed 

comments and suggestions on NMFS’ 

actions, as a collaborative effort to 

improve both the incidental take 

authorizations (ITAs) themselves as well 

as the conservation benefits for NMFS’ 

trust species. Because the Commission 

did not provide specific comments on 

the proposed rule for the Project, we 

cannot address any specific concerns. 

However, we can address general 

themes of concern raised in previous 

letters, and, inasmuch as another 

specific comment is applicable here, we 

refer the Commission back to our 

previous responses. 

Overall, the Commission’s previous 

letters raised concerns over acoustic 

modeling, underestimating take 

estimates, mitigation and monitoring, 

and reporting measures. The 

Commission raised specific concerns 

over underestimating take requests by 

Level A harassment associated with 

impact pile driving (see comment 2), the 

size of the minimum visibility zone (see 

comment 15), the number of vessels 

required to implement mitigation 

measures (see comment 5), and SFV 

reporting measures (see comment 18) in 

its letter and we have addressed these 

in the relevant responses. With respect 

to mitigation, monitoring and reporting 

requirements, we have thoroughly 

addressed the Commission’s previous 

concerns and have updated final rules, 

including this one, accordingly. In 

response to the Commission’s 

comments, NMFS has strengthened 

requirements for noise attenuation 

systems, increased the number of PSOs 

required for monitoring, and added 

additional reporting requirements for 

SFV measurements. Lastly, any 

‘‘omissions’’ and ‘‘general issues of 

quality control and quality assurance’’ 

from one action are less likely to be 

present in another action as updates are 

carried through across actions (although 

NMFS does not agree that every 

example previously raised by the 

Commission was, in fact, an error). For 

all of these reasons, not all of the 

Commission’s specific concerns raised 

in previous letters apply to this project 

and we cannot address specific 

concerns the Commission did not 

identify in its letter. We have, however, 

made certain changes based on the 

Commission’s previous comments 

referenced here. Those changes are 

identified in the Changes From the 

Proposed to Final Rule section, and are 

also described below in this Response to 

Public Comments section. 

As we continue to learn from and 

refine our MMPA process for offshore 

wind actions, we look forward to 

continuing to work cooperatively with 

the Commission to identify 

opportunities to further minimize 

impacts to marine mammals, where 

practicable. 

Comment 2: The Commission 

indicated that, for past proposed rules, 

there have been discrepancies with take 

requests by Level A harassment 

associated with impact pile driving 

accounting for documented average 

group sizes of species, and suggested 

ensuring that Empire Wind’s take 

requests by Level A harassment are 


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consistent with documented average 

group sizes for the Project Area. 

Response: While we do not agree with 

the Commission in all cases regarding 

their identification of ‘‘discrepancies,’’ 

in this case, we have agreed that their 

recommendation is appropriate. 

Specifically, in response to the 

Commission’s comment and 

Endangered Species Act (ESA) 

consultation discussion, and based 

upon recent PSO sighting reports in the 

Project Area, NMFS has decided to 

increase take by Level A harassment 

associated with impact pile driving for 

fin whales in order to ensure that 

authorized take is consistent with 

documented average group size for the 

Project Area. Take by Level A 

harassment for year 2 (2025) associated 

with impact-pile-driving activities will 

be increased from two fin whales to four 

fin whales, assuming two groups of two 

whales each are taken by Level A 

harassment. In year 3 (2026), take by 

Level A harassment associated with 

impact-pile-driving activities will be 

increased from one fin whale to two fin 

whales, assuming one group of two 

whales are taken by Level A harassment. 

Additional take by Level A harassment 

is authorized during year 2 due to 

increased pile-driving activity during 

that year. 

Comment 3: Commenters stated that 

there is no evidence or research proving 

that the Project would not cause the 

mortality or serious injury of marine 

mammals. The commenters mistakenly 

categorized Level A harassment and 

Level B harassment as mortality and 

serious injury. 

Response: Regarding take by serious 

injury or mortality, the proposed rule 

stated that no serious injury and/or 

mortality is expected or proposed for 

authorization, and the same carries into 

the final rule for which no take by 

serious injury or mortality has been 

authorized (see 50 CFR 217.292(c)). 

Regarding the suggestion that there is 

no evidence proving the take estimates 

are accurate, the take numbers, as 

shown in the proposed and final rule, 

are based on the best available marine 

mammal density data, published and 

peer reviewed scientific literature, onthe-water reports from other nearby 

projects or past MMPA actions, and 

highly complex statistical models of 

which real-world assumptions and 

inputs have been incorporated to 

estimate take on a project-by-project 

basis. In the Estimated Take section, 

NMFS has provided a detailed rationale 

for why the amount and manner of take 

described in this final rule is reasonable 

and based on the best available science. 

The commenters did not provide any 

information to support the claim that 

take estimates are not representative of 

the take that may occur incidental to the 

Project. NMFS disagrees with the 

commenter and expects that the take 

numbers authorized for this action are 

sufficient given the activity proposed 

and planned by Empire Wind. 

Mitigation 

Comment 4: Commenters 

recommended that NMFS increase the 

size of the clearance and shutdown 

zones for site assessment surveys to 500 

meters (m) for all large whales and 1,000 

m for North Atlantic right whales and 

require a 1,000-m acoustic clearance 

zone (i.e., necessitating the use of PAM 

for HRG surveys); and require that any 

unidentified large whale within 1,000 m 

of the vessel be considered a North 

Atlantic right whale. 

Response: NMFS disagrees with 

several of the suggestions provided by 

the commenters. As described in the 

proposed rule and this final rule, the 

required 500-m shutdown zone for 

North Atlantic right whales exceeds the 

modeled distance to the largest 160-dB 

Level B harassment isopleth (50.05 m 

during Compressed High Intensity 

Radiated Pulse (CHIRP) use) by a large 

margin, minimizing the likelihood that 

they will be harassed in any manner by 

this activity. For other ESA-listed 

species (e.g., fin and sei whales), NMFS 

Greater Atlantic Regional Fisheries 

Office’s (GARFO’s) 2021 Offshore Wind 

Site Assessment Survey Programmatic 

ESA consultation (https://

www.fisheries.noaa.gov/new-englandmid-atlantic/consultations/section-7- 

take-reporting-programmatics-greateratlantic) determined that a 100-m 

shutdown zone is sufficient to minimize 

exposure to noise that could be 

disturbing. Accordingly, NMFS has 

adopted this shutdown zone size for all 

baleen whale species other than the 

North Atlantic right whale. Commenters 

do not provide scientific information for 

NMFS to consider to support their 

recommendation to expand the 

shutdown zone. Given that these 

surveys are relatively low impact and 

NMFS has prescribed a precautionary 

North Atlantic right whale shutdown 

zone that is larger (500 m) than the 

largest estimated harassment zone 

(50.05 m), NMFS has determined that an 

increase in the size of the shutdown 

zone during HRG surveys is not 

warranted. 

Regarding the use of acoustic 

monitoring to implement the shutdown 

zones, NMFS does not consider acoustic 

monitoring an effective tool for use with 

HRG surveys for the reasons discussed 

below and therefore, has not required it 

in this final rule. As described in the 

Mitigation section, NMFS has 

determined that the prescribed 

mitigation requirements are sufficient to 

effect the least practicable adverse 

impact on all affected species or stocks. 

The commenters do not provide 

additional scientific information for 

NMFS to consider to support their 

recommendation to require PAM during 

site assessment surveys. NMFS 

disagrees that this measure is warranted 

because it is not expected to be effective 

for use in detecting the species of 

concern. It is generally accepted that, 

even in the absence of additional 

acoustic sources, using a towed passive 

acoustic sensor to detect baleen whales 

(including North Atlantic right whales) 

is not typically effective because the 

noise from the vessel, the flow noise, 

and the cable noise are in the same 

frequency band and will mask the vast 

majority of baleen whale calls. Vessels 

produce low-frequency noise, primarily 

through propeller cavitation, with main 

energy in the 5–300 hertz (Hz) 

frequency range. Source levels range 

from about 140 to 195 decibels (dB) 

referenced to 1 (re 1) mPa (micropascal) 

at 1 m (National Research Council 

(NRC), 2003; Hildebrand, 2009), 

depending on factors such as ship type, 

load, and speed, and ship hull and 

propeller design. Studies of vessel noise 

show that it appears to increase 

background noise levels in the 71–224 

Hz range by 10–13 dB (Hatch et al., 

2012; McKenna et al., 2012; Rolland et 

al., 2012). PAM systems employ 

hydrophones towed in streamer cables 

approximately 500 m behind a vessel. 

Noise from water flow around the cables 

and from strumming of the cables 

themselves is also low frequency and 

typically masks signals in the same 

range. Experienced PAM operators 

(Thode et al., 2017) emphasized that a 

PAM operation could easily report no 

acoustic encounters, depending on 

species present, simply because 

background noise levels rendered any 

acoustic detection impossible. The same 

report stated that a typical eight-element 

array towed 500 m behind a vessel 

could be expected to detect delphinids, 

sperm whales, and beaked whales at the 

required range, but not baleen whales, 

due to expected background noise levels 

(e.g., seismic noise, vessel noise, and 

flow noise). 

Further, there are several additional 

reasons why we disagree that use of 

PAM is warranted for HRG surveys, 

specifically. While NMFS agrees that 

PAM can be an important tool for 

augmenting detection capabilities in 

certain circumstances (e.g., foundation 

installation), its utility in further 


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reducing impacts during HRG survey 

activities is limited. First, for this 

activity, the area expected to be 

ensonified above the Level B 

harassment threshold is relatively small 

(a maximum of 50.05 m); this reflects 

the fact that the source level is 

comparatively low and the intensity of 

any resulting impacts would be lower 

level. Further, it means that inasmuch 

as PAM will only detect a portion of any 

animals exposed within a zone, the 

overall probability of PAM detecting an 

animal in the harassment zone is low. 

Together, these factors support the 

limited value of PAM for use in 

reducing take for activities/sources with 

smaller zones. Also, PAM is only 

capable of detecting animals that are 

actively vocalizing, while many marine 

mammal species vocalize infrequently 

or during certain activities, which 

means that only a subset of the animals 

within the range of the PAM would be 

detected (and potentially have reduced 

impacts). Additionally, localization and 

range detection can be challenging 

under certain scenarios. For example, 

odontocetes are fast moving and often 

travel in large or dispersed groups 

which makes localization difficult. 

Given that the effects to marine 

mammals from the types of HRG 

surveys authorized in this final 

rulemaking are expected to be limited to 

low level behavioral harassment even in 

the absence of mitigation, the limited 

additional benefit anticipated by adding 

this detection method (especially for 

North Atlantic right whales and other 

low frequency cetaceans, species for 

which PAM has limited efficacy during 

this activity), and the cost and 

impracticability of implementing a fulltime PAM program, we have determined 

the current requirements for visual 

monitoring are sufficient to ensure the 

least practicable adverse impact on the 

affected species or stocks and their 

habitat during HRG surveys. 

Comment 5: The Commission noted 

that the proposed rule does not require 

a second vessel to implement the 

various mitigation measures and that 

PSOs would only be required on the 

pile driving vessel. The Commission 

further noted that these measures are 

not consistent with other offshore wind 

rules. 

Response: In response to the 

Commission’s comment and the ESA 

consultation discussion, Empire Wind 

may propose an alternative monitoring 

technology that has been demonstrated 

to have a greater visual monitoring 

capability compared to 3 PSOs on a 

dedicated PSO vessel in place of a 

requirement to have a second dedicated 

PSO vessel during impact pile driving 

activities to implement mitigation 

measures. The proposed alternative 

monitoring technology must be 

approved by NMFS. A minimum of 

three PSOs on duty at any given time 

will be required to conduct monitoring 

from each vessel. These requirements 

are included in the final rule and 

described in further detail in 

§ 217.285(b)(4). 

Comment 6: Commenters 

recommended that NMFS require 

clearance and shutdown zones for North 

Atlantic right whales specifically, 

including: (1) a minimum of 5,000 m for 

the visual clearance, acoustic clearance, 

and shutdown zones in all directions 

from the driven pile location; and (2) an 

acoustic shutdown zone that would 

extend at least 2,000 m in all directions 

from the driven pile location. 

Commenters also recommended that 

NMFS require pile-driving clearance 

and shutdown zones for large whales 

(other than North Atlantic right whale) 

that are large enough to avoid all take 

by Level A harassment and minimize 

Level B harassment to the most 

practicable extent. 

Response: NMFS agrees with this 

comment and is now requiring both 

clearance and shutdown zones for North 

Atlantic right whales that are activated 

at any distance of detection. 

The commenters do not provide 

additional scientific information for 

NMFS to consider to support their 

recommendation to expand clearance 

and shutdown zones to effect the least 

practicable adverse impact on marine 

mammals, particularly large whales, 

excluding the North Atlantic right 

whale. The required shutdown and 

clearance zones (equally sized) for large 

whales (other than North Atlantic right 

whale) are based on the largest exposure 

range calculated for any mysticete, other 

than humpback whales, that represents 

the distance to the Level A harassment 

cumulative sound exposure level 

(SELcum) isopleth for the low frequency 

hearing group, rounded up to the 

nearest hundred for PSO clarity. 

Required monitoring and mitigation for 

these zones will minimize Level A 

harassment and Level B harassment to 

the extent practicable and avoid most 

Level A harassment of large whales (all 

species of large whales have six or fewer 

takes by Level A harassment across all 

5 years of the rule). Further enlargement 

of these zones could interrupt and delay 

the Project such that a substantially 

higher number of days would be needed 

to complete the construction activities, 

which would incur additional costs, but 

importantly, also potentially increase 

the number of days that marine 

mammals are exposed to the 

disturbance. Accordingly, NMFS has 

determined that enlargement of these 

zones is not warranted, and that the 

existing required clearance and 

shutdown zones support a suite of 

measures that will effect the least 

practicable adverse impact on other 

large whales. 

Comment 7: Commenters noted that 

the final rule should clarify that if 

weather or other conditions limit the 

range of observation, then shutdown 

zones will be initiated. Commenters also 

questioned the feasibility of the 

shutdown mitigation requirements in 

real-world conditions and what would 

occur if the authorized take levels were 

exceeded. In addition, commenters state 

concerns on the required mitigation 

measures, assessing the effectiveness of 

the mitigation measures, and reporting 

the use of the mitigation measures in 

real-time. 

Response: NMFS disagrees that 

additional clarification should be added 

to describe the initiation of shutdown 

zones if weather conditions limit the 

range of observation. With respect to 

weather and other conditions that could 

impede observations, NMFS has clearly 

explained and established in the 

proposed and final rule a minimum 

visibility zone that must be visually 

clear of marine mammals before and 

during pile driving. If this area cannot 

be visually monitored, pile driving must 

not be initiated or must cease. In 

addition to visual monitoring, Empire 

Wind is required to conduct PAM 

which is not influenced by poor 

visibility conditions. 

In regard to a scenario where Empire 

Wind exceeds their authorized take 

levels, any further take would be 

unauthorized and, therefore, prohibited 

under the MMPA. All mitigation 

measures stated in this notice and in the 

issued LOA are considered feasible. 

NMFS works with each ITA applicant, 

including Empire Wind, to ensure that 

project-specific mitigation measures are 

possible in real-world conditions. This 

includes shutdown zones when there is 

reduced visibility. As stated in the rule 

condition § 217.285(b)(5), Empire Wind 

must ensure certain equipment is 

provided to PSOs, such as thermal (i.e., 

infrared) cameras, to allow PSOs to 

adequately complete their duties, 

including in reduced-visibility 

conditions. NMFS does not agree that 

additional wording is necessary within 

the rule to further describe the 

requirement and implementation of 

shutdown zones. Further, pursuant to 

the adaptive management provisions in 

the rule, NMFS may modify the 

required mitigation or monitoring 

measures, if doing so creates a 


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reasonable likelihood of more 

effectively accomplishing the goals of 

the mitigation and monitoring. NMFS 

disagrees that the rule’s mitigation 

measures are insufficient. 

NMFS reviews required reporting (see 

Monitoring and Reporting) and uses the 

information to evaluate the mitigation 

measure effectiveness. Additionally, the 

mitigation measures included in Empire 

Wind’s rule are not unique, and data 

from prior rules support the 

effectiveness of these mitigation 

measures. NMFS finds the level of 

reporting currently required is sufficient 

for managing the issued rule and 

monitoring the affected stocks of marine 

mammals. 

Comment 8: A commenter suggested 

that PSOs complement their survey 

efforts using additional technologies, 

such as infrared detection devices, 

when in low-light conditions. 

Response: NMFS agrees with the 

commenter regarding this suggestion 

and a requirement to utilize a thermal 

(infrared) device during low-light 

conditions was included in the 

proposed rule. That requirement is 

included as a requirement of the final 

rule. 

Comment 9: A commenter suggested 

that NMFS require: (1) at least 15 dB of 

sound attenuation from pile driving, 

with a minimum of 10 dB to be 

required; (2) field measurements be 

conducted on the first pile installed and 

the data must be collected from a 

random sample of piles through the 

construction period, although the 

commenter specifically notes that they 

do not support field testing of 

unmitigated piles; and (3) that all sound 

source validation reports of field 

measurements be evaluated by both 

NMFS and BOEM prior to additional 

piles being installed and that these 

reports be made publicly available. 

Another commenter has suggested that 

NMFS strengthen its requirement to 

maximize the level of noise reduction 

possible for the Project, utilizing 10 dB 

as the minimum only, but meeting 

upwards of 20 dB of noise reduction. To 

support their assertion, they cited 

datasets by Bellmann et al. (2020, 2022). 

They also recommended that NMFS 

require the ‘‘best commercially available 

combined [noise attenuation system] 

technology’’ to achieve noise reduction 

and attenuation. 

A commenter also suggested that 

NMFS require Empire Wind to use HRG 

acoustic sources at the lowest 

practicable source levels needed to meet 

the objectives of the site 

characterization surveys. 

Response: NMFS agrees that previous 

measurements indicate that the 

deployment of double big bubble 

curtains should result in noise 

reductions beyond the assumed 10 dB. 

As described in both the proposed and 

final rule, NMFS has included 

requirements for sound attenuation 

methods that successfully (evidenced by 

required sound field verification 

measurements) reduce real-world noise 

levels produced by impact pile driving 

of foundation installation to, at a 

minimum, the levels modeled assuming 

10-dB reduction, as analyzed in this 

rulemaking. While NMFS is requiring 

that Empire Wind reduce sound levels 

to at or below the model outputs 

analyzed (assuming a reduction of 10 

dB), we are not requiring greater 

reduction as it is currently unclear 

(based on measurements to date) 

whether greater reductions are 

consistently practicable for these 

activities, even if multiple noise 

attenuation systems (NASs) are used. 

In response to the recommendation by 

the commenters for NMFS to confirm 

that a 10-dB reduction is achieved, 

NMFS clarifies that, because no 

unattenuated piles would be driven, 

there is no way to confirm a 10-dB 

reduction; rather, in-situ SFV 

measurements will be required to 

confirm that sound levels are at or 

below those modeled assuming a 10-dB 

reduction. 

However, when SFV measurements 

are conducted during construction, 

several factors come into play in 

determining how well modeled levels/ 

isopleths correspond to those measured 

in the field, such as the level at the 

source, how well the noise travels in the 

environment, and the effectiveness of 

the deployed NAS across a broad range 

of frequencies. For these reasons, NMFS 

believes assuming only a 10-dB noise 

reduction is conservative. Furthermore, 

if SFV measurements consistently 

demonstrate that more than a 10-dB 

reduction is achievable, adjustments in 

monitoring and mitigation can be made 

by NMFS, upon request by Empire 

Wind. We reiterate that there is no 

requirement to achieve 10-dB 

attenuation as no unattenuated piles 

would be driven (in order to minimize 

impacts and noting as supported by one 

of the commenters here and on past 

similar actions); therefore, it is not 

possible to collect the data necessary to 

enforce this requirement. However, we 

are requiring the developer to meet the 

noise levels modeled, assuming 10-dB 

attenuation. NMFS is also actively 

engaged with other agencies and 

offshore wind developers on furthering 

quieting technologies. 

It is important to note that the 

assumed 10-dB reduction is not a limit, 

but rather a conservative estimate of the 

likely achievable noise reduction, which 

along with all other modeling 

assumptions, allows for estimation of 

marine mammal impacts and informs 

monitoring and mitigation. However, we 

have incorporated requirements to add 

or modify NAS in the event that noise 

levels exceed those modeled. NMFS is 

required to authorize the requested 

incidental take if it finds such 

incidental take of small numbers of 

marine mammals by the requestor while 

engaging in the specified activities 

within the specified geographic region 

will have a negligible impact on such 

species or stock and, where applicable, 

will not have an unmitigable adverse 

impact on the availability of such 

species or stock for subsistence uses. 

NMFS notes that Empire Wind must 

conduct SFV on 3 monopiles and on all 

OSS foundations (24 pin piles total) 

and, at this time, NMFS does not 

support unmitigated field testing for 

pile installation. If SFV acoustic 

measurements indicate that ranges to 

isopleths corresponding to the Level A 

harassment and Level B harassment 

thresholds are less than the ranges 

predicted by modeling (assuming 10 dB 

of attenuation), Empire Wind may 

request a modification of the clearance 

and shutdown zones for foundation pile 

driving of monopiles. If requested and 

upon receipt of an interim SFV report, 

NMFS may adjust zones (i.e., Level A 

harassment, Level B harassment, 

clearance, shutdown, and/or minimum 

visibility zone) to reflect SFV 

measurements. 

In addition to the SFV requirements 

in the proposed rule, we added to this 

final rule the requirement that Empire 

Wind must conduct abbreviated SFV 

monitoring (consisting of a single 

acoustic recorder placed at an 

appropriate distance from the pile) on 

all foundation installations for which 

the complete SFV monitoring, as 

required in the proposed rule, is not 

carried out to be consistent with the 

Biological Opinion. NMFS is requiring 

that these SFV results must be included 

in the weekly reports. Any indications 

that distances to the identified Level A 

harassment and Level B harassment 

thresholds for whales were exceeded 

must be addressed by Empire Wind 

including an explanation of factors that 

contributed to the exceedance and 

corrective actions that were taken to 

avoid exceedance on subsequent piles. 

As part of the updates to the final 

rule, in response to these comments 

regarding sufficient NAS, NMFS will 

also require maintenance checks and 

testing of NAS systems before each use 

to ensure the NAS is usable and the 


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system is able to achieve the modeled 

reduction, this information would be 

required to be reported to NMFS within 

72 hours of an installation and before 

the next installation occurs. 

NMFS agrees that the final SFV 

reports that have undergone quality 

assurance/quality control by the 

agencies and include all of the required 

information to support full 

understanding of the results will be 

made publicly available. NMFS will 

make all final reports available on our 

website. NMFS agrees with the 

recommendation that Empire Wind 

should utilize its HRG acoustic sources 

at the lowest practicable source level to 

meet the survey objective, and has 

incorporated this requirement into the 

final rule. 

Comment 11: To minimize the risk of 

vessel strikes for all whales, and 

especially in recognition of the 

imperiled state of North Atlantic right 

whales, commenters do not believe that 

mitigation measures to reduce the risk 

of vessel strike are strong enough and 

have instead suggested that NMFS 

require a mandatory 10-knot (kn) (5.14 

m/s) speed restriction for all project 

vessels (including PSO survey vessels) 

at all times, except for reasons of safety, 

and in all places except in limited 

circumstances where the best available 

scientific information demonstrates that 

whales do not occur in the area. 

Alternatively, commenters suggested 

that project proponents could work with 

NMFS to develop an ‘‘Adaptive Plan’’ 

that modifies vessel speed restrictions if 

the monitoring methods are proven to 

be effective when vessels are traveling 

10 kn (5.14 m/s) or less. One commenter 

further suggested that if the Adaptive 

Plan is scientifically proven to be 

equally or more effective than a 10-kn 

speed restriction, that the Adaptive Plan 

could be used as an alternative to the 

10-kn speed restriction. 

In a related comment, a commenter 

encouraged NMFS to proactively work 

to reduce the risk of vessel strike across 

maritime industries by conducting 

research to better understand large 

whale habitat use in the New York Bight 

through targeted research studies 

focusing on habitat use at the surface 

and at depth in order to inform 

development of vessel strike reduction 

measures for large whale species. 

Response: NMFS acknowledges that 

vessel strikes pose a risk to marine 

wildlife, including North Atlantic right 

whales, but disagrees with the 

commenter that the mitigation measures 

to prevent vessel strike are insufficient. 

Under the MMPA, NMFS must 

prescribe regulations setting forth other 

means of effecting the least practicable 

adverse impact of the requestor’s 

specified activities on species or stocks 

and its habitat. In both the proposed and 

final rules, we analyzed the potential for 

vessel strike resulting from the planned 

activities. We determined that the risk 

of vessel strike is low, based on the 

nature of the activities, including the 

number of vessels involved in those 

activities and the relative slower speed 

of most of those vessels, and the fact 

that high speed vessels are mostly used 

for activities (e.g., crew transfer during 

foundation installation) that occur when 

large whale presence is lower than 

during the foundation pile driving 

seasonal restriction. In addition, vessels 

associated with the construction 

activities will add a discountable 

amount of vessel traffic to the specific 

geographic region. 

To further reduce the already low 

risk, NMFS has required several 

mitigation measures specific to vessel 

strike avoidance. With the 

implementation of these measures, 

NMFS has determined that the potential 

for vessel strike is so low as to be 

discountable and vessel strike is 

reasonably considered to be avoidable. 

Whales and other marine mammal 

species are present within the Project 

Area year-round. However, many large 

whale species (e.g., North Atlantic right 

whales) are less frequently found within 

the Project Area during the months 

when foundation installation, which 

requires the most use of higher-speed 

vessels, would occur (i.e., May through 

November; Roberts et al., 2023). As 

described in the proposed rule and 

included in this final rule, NMFS is 

requiring Empire Wind to reduce speeds 

to 10 kn (5.14 m/s) or less in 

circumstances when North Atlantic 

right whales are known to be present or 

more likely to be in the area where 

vessels are transiting, which include, 

but are not limited to, all Slow Zones 

(Dynamic Management Area (DMA) or 

acoustic Slow Zone), when traveling 

between ports in New Jersey, New York, 

Maryland, or Virginia from November 1 

to April 30, and if a North Atlantic right 

whale is detected visually or 

acoustically at any distance or reported 

within 10 kilometers (km). Vessels are 

also required to slow and maintain 

separation distances for all marine 

mammals. As described in the proposed 

rule, all vessels must have a dedicated, 

trained crew member or PSO onboard. 

Furthermore, vessels towing survey gear 

travel at very slow speeds (e.g., roughly 

4–5 kn (7.4–9.3 km/hour)) and any 

vessels engaged in construction 

activities would be primarily stationary 

during the pile-driving event. 

Additionally, aside from any 

requirements of this rule, Empire Wind 

is required to comply with all spatial 

and temporal approach (500 m) and 

speed restrictions outlined in existing 

regulations (50 CFR 224.105 and 

222.32). 

While we acknowledge that a yearround 10-kn requirement could 

potentially fractionally reduce the 

already discountable probability of a 

vessel strike, this theoretical reduction 

would not be expected to manifest in 

measurable real-world differences in 

impact. Further, additional limitations 

on speed or requiring a PSO on all 

transiting vessels have significant 

practicability impacts on applicants, in 

that, given the distance of Empire 

Wind’s Lease Area offshore of New 

York, vessel trips to and from shore 

would significantly increase in duration 

to the extent that delays to the Project 

and planned construction schedule 

would be likely to occur, which could 

extend the number of days necessary to 

complete all pile driving of foundations. 

Furthermore, Empire Wind has 

committed to the use of PAM within the 

vessel transit corridor to further aid in 

the detection of marine mammals. 

NMFS has determined that these and 

other included measures ensure the 

least practicable adverse impact on 

species or stocks and their habitat. 

Therefore, we are not requiring projectrelated vessels to travel 10 kn (5.14 

m/s) or less at all times. 

Regarding an ‘‘Adaptive Plan’’ to 

allow the developer to travel over 10 kn 

(5.14 m/s) where they would otherwise 

not be allowed, there are adaptive 

management provisions in the rule that 

allows for modification to mitigation 

measures, when warranted. Should 

Empire Wind request modifications to 

the vessel strike avoidance measures, 

NMFS would consider the request and 

act accordingly. 

In addition to the vessel strike 

avoidance measures, NMFS has also 

included a requirement that all vessels 

be equipped with automatic 

identification system (AIS) to facilitate 

compliance checks with the speed limit 

requirements. Lastly, we disagree with 

the commenter that the final rule and 

LOA must include a vessel traffic plan 

beyond the extensive measures outlined 

here. At least 180 days prior to the start 

of vessel operations commencing, 

Empire Wind must submit both a Vessel 

Strike Avoidance Plan, including plans 

for conducting PAM in the transit 

corridors should Dominion Energy 

determine they wish to travel over 10 kn 

(18.5 km/hr) in the transit corridors, to 

NMFS for review and approval. 


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NMFS acknowledges the commenter’s 

recommendation for NMFS to work to 

reduce the risk of vessel strike to large 

whales by conducting targeted research 

to better understand large whale habitat 

use in the New York Bight. Although 

the initiation of targeted research 

studies is beyond the scope of this 

authorization, NMFS uses the best 

available data to assess large whale 

distributions and risk of vessel strike, 

and applies mitigation measures to 

reduce this risk to effect the least 

practicable impact to all marine 

mammal species and stocks. 

Comment 12: Commenters suggested 

that NMFS prohibit pile driving during 

periods of highest risk for North 

Atlantic right whales, which they define 

as times of the highest relative density 

of animals during foraging and 

migration, and times where mom-calf 

pairs, pregnant females, surface active 

groups (that are foraging or socializing), 

or aggregations of three or more whales, 

are not expected to be present. Citing 

multiple information sources, 

commenters further specifically 

recommended the seasonal restriction 

for pile driving be expanded to 

November 1 through April 30 to reflect 

the period of highest detections of vocal 

activity, sightings, and abundance 

estimates of North Atlantic right whales. 

Multiple commenters requested for the 

seasonal restriction of pile driving to be 

expanded to November 1 through May 

31 to provide additional protection for 

North Atlantic right whales. 

Commenters also recommended 

prohibiting pile driving during seasons 

when protected species are known to be 

present or migrating in the Project Area, 

in addition to any dynamic restrictions 

due to the presence of North Atlantic 

right whale or other endangered species. 

Response: NMFS disagrees that 

extending the seasonal restriction on 

pile driving to include May or 

November is appropriate or warranted. 

NMFS has restricted foundation 

installation pile driving from January 

through April, which represent the 

times of year when North Atlantic right 

whales are most likely to be in the 

Project Area. We recognize that the 

density of whales begins to elevate in 

December (based upon Roberts et al., 

2023); however, it is not until January 

when density greatly increases. Empire 

Wind has indicated that to complete the 

Project, pile driving is needed from May 

through November and may be required 

in December. In this final rule, NMFS 

has included an additional measure 

where pile driving in December must be 

avoided to the maximum extent 

practicable but may occur if necessary, 

provided Empire Wind receives NMFS’ 

prior approval. We also note that any 

time of year when foundation 

installation is occurring, a sighting or 

acoustic detection of a North Atlantic 

right whale at any distance triggers a 

pile driving delay or shutdown. We also 

reiterate that Empire Wind is required to 

implement a minimum visibility zone, 

as reflected by the results of JASCO 

Applied Sciences’ (JASCO) underwater 

sound propagation modeling. With the 

application of these enhanced 

mitigation and monitoring measures, 

impacts to the North Atlantic right 

whale will be further reduced, if any are 

encountered when transiting through 

the migratory corridor. 

As noted and acknowledged by NMFS 

in both the proposed and final rules, 

North Atlantic right whale distribution 

is changing due to climate change and 

other factors, and they are present yearround in the vicinity of the Project. 

However, as shown in Roberts et al. 

(2023), which NMFS considers the best 

available scientific information 

regarding marine mammal densities in 

the Atlantic Ocean, it is not until 

January that densities begin to 

significantly increase. Further, North 

Atlantic right whales are not likely to be 

engaged in feeding behaviors in the 

Project Area, from May to November or 

during any other time period, as the 

Project Area is primarily a migratory 

corridor for North Atlantic right whales. 

While some opportunistic foraging may 

occur, the waters off of New York do not 

include known foraging habitat for 

North Atlantic right whales. As 

described in the Description of Marine 

Mammals in the Geographic Area 

section, foraging habitat is located in 

colder, more northern waters including 

southern New England, the Gulf of 

Maine, and Canada. In addition, Roberts 

et al., (2023) density data indicates 

much lower densities of North Atlantic 

right whales in the Project Area during 

the months of May (0.025 animals/100 

km2) and November (0.016 animals/100 

km2) as compared to the months of 

January through April (0.088, 0.116 

animals/100 km2). For these reasons, 

and given the inclusion of December in 

the seasonal impact pile driving 

restriction without NMFS’s prior 

approval, NMFS finds that further 

expansion of the seasonal impact pile 

driving restrictions (beyond December 

through April) would be impracticable 

and is unwarranted. 

The comment was not specific and 

may be suggesting prohibiting pile 

driving when any protected species are 

present; however, such a restriction 

would not be practicable to implement 

as there is no time of year when some 

species of marine mammals are not 

present. 

Comment 13: A commenter suggested 

that when HRG surveys are allowed to 

resume after a shutdown event, the 

surveys should be required to use a 

ramp-up procedure to encourage any 

nearby marine life to leave the area. 

Response: NMFS agrees with this 

recommendation and included in the 

proposed rule (88 FR 22696, April 13, 

2023) and this final rule a stipulation 

that when technically feasible, survey 

equipment must be ramped up at the 

start or restart of survey activities. 

Ramp-up must begin with the power of 

the smallest acoustic equipment at its 

lowest practical power output 

appropriate for the survey. When 

technically feasible the power must then 

be gradually turned up and other 

acoustic sources added in a way such 

that the source level would increase 

gradually. NMFS notes that ramp-up is 

not required for short periods where 

acoustic sources were shut down (i.e., 

less than 30 minutes) if PSOs have 

maintained constant visual observation 

and no detections of marine mammals 

occurred within the applicable 

shutdown zones. 

Comment 14: A commenter asserted 

that the LOA must include requirements 

for all vessels associated with the 

Project, including vessels owned by the 

developer, contractors, employees, and 

others regardless of ownership, 

operator, and contract. They stated that 

exceptions and exemptions will create 

enforcement uncertainty and incentives 

to evade regulations through 

reclassification and redesignation. They 

recommended that NMFS simplify this 

by requiring all vessels to abide by the 

same requirements, regardless of size, 

ownership, function, contract or other 

specifics. 

Response: NMFS agrees with the 

commenter and the proposed rule and 

final rule have general conditions to 

hold Empire Wind and its designees 

(including vessel operators and other 

personnel) accountable while 

performing operations under the 

authority of this final rule. The final 

rule indicates that the conditions 

contained therein apply to Empire Wind 

and its designees and requires that a 

copy of the LOA must be in the 

possession of Empire Wind, the vessel 

operators, the lead PSO, and any other 

relevant designees of Empire Wind. The 

final rule also states that Empire Wind 

must ensure that the vessel operator and 

other relevant vessel personnel, 

including the PSO team, are briefed on 

all responsibilities, communication 

procedures, marine mammal monitoring 

protocols, operational procedures, and 


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requirements prior to the start of project 

activities, and when relevant new 

personnel join the construction and 

survey operations. 

Comment 15: The Commission noted 

that NMFS’ proposed minimum 

visibility zone (1.2 km) is insufficient 

given that the shutdown zone for 

mysticetes and sperm whales during 

impact installation of monopiles (1.5 

km) is greater than this distance. The 

Commission further noted that this is 

not consistent with other offshore wind 

rules. 

Response: NMFS appreciates the 

suggestion by the Commission and 

agrees with the proposed expansion of 

the minimum visibility zone. In 

response to the Commission’s comment 

and ESA consultation discussion, the 

minimum visibility zone for impact pile 

driving has been increased from 1.2 km 

to 1.5 km for mysticetes and sperm 

whales. This updated measure is 

included in the final rule. 

Comment 16: Commenters 

recommended that NMFS should 

restrict pile driving at night and during 

periods of low visibility to protect all 

large whale species. This would include 

no pile driving being allowed to begin 

after 1.5 hours before civil sunset or 

during times where the visual clearance 

zone and shutdown zone (called the 

‘‘exclusion zone’’ in the appendix) 

cannot be visually monitored, as 

determined by the Lead PSO. 

A commenter expressed that pile 

driving should only be allowed to 

continue after dark if the activity was 

started during daylight hours and must 

continue due to human safety or 

installation feasibility (i.e., stability) 

concerns, but that nighttime monitoring 

protocols be required. A commenter 

suggested that if pile driving must 

continue after dark, Empire Wind 

should be required to notify NMFS with 

these reasons and an explanation for 

exemption. Additionally, a commenter 

stated that a summary of the frequency 

of these exceptions must be made 

publicly available to ensure that these 

are indeed exceptions, rather than the 

norm, for the Project. 

Response: NMFS recognizes the need 

to protect marine mammals that may be 

exposed to pile-driving noise, as well as 

the challenges of detecting marine 

mammals in low-light and nighttime 

conditions. However, we note that while 

it may be more difficult to detect marine 

mammals at night, there are benefits to 

completing the pile driving in a shorter 

total amount of time, and exposing 

marine mammals to fewer days of piledriving noise. Given this, NMFS 

disagrees that no activities should occur 

during reduced visibility, as long as the 

use of alternative technologies allow 

sufficient monitoring of the clearance 

and shutdown zones, including the 

minimum visibility zone. 

However, in this case, Empire Wind 

has not requested, nor has NMFS 

included a provision for pile driving to 

begin outside the civil sunset/civil 

sunrise temporal restrictions; therefore, 

Empire Wind will not be able to initiate 

pile driving at night. In the proposed 

rule, we indicated that Empire Wind 

must initiate pile driving prior to 1.5 

hours before civil sunset and not before 

1 hour after civil sunrise unless they 

submit to NMFS, for approval, an 

Alternative Monitoring Plan for 

nighttime pile-driving activities. This 

requirement has been carried over to 

this final rule. 

Regarding the reporting requirement 

specified by the commenter, we are 

already requiring weekly and monthly 

reports during foundation installation, 

which would contain information that 

would inform on how long and when 

pile driving occurred as Empire Wind is 

required to document the daily start and 

stop times of all pile-driving activities. 

At minimum, a final annual report with 

this information will be made available 

to the public, as recommended by the 

commenter. 

Comment 17: A commenter stated that 

NMFS should require acoustic and 

visual monitoring to begin at least 60 

minutes prior to the commencement or 

resumption of pile driving and should 

be conducted throughout the duration of 

the pile-driving activity. The commenter 

further suggested that visual observation 

of the clearance zone should continue 

until 30 minutes after completion of pile 

driving, and that the LOA should 

prohibit initiating pile driving within 

1.5 hours of civil sunset or in times of 

low visibility when the visual clearance 

zone cannot be monitored. 

Response: NMFS agrees with the 

commenter and has included in the 

final rule the requirement for that visual 

monitoring to begin at least 60 minutes 

prior to commencement or resumption 

of impact pile driving of foundation 

piles. Moreover, PAM must be 

conducted for at least 24 hours 

immediately prior to foundation 

installation impact pile driving 

activities. The PAM operator must 

review all detections from the previous 

24-hour period immediately prior to 

pile driving activities. Foundation pile 

driving may only begin once the 

clearance zones have been clear for 30 

minutes immediately prior to 

commencing the activity. Visual 

monitoring must begin at least 30 

minutes prior to commencement or 

resumption of vibratory pile driving 

associated with cable landfall 

construction and marina activities, 

which is located in coastal waters and 

is relatively quiet compared to 

foundation installation. PAM is not 

required for cable landfall and marina 

pile driving. Visual monitoring and 

PAM (where required) will continue for 

30 minutes post completion of both 

impact and vibratory pile driving. 

Monitoring, Reporting, and Adaptive 

Management 

Comment 18: The Commission noted 

that the proposed rule did not specify 

the information that must be included 

in any interim or final SFV report, and 

that this is inconsistent with previous 

proposed rules. 

Response: In response to the 

Commission’s comment and ESA 

consultation discussion, NMFS has 

included more specific requirements for 

reporting SFV measurements. This 

includes comprehensive requirements 

for both interim and final SFV reports. 

A discussion, which includes any 

observations which are suspected to 

have a significant impact on the results 

including but not limited to: observed 

noise mitigation system issues, 

obstructions along the measurement 

transect, and technical issues with 

hydrophones or recording devices, must 

be included in the final SFV report as 

well. Details on the information NMFS 

is requiring in SFV reports can be found 

in § 217.285(f)(9) and (11). 

Comment 19: Multiple commenters 

expressed concern for the 

accountability, fairness, and 

transparency regarding how cumulative 

impacts to the marine ecosystem would 

be measured. A commenter further 

suggested NMFS include a requirement 

for all phases of construction to 

subscribe to the highest level of 

transparency, including frequent 

reporting to Federal agencies, 

requirements to report all visual and 

acoustic detections of North Atlantic 

right whales and any dead, injured, or 

entangled marine mammals to the 

Fisheries Service or the Coast Guard as 

soon as possible and not later than the 

end of the PSO shift. To foster 

stakeholder relationships and allow 

public engagement and oversight of the 

permitting, the commenter suggested 

that the LOA should require all reports 

and data to be accessible on a publicly 

available website. Another commenter 

recommended that NMFS improve the 

transparency of the ITA process by 

moving away from a ‘‘segmented phaseby-phase and project-by-project 

approach’’ to authorizations. 

Response: NMFS agrees with the need 

for reporting and indeed, the MMPA 


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calls for LOAs to incorporate reporting 

requirements. As included in the 

proposed rule, the final rule includes 

requirements for reporting that supports 

the commenter’s recommendations. 

Empire Wind is required to submit a 

monitoring report to NMFS within 90 

days after completion of project 

activities that fully documents the 

methods and monitoring protocols, 

summarizes the data recorded during 

monitoring. PSO datasheets or raw 

sightings data must also be provided 

with the draft and final monitoring 

report. 

Further, the draft rule and final rule 

stipulate that if a North Atlantic right 

whale is observed at any time by any 

vessels, during construction work or 

during vessel transit, Empire Wind must 

immediately report sighting information 

to the NMFS North Atlantic Right 

Whale Sighting Advisory System within 

2 hours of occurrence, when practicable, 

or no later than 24 hours after 

occurrence. Empire Wind may also 

report the sighting to the U.S. Coast 

Guard. Additionally, Empire Wind must 

report any discoveries of injured or dead 

marine mammals, including entangled 

animals, to the Office of Protected 

Resources, NMFS, and to the New 

England/Mid-Atlantic Regional 

Stranding Coordinator as soon as 

feasible. All final reports submitted to 

NMFS will be included on the website 

for availability to the public. 

In regards to improving transparency 

by moving away from a ‘‘segmented 

phase-by-phase and project-by-project 

approach, the MMPA, and its 

implementing regulations allow, upon 

request, the incidental take of small 

numbers of marine mammals by U.S. 

citizens who engage in a specified 

activity (other than commercial fishing) 

within a specified geographic region. 

NMFS authorizes the requested 

incidental take of marine mammals if it 

finds that the taking would be of small 

numbers, have no more than a 

‘‘negligible impact’’ on the marine 

mammal species or stock, and not have 

an ‘‘unmitigable adverse impact’’ on the 

availability of the species or stock for 

subsistence use. NMFS emphasizes that 

an ITA does not authorize the activity 

itself but authorizes the take of marine 

mammals incidental to the ‘‘specified 

activity’’ for which incidental take 

coverage is being sought. In this case, 

NMFS is responding to Empire Wind’s 

request—as required by the statute—to 

incidentally take marine mammals 

while engaged in construction activities 

and marine site characterization 

surveys. NMFS determines whether the 

necessary findings can be made based 

on Empire Wind’s application. NMFS 

does not have the authority to force 

project proponents to batch or aggregate 

multiple activities into a single MMPA 

take authorization request. Similarly, 

while the BOEM’s Environmental 

Impact Statement (EIS), which NMFS 

adopted, evaluates the cumulative 

effects of the activity (i.e., the 

incremental impact of the action when 

added to other past, present, and 

reasonably foreseeable future actions) 

on the human environment in order to 

support multiple decisions, the findings 

necessary for issuance of an MMPA 

authorization are based on an 

assessment of the impacts on marine 

mammals and their habitat, and do not 

require measurement of impacts on the 

‘‘marine ecosystem.’’ In addition, the 

ESA consultation assesses impacts to 

listed species from Empire Wind’s 

proposed action, added to the baseline 

of offshore wind actions that had 

previously been approved. 

Comment 20: Commenters expressed 

interest in understanding the outcome if 

the number of actual takes exceed the 

number authorized during construction 

of an offshore wind project (i.e., if the 

Project would be stopped midconstruction or operation), and how 

offshore wind developers will be held 

accountable for impacts to protected 

species instead of impacts being 

mistakenly assigned to fishermen. The 

commenter further maintained that the 

offshore wind industry must be 

accountable for incidental takes from 

construction and operations separately 

from the take authorizations for 

managed commercial fish stocks. 

Response: NMFS carefully reviews 

models and take estimate methodology 

to authorize a number of takes, by 

species and manner of take, that is a 

likely outcome of the Project. There are 

several conservative assumptions built 

into the models to ensure the number of 

takes authorized is sufficient based on 

the description of the Project. Empire 

Wind would be required to submit 

frequent reports which would identify 

the number of takes applied to the 

Project. 

In the unexpected event that Empire 

Wind exceeds the number of takes 

authorized for a given species, the 

MMPA and its implementing 

regulations state that NMFS shall 

withdraw or suspend the LOA issued 

under these regulations, after notice and 

opportunity for public comment, if it 

finds the methods of taking or the 

mitigation, monitoring, or reporting 

measures are not being substantially 

complied with, or the taking allowed is 

having, or may have, more than a 

negligible impact on the species or stock 

concerned (16 U.S.C. 1371(a)(5)(B); 50 

CFR 216.206(e)). Additionally, failure to 

comply with the requirements of the 

LOA may result in civil monetary 

penalties and knowing violations may 

result in criminal penalties (16 U.S.C. 

1375; 50 CFR 216.206(g)). 

Moreover, as noted previously, fishing 

impacts, and NMFS assessment of them, 

generally center on entanglement in 

fishing gear, which is a very acute, 

visible, and severe impact (i.e., 

mortality or serious injury). In contrast, 

the impacts incidental to the specified 

activities are primarily acoustic in 

nature and limited to Level A 

harassment and Level B harassment, 

there is no anticipated or authorized 

serious injury or mortality that the 

fishing industry could theoretically be 

held accountable for. Any take resulting 

from the specified activities would not 

be associated with take authorizations 

related to commercial fish stocks. The 

impacts of commercial fisheries on 

marine mammals and incidental take for 

said fishing activities are managed 

separately from those of noncommercial fishing activities such as 

offshore wind site characterization 

surveys, under MMPA section 118. 

Comment 21: A commenter suggested 

that NMFS require Empire Wind to 

utilize direct-drive turbines instead of 

gearboxes. 

Response: NMFS disagrees with the 

commenter’s suggestion to require 

Empire Wind to utilize direct-drive 

turbines instead of gearboxes. Empire 

Wind included the use of turbines that 

may contain gearboxes in the 

description of their specified activity, 

and NMFS has evaluated the activity as 

charged and made the determinations 

necessary to support the issuance of 

incidental take regulations. Although 

direct-drive technology is newer, 

gearboxes are effective and frequently 

used in the offshore wind industry, and 

it is outside of the scope of NMFS’ 

authority to require the use of directdrive turbines over gearboxes. 

Comment 22: A commenter asserted 

that the requirement of having PSOs 

onboard project vessels is insufficient to 

prevent harm to North Atlantic right 

whales as right whales can be difficult 

to spot from a boat and poor weather or 

low light conditions make detecting 

right whales challenging. 

Response: NMFS recognizes that 

visual detection based mitigation 

approaches are not 100 percent 

effective. Animals are missed because 

they are underwater (i.e., availability 

bias) or because they are available to be 

seen but are missed by observers (i.e., 

perception and detection biases) (e.g., 

Marsh and Sinclair, 1989). However, 

visual observation remains one of the 


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best available methods for marine 

mammal detection. For North Atlantic 

right whales in particular, the required 

Clearance Zones are any distance 

(impact pile driving), 1,600 m (vibratory 

pile driving/marine activities), and 500 

m (HRG surveys) and, therefore, it is 

unlikely that an individual would 

approach the harassment zone 

undetected. 

In addition, as described in the 

proposed rule, NMFS is requiring that 

Empire Wind employ both visual and 

PAM methods for monitoring, as both 

approaches aid and complement each 

other (Van Parijs et al., 2021). The use 

of PAM will augment visual detections 

for foundation pile driving, especially 

for activities with the largest zones. 

NMFS is requiring the use of PAM to 

monitor 10 km zones around the piles 

and that the systems be capable of 

detecting marine mammals during pile 

driving within this zone. In this final 

rule, table 39 clearly specifies this 10 

km PAM monitoring zone. For further 

detail on the requirements for the use of 

PAM, see comments 4 and 17. 

Comment 23: A commenter 

recommended that the LOA should 

require all vessels supporting site 

characterization to be equipped with 

and using Class A AIS devices at all 

times while on the water. A commenter 

suggested this requirement should apply 

to all vessels, regardless of size, 

associated with the survey. 

Response: NMFS acknowledges that 

vessel strikes pose a risk to marine 

wildlife, including North Atlantic right 

whales. For the final rule, NMFS has 

included a requirement that all vessels 

be equipped with AIS to facilitate 

compliance checks with the speed limit 

requirements. 

Comment 24: Several commenters 

recommended that NMFS increase the 

frequency of information review for 

adaptive management to at least once a 

quarter and to have a mechanism in 

place to undertake review and adaptive 

management on an ad hoc basis if a 

serious issue is identified (e.g., if 

unauthorized levels of Level A take of 

marine mammals are reported or if 

serious injury or mortality of an animal 

occurs). 

Response: We disagree that the 

frequency at which information is 

reviewed should be defined in the 

Adaptive Management provision. The 

purpose of the Adaptive Management 

provision is to allow for the 

incorporation of new information as it 

becomes available, which could mean 

advancements and new information 

becomes available quickly (i.e., days or 

weeks) that would necessitate NMFS to 

consider adapting the issued LOA, or 

over long periods of time as robust and 

conclusive information becomes 

available (i.e., months or years). NMFS 

will be reviewing interim reports as they 

are submitted, hence, the quarterly 

review, as suggested by the commenter, 

is not necessary. NMFS retains the 

ability to make decisions as information 

becomes available, and after discussions 

with Empire Wind about feasibility and 

practicability. 

We do not agree with the suggestion 

by the commenter for ad hoc changes in 

the event that additional take by Level 

A harassment or take via serious injury/ 

mortality of a marine mammal occurs. 

NMFS has included two relevant 

provisions in its final ITA, one 

prohibiting take by mortality of serious 

injury (‘‘Take by mortality or serious 

injury of any marine mammal species is 

not authorized’’) and another 

prohibiting the taking of marine 

mammals in any manner other than 

what is specified in the LOA (‘‘It is 

unlawful for any person to . . . take any 

marine mammal specified in the LOA in 

any manner other than as specified in 

the LOA.’’) We refer the commenter to 

the Prohibitions portion of the final 

regulations text (see § 217.293). If the 

Project takes any marine mammal in a 

manner that has not been specified in 

the final rule and LOA (i.e., 

unauthorized take by Level A 

harassment), or project vessels strike a 

marine mammal, Empire Wind would 

be in violation of its LOA and NMFS 

would undertake appropriate actions, as 

determined to be necessary. 

Effects Assessment 

Comment 25: Multiple commenters 

stated that NMFS must make an 

assessment of which activities, 

technologies, and strategies are truly 

necessary to achieve site 

characterization to inform development 

of the offshore wind projects and which 

strategies are not critical. In addition, 

commenters asserted that NMFS should 

prescribe the appropriate survey 

techniques and mitigate any potential 

stressors to effect the least practicable 

impact on all affected species and 

stocks. Commenters further encouraged 

NMFS to require that the LOA holder 

minimize the impacts of underwater 

noise to the fullest extent feasible, 

including through the use of best 

available technology and methods to 

minimize sound levels from geophysical 

surveys such as through the use of 

technically and commercially feasible 

and effective noise reduction and 

attenuation measures. One commenter 

emphasized that there should be a focus 

on reducing impacts to species with 

extreme sensitivity to noise (e.g., harbor 

porpoises) and species experiencing 

UMEs (e.g., harbor seals). 

Response: The MMPA requires that an 

LOA include measures that will effect 

the least practicable adverse impact on 

the affected species and stocks, and, in 

practice, NMFS agrees that the LOA 

should include conditions for the 

activities that will first avoid adverse 

effects on marine mammal species in 

and around the Project Area, where 

practicable, and minimize the effects 

that cannot be avoided. NMFS has 

determined that the ITR and LOA meet 

this requirement to effect the least 

practicable adverse impact. As part of 

the analysis for all ITRs, NMFS 

evaluates the effects expected as a result 

of the specified activity, makes the 

necessary findings, and prescribes 

mitigation requirements sufficient to 

achieve the least practicable adverse 

impact on the affected species and 

stocks of marine mammals. 

Comment 26: A commenter asserted 

that NMFS must fully consider the 

discrete effects of each activity and the 

cumulative effects of the suite of 

approved, proposed, and potential 

activities on marine mammals 

(particularly North Atlantic right 

whales) and ensure that the cumulative 

effects are not excessive before issuing 

an incidental take authorization (ITA). 

Other commenters encouraged NMFS to 

consider the total takes of all species 

alongside takes that NMFS has 

authorized for other wind-related 

activities, and noted that the cumulative 

impacts of offshore wind activities on 

marine mammals are not yet known. 

Commenters objected to NMFS’s 

conclusion that the application’s take 

limit of 29 North Atlantic right whales 

for construction activities in the coastal 

waters between off New York will have 

a ‘‘negligible impact’’ on the species and 

fulfills the requirement for ‘‘small 

numbers’’ of takes, especially in light of 

the North Atlantic right whale’s 

critically endangered status, the ongoing 

UME that this species is experiencing 

and, consequently, the asserted 

existential threat posed to the species by 

obstacles to even one individual’s 

survival—and they emphasized this 

comment in combination with the need 

to consider the take from multiple 

projects. 

Response: NMFS is required to 

authorize the requested incidental take 

if it finds the total incidental take of 

small numbers of marine mammals by 

U.S. citizens ‘‘while engaging in that 

(specified) activity’’ within a specified 

geographic region during the 5-year 

period (or less) will have a negligible 

impact on such species or stock and, 

where applicable, will not have an 


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unmitigable adverse impact on the 

availability of such species or stock for 

subsistence uses (16 U.S.C. 

1371(a)(5)(A)). Negligible impact is 

defined 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 effect on 

annual rates of recruitment or survival’’ 

(50 CFR 216.103). Neither the MMPA 

nor its implementing regulations require 

consideration of unrelated activities and 

their impacts on marine mammal 

populations in the negligible impact 

determination. Consistent with the 

preamble of NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

factored into the baseline, which is used 

in the negligible impact analysis. Here, 

NMFS has factored into its negligible 

impact analysis the impacts of other 

past and ongoing anthropogenic 

activities via their impacts on the 

baseline (e.g., as reflected in the 

density/distribution and status of the 

species, population size and growth 

rate, and other relevant stressors). 

The preamble of NMFS’ 

implementing regulations also addresses 

cumulative effects from future, 

unrelated activities. Such effects are not 

considered in making the negligible 

impact determination under MMPA 

section 101(a)(5). NMFS considers: (1) 

cumulative effects that are reasonably 

foreseeable when preparing a National 

Environmental Policy Act (NEPA) 

analysis; and (2) reasonably foreseeable 

cumulative effects under section 7 of the 

ESA for ESA-listed species, as 

appropriate. Accordingly, NMFS has 

adopted and reviewed BOEM’s EIS and 

as part of its inter-agency coordination. 

This EIS addresses cumulative impacts 

related to the Project and substantially 

similar activities in similar locations. 

Cumulative impacts regarding the 

promulgation of the regulations and 

issuance of an LOA for construction 

activities planned by Empire Wind, 

have been adequately addressed in the 

adopted EIS that supports NMFS’ 

determination that this action has been 

appropriately analyzed under NEPA. 

Separately, the cumulative effects of the 

Project on ESA-listed species, including 

the North Atlantic right whale, were 

analyzed under section 7 of the ESA 

when NMFS engaged in formal interagency consultation with the NOAA 

GARFO. The Biological Opinion for the 

Project determined that NMFS’ 

promulgation of the rulemaking and 

issuance of an LOA for construction 

activities associated with leasing, 

individually and cumulatively, are 

likely to adversely affect, but not 

jeopardize, listed marine mammals. 

NMFS disagrees that the authorized 

take of 29 North Atlantic right whales 

by Level B harassment incidental to the 

Project will have a non-negligible 

impact on the species and notes that the 

commenter did not provide additional 

scientific information supporting this 

claim for NMFS to consider. Take by 

injury, serious injury, or mortality is not 

authorized. NMFS emphasizes that the 

authorized incidental take is limited to 

Level B harassment (i.e., behavioral 

disturbance). As described in the 

proposed rule and this final rule (see 

Negligible Impact Analysis and 

Determination section), NMFS has 

determined that the Level B harassment 

of North Atlantic right whales will not 

result in impacts to the population 

through effects on annual rates or 

recruitment or survival. The Project 

Area occurs offshore of New York, 

which does not include habitat where 

North Atlantic right whales are known 

to concentrate in foraging or 

reproductive behaviors. The Project 

Area is a known migratory corridor. 

Hence, it is likely that most of the 

authorized takes represent an exposure 

to a different individual, which means 

that the behavioral impacts to North 

Atlantic right whales are limited to 

behavioral disturbance occurring on 1 or 

2 days within a year—an amount that 

would not be expected to impact 

reproduction or survival. Across all 

years, while it is possible an animal 

migrating through could have been 

exposed during a previous year, the low 

amount of take authorized during the 5- 

year period (n=29 takes of North 

Atlantic right whales by Level B 

harassment) of the rule makes this 

scenario unlikely. Any disturbance to 

North Atlantic right whales due to 

Empire Wind’s activities is expected to 

result in temporary avoidance of the 

immediate area of construction but not 

abandonment of its migratory path. 

Slight displacement (but not 

abandonment) of a migratory pathway is 

unlikely to result in energetic 

consequences that could affect 

reproduction or survival of any 

individuals. Other impacts such as 

masking, Temporary Threshold Shift 

(TTS), and temporary communication 

and foraging disruption may occur 

(again noting that North Atlantic right 

whales concentrate foraging far north of 

the Project Area (e.g., southern New 

England, Gulf of Maine, and Canada). 

However, these impacts would also be 

temporary and unlikely to lead to 

survival or reproduction impacts of any 

individual, especially when the 

extensive suite of mitigation, including 

numerous measures targeted specifically 

towards minimizing impacts to North 

Atlantic right whales, are considered. 

NMFS also disagrees with the 

commenter’s arguments on the topic of 

small numbers. In the Empire Wind 

proposed rule, NMFS describes that 

when the predicted number of 

individuals to be taken is less than onethird of the species or stock abundance, 

the take is considered to be of small 

numbers. The small number of takes 

being authorized is incidental to the 

specified activities. NMFS has provided 

a reasoned approach to small numbers, 

as described in the ‘‘Taking Marine 

Mammals Incidental to Geophysical 

Surveys Related to Oil and Gas 

Activities in the Gulf of Mexico’’ final 

rule (86 FR 5322 at 5438, April 19, 

2021). Utilizing that approach, NMFS 

has made the necessary small numbers 

finding for all affected species and 

stocks in this case (see Small Numbers 

section for more detail). 

Comment 27: A commenter stated that 

some of the specified activities will 

increase the number of vessels in the 

ocean in the Project Area, which will 

lead to an increased threat of harm by 

vessel strikes to marine mammals, 

specifically North Atlantic right whales. 

Response: NMFS acknowledges that 

vessel strikes can result in injury or 

mortality of marine mammals. We 

analyzed the potential for vessel strike 

resulting from Empire Wind’s activities 

(including the anticipated number of 

vessels in the area) and determined that 

based on the nature of the activity and 

the required mitigation measures 

specific to vessel strike avoidance 

included in this rulemaking, the 

potential for vessel strike is so low as to 

be discountable. The required 

mitigation measures, all of which were 

included in the proposed rulemaking 

and are now required in the final 

regulations, include: a requirement that 

all vessel operators comply with 10 kn 

(18.5 km/hour) or less speed restrictions 

in any Seasonal Management Area 

(SMA), DMA, or Slow Zone while 

underway, and check daily for 

information regarding the establishment 

of mandatory or voluntary vessel strike 

avoidance areas (SMAs, DMAs, Slow 

Zones) and information regarding North 

Atlantic right whale sighting locations; 

a requirement that all vessels, regardless 

of size, operating from November 1 

through April 30 operate at speeds of 10 

kn (18.5 km/hour) or less; a requirement 

that all vessel operators reduce vessel 

speed to 10 kn (18.5 km/hour) or less 

when any large whale, any mother/calf 

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delphinid cetaceans are observed near 

the vessel; a requirement that all project 

vessels maintain a separation distance 

of 500 m or greater from North Atlantic 

right whales; a requirement that, if 

underway, vessels must steer a course 

away from any sighted North Atlantic 

right whale at 10 kn (18.5 km/hr) or less 

until the 500-m minimum separation 

distance has been established; a 

requirement that, if a North Atlantic 

right whale is sighted in a vessel’s path, 

or within 500 m of an underway vessel, 

the underway vessel must reduce speed 

and shift the engine to neutral; and, a 

requirement that all vessels underway 

must maintain a minimum separation 

distance of 100 m or 50 m from all other 

marine mammals (species-dependent 

and excluding North Atlantic right 

whales), with an understanding that at 

times this may not be possible (e.g., for 

animals that approach the vessel). Based 

on these, we have determined that the 

vessel strike avoidance measures in the 

rulemaking are sufficient to ensure the 

least practicable adverse impact on 

species or stocks and their habitat. 

Comment 28: A commenter expressed 

concern about the use of multiple 

vessels concurrently performing the 

HRG survey work may increase take 

potential, and that only one ship at a 

time should be permitted to actively 

emit sound for survey data collection 

within 200 nautical miles (nmi) of other 

ships working in other lease areas. 

Response: The commenter does not 

provide information supporting their 

statement that multiple HRG survey 

vessels would increase the potential for 

take. The amount of take requested by 

Empire Wind and authorized by NMFS 

considers the total amount of HRG effort 

that would occur. Further, the 

commenter does not provide 

information supporting their comment 

that an Empire Wind HRG vessel should 

operate more than 200 miles from other 

HRG vessels for other projects. NMFS is 

not requiring this recommendation 

because it is not practicable. 

Comment 29: Commenters stated that 

NMFS must utilize the best available 

science in their analysis. A commenter 

stated that NMFS must use the most 

recent and best available science in 

evaluating impacts to North Atlantic 

right whales, including updated 

population estimates, recent habitat 

usage patterns for the Project Area, and 

a revised discussion of the acute and 

cumulative stress on whales in the 

region. A commenter identified that the 

North Atlantic right whale population 

abundance is less than that cited in the 

proposed rule and that the current 

mitigation plan would not give 

assurance that endangered and critically 

endangered species would be protected. 

In addition, a commenter noted 

concerns regarding the number of 

species that could be impacted by the 

activities, as well as a lack of baseline 

data being available for species in the 

area. The commenter stated that NMFS 

did not adequately address the potential 

for cumulative impacts to bottlenose 

dolphins from Level B harassment over 

several years of project activities and 

that there is not sufficient baseline 

information about how harbor seals use 

the water of the Lease Area to conclude 

that the activities covered by rule will 

have a negligible impact on harbor seals. 

Response: The MMPA and its 

implementing regulations require that 

ITRs be established based on the best 

available information, which does not 

always mean the most recent 

information. NMFS considered all 

relevant information regarding North 

Atlantic right whale, including the 

information cited by the commenters. In 

the context of stock abundance, NMFS 

generally considers the information in 

the most recent U.S. Atlantic and Gulf 

of Mexico Stock Assessment Report 

(SAR; Hayes et al., 2023) to be the best 

available information for a particular 

marine mammal stock because of the 

MMPA’s rigorous stock assessment 

report (SAR) procedural requirements, 

which includes peer review by a 

statutorily established Scientific Review 

Group. Since issuance of the proposed 

rule, NMFS has finalized the 2022 SAR 

indicating the North Atlantic right 

whale population abundance is 

estimated at 338 individuals 

(confidence interval: 325–350; 88 FR 

4162, January 24, 2023). NMFS has used 

this most recent best available 

information in the analysis of this final 

rule. This new estimate, which is based 

on the analysis from Pace et al. (2017) 

and subsequent refinements found in 

Pace (2021), is included by reference in 

the draft and final 2022 SARs (https:// 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessment reports) and 

provides the most recent and best 

available estimate, including 

improvements to NMFS’ right whale 

abundance model. More recently, in 

October 2023, NMFS released a 

technical report identifying that the 

North Atlantic right whale population 

size based on sighting history through 

2022 was 356 whales, with a 95 percent 

credible interval ranging from 346 to 

363 (Linden, 2023). NMFS 

conservatively relies on the lower SAR 

abundance estimate in this final rule. 

The finalization of the draft to final 

2022 SAR did not change the estimated 

take of North Atlantic right whales or 

authorized take numbers, nor affect our 

ability to make the required findings 

under the MMPA for Empire Wind’s 

construction activities. 

NMFS relied upon the best scientific 

evidence available, including, but not 

limited to, the draft 2022 SAR, scientific 

literature, and Duke University’s density 

model (Roberts et al., 2023), in 

analyzing the impacts of Empire Wind’s 

specified activities on marine mammals. 

The MMPA requires us to evaluate the 

effects of the specified activities in 

consideration of the best scientific 

evidence available and, if the necessary 

findings are made, to issue the 

requested take authorization. The 

MMPA does not allow us to delay 

decision making to wait for additional 

information may become available in 

the future. While commenters suggest 

generally that NMFS consider the best 

scientific evidence available, none of 

the commenters provided additional 

scientific information for NMFS to 

consider. Furthermore, NMFS notes that 

it has previously addressed discussions 

on cumulative impact analyses in 

previous comments and references the 

commenter back to these specific 

responses in this final rule. 

Regarding the commenter’s concern 

about the lack of baseline information 

for harbor seals, NMFS applied data 

from the Atlantic Marine Assessment 

Program for Protected Species 

(AMAPPS; https://

www.fisheries.noaa.gov/new-englandmid-atlantic/population-assessments/ 

atlantic-marine-assessment-programprotected) annual reports available from 

2010 to 2020 (https://

www.fisheries.noaa.gov/resource/ 

publication-database/atlantic-marineassessment-program-protected-species) 

that represents that best available data 

for harbor seal distribution across the 

Atlantic Ocean. NMFS has considered 

this AMAPPS data in our analysis as 

well as datasets from the Oceanographic 

Biodiversity Information System (OBIS, 

2023; Smith, 2014) to assess impacts to 

harbor seals. 

Regarding cumulative impacts to 

bottlenose dolphins across years of 

project activities, the estimated take by 

Level B harassment of each stock is not 

likely representative of the number of 

individuals that would be taken each 

year. Repeated takes of the same 

individuals are likely due to the ranging 

patterns of each stock. The Project Area 

also covers a small portion of each 

stock’s range and comparable habitat 

would be available to dolphins across 

years. For further discussion of 

cumulative effects of marine mammals, 

please see our response in comment 26. 


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In addition, NMFS has further 

considered take of the bottlenose 

dolphin stocks affected by this action, 

and has adjusted its attribution of such 

take regarding the Northern Migratory 

Coastal stock of bottlenose dolphins in 

the negligible impact and small 

numbers analyses included in this rule. 

Comment 30: Commenters stated that 

there is a lack of basic research about 

the impacts of offshore wind energy 

development on large whales, especially 

in terms of in situ data and interactions 

between whales and turbines. They 

asserted that scientific baselines are 

necessary for assessing potential 

impacts to whales and that NMFS has 

failed to include critical scientific 

assessments and consultations. 

Response: The MMPA requires NMFS 

to evaluate the effects of the specified 

activities in consideration of the best 

scientific evidence available and to 

issue the requested ITR if it makes the 

necessary findings. The MMPA does not 

allow NMFS to delay issuance of the 

requested authorization on the 

presumption that new information will 

become available in the future. If new 

information becomes available in the 

future, NMFS may modify the 

mitigation and monitoring measures in 

an LOA issued under these regulations 

through the adaptive management 

provisions. Furthermore, NMFS is 

required to withdraw or suspend an 

LOA if, after notice and public 

comment, and unless an emergency 

exists, it determines the authorized 

incidental take may be having more 

than a negligible impact on a species or 

stock. 

NMFS has duly considered the best 

scientific evidence available in its 

effects analysis. The ‘‘Potential Effects 

of Underwater Sound on Marine 

Mammals’’ section of the proposed rule 

included a broad overview of the 

potential impacts on marine mammals 

from anthropogenic noise and provided 

summaries of several studies regarding 

the impacts of noise from several 

different types of sources (e.g., airguns, 

Navy sonar, vessels) on large whales, 

including North Atlantic right whales. 

Offshore wind farm construction 

generates noise that is similar, or, in the 

case of vessel noise, identical, to noise 

sources included in these studies (e.g., 

impact pile driving and airguns both 

produce impulsive, broadband sounds 

where the majority of energy is 

concentrated in low frequency ranges), 

and the breadth of the data from these 

studies helps us predict the impacts 

from wind activities. In addition, as 

described in the proposed rule, it is 

general scientific consensus that 

behavioral responses to sound are 

highly variable and context-specific and 

are impacted by multiple factors 

including, but not limited to, behavioral 

state, proximity to the source, and the 

nature and novelty of the sound. 

Overall, the ecological assessments from 

offshore wind farm development in 

Europe and peer-reviewed literature on 

the impacts of noise on marine 

mammals both in the United States and 

worldwide provides the information 

necessary to conduct an adequate 

analysis of the impacts of offshore wind 

construction and operation on marine 

mammals in the Atlantic OCS. NMFS 

acknowledges that studies in Europe 

typically focus on smaller porpoise and 

pinniped species, as those are more 

prevalent in the North Sea and other 

areas where offshore wind farms have 

been constructed, and notes that the 

commenter did not provide additional 

scientific information for NMFS to 

consider. 

Comment 31: Commenters expressed 

concern regarding ocean noise and the 

interference it has on communication 

between whales. Commenters were 

specifically concerned with the lowfrequency noise from large vessels 

involved in the construction activities 

overlapping North Atlantic right whale 

communication. 

Response: As discussed in the 

Negligible Impact Analysis and 

Determination section (specifically the 

Auditory Masking or Communication 

Impairment section) of both the 

proposed and final rule, the level of 

masking that could occur from Empire 

Wind’s activities will have a negligible 

impact on marine mammals, including 

North Atlantic right whales. Inherent in 

the concept of masking is the fact that 

the potential for the effect is only 

present during the times that the animal 

and the sound source are in close 

enough proximity for the effect to occur. 

In addition, this time period would 

need to coincide with a time that the 

animal was utilizing sounds at the 

masked frequency). As our analysis 

(both quantitative and qualitative 

components) indicates, because of the 

relative movement of whales and 

vessels, as well as the stationary nature 

of a majority of the activities, we do not 

expect these exposures with the 

potential for masking to be of a long 

duration within a given day. Further, 

because of the relatively low density of 

North Atlantic right whales during 

months when most of Empire Wind’s 

activities would be occurring (i.e., May 

through November in most cases), and 

the relatively large area over which the 

vessels will travel and where the 

activities will occur, we do not expect 

any individual North Atlantic right 

whales to be exposed to potentially 

masking levels from these surveys for 

more than a few days in a year. 

Furthermore, as many of the activities 

are occurring in clusters and specific 

areas rather than sporadically dispersed 

in the Project Area (i.e., foundation 

installation all occurs in the same 

general area, nearshore cable 

installation activities occur in relatively 

similar and nearby areas), animals are 

likely to temporarily avoid these 

locations during periods where 

activities are occurring but are expected 

to return once activities have ceased. 

As noted above, any masking effects 

of Empire Wind’s activities are expected 

to be limited in duration, if present. For 

HRG surveys, given the likelihood of 

significantly reduced received levels 

beyond short distances from the 

transiting survey vessel, the short 

duration of potential exposure, the 

lower likelihood of extensive additional 

contributors to background noise 

offshore and within these short 

exposure periods, and the fact that the 

frequency of HRG signals are primarily 

above those used in social 

communication or for detection of other 

important clues, we believe that the 

incremental addition of the survey 

vessel is unlikely to result in more than 

minor and short-term masking effects. 

For pile driving, and especially 

foundation installation, masking effects 

are more likely given the larger zones 

and longer durations, and animals that 

approach the source could experience 

temporary masking of some lower 

frequency cues. However, any such 

effects would be localized to the areas 

around these stationary activities, which 

means that whales transiting through 

the area could adjust their transit away 

from the construction location and 

return once the activity has completed. 

As described in the ‘‘Potential Effects of 

the Activities on Marine Mammals’’ 

section of the proposed rule, NMFS 

acknowledges the noise contributions of 

vessels to the soundscape and the 

potential for larger vessels such as 

commercial shipping vessels, especially, 

to mask mysticete communication. For 

the activity as a whole, including the 

operation of supporting vessels for 

Empire Wind’s activities, any masking 

that might potentially occur would 

likely be incurred by the same animals 

predicted to be exposed above the 

behavioral harassment threshold, and 

thereby accounted for in the analysis. 

NMFS notes that the commenter did not 

provide additional scientific 

information for NMFS to consider to 

support its concern. 


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Other 

Comment 32: A commenter noted that 

this proposed rule is for two separate 

offshore wind energy projects: Empire 

Wind 1 and 2 and the associated export 

cable areas. The commenter further 

recommends that ITR and LOA requests 

for each energy project be submitted and 

reviewed separately. Another 

commenter encouraged NMFS to issue 

LOAs on an annual basis, rather than a 

single 5-year LOA, to allow for the 

continuous incorporation of the best 

available scientific and commercial 

information, modify mitigation and 

monitoring measures as necessary and 

in a timely manner, and to account for 

the quickly evolving situation for the 

North Atlantic right whale. 

Response: NMFS disagrees with these 

comments. The MMPA allows for the 

authorization of incidental take within a 

specified geographical region, provided 

all the necessary findings are made. The 

applicant identifies the activities for 

which it is requesting authorization, and 

NMFS analyzes the request, including 

consideration of any germane factors 

that affect the analysis and may vary 

from one part of the Project Area to 

another, such as physical, biological, or 

chemical features. For example, the 

difference in the density of marine 

mammals between Empire Wind 1 and 

2 is fully factored into the analysis. 

Further, it is generally considered more 

beneficial to evaluate the impacts of 

multiple activities together, where 

possible, as it allows for a more 

comprehensive assessment of the 

impacts and a more holistic approach to 

the mitigation and monitoring of those 

impacts. Here, Empire Wind would be 

responsible for conducting all 

construction and site characterization 

activities for Empire Wind 1 and 2. 

Some of these activities for each project 

would take place within the same year. 

For example, site characterization 

surveys are planned to occur during 

each of the 5 years across the Project 

Areas. In addition, impact pile driving 

of monopile foundations is expected to 

occur in Empire Wind 1 and Empire 

Wind 2 across years 2 and 3 of the 

Project. Further, the final rule includes 

requirements for annual reports, in 

addition to weekly and monthly 

requirements, to support annual 

evaluation of the activities and 

monitoring results, and the final rule 

includes an Adaptive Management 

provision (see § 217.297(c)) that allows 

NMFS to make modifications to the 

mitigation, monitoring, and reporting 

measures found in the LOA if new 

information supports the modifications 

and doing so creates a reasonable 

likelihood of more effectively 

accomplishing the goals of the 

measures. As requested, and supported 

by the findings herein, NMFS will issue 

a single 5-year LOA to Empire Wind for 

activities for both Empire Wind 1 and 2. 

Comment 33: Multiple commenters 

urged NMFS to deny the proposed 

project and/or postpone any offshore 

wind activities until NMFS determines 

effects of all offshore wind (OSW) 

activities on marine mammals in the 

region and determines that the recent 

whale deaths are not related to OSW 

activities, especially in light of recent 

UMEs. Similarly, some commenters 

provided general concerns regarding 

recent whale stranding events on the 

Atlantic Coast, including speculation 

that the strandings may be related to 

wind energy development-related 

activities. However, the commenters did 

not provide any specific information 

supporting these concerns. 

Response: NMFS authorizes take of 

marine mammals incidental to 

construction activities and marine site 

characterization surveys, provided the 

necessary findings are made, but does 

not authorize the activities themselves. 

Therefore, while NMFS has the 

authority to modify, suspend, or revoke 

an LOA if the LOA holder fails to abide 

by the conditions prescribed therein 

(e.g., failure to comply with monitoring 

or reporting requirements), or if NMFS 

determines that (1) the authorized 

taking is having or is likely to have more 

than a negligible impact on the species 

or stocks of affected marine mammals, 

or (2) the prescribed measures are likely 

not or are not effecting the least 

practicable adverse impact on the 

affected species or stocks and their 

habitat, it is not within NMFS’ 

jurisdiction to impose a moratorium on 

offshore wind development or to require 

activities to cease. 

NMFS reiterates that there is no 

evidence that noise resulting from 

offshore wind development-related 

construction activities or site 

characterization surveys could 

potentially cause marine mammal 

stranding, and there is no evidence 

linking recent large whale mortalities 

and currently ongoing site 

characterization surveys. The 

commenters offer no such evidence. 

NMFS will continue to gather data to 

help us determine the cause of death for 

these stranded whales. We note the 

Marine Mammal Commission’s recent 

statement: ‘‘There continues to be no 

evidence to link these large whale 

strandings to offshore wind energy 

development, including no evidence to 

link them to sound emitted during wind 

development-related site 

characterization surveys, known as HRG 

surveys. Although HRG surveys have 

been occurring off New England and the 

mid-Atlantic coast, HRG devices have 

never been implicated or causativelyassociated with baleen whale 

strandings’’ (Marine Mammal 

Commission Newsletter, Spring 2023). 

There is an ongoing UME for 

humpback whales along the Atlantic 

coast from Maine to Florida, which 

includes animals stranded since 2016. 

Partial or full necropsy examinations 

were conducted on approximately half 

of the whales. Necropsies were not 

conducted on other carcasses because 

they were too decomposed, not brought 

to land, or stranded on protected lands 

(e.g., national and state parks) with 

limited or no access. Of the roughly 90 

whales examined, about 40 percent had 

evidence of human interaction (i.e., 

vessel strike or entanglement). Vessel 

strikes and entanglement in fishing gear 

are the greatest human threats to large 

whales. The remaining 50 necropsied 

whales either had an undetermined 

cause of death due to a limited 

examination or decomposition of the 

carcass, or had other causes of death 

(e.g., parasite-caused organ damage and 

starvation). 

As discussed herein, impact and 

vibratory pile driving may result in 

minor Permanent Threshold Shift (PTS) 

or TTS, as well as behavioral 

disturbance. HRG sources may 

behaviorally disturb marine mammals 

(e.g., avoidance of the immediate area). 

These HRG surveys are very different 

from seismic airguns used in oil and gas 

surveys or tactical military sonar. They 

produce much smaller impact zones 

because, in general, they have lower 

source levels and produce output at 

higher frequencies. The area within 

which HRG sources might behaviorally 

disturb a marine mammal is orders of 

magnitude smaller than the impact areas 

for seismic airguns or military sonar. 

Any marine mammal exposure would 

be at significantly lower levels and 

shorter duration, which is associated 

with less severe impacts to marine 

mammals. 

Comment 34: A commenter expressed 

concern regarding the potential for 

increased uncertainty in estimates of 

marine mammal abundance resulting 

from wind turbine presence during low 

aerial surveys and potential effects of 

NMFS’ ability to continue using current 

low-flying survey methods to fulfill its 

mission of precisely and accurately 

assessing protected species. 

Response: NMFS and BOEM have 

collaborated to establish the ‘‘Federal 

Survey Mitigation Strategy for the 

Northeast U.S. Region’’ (Hare et al., 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11359 

2022). This interagency effort is 

intended to guide the development and 

implementation of a program to mitigate 

impacts of wind energy development on 

fisheries surveys. For more information 

on this effort, please see https://

repository.library.noaa.gov/view/noaa/ 

47925. 

Comment 35: Referencing the low 

Potential Biological Removal (PBR) for 

North Atlantic right whales, a 

commenter stated that all industrial fullscale construction for offshore wind 

energy should be paused until the 

Federal agencies determine how best to 

eliminate or avoid all impacts, Level A 

harassment, and Level B harassment on 

the North Atlantic right whale. 

Response: NMFS is required to 

authorize the requested incidental take 

if it finds the total incidental take of 

small numbers of marine mammals by 

U.S. citizens while engaging in a 

specified activity within a specified 

geographic region during a 5-year period 

(or less) will have a negligible impact on 

such species or stock and, where 

applicable, will not have an unmitigable 

adverse impact on the availability of 

such species or stock for subsistence 

uses (16 U.S.C. 1371(a)(5)(A)). While the 

ITA must be based on the best scientific 

information available, the MMPA does 

not allow NMFS to delay issuance of the 

requested authorization on the 

presumption that new information will 

become available in the future. NMFS 

has made the required findings based on 

the best scientific information available 

and has included mitigation measures to 

effect the least practicable adverse 

impacts on North Atlantic right whales. 

Many of these mitigation measures are 

found in the Draft Strategy (Strategy) for 

construction activities. While NMFS 

continues to work together with BOEM 

towards the goals identified in the 

Strategy, finalizing the Strategy (or 

similar efforts) or completing specific 

goals identified in the strategy are not a 

prerequisite for the issuance of an ITA. 

While NMFS agrees that the North 

Atlantic right whale population 

abundance is alarmingly low (with 

entanglement in fishing gear and vessel 

strikes being the leading causes of North 

Atlantic right whale mortality), NMFS 

disagrees that the type of harassment 

authorized in this rulemaking will have 

a non-negligible impact (i.e., adversely 

affect the species through effects on 

annual rates of recruitment or survival). 

NMFS emphasizes that no mortality, 

serious injury, or Level A harassment is 

anticipated or authorized for North 

Atlantic right whales from Empire 

Wind’s specified activities. Further, the 

impacts of Level B harassment (i.e., 

behavioral disturbance) are expected to 

have a negligible impact on the North 

Atlantic right whale population. The 

magnitude of behavioral harassment 

authorized is very low and the severity 

of any behavioral responses is expected 

to be primarily limited to temporary 

displacement and avoidance of the area 

when some activities that have the 

potential to result in harassment are 

occurring (see Negligible Impact 

Analysis and Determination section for 

our full analysis). No impacts to the 

reproductive success or survival of any 

individual North Atlantic right whales 

are expected to result from these 

disturbances and, as such, no impacts to 

the population are expected to result. In 

its comment, the commenter conflates 

PBR level and Level B harassment and 

suggests that Level B harassment can 

have population level impacts. The PBR 

level is defined as the maximum 

number of animals, not including 

natural mortalities, that may be removed 

from a stock while allowing that stock 

to reach or maintain its optimum 

sustainable population (16 U.S.C. 

1362(20)). Thus, PBR is only germane in 

the discussion of ‘‘removals’’ of 

individual North Atlantic right whales 

from the population and, therefore, PBR 

is not applicable in this discussion since 

no impact to reproduction or survival of 

any individuals is anticipated or 

authorized. Further, the commenter did 

not suggest mitigation measures to 

eliminate and avoid all impacts to North 

Atlantic right whales for NMFS to 

evaluate or consider. 

Changes From the Proposed to Final 

Rule 

Since the publication of the proposed 

rule in the Federal Register (88 FR 

22696, April 13, 2023), NMFS has made 

changes, where appropriate, that are 

reflected in the regulatory text and 

preamble text of this final rule. These 

changes are briefly identified below, 

with more information included in the 

indicated sections of this final rule: 

Changes in Information Provided in the 

Preamble 

As described in the response to public 

comments section, NMFS received 328 

comments regarding this rulemaking, 

specifically including numerous 

comments that requested greater 

protections for marine mammals 

through the mitigation and monitoring 

measures or clarification on 

implementation of those measures. 

NMFS continues to receive information 

generated by current offshore wind 

development, which helps further 

inform our incorporation of these public 

comments into the rule. We have made 

certain changes described below in 

response to public comment or as 

needed for clarity. In addition, the 

information found in the preamble of 

the proposed rule was based on the best 

available information at the time of 

publication. Since publication of the 

proposed rule, new information has 

become available including NMFS’ final 

2022 SARs (Hayes et al., 2023), which 

has been used to update the final rule 

as appropriate. 

The following changes were made to 

the Purpose and Need for Regulatory 

Action section of the preamble to this 

final rule: 

We have added regulatory definitions 

under Legal Authority for the Final 

Action for the sake of clarity. 

The following changes are reflected in 

the Description of Marine Mammals in 

the Geographic Area section of the 

preamble to this final rule: 

Given the release of NMFS’ final 2022 

SARs (Hayes et al., 2023), we have 

updated the total mortality/serious 

injury (M/SI) amount for North Atlantic 

right whales from 8.1 to 31.2. This 

increase is due to the inclusion of 

undetected annual M/SI in the total 

annual serious injury/mortality. In 

addition, NMFS recently released a 

technical report identifying that the 

North Atlantic right whale population 

size based on sighting history through 

2022 was 356 whales, with a 95-percent 

credible interval ranging from 346 to 

363. This information has also been 

included in the stock abundance 

column in table 2, ‘‘Marine mammal 

species that may occur in the Project 

Area and be taken, by harassment.’’ 

Given the availability of new 

information, we have made updates to 

the UME summaries for multiple 

species. 

The following changes are reflected in 

the Estimated Take section of the 

preamble to this final rule: 

In consideration of comments 

received from the Commission, we have 

increased the amount of take authorized 

for fin whales during impact pile 

driving, by Level A harassment, from 

one to four (based on two group sizes 

from the AMAPPS dataset) in year 2 and 

from one to two (based on one group 

size from AMAPPS) in year 3. Prior to 

adding this requirement, NMFS 

considered this proposed increase in 

take and considered this measure 

practicable. This decision was 

additionally supported by an increased 

number of sightings of fin whales in the 

Project Area during June, July, and 

August 2023 (Empire Wind, 2023). 

We have also updated our 

methodology for estimating take 

authorized for harbor seals, grays seals, 

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finned pilot whales, by Level B 

harassment, and subsequently, updated 

take by Level B harassment authorized 

for seal species. Pilot whale and seal 

guild densities were scaled by local 

abundances based upon occurrence data 

(OBIS, 2023; Smith, 2014) to identify 

the proportion of the guild densities that 

should be attributed to each species. 

Species-specific densities were used to 

calculate exposure estimates for each 

pilot whale and seal species. Based 

upon this updated methodology, pilot 

whale exposure estimates and take 

estimates have not changed. Updated 

seal exposure estimates and take 

estimates are described in tables 22 and 

23. 

After considering a comment from 

Clean Ocean Action concerning the take 

by Level B harassment of bottlenose 

dolphins and a comment from the 

Commission regarding attribution of 

take between the offshore and coastal 

stocks of bottlenose dolphins on the 

Ocean Wind 1 project, which was 

incorporated by reference here in the 

Commission’s comment letter, NMFS 

has updated the description of take by 

Level B harassment for the northern 

migratory coastal stock of bottlenose 

dolphins, incidental to HRG surveys. 

While take numbers have not changed, 

we have taken a finer look at calculating 

the percentage of take attributed to the 

two affected bottlenose dolphin stocks. 

We have included a detailed description 

of estimating take by Level B 

harassment, incidental to HRG surveys, 

for the northern migratory coastal 

bottlenose dolphin stock in the 

Negligible Impact and Small Numbers 

sections of this rule. 

The following changes are reflected in 

the Mitigation section of the preamble to 

this final rule: 

NMFS has re-organized and 

simplified this section to avoid 

repeating entirely the requirements 

provided in the regulatory text. 

In response to multiple commenters’ 

concerns regarding noise attenuation, 

we have added a general requirement 

that noise levels must not exceed those 

modeled assuming 10 dB of attenuation 

and all project vessels must utilize AIS. 

In consideration of a recommendation 

from the Commission and a requirement 

to increase the minimum visibility zone 

in the Biological Opinion (BiOp), NMFS 

has increased the minimum visibility 

zone for mysticetes for impact pile 

driving from 1.2 km to 1.5 km to be 

consistent with the shutdown zone for 

mysticetes. In the BiOp, the minimum 

visibility zone was also increased to 1.5 

km. 

Based on a recommendation by a 

commenter and a requirement to 

increase the visual shutdown zone for 

North Atlantic right whales in the BiOp, 

NMFS has increased the visual 

shutdown zone for North Atlantic right 

whales for impact pile driving from 1.5 

km to any distance. NMFS has also 

increased the PAM clearance and 

shutdown zones for North Atlantic right 

whales to any distance. Prior to 

increasing the shutdown and clearance 

zones, NMFS considered these measures 

internally, and found these measures to 

be practicable. 

Based on multiple commenters’ 

concerns regarding noise attenuation, 

and as informed by preliminary sound 

measurements from South Fork Wind, 

NMFS has added a requirement that two 

functional noise attenuation devices 

that reduce noise levels to the modeled 

harassment isopleths, assuming a 10-dB 

attenuation, must be used during 

foundation pile driving. A single bubble 

curtain alone will not be allowed for use 

in mitigation. 

We clarify that the mitigation measure 

restricting Project vessels from traveling 

over 10 kn (5.14 m/s) in the transit 

corridor, unless Empire Wind conducts 

real-time acoustic monitoring to detect 

large whales (including North Atlantic 

right whales), applies only when other 

speed restrictions are not in place. 

Based on multiple commenters’ 

concerns regarding impacts to North 

Atlantic right whales from pile driving, 

we added the requirement that Empire 

Wind must delay or shutdown if a North 

Atlantic right whale is acoustically 

detected at any distance within the 10 

km PAM monitoring zone. 

Because Empire Wind identified that 

the soft-start procedure in the proposed 

rule was concerning regarding 

engineering feasibility and 

practicability, we have removed the 

specific soft-start procedure identified 

in the proposed rule (but not the 

requirement to conduct a soft-start) and 

will provide a practicable soft-start 

procedure in the LOA. 

The following changes are reflected in 

the Monitoring and Reporting section of 

the preamble to this final rule: 

We have updated the process for 

obtaining NMFS approval for PSO and 

PAM Operators to be similar to 

requirements typically included for 

seismic (e.g., airgun) surveys and have 

clarified education, training, and 

experience necessary to obtain NMFS 

approval. 

In consideration of a recommendation 

by the Commission and based upon 

NMFS’ internal consideration that this 

would be a practicable measure, we 

have added a requirement that the Lead 

PSO must have a minimum of 90 days 

of at-sea experience and must have 

obtained this experience within the last 

18 months. 

We have added a requirement to have 

at least three active PSOs on duty on the 

pile driving vessel rather than two 

PSOs, as was originally described in the 

proposed rule. Addition of this 

requirement is based on commenters’ 

concerns regarding sufficient marine 

mammal monitoring and NMFS’ 

evaluation that three PSOs (each 

covering 120 degrees) will improve the 

reliability of detection from the pile 

driving platform. 

In response to multiple comments 

seeking augmented noise reduction 

technologies, including comments from 

Oceana, the Natural Resources Defense 

Council, and the Commission, we have 

added a requirement stating that Empire 

Wind must use at least two functional 

noise attenuation devices that reduce 

noise levels to the modeled harassment 

isopleths, assuming 10-dB attenuation, 

and clarify that a single bubble curtain 

must not be used. Second, we added 

requirements that SFV must be 

conducted on every pile until measured 

noise levels are at or below the modeled 

noise levels, assuming 10 dB, for at least 

three consecutive monopiles and 

abbreviated SFV monitoring must be 

conducted on all additional foundation 

installations to align with the 

requirements in the BiOp. Third, we 

have added a requirement that Empire 

Wind must deploy at least eight 

hydrophones at four locations (one 

bottom and one mid-water column at 

each location) along an azimuth that is 

likely to see lowest propagation loss and 

two hydrophones (one bottom and one 

mid-water) at 750 m, 90 degrees from 

the primary azimuth during installation 

of all piles where SFV monitoring is 

required. 

NMFS has changed the submission 

date from 90 to 180 days prior to the 

start of pile driving commencement for 

the Pile Driving Marine Mammal 

Monitoring Plan and the PAM Plan 

(noting the Vessel Strike Avoidance and 

Vibratory Pile Driving Plans retain the 

90-day requirement as these activities 

are very nearshore) to align with the 

requirements of the BiOp. 

In response to a comment from the 

Natural Resources Defense Council, we 

have removed the requirements for 

reviewing data on an annual and 

biennial basis for adaptive management 

and instead will make adaptive 

management decisions as frequently as 

new information warrants it. 

Changes in the Regulatory Text 

As described above regarding changes 

made to the preamble, we have made 

the following corresponding and 


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additional changes to the regulatory text 

in response to public comment, 

especially those numerous public 

comments requesting greater mitigation 

and monitoring measures, or for clarity, 

as informed by comment and continuing 

information generated by current 

offshore wind projects. 

For clarity and consistency, we 

revised three paragraphs in § 217.280, 

‘‘Specified activity and specified 

geographical region,’’ of the regulatory 

text to fully describe the specified 

activity, specified geographical region, 

and requirements imposed on the LOA 

Holder (Empire Wind). 

Due to a change in the Empire Wind 

final rule and LOA issuance schedule, 

we updated the effective dates for these 

regulations in § 217.281. 

For clarity, we revised one paragraph 

in § 217.282, ‘‘Permissible methods of 

taking,’’ to fully describe the specified 

geographical area. 

In response to several commenters’ 

concerns regarding strengthening 

mitigation and monitoring measures, 

NMFS has added a requirement for 

confirmation of all required training to 

be documented on a training course log 

sheet and reported to NMFS before 

initiating project activities. A 

description of the training program must 

be provided to NMFS at least 60 days 

prior to the initial training before inwater activities begin. 

NMFS has also added a requirement 

that the marine mammal monitoring 

team must monitor available sources of 

information on North Atlantic right 

whale presence in or near the Project 

Area no less than every 4 hours. 

In § 217.284(a)(4), NMFS has clarified 

that any visual observation of marine 

mammals, as opposed to ESA-listed 

marine mammals, must be 

communicated to PSOs and vessel 

captains. 

NMFS has added additional 

clarification on the authority of PSOs 

and PAM operators in § 217.284(a)(7) to 

ensure compliance and proper 

implementation of the regulations. 

NMFS has specified that any visual or 

acoustic detection of a North Atlantic 

right whale must trigger a delay in 

commencement of pile driving and HRG 

surveys. 

In consideration of multiple 

commenters’ concerns regarding vessel 

transparency, including those concerns 

expressed by Oceana, NMFS has added 

a requirement that all project vessels 

must utilize AIS. 

NMFS has included a requirement for 

Empire Wind to consent to onsite 

observations and inspections by Federal 

personnel during project activities. 

NMFS has added a prohibition to 

interfering with PSO or PAM operator 

responsibilities. 

NMFS has clarified that all underway 

vessels requiring a dedicated visual 

observer would be transiting within the 

specified geographic area. 

NMFS has added a requirement for 

any large whale sighting to be 

communicated to all project-associated 

vessels, and for a large whale sighting 

log sheet to be retained for the vessel 

captain’s review each day. 

NMFS has clarified the requirement 

in § 217.284(b)(8) in the proposed rule 

to specify that this measure applies to 

vessels traveling in the specified 

geographic region. 

In consideration of several 

commenters’ concerns regarding 

strengthening mitigation measures to 

avoid vessel strike, NMFS has removed 

the requirement in § 217.284(b)(16) in 

the proposed rule for any underway 

vessel to avoid speed over 10 kn (18.5 

km/hr) or abrupt changes in course 

direction until an animal is on a path 

away from the separation distance. The 

current requirement in § 217.284(b) 

requires vessels to reduce speed and 

shift engine to neutral if an animal is 

within the separation distance. 

NMFS has updated the requirement in 

§ 217.284(b)(17) in the proposed rule 

that a North Atlantic right whale 

detection triggers a speed restriction for 

all vessels (previously only crew 

transfer vessels) within 10 km for a 24- 

hour period (previously 12-hour 

period). 

NMFS has updated the requirement 

for submission of a North Atlantic 

vessel strike avoidance plan from 90 to 

180 days prior to commencement of 

vessel use. 

For clarity, NMFS has updated the 

term ‘‘foundation impact pile driving’’ 

to ‘‘foundation pile driving.’’ 

Because Empire Wind identified that 

the soft-start procedure in the proposed 

rule was concerning regarding 

engineering feasibility and 

practicability, we have removed the 

specific soft-start procedure identified 

in the proposed rule (but not the 

requirement to conduct a soft-start) and 

will provide a practicable soft-start 

procedure in the LOA. 

NMFS has clarified boundaries for 

observations of North Atlantic right 

whales that trigger a delay in the 

commencement of pile driving. 

In response to multiple comments 

seeking augmented noise reduction 

technologies, including those from 

Oceana, the Natural Resources Defense 

Council, and the Commission, NMFS 

has added a requirement that two 

functional noise attenuation devices 

that reduce noise levels to the modeled 

harassment isopleths, assuming 10-dB 

attenuation must be used during impact 

pile driving, and a single bubble curtain 

may not be used. 

NMFS has clarified requirements for 

PAM systems, including a requirement 

for the PAM system to be able to detect 

a vocalization of North Atlantic right 

whales up to 10 km away. 

NMFS has increased the minimum 

requirement for PSOs on the pile 

driving platform. As described above, 

addition of this requirement is based on 

commenters’ concerns regarding 

sufficient marine mammal monitoring 

and NMFS’ evaluation that 3 PSOs (each 

covering 120 degrees) will improve the 

reliability of marine mammal detection 

from the pile driving platform. 

NMFS has added a requirement for 

Empire Wind to conduct abbreviated 

SFV measurements on all piles for 

which thorough SFV monitoring is not 

being conducted to align with 

requirements of the BiOp and public 

requests for noise abatement. In 

consideration of a comment from the 

MMC, NMFS has also added more 

specific requirements for SFV 

measurements and reporting, including 

the submission of interim reports and 

description of information required for 

reports, conducting additional in-situ 

measurements, and equipment 

calibration. 

In consideration of Oceana’s comment 

regarding frequent reporting to federal 

agencies, NMFS has added a 

requirement for Empire Wind to submit 

48-hour interim reports after each 

foundation is measured using thorough 

SFV. Abbreviated SFV reports are due 

weekly. 

NMFS has clarified requirements 

applying to HRG surveys operating subbottom profilers (SBPs) in § 217.284(e) 

to ensure compliance and proper 

implementation of the regulations. 

In consideration of multiple 

commenters’ concerns regarding HRG 

survey acoustic impacts and effective 

mitigation measures, NMFS has added a 

requirement for acoustic source rampups to be scheduled in order to 

minimize the time spent with the source 

activated. 

For fishery monitoring surveys, NMFS 

has added multiple requirements 

designed to further augment mitigation 

and minimization of impacts to marine 

mammals in alignment with public 

comment, including quick emptying of 

gear after retrieval, labeling all gear, and 

marine mammal avoidance 

requirements. 

The following changes are reflected in 

§ 217.285, ‘‘Requirements for 

monitoring and reporting,’’ and the 


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11362 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

associated Monitoring and Reporting 

section of the preamble to this final rule: 

NMFS has added a requirement for all 

PSOs and PAM operators to have 

successfully completed a relevant 

training course within the last 5 years 

and to submit the certificate of course 

completion in order to further clarify 

PSO requirements to ensure 

compliance. 

NMFS has further clarified PAM 

operator qualifications as well as PSO 

and PAM training requirements in 

§ 217.285 to ensure compliance and 

proper implementation of regulations. 

This additional clarification includes 

detailed requirements for prior 

experience, being independent 

observers, ability for PAM operators to 

review and classify acoustic detections 

in real-time, PSO marine mammal 

identification and behavior training to 

focus on species specific to the North 

Western Atlantic Ocean, and PSO and 

PAM training to have been completed 

within the past 5 years and have 

included a certificate of course 

completion. NMFS has specified that 

Empire Wind must submit the names of 

NMFS previously approved PSOs and 

PAM operators at least 30 days prior to 

commencement of the specified 

activities and 15 days prior to when 

new PSOs/PAM operators are required 

after activities have commenced. 

NMFS has specified the following 

additional details in § 217.285(b) to 

clarify PSO and PAM operator 

requirements in order to ensure 

compliance and proper implementation 

of regulations: PAM operators may be 

located remotely or on-shore, and must 

assists PSOs in ensuring full coverage of 

the clearance and shutdown zones; 

PSOs must monitor for marine 

mammals prior to, during, and 

following impact pile driving, vibratory 

pile driving, and HRG surveys that use 

sub-bottom profilers and monitoring 

must be done while free from 

distractions; all on-duty PSOs and PAM 

operator(s) are to remain in real-time 

contact with the on-duty construction 

personnel responsible for implementing 

mitigations; and the PAM operator must 

inform the Lead PSO(s) on duty of 

animal detections approaching or 

within applicable ranges of interest to 

the activity occurring via the data 

collection software system. 

NMFS has clarified the following 

requirements for monitoring during 

fishery surveys to ensure compliance 

and proper implementation of 

regulations: All captains and crew 

conducting fishery surveys must be 

trained in marine mammal detection 

and identification and marine mammal 

monitoring must be conducted within 1 

nmi from the planned survey location 

by the trained captain and/or a member 

of the scientific crew for 15 minutes 

prior to deploying gear, throughout gear 

deployment and use, and for 15 minutes 

after haul back. In addition, NMFS has 

specified that any dates in reports for 

NMFS must be in the MM/DD/YYYY 

format, and location information must 

be provided in Decimal Degrees and 

with the coordinate system information. 

NMFS has added additional 

requirements for inclusion in SFV 

reports in consideration of the MMC’s 

concerns for the information included 

in any SFV report to be specified. 

NMFS has clarified that final annual 

reports must be prepared and submitted 

within 30 calendar days following the 

receipt of any comments from NMFS on 

the draft report. If no comments are 

received from NMFS within 60 calendar 

days of NMFS’ receipt of the draft 

report, the report must be considered 

final. 

In consideration of the Commission’s 

concerns for underestimating takes by 

Level A harassment and Level B 

harassment, NMFS has added a 

requirement that if at any time during 

the Project Empire Wind becomes aware 

of any issue or issues which may (to any 

reasonable subject-matter expert, 

including the persons performing the 

measurements and analysis) call into 

question the validity of any measured 

Level A harassment or Level B 

harassment isopleths to a significant 

degree, Empire Wind must inform 

NMFS Office of Protected Resources 

within one business day of becoming 

aware of this issue or before the next 

pile is driven, whichever comes first. 

NMFS has added specific regional 

contact information for reporting North 

Atlantic right whale sightings and 

stranded, entangled, injured, or dead 

marine mammals. 

NMFS had added a requirement to 

report observations of any large whale 

(other than North Atlantic right whales) 

to the WhaleAlert app. 

NMFS has added a requirement that 

Empire Wind must report any lost gear 

associated with the fishery surveys to 

the NMFS GARFO Protected Resources 

Division (nmfs.gar.incidental-take@

noaa.gov) as soon as possible or within 

24 hours of the documented time of 

missing or lost gear. 

Description of Marine Mammals in the 

Geographic Area 

As noted in the Changes from the 

Proposed to Final Rule section, updates 

have been made to the abundance 

estimate for North Atlantic right whales 

and to the UME summaries of multiple 

species. These changes are described in 

detail in the sections below and, 

otherwise, the marine mammal 

information has not changed since the 

proposed rule. 

Thirty-eight marine mammal species 

under NMFS’ jurisdiction have 

geographic ranges within the western 

North Atlantic OCS (Hayes et al., 2023). 

Sections 3 and 4 of Empire Wind’s ITA 

application summarize available 

information regarding status and trends, 

distribution and habitat preferences, 

and behavior and life history of the 

potentially affected species (Empire 

Wind, 2022). Additional information 

regarding population trends and threats 

may be found in NMFS’s SARs (https:// 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments) and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’s 

website (https://www.fisheries.

noaa.gov/find-species). 

Table 2 lists all species and stocks for 

which take is expected and authorized 

for this action, and summarizes 

information related to the population or 

stock, including regulatory status under 

the MMPA and ESA, and provides the 

PBR, where known. PBR is defined by 

the MMPA as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

optimum sustainable population (16 

U.S.C. 1362(20)), as described in 

NMFS’s SARs. While no mortality is 

anticipated or authorized, PBR and 

annual serious injury and mortality 

from anthropogenic sources are 

included here as gross indicators of the 

status of the species and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’s stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’s U.S. Atlantic and Gulf of 

Mexico SARs. All values presented in 

table 2 are the most recent available at 

the time of publication and are available 

in NMFS’ 2022 draft SARs available 

online at: https://www.fisheries.

noaa.gov/national/marine-mammalprotection/draft-marine-mammal-stockassessment-reports. 


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TABLE 2—MARINE MAMMAL SPECIES THAT MAY OCCUR IN THE PROJECT AREA AND BE TAKEN BY HARASSMENT

Common name 1 Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 2

Stock 

abundance 

(CV, Nmin, most recent 

abundance survey) 3

PBR Annual 

M/SI 4

Order Artiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Balaenidae: 

North Atlantic right whale ... Eubalaena glacialis .................. Western Atlantic ....................... E, D, Y 338 (0; 332; 2020), 356 

(346–363, 2022) 5.

0.7 6 31.2 

Family Balaenopteridae 

(rorquals): 

Fin whale ............................ Balaenoptera physalus ............. Western North Atlantic ............. E, D, Y 6,802 (0.24; 5,573; 2016) 11 1.8 

Sei whale ........................... Balaenoptera borealis .............. Nova Scotia .............................. E, D, Y 6,292 (1.02; 3,098; 2016) 6.2 0.8 

Minke whale ....................... Balaenoptera acutorostrata ...... Canadian Eastern Coastal ....... -, -, N 21,968 (0.31; 17,002; 

2016).

170 10.6 

Humpback whale ................ Megaptera novaeangliae .......... Gulf of Maine ............................ -, -, N 1,396 (0; 1,380; 2016) ... 22 12.15 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale ...................... Physeter macrocephalus .......... North Atlantic ............................ E, D, Y 4,349 (0.28; 3,451; 2016) 3.9 0 

Family Delphinidae: 

Atlantic white-sided dolphin Lagenorhynchus acutus ........... Western North Atlantic ............. -, -, N 93,233 (0.71; 54,433; 

2016).

544 27 

Atlantic spotted dolphin ...... Stenella frontalis ....................... Western North Atlantic ............. -, -, N 39,921 (0.27; 32,032; 

2016).

320 0 

Bottlenose dolphin .............. Tursiops truncatus .................... Western North Atlantic Offshore.-, -, N 62,851 (0.23; 51,914; 

2016).

519 28 

Northern Migratory Coastal ...... -, -, Y 6,639 (0.41; 4,759; 2016) 48 12.2–21.5 

Long-finned pilot whales .... Globicephala melas .................. Western North Atlantic ............. -, -, N 39,215 (0.3; 30,627; 

2016).

306 29 

Short-finned pilot whales .... Globicephala macrorhynchus ... Western North Atlantic ............. -, -, N 28,924 (0.24; 23,637; 

2016).

236 136 

Risso’s dolphin ................... Grampus griseus ...................... Western North Atlantic ............. -, -, N 35,215 (0.19; 30,051; 

2016).

301 34 

Common dolphin ................ Delphinus delphis ..................... Western North Atlantic ............. -, -, N 172,897 (0.21; 145,216; 

2016).

1,452 390 

Family Phocoenidae (porpoises): 

Harbor porpoise ................. Phocoena phocoena ................ Gulf of Maine/Bay of Fundy ..... -, -, N 95,543 (0.31; 74,034; 

2016).

851 16 

Order Carnivora—Superfamily Pinnipedia 

Family Phocidae (earless 

seals): 

Gray seal 7 .......................... Halichoerus grypus .................. Western North Atlantic ............. -, -, N 27,300 (0.22; 22,785; 

2016).

1,458 4,453 

Harbor seal ......................... Phoca vitulina ........................... Western North Atlantic ............. -, -, N 61,336 (0.08; 57,637; 

2018).

1,729 339 

Harp seal 8 .......................... Pagophilus grownlandicus ....... Western North Atlantic ............. -, -, N 7,600,000 (UNK, 

7,100,000).

426,000 178,573 

1 Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy’s Committee on Taxonomy 

(https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies; Committee on Taxonomy, 2022). 2ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be 

declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA 

as depleted and as a strategic stock. 3 NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments (Hayes et al., 

2023). CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 4These values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, 

ship strike). 5The current SAR includes an estimated population (Nbest 338) based on sighting history through November 2020 (Hayes et al., 2023). In October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95-percent 

credible interval ranging from 346 to 363 (Linden, 2023). 6Total annual average observed North Atlantic right whale mortality during the period 2016–2020 was 8.1 animals and annual average observed fishery mortality 

was 5.7 animals. Numbers presented in this table (31.2 total mortality and 22 fishery mortality) are 2015–2019 estimated annual means, accounting for undetected 

mortality and serious injury. 7 NMFS’ stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total stock. 8 Harp seals are rare in the region; however, stranding data suggest this species may be present during activities that may take marine mammals. 

All 38 species that could potentially 

occur in the Project Area are included 

in table 12 of the Empire Wind ITA 

application and are discussed therein 

(Empire Wind, 2022). While the 

majority of these species have been 

documented or sighted off the New York 

coast in the past, for the species and 

stocks not listed in table 2, NMFS 

considers it unlikely that their 

occurrence would overlap the activity in 

a manner that would result in 

harassment, either because of their 

spatial occurrence (i.e., more northern 

or southern ranges) and/or with the 

geomorphological characteristics of the 

underwater environment (i.e., water 

depth in the development area). 

A detailed description of the species 

likely to be affected by Empire Wind’s 

project, including brief introductions to 

the species and relevant stocks, 

information regarding population trends 

and threats, and information regarding 


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I I I I 
11364 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

local occurrence, were provided in the 

proposed rule (88 FR 22696, April 13, 

2023). Since that time, we are not aware 

of any changes in the status of the 

species and stocks listed in table 2; 

therefore, detailed descriptions are not 

provided here. Please refer to the 

proposed rule for these descriptions (88 

FR 22696, April 13, 2023). Please also 

refer to NMFS’ website (https://

www.fisheries.noaa.gov/find-species) for 

generalized species accounts. 

Since the publication of the proposed 

rule, the following updates have 

occurred to the below species in regards 

to general information or their active 

UMEs. 

North Atlantic Right Whale 

In August 2023, NMFS released its 

final 2022 SARs, which updated the 

population estimate (Nbest) of North 

Atlantic right whales from 368 to 338 

individuals and the annual M/SI value 

from 8.1 to 31.2 due to the addition of 

estimated undetected mortality and 

serious injury, as described above, 

which had not been previously included 

in the SAR. The population estimate is 

slightly lower than the ‘‘North Atlantic 

Right Whale Consortium’s 2022 Report 

Card’’, which identifies the population 

estimate as 340 individuals (Pettis et al., 

2023). In October 2023, NMFS released 

a technical report identifying that the 

North Atlantic right whale population 

size based on sighting history through 

2022 was 356 whales, with a 95-percent 

credible interval ranging from 346 to 

363 (Linden, 2023). The Northeast 

Fisheries Science Center (NEFSC) 

completed both technical and policy 

reviews of this report. Elevated North 

Atlantic right whale mortalities have 

occurred since June 7, 2017, along the 

United States and Canadian coast, with 

the leading category for the cause of 

death for this UME determined to be 

‘‘human interaction,’’ specifically from 

entanglements or vessel strikes. As of 

November 30, 2023, there have been 36 

confirmed mortalities (dead stranded or 

floaters), 0 pending mortalities, and 34 

seriously injured free-swimming whales 

for a total of 70 whales. As of October 

14, 2022, the UME also considers 

animals (n=51) with sublethal injury or 

illness (i.e., ‘‘morbidity’’) bringing the 

total number of whales in the UME to 

121. More information about the North 

Atlantic right whale UME is available 

online at: https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2017-2023-northatlantic-right-whale-unusual-mortalityevent. 

Humpback Whale 

Since January 2016, elevated 

humpback whale mortalities have 

occurred along the Atlantic coast from 

Maine to Florida. This event was 

declared a UME in April 2017. As of 

November 30, 2023 (i.e., updated since 

the proposed rule), partial or full 

necropsy examinations have been 

conducted on approximately half of the 

212 known cases. Of the approximately 

90 whales examined, about 40 percent 

had evidence of human interaction, 

either by vessel strike or entanglement 

(refer to https://www.fisheries.noaa.gov/ 

national/marine-life-distress/2016-2023- 

humpback-whale-unusual-mortalityevent-along-atlantic-coast). While a 

portion of the whales have shown 

evidence of pre-mortem vessel strike, 

this finding is not consistent across all 

whales examined and more research is 

needed. NOAA is consulting with 

researchers that are conducting studies 

on the humpback whale populations, 

and these efforts may provide 

information on changes in whale 

distribution and habitat use that could 

provide additional insight into how 

these vessel interactions occurred. More 

information is available at: https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2016-2023- 

humpback-whale-unusual-mortalityevent-along-atlantic-coast. 

Minke Whale 

Since January 2017, elevated minke 

whale mortalities detected along the 

Atlantic coast from Maine through 

South Carolina resulted in the 

declaration of a UME. As of November 

30, 2023 (i.e., updated since the 

proposed rule), a total of 160 minke 

whales have stranded during the UME. 

Full or partial necropsy examinations 

were conducted on more than 60 

percent of the whales. Preliminary 

findings have shown evidence of human 

interactions or infectious disease in 

several of the whales, but these findings 

are not consistent across all of the 

whales examined and more research is 

needed. This UME has been declared 

non-active and is pending closure. More 

information is available at: https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2017-2022-minkewhale-unusual-mortality-event-alongatlantic-coast. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 

recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 

behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65-dB 

threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in table 3. 

TABLE 3—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ..................................................................................................................... 7 Hz to 35 kilohertz 

(kHz). 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ........................................... 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 


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TABLE 3—MARINE MAMMAL HEARING GROUPS—Continued 

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................................... 50 Hz to 86 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65-dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). 

The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009; Reichmuth and Holt, 2013). 

NMFS notes that in 2019a, Southall et 

al. recommended new names for 

hearing groups that are widely 

recognized. However, this new hearing 

group classification does not change the 

weighting functions or acoustic 

thresholds (i.e., the weighting functions 

and thresholds in Southall et al. (2019a) 

are identical to NMFS 2018 Revised 

Technical Guidance). When NMFS 

updates our Technical Guidance, we 

will be adopting the updated Southall et 

al. (2019a) hearing group classification. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The effects of underwater noise from 

the Project activities have the potential 

to result in the harassment of marine 

mammals in the vicinity of the Project 

Area. The proposed rule (88 FR 22696, 

April 13, 2023) included a discussion of 

the effects of anthropogenic noise on 

marine mammals and the potential 

effects of underwater noise from the 

Project activities on marine mammals 

and their habitat. That information and 

analysis is adopted by reference into 

this final rule determination and is not 

repeated here. Please refer to the 

proposed rule (88 FR 22696, April 13, 

2023). 

Since the publication of the proposed 

rule, new scientific information has 

become available that provides 

additional insight into the sound fields 

produced by turbine operation (HDR, 

Inc., 2023; Holme et al., 2023). Recently, 

Holme et al. (2023) stated that Tougaard 

et al. (2020) and Sto ̈ber and Thomsen 

(2021) extrapolated levels for larger 

turbines and should be interpreted with 

caution since both studies relied on data 

from smaller turbines (0.45 to 6.15 MW) 

collected over a variety of 

environmental conditions. They 

demonstrated that the model presented 

in Tougaard et al. (2020) tends to 

overestimate levels (up to 

approximately 8 dB) measured to those 

in the field, especially with 

measurements closer to the turbine for 

larger turbines. Holme et al. (2023) 

measured operational noise from larger 

turbines (6.3 and 8.3 MW) associated 

with three wind farms in Europe and 

found no relationship between turbine 

activity (i.e., power production, which 

is proportional to the blade’s 

revolutions per minute) and noise level. 

However, it was noted that this missing 

relationship may have been masked by 

the area’s relatively high ambient noise 

sound levels. Sound levels (i.e., rootmean-square (RMS)) of a 6.3 MW directdrive turbine were measured to be 117.3 

dB at a distance of 70 meters. However, 

measurements from 8.3 MW turbines 

were inconclusive as turbine noise was 

deemed to have been largely masked by 

ambient noise. 

In addition, operational turbine 

measurements from the Coastal Virginia 

Offshore Wind pilot pile project 

indicated that noise levels from two, 7.8 

m monopiles WTGs were higher when 

compared to Block Island wind farm, 

likely due to vibrations associated with 

the monopiles structure (HDR, Inc., 

2023). We note that this updated 

information does not change our 

assessment for impacts of turbine 

operational sound on marine mammals. 

As described in the proposed rule, 

NMFS will require Empire Wind to 

measure operational noise levels, 

however, is not authorizing take 

incidental to operational noise from 

WTGs. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through this rulemaking, 

which will inform both NMFS’ 

consideration of ‘‘small numbers’’ and 

the negligible impact determination. 

Minor changes to the estimated and 

authorized take for several species have 

been made since publication of the 

proposed rule based on 

recommendations received during the 

public comment period and the best 

available science. These changes are 

described in the Changes from the 

Proposed to Final Rule section above 

and in the sections below. Otherwise, 

the methodology for, and amount of, 

estimated take has not changed since 

the proposed rule. 

Authorized takes would primarily be 

by Level B harassment, as use of the 

acoustic sources (i.e., impact and 

vibratory pile driving and site 

characterization surveys) have the 

potential to result in disruption of 

marine mammal behavioral patterns due 

to exposure to elevated noise levels. 

Impacts such as masking and TTS can 

contribute to behavioral disturbances. 

There is also some potential for auditory 

injury constituting Level A harassment 

to occur in select marine mammal 

species incidental to the specified 

activities (i.e., impact pile driving). For 

this action, this potential is limited to 

mysticetes due to their hearing 

sensitivities and the nature of the 

activities. As described below, the larger 

distances to the PTS thresholds, when 

considering marine mammal weighting 

functions, demonstrate this potential. 

For mid-frequency hearing sensitivities, 

when thresholds and weighting and the 

associated PTS zone sizes are 

considered, the potential for PTS from 

the noise produced by the Project is 

negligible. The required mitigation and 

monitoring measures are expected to 

minimize the severity of the taking to 

the extent practicable. 

As described previously, no serious 

injury or mortality is anticipated or 

authorized for this project. Below, we 

describe how the take was estimated. 

Generally speaking, NMFS estimates 

take by considering: (1) acoustic 

thresholds above which NMFS believes 

the best available science indicates 

marine mammals will be behaviorally 

harassed or incur some degree of 

permanent hearing impairment; (2) the 

area or volume of water that will be 

ensonified above these levels in a day; 

(3) the density or occurrence of marine 

mammals within these ensonified areas; 

and (4) and the number of days of 

activities. We note that while these 

basic factors can contribute to a basic 

calculation to provide an initial 

prediction of takes, additional 

information that can qualitatively 


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11366 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

inform take estimates is also sometimes 

available (e.g., previous monitoring 

results or average group size). Below, we 

describe the factors considered here in 

more detail and present the authorized 

take estimates. 

Marine Mammal Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Thresholds have also been developed 

identifying the received level of in-air 

sound above which exposed pinnipeds 

would likely be behaviorally harassed. 

A summary of all NMFS’ thresholds can 

be found at (https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance). 

Level B harassment— Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source or exposure 

context (e.g., frequency, predictability, 

duty cycle, duration of the exposure, 

signal-to-noise ratio, distance to the 

source), the environment (e.g., other 

noises in the area) and the state of the 

receiving animals (e.g., hearing, 

motivation, experience, demography, 

life stage, depth), and can be difficult to 

predict (e.g., Southall et al., 2007, 2021; 

Ellison et al., 2012). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a metric that is both predictable and 

measurable for most activities, NMFS 

typically uses a generalized acoustic 

threshold based on received level to 

estimate the onset of behavioral 

harassment. NMFS generally predicts 

that marine mammals are likely to be 

behaviorally harassed in a manner 

considered to be Level B harassment 

when exposed to underwater 

anthropogenic noise above root-meansquared pressure received levels (RMS 

SPL) of 120 dB (re 1 mPa) for continuous 

(e.g., vibratory pile driving, drilling) and 

above RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., seismic 

airguns) or intermittent (e.g., scientific 

sonar) sources (table 4). Generally 

speaking, Level B harassment take 

estimates based on these behavioral 

harassment thresholds are expected to 

include any likely takes by TTS as, in 

most cases, the likelihood of TTS occurs 

at distances from the source less than 

those at which behavioral harassment is 

likely. TTS of a sufficient degree can 

manifest as behavioral harassment, as 

reduced hearing sensitivity and the 

potential reduced opportunities to 

detect important signals (e.g., 

conspecific communication, predators, 

prey) may result in changes in behavior 

patterns that would not otherwise occur. 

Empire Wind’s construction activities 

include the use of continuous (e.g., 

vibratory pile driving) and intermittent 

(e.g., impact pile driving and HRG 

acoustic sources) sources; therefore, the 

120 and 160 dB re 1 mPa (RMS) 

thresholds are applicable. 

Level A harassment— NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0; 

Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

constituting Level A harassment to five 

different marine mammal groups based 

on hearing sensitivity as a result of 

exposure to noise from two different 

types of sources (i.e., impulsive or nonimpulsive sources). As dual metrics, 

NMFS considers onset of PTS 

constituting Level A harassment to have 

occurred when either one of the two 

metrics is exceeded (i.e., metric 

resulting in the largest isopleth). The 

Project includes the use of impulsive 

and non-impulsive sources. 

These thresholds are provided in table 

4 below. The references, analysis, and 

methodology used in the development 

of the thresholds are described in 

NMFS’ 2018 Technical Guidance, which 

may be accessed at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

TABLE 4—ONSET OF PTS 

[NMFS, 2018] 

Hearing group 

PTS onset thresholds *

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ........................ Cell 1: ...............................................................

Lp,0-pk,flat: 219 dB; .............................................

LE,p, LF,24h: 183 dB ...........................................

Cell 2: 

LE,p, LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ........................ Cell 3: ...............................................................

Lp,0-pk,flat: 230 dB; .............................................

LE,p, MF,24h: 185 dB ..........................................

Cell 4: 

LE,p, MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ...................... Cell 5: ...............................................................

Lp,0-pk,flat: 202 dB; .............................................

LE,p,HF,24h: 155 dB ............................................

Cell 6: 

LE,p, HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............... Cell 7: ...............................................................

Lp,0-pk.flat: 218 dB; .............................................

LE,p,PW,24h: 185 dB ...........................................

Cell 8: 

LE,p,PW,24h: 201 dB. 

Otariid Pinnipeds (OW) (Underwater) ............... Cell 9: ...............................................................

Lp,0-pk,flat: 232 dB; .............................................

LE,p,OW,24h: 203 dB ...........................................

Cell 10: 

LE,p,OW,24h: 219 dB. 

* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound 

has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds are recommended 

for consideration. 

Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 μPa, and weighted cumulative sound exposure level (LE,p) has a reference value of 1μPa2s. In this table, thresholds are abbreviated to be more reflective of International Organization for Standardization standards 

(ISO, 2017). The subscript ‘‘flat’’ is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound exposure level thresholds indicates the 

designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying 

exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these 

thresholds will be exceeded. 


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Below, we discuss the acoustic 

modeling, marine mammal density 

information, and take estimation for 

each of Empire Wind’s construction 

activities. NMFS has carefully 

considered all information and analysis 

presented by the applicant as well as all 

other applicable information and, based 

on the best available science, concurs 

that the applicant’s estimates of the 

types and amounts of take for each 

species and stock are complete and 

accurate. 

Marine Mammal Densities 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

Habitat-based density models 

produced by the Duke University 

Marine Geospatial Ecology Laboratory 

and the Marine-life Data and Analysis 

Team, based on the best available 

marine mammal data from 1992 to 2022 

obtained in a collaboration between 

Duke University, the Northeast Regional 

Planning Body, the University of North 

Carolina Wilmington, the Virginia 

Aquarium and Marine Science Center, 

and NOAA (Roberts et al., 2016a, 2016b, 

2017, 2018, 2020, 2021a, 2021b, 2023), 

represent the best available science 

regarding marine mammal densities in 

the Project Area. More recently, these 

data have been updated with new 

modeling results and include density 

estimates for pinnipeds (Roberts et al., 

2016b, 2017, 2018, 2023). Density data 

are subdivided into five separate raster 

data layers for each species, including: 

Abundance (density); 95 percent 

Confidence Interval of Abundance; 5 

percent Confidence Interval of 

Abundance; Standard Error of 

Abundance; and Coefficient of Variation 

of Abundance. 

Empire Wind’s initial densities and 

take estimates were included in the ITA 

application that was considered 

Adequate & Complete on August 11, 

2022, in line with NMFS’ standard ITA 

guidance (https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/applyincidental-take-authorization). 

However, on June 20, 2022, the Duke 

Marine Geospatial Ecology Laboratory 

released a new, and more 

comprehensive, set of marine mammal 

density models for the area along the 

East Coast of the United States (Roberts 

et al., 2023). The differences between 

the new density data and the older data 

necessitated the use of updated marine 

mammal densities and, subsequently, 

revised marine mammal take estimates. 

This information was provided to NMFS 

as an addendum to the application on 

January 25, 2023, after continued 

discussion between Empire Wind and 

NMFS, and NMFS has considered it in 

this analysis. The application 

addendum was made public on NMFS’ 

website (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-empireoffshore-wind-llc-construction-empirewind-project-ew1?check_logged_in=1). 

For foundation installation, the width 

of the perimeter around the activity area 

used to select density data from the 

Duke models was based on the largest 

10-dB attenuated exposure range (the 

Level B harassment range) applicable to 

that activity and then rounded up to the 

nearest 0.5-km increment (10 km), 

which reflects the spatial resolution of 

the Roberts et al. (2023) density models. 

Empire Wind determined the mean 

density for each month by calculating 

the unweighted mean of all 5 x 5 km 

grid cells partially or fully within the 

analysis polygon (Roberts et al., 2023). 

The monthly densities for an entire year 

were calculated to coincide with 

possible planned activities. 

Empire Wind assumed that a 

maximum of 24 monopiles could be 

installed per month, with a maximum of 

96 WTG monopiles and two OSS 

foundations installed in year 2 (2025) 

and the remaining 51 WTG monopile 

foundations installed in year 3 (2026). 

In year 2 (2025), Empire Wind assumed 

that 24 monopiles would be installed in 

the four highest-density months for each 

species during the May to December 

period and the two OSSs would be 

installed in the highest and secondhighest-density months. Empire Wind 

also assumed that all 17 difficult-todrive piles would be installed in the 

first year of pile driving but the 

distribution would be spread relatively 

evenly among the four highest months 

(i.e., four piles per month except the 

highest-density month which assumed 5 

difficult-to-drive piles for a total of 17 

piles). In the second year of pile driving, 

24 monopiles would be installed in the 

two highest-density months and the 

remaining 3 monopiles would be 

installed in the third-highest-density 

month. Thus, each species was 

presumed to be exposed to the 

maximum amount of pile driving based 

on their monthly densities (table 6). 

This was determined to be the most 

conservative approach to generate 

potential installation schedules for 

animal exposure calculation. 

For cofferdam and goal post density 

estimates, Empire Wind used the 

modeled acoustic range distance to the 

Level B harassment threshold to 

calculate the ensonified area around the 

source of the cofferdam or goal post 

installation activity (see the Temporary 

Cofferdam and/or Goal Post Installation 

and Removal (Vibratory Pile Driving) 

Take Estimates section below). Empire 

Wind averaged the maximum monthly 

densities by season as reported by 

Roberts et al. (2023): Spring (March 

through May), summer (June through 

August), fall (September through 

November), and winter (December 

through February). To be conservative, 

the maximum average seasonal density 

for each species was then carried 

forward in the take calculations. 

To estimate densities for the HRG 

surveys occurring both within the Lease 

Area and within the export cable routes, 

Empire Wind mapped density data from 

Roberts et al. (2023) within the 

boundary of the Project Area using 

geographic information systems. Empire 

Wind averaged maximum monthly 

densities (as reported by Roberts et al., 

2023) by season over the survey 

duration (for winter (December through 

February), spring (March through May), 

summer (June through August), and fall 

(September through November)) within 

the HRG survey area. The maximum 

average seasonal density, for each 

species, was then carried forward in the 

take calculations (table 6). 

NMFS notes several exceptions to the 

determination of the relevant densities 

for some marine mammal species to the 

method described above. These are 

described here in greater detail. For 

several marine mammal species, Roberts 

et al. (2023) does not differentiate by 

stock. This is true for the bottlenose 

dolphins, for which take has been 

authorized for two stocks (coastal 

migratory and offshore stock) for Empire 

Wind. This is also true for long-finned 

and short-finned pilot whales (pilot 

whale spp.) and harbor and gray seals 

(seals), where a pooled density is the 

only value available from the data that 

is not partitioned by stock. 

To account for this, the coastal 

migratory and offshore stocks of 

bottlenose dolphins were adjusted based 

on the 20-m isobath cutoff, such that 

take predicted to occur in any area less 

than 20 m in depth was apportioned to 

the coastal stock only and take 

predicted to occur in waters of greater 

than 20 m of depth was apportioned to 

the offshore stock. Given the noise from 

cofferdam installation would not extend 

beyond the 20-m isobath, where the 

coastal stock of bottlenose dolphins 

predominates, it is expected that only 

the coastal stock is likely to be taken by 

this activity. As the density models do 

not account for group size and the 

resulting calculated exposures were 

very small, the predicted take for 

cofferdam installation and removal 


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activities was increased to account for 

the exposure of one average-sized group 

per day each of bottlenose and common 

dolphins. 

In order to calculate exposures for 

gray seals, harbor seals, short-finned 

pilot whales, and long-finned pilot 

whales, the guild densities were scaled 

by relative local abundances of each 

species in each guild, using the best 

available estimates of local abundance, 

to get species-specific density estimates 

for the Project Area for impact pile 

driving activities. In estimating local 

abundances, all distribution data for 

gray seals, harbor seals, and both 

species of pilot whales were 

downloaded from the OBIS data 

repository (https://www.obis.org). After 

reviewing the available datasets, Empire 

Wind determined that data available in 

OBIS from the Mystic Aquarium of 

marine mammal strandings along the 

north shore of the Long Island Sound 

represent the best available data of 

relative abundances of gray seals, harbor 

seals, and both pilot whale species in 

the Project Area due to their proximity 

to the Project Area and a lack of 

sightings data for these species in 

offshore waters near the Lease Area. For 

the seals, Empire Wind used the Smith 

(2014) dataset to scale seal densities. 

The Mystic Aquarium reported 107 

observations of gray seals and 209 

observations of harbor seals. Empire 

Wind used the proportions of 0.34 

(which is equal to 107 gray seal 

observations divided by 316 total gray 

and harbor seal observations) and 0.66 

(which is equal to 209 harbor seal 

observations divided by 316 total gray 

and harbor seal observations) to scale 

seal guild densities. The limited number 

of observations of gray and harbor seals 

near the Project Area (i.e., two gray seal 

sightings, three harbor seal sightings) in 

the larger OBIS database supports this 

method (OBIS, 2023), and NMFS agrees 

with this approach. For pilot whales, 

the animal movement modeling showed 

no exposures above any threshold, so 

scaling was not necessary. 

For some species and activities, 

observational data from PSOs aboard 

HRG and geotechnical survey vessels 

indicate that the density-based exposure 

estimates may be insufficient to account 

for the number of individuals of a 

species that may be encountered during 

the planned activities. A review of 

Empire Wind’s PSO sightings data 

ranging from 2018 to 2023 for the 

Project Area indicated that exposure 

estimates based on the exposure 

modeling methodology for some species 

were likely underestimates for 

humpback whales, fin whales, and pilot 

whales. These findings are described in 

greater detail below. 

For other less-common species, the 

predicted densities from Roberts et al. 

(2023) are very low, and the resulting 

density-based exposure estimate is less 

than a single animal or a typical group 

size for the species. In such cases, the 

mean group size or PSO data was 

considered. Mean group sizes for each 

species were calculated from recent 

aerial and/or vessel-based surveys, as 

shown in table 5. Group size data were 

also used to estimate take from marina 

activities given there is no density data 

available for the area given its inshore 

location. Additional detail regarding the 

density and occurrence as well as the 

assumptions and methodology used to 

estimate take for specific activities is 

included in the activity-specific 

subsections below. 

Tables 5 and 6, below demonstrate all 

of the densities used in the exposure 

and take analyses. Table 7 shows the 

average marine mammal group sizes 

used to adjust take estimate 

calculations. 

BILLING CODE 3510–22–P 


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Table 5 -- Mean Monthly Marine Mammal Density Estimates within a 10-km Buffer 

Around OCS-A 0512 Lease Area 

Species Monthly densities (animals/100 km2) 1 

Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 

Fin whale 0.172 0.139 0.113 0.137 0.174 0.171 0.157 0.1 0.055 0.04 0.038 0.13 

Humpback 0.091 0.061 0.076 0.119 0.133 0.113 0.03 0.022 0.054 0.101 0.13 0.113 

whale 

Minke 0.071 0.06 0.072 0.936 1.485 0.803 0.198 0.107 0.066 0.111 0.026 0.059 

whale 

Annual 

Mean 

0.119 

0.087 

0.333 
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BILLING CODE 3510–22–C 


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North 0.1 0.116 0.115 0.088 0.025 0.006 0.003 0.003 0.004 0.008 0.016 0.05 0.045 

Atlantic 

right 

whale 

Sei whale 0.029 0.016 0.033 0.071 0.055 0.011 0.002 0.002 0.005 0.013 0.037 0.049 0.027 

Sperm 0.007 0.002 0.002 0.004 0.005 0.011 0.011 0.015 0.003 0 0.008 0.005 0.006 

whale 

Atlantic 0.642 0.399 0.356 0.846 1.373 1.237 0.117 0.049 0.279 0.892 0.863 0.99 0.67 

whitesided 

dolphin 

Atlantic 0.001 0 0.001 0.003 0.01 0.019 0.033 0.072 0.177 0.26 0.133 0.013 0.06 

spotted 

dolphin 

Common 5.664 1.852 1.246 2.457 3.474 2.835 1.566 1.917 1.623 3.495 7.244 9.177 3.546 

dolphin 

Bottlenose 0.851 0.247 0.205 0.629 2.005 3.232 3.534 2.953 2.552 2.898 2.772 2.52 2.033 

dolphin 

Risso's 0.042 0.005 0.003 0.021 0.034 0.014 0.014 0.007 0.008 0.01 0.056 0.186 0.033 

dolphin 

Long- 0.028 0.028 0.028 0.028 0.028 0.028 0.028 0.028 0.028 0.028 0.028 0.028 0.028 

finned 

pilot 

whale 

Short- 0.021 0.021 0.021 0.021 0.021 0.021 0.021 0.021 0.021 0.021 0.021 0.021 0.021 

finned 

pilot 

whale 

Harbor 5.469 5.73 5.916 7.066 2.421 0.347 0.435 0.215 0.13 0.144 0.342 3.757 2.664 

porpoise 

Gray seals 4.762 4.505 3.689 4.337 5.968 1.093 0.071 0.049 0.104 0.684 1.625 4.407 2.608 
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TABLE 6—THE HIGHEST AVERAGE SEASONAL MARINE MAMMAL DENSITIES (ANIMALS PER 100 km2) USED FOR ANALYSIS

OF EMPIRE WIND’S HRG SURVEY EFFORT FOR THE PROJECT AREA FROM JANUARY THROUGH DECEMBER

Marine mammal species Project area highest average seasonal density 

(No./100 km2) 

Fin whale a ................................................................................................ 0.097 

Humpback whale ...................................................................................... 0.099 

Minke whale .............................................................................................. 0.526 

North Atlantic right whale a ....................................................................... 0.073 

Sei whale a ................................................................................................ 0.030 

Sperm whale a .......................................................................................... 0.006 

Atlantic spotted dolphin ............................................................................ 0.058 

Atlantic white-sided dolphin ...................................................................... 0.469 

Bottlenose dolphin b .................................................................................. 6.299 

Common dolphin ...................................................................................... 2.837 

Pilot whale spp ......................................................................................... 0.019 (Annual) 

Risso’s dolphin ......................................................................................... 0.035 

Harbor porpoise ........................................................................................ 3.177 

Gray seal .................................................................................................. 13.673 

Harbor seal ............................................................................................... 13.673 

Harp seal .................................................................................................. n/a. 

aSpecies is listed as endangered under the ESA. 

bBottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ‘‘bottlenose dolphin’’ and not identified to stock. 

HRG survey activities were not differentiated by region relative to the 20-m isobath and therefore bottlenose dolphin takes were not identified to 

stock. 

TABLE 7—AVERAGE MARINE MAMMAL SPECIES GROUP SIZES USED IN TAKE ESTIMATE CALCULATIONS

Marine mammal species Average 

group size Information source 

Fin whale .......................................................................................................................... 1.25 Palka et al., 2021. 

North Atlantic right whale ................................................................................................. 1–2 1 Roberts et al., 2023. 

Atlantic spotted dolphin .................................................................................................... 45 Kenney & Vigness-Raposa, 2010. 

Atlantic white-sided dolphin .............................................................................................. 52 Jefferson et al., 2015. 

Bottlenose dolphin ............................................................................................................ 15 Jefferson et al., 2015. 

Common dolphin ............................................................................................................... 30 Reeves et al., 2002. 

Risso’s dolphin .................................................................................................................. 100 Jefferson et al., 2015. 

Sperm whale ..................................................................................................................... 3 Barkaszi et al., 2012. 

1For North Atlantic right whales, an average group size of one was used for months with mean monthly densities less than 0.01 (June–October). An average group size of two was used for months with mean monthly densities greater than 0.01 to reflect the potential for a mother calf 

pair (May, November, and December). Densities are based upon Roberts et al. (2023). Exposure estimates for impact pile driving were rounded 

accordingly for these months. 

Modeling and Take Estimation 

Below, we describe the three methods 

that were used to estimate take in 

consideration of the acoustic thresholds 

and marine mammal densities described 

above and the three different activities: 

WTG and OSS foundation installation, 

temporary cofferdam and goal post 

installation/removal, and HRG surveys. 

The take estimates for the three different 

activities, as well as the combined total, 

are presented. 

WTG and OSS Foundation Installation 

As described above, Empire Wind 

plans to install up to 147 WTGs and 2 

OSSs in the Lease Area. Empire Wind 

modeled three WTG monopile scenarios 

that could occur during construction, 

and each was considered in the acoustic 

modeling conducted to estimate the 

potential number of marine mammal 

exposures above relevant harassment 

thresholds: 

(1) 9.6-m monopiles in which typical 

monopile WTG foundation locations are 

those where the standard hammer 

energy would be sufficient to complete 

installation of the foundation to the 

target penetration depth; 

(2) 9.6-m monopiles in which 

difficult-to-drive WTG foundation 

locations would require higher hammer 

energies and/or additional hammer 

strikes to complete foundation 

installation to the target penetration 

depth; and 

(3) 11-m monopiles in which typical 

monopile WTG foundation locations are 

those where the standard hammer 

energy would be sufficient to complete 

installation of the foundation to the 

target penetration depth. 

Empire Wind assumed various 

hammer schedules based upon the 

different WTG monopile scenarios. The 

various hammer schedules included the 

hammer energies and number of strikes 

predicted at various penetration depths 

during the pile driving process and 

different soil conditions. Difficult-todrive scenarios would only utilize 

9.6-m piles as the larger 11-m piles 

could not be driven to target penetration 

depth in the soil conditions associated 

with difficult-to-drive turbine positions. 

Empire Wind estimates that a maximum 

of 17 total foundations may be difficultto-drive (including as many as 7 

difficult-to-drive foundations for Empire 

Wind 1 and as many as 10 difficult-todrive foundations for Empire Wind 2). 

The actual number of difficult-to-drive 

piles will be informed by additional 

analysis of geotechnical data and other 

studies that will occur prior to 

construction but would not be greater 

than 17 foundations. 

The amount of sound generated 

during pile driving varies with the 

energy required to drive piles to a 

desired depth and depends on the 

sediment resistance encountered. 

Sediment types with greater resistance 

require hammers that deliver higher 

energy strikes and/or an increased 


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number of strikes relative to 

installations in softer sediment. 

Maximum sound levels usually occur 

during the last stage of impact pile 

driving where the greatest resistance is 

encountered (Betke, 2008). Empire 

Wind developed hammer energy 

schedules for typical and difficult-todrive 9.6-m piles and for three different 

seabed penetration depths for the 11-m 

diameter piles to represent the various 

soil conditions that may be encountered 

in the Lease Area (i.e., normal soil 

conditions (identified as ‘‘T1’’), harder 

soil conditions (identified as ‘‘R3’’), and 

outlier softer soil conditions (identified 

as ‘‘U3’’). One OSS foundation scenario 

was modeled; however, this scenario 

was modeled at two locations 

(representing locations in Empire Wind 

1 and Empire Wind 2) resulting in two 

hammer schedules. Empire Wind 

anticipates the different locations will 

require different hammer schedules 

depending on site-specific soil 

conditions. 

Key modeling assumptions for the 

WTG monopiles and OSS foundation 

pin piles are listed in table 8 (additional 

modeling details and input parameters 

can be found in Ku ̈ sel et al., 2022). 

Hammer energy schedules for WTG 

monopiles (9.6 m and 11 m) and OSS 

foundation pin piles are provided in 

tables 9, 10, and 11 respectively. 

TABLE 8—KEY PILING ASSUMPTIONS USED IN THE SOURCE MODELING

Foundation type 

Modeled 

maximum 

impact 

hammer 

energy 

(kJ) 

Pile length 

(m) 

Pile wall 

thickness 

(mm) 

Seabed 

penetration 

(m) 

Number of 

piles per day 

9.6-m Monopile .......................................................................... 4 2,300/5,500 78.5 73–101 38 1–2 

11-m Monopile R3 1 ................................................................... 2,000 75.3 8.5 35 1–2 

11-m Monopile T1 2 .................................................................... 2,500 84.1 8.5 40 1–2 

11-m Monopile U3 3 ................................................................... 1,300 97.5 85 55 1–2 

OSS Jacket (2.5-m pin pile) ...................................................... 3,200 57–66 50 47–56 2–3 

1 R3 = harder soil conditions. 

2T1 = normal soil conditions. 

3 U3 = softer soil conditions. 

4Typical 2,300; difficult-to-drive 5,500. 

TABLE 9—HAMMER ENERGY SCHEDULES FOR MONOPILES UNDER THE TWO 9.6-M PILE DRIVING SCENARIOS

[9.6-m Diameter pile; IHC S–5500 hammer] 

‘‘Typical’’ pile driving 

scenario 

(9.6-m diameter pile) 

‘‘Difficult-to-drive’’ pile driving scenario 

(9.6-m diameter pile) 

Energy level 

(kJ) Strike count 

Pile penetration depth 

(m) 

Energy level 

(kJ) Strike count 

Pile penetration depth 

(m) 

Initial sink depth ................................ 0 2 Initial sink depth ............................... 0 2 

450 .................................................... 1,607 12 450 ................................................... 1,607 12 

800 .................................................... 731 5 800 ................................................... 731 5 

1,400 ................................................. 690 4 1,400 ................................................ 690 4 

1,700 ................................................. 1,050 6 1,700 ................................................ 1,050 6 

2,300 ................................................. 1,419 9 2,300 ................................................ 1,087 4 

5,500 ................................................. 0 0 5,500 ................................................ 2,000 5 

Total ........................................... 5,497 38 Total .......................................... 7,615 38 

Strike rate (strikes/min) ..................... 30 Strike rate (strikes/min) .................... 30 

TABLE 10—HAMMER ENERGY SCHEDULE AND NUMBER OF STRIKES PER MONOPILES UNDER THREE PILE DRIVING

SCENARIOS

[11-m Diameter pile; IHC S–5500 hammer] 

Energy level 

(kJ) 

R3-harder soil conditions 

(11-m monopile) 

T1-normal soil conditions 

(11-m monopile) 

U3-softer soil conditions 

(11-m monopile) 

Strike count 

Pile penetration depth 

(m) 

Strike count 

Pile penetration depth 

(m) 

Strike count 

Pile penetration depth 

(m) 

Initial Sink Depth ...................................... ........................ 1 ........................ 3 ........................ 5 

450 ........................................................... ........................ ........................ ........................ ........................ 622 6 

500 ........................................................... 1,168 14 1,339 14 ........................ ........................

750 ........................................................... 433 3 857 6 2,781 20 

1,000 ........................................................ ........................ ........................ 632 4 1,913 12 

1,100 ........................................................ 265 2 ........................ ........................ ........................ ........................

1,300 ........................................................ ........................ ........................ ........................ ........................ 2,019 12 

1,500 ........................................................ ........................ ........................ 1,109 7 ........................ ........................

2,000 ........................................................ 2159 15 326 2 ........................ ........................


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TABLE 10—HAMMER ENERGY SCHEDULE AND NUMBER OF STRIKES PER MONOPILES UNDER THREE PILE DRIVING

SCENARIOS—Continued 

[11-m Diameter pile; IHC S–5500 hammer] 

Energy level 

(kJ) 

R3-harder soil conditions 

(11-m monopile) 

T1-normal soil conditions 

(11-m monopile) 

U3-softer soil conditions 

(11-m monopile) 

Strike count 

Pile penetration depth 

(m) 

Strike count 

Pile penetration depth 

(m) 

Strike count 

Pile penetration depth 

(m) 

2,500 ........................................................ ........................ ........................ 656 4 ........................ ........................

Totals ................................................ 4,025 35 4,919 40 7,335 55 

TABLE 11—HAMMER ENERGY SCHEDULES FOR PIN PILES SUPPORTING THE JACKET FOUNDATIONS LOCATED AT OSS 1 

AND OSS 2, WITH AN IHC S–4000 HAMMER

OSS 1 Location OSS 2 Location 

Energy level 

(kJ) Strike count 

Pile 

penetration 

depth 

(m) 

Energy level 

(kJ) Strike count 

Pile 

penetration 

depth 

(m) 

Initial sink depth ................................ 0 8 Initial sink depth ............................... 0 5 

500 .................................................... 1,799 30 500 ................................................... 1,206 22 

750 .................................................... 1,469 12 750 ................................................... 1,153 9 

2,000 ................................................. 577 4 1,100 ................................................ 790 7 

3,200 ................................................. 495 2 3,200 ................................................ 562 4 

Total ........................................... 4,340 56 3,711 ................................................

Total ..........................................

47 

Strike rate (strikes/min) ..................... 30 Strike rate (strikes/min) .................... 30 

Both monopiles and pin piles were 

assumed to be vertically aligned and 

driven to a maximum penetration depth 

of 38 m (125 ft) for typical and difficultto-drive 9.6-m monopiles, 55 m (180 ft) 

for typical 11-m monopiles, and 56 m 

(184 ft) for pin piles. While pile 

penetration depths may vary slightly, 

these values were chosen as reasonable 

penetration depths during modeling. All 

acoustic modeling was performed 

assuming that concurrent pile driving of 

either monopiles or pin piles would not 

occur. While multiple piles may be 

driven within any single 24-hour 

period, these installation activities 

would not occur simultaneously. Below 

we describe the assumptions inherent to 

the modeling approach and those by 

which Empire Wind would not exceed: 

Modeling assumptions for the Project 

are as follows: 

• Maximum of two, 9.6-m or 11-m 

monopiles installed per day (3.5 hours 

per monopile with a 1-hour preclearance period; 9 hours total with 7 

hours of active pile driving time), 

although only one monopile may be 

installed on some days; 

• No concurrent monopile and/or pin 

pile driving and no overlap in piledriving activities between Empire Wind 

1 and Empire Wind 2 would occur; 

• Monopiles would be 73–101 

millimeters (mm) thick and would be 

composed of steel; 

• Impact Pile Driving for monopiles: 

IHC S–5500 kilojoules (kJ) rated energy; 

• Impact hammers would have a 

maximum energy capacity of 5,500 kJ; 

• Up to three, 2.5-m pin piles 

installed per day (5 hours per pin pile), 

although only two pin piles may be 

installed on some days; 

• Pin piles would be 50 mm thick; 

and 

• Impact Pile driving: IHC S–4000 kJ 

rated energy. 

Sound fields produced during impact 

pile driving were modeled by first 

characterizing the sound signal 

produced during pile driving using the 

industry standard GRL Wave Equation 

Analysis Program (GRLWEAP) (i.e., the 

wave equation analysis of pile driving) 

model and JASCO Pile Driving Source 

Model (PDSM). We provide a summary 

of the modeling effort below but the full 

JASCO modeling report can be found in 

section 6 and appendix A of Empire 

Wind’s ITA application (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-empireoffshore-wind-llc-construction-empirewind-project-ew1?check_logged_in=1). 

To estimate sound propagation, 

JASCO used the Marine Operations 

Noise Model (MONM) and Full Range 

Wave Dependent Acoustic Model 

(FWRAM; Ku ̈ sel et al., 2022, appendix 

E.4) to combine the outputs of the 

source model with spatial and temporal 

environmental factors (e.g., location, 

oceanographic conditions, and seabed 

type) to get time-domain representations 

of the sound signals in the environment 

and estimate sound field levels. The 

lower frequency bands were modeled 

using MONM and FWRAM, which are 

based on the parabolic equation (PE) 

method of acoustic propagation 

modeling. For higher frequencies, 

additional losses resulting from 

absorption were added to the 

propagation loss model. See appendix G 

in Empire Wind’s application for a more 

detailed description of JASCO’s 

propagation models. FWRAM is based 

on the wide-angle PE algorithm (Collins, 

1993). Because the foundation pile is 

represented as a linear array and 

FWRAM employs the array starter 

method to accurately model sound 

propagation from a spatially distributed 

source (MacGillivray and Chapman, 

2012), using FWRAM ensures accurate 

characterization of vertical directivity 

effects in the near-field zone (1 km). Due 

to seasonal changes in the water 

column, sound propagation is likely to 

differ at different times of the year. The 

speed of sound in seawater depends on 

the temperature (degrees Celsius), 


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salinity (parts per thousand), and depth 

(m) and can be described using sound 

speed profiles. Oftentimes, a 

homogeneous or mixed layer of constant 

velocity is present in the first few 

meters. It corresponds to the mixing of 

surface water through surface agitation. 

There can also be other features, such as 

a surface channel, which corresponds to 

sound velocity increasing from the 

surface down. This channel is often due 

to a shallow isothermal layer appearing 

in winter conditions, but can also be 

caused by water that is very cold at the 

surface. In a negative sound gradient, 

the sound speed decreases with depth, 

which results in sound refracting 

downwards which may result in 

increased bottom losses with distance 

from the source. In a positive sound 

gradient, as is predominantly present in 

the winter season, sound speed 

increases with depth and the sound is, 

therefore, refracted upwards, which can 

aid in long distance sound propagation. 

To capture this variability, acoustic 

modeling was conducted using an 

average sound speed profile for a 

‘‘summer’’ period including the months 

of May through November, and a 

‘‘winter’’ period including December 

through April. FWRAM computes 

pressure waveforms via Fourier 

synthesis of the modeled acoustic 

transfer function in closely spaced 

frequency bands. Examples of 

decidecade spectral levels for each 

foundation pile type, hammer energy, 

and modeled location, using average 

summer sound speed profile are 

provided in Ku ̈ sel et al. (2022). 

Sounds produced by installation of 

the 9.6- and 11-m monopiles were 

modeled at nine representative locations 

as shown in figure 2 in Ku ̈ sel et al. 

(2022). Sound fields from pin piles were 

modeled at the two planned jacket 

foundation locations: OSS 1 and 2. 

Modeling locations are shown in figure 

8 in Ku ̈ sel et al. (2022). The modeling 

locations were selected as they 

represent the range of soil conditions 

and water depths in the Lease Area. 

Empire Wind estimated both acoustic 

ranges and exposure ranges. Acoustic 

ranges represent the distance to a 

harassment threshold based on sound 

propagation through the environment 

(i.e., independent of any receiver) while 

exposure range represents the distance 

at which an animal can accumulate 

enough energy to exceed a Level A 

harassment threshold in consideration 

of how it moves through the 

environment (i.e., using movement 

modeling). In both cases, the sound 

level estimates are calculated from 

three-dimensional sound fields and 

then, at each horizontal sampling range, 

the maximum received level that occurs 

within the water column is used as the 

received level at that range. These 

maximum-over-depth (Rmax) values are 

then compared to predetermined 

threshold levels to determine acoustic 

and exposure ranges to Level A 

harassment and Level B harassment 

zone isopleths. However, the ranges to 

a threshold typically differ among radii 

from a source, and also might not be 

continuous along a radii because sound 

levels may drop below threshold at 

some ranges and then exceed threshold 

at farther ranges. To minimize the 

influence of these inconsistencies, 5 

percent of the farthest such footprints 

were excluded from the model data. The 

resulting range, R95%, was chosen to 

identify the area over which marine 

mammals may be exposed above a given 

threshold, because, regardless of the 

shape of the maximum-over-depth 

footprint, the predicted range 

encompasses at least 95 percent of the 

horizontal area that would be exposed 

to sound at or above the specified 

threshold. The difference between Rmax

and R95% depends on the source 

directivity and the heterogeneity of the 

acoustic environment. R95% excludes 

ends of protruding areas or small 

isolated acoustic foci not representative 

of the nominal ensonified zone. For 

purposes of calculating Level A 

harassment take, Empire Wind applied 

R95% exposure ranges, not acoustic 

ranges, to estimate take and determine 

mitigation distances for the reasons 

described below. 

In order to best evaluate the SELcum

harassment thresholds for PTS, it is 

necessary to consider animal movement, 

as the results are based on how sound 

moves through the environment 

between the source and the receiver. 

Applying animal movement and 

behavior within the modeled noise 

fields provides the exposure range, 

which allows for a more realistic 

indication of the distances at which PTS 

acoustic thresholds are reached that 

considers the accumulation of sound 

over different durations (note that in all 

cases the distance to the peak threshold 

is less than the SEL-based threshold). 

As described in section 2.6 of 

JASCO’s acoustic modeling report for 

Empire Wind (Ku ̈ sel et al., 2022), for 

modeled animals that have received 

enough acoustic energy to exceed a 

given Level A harassment threshold, the 

exposure range for each animal is 

defined as the closest point of approach 

(CPA) to the source made by that animal 

while it moved throughout the modeled 

sound field, accumulating received 

acoustic energy. The resulting exposure 

range for each species is the 95th 

percentile of the CPA distances for all 

animals that exceeded threshold levels 

for that species (ER95%). The ER95%

ranges are species-specific rather than 

categorized only by any functional 

hearing group, which allows for the 

incorporation of more species-specific 

biological parameters (e.g., dive 

durations, swim speeds, etc.) for 

assessing the impact ranges into the 

model. Furthermore, because these 

ER95% ranges are species-specific, they 

can be used to develop mitigation 

monitoring or shutdown zones. 

Tables 12 through 19 provide 

exposure ranges for the 9.6-m monopile 

(typical and difficult-to-drive), 11-m 

monopile, and OSS foundation pin 

piles, respectively, assuming 10 dB of 

attenuation for summer and winter. For 

tables 12 through 17, a single monopile 

and two monopiles per day are provided 

(the two per day ranges are shown in the 

parenthesis). For tables 18 and 19, two 

pin piles and three pin piles per day are 

provided. NMFS notes that monopiles 

foundations constructed for Empire 

Wind are applicable to all WTGs and 

may be applicable to OSS structures, 

depending on the finalized buildout. 

Please see appendix A of the Empire 

Wind ITA application, and appendix M 

of the Empire Wind Construction and 

Operations Plan (COP) for further 

details on the acoustic modeling 

methodology. 

Displayed in tables 12 through 20 

below, Empire Wind would also employ 

a noise abatement system during all 

impact pile driving of monopiles and 

pin piles. Noise abatement systems (e.g., 

bubble curtains) are sometimes used to 

decrease the sound levels radiated from 

a source. Additional information on 

sound attenuation devices is discussed 

in the Noise Abatement Systems section 

under the Mitigation section. In 

modeling the sound fields for Empire 

Wind’s planned activities, hypothetical 

broadband attenuation levels of 0 dB, 6 

dB, 10 dB, 15 dB, and 20 dB were 

modeled to gauge the effects on the 

ranges to thresholds given these levels 

of attenuation. The results for 10 dB of 

sound attenuation are shown below and 

the other attenuation levels (0 dB, 6 dB, 

15 dB, and 20 dB) can be found in the 

ITA application. 

As shown in the tables below, 

exposure ranges associated with the 9.6- 

m diameter typical monopile scenario 

were predominantly greater than for the 

11-m diameter monopile scenarios. 

While larger diameter monopiles can be 

associated with greater resulting sound 

fields than smaller diameter piles, in 

this case, the 11-m diameter monopile 

scenarios resulted in smaller modeled 

acoustic ranges than the 9.6-m diameter 


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monopile scenarios likely because the 

11-m monopile would only be installed 

in softer sediments which would require 

less hammer energy and/or number of 

hammer strikes for installation than the 

9.6-m diameter pile in harder 

sediments. Hence, the 9.6-m diameter 

monopile scenario was carried forward 

to the exposure analysis to be 

conservative, for all ‘‘typical’’ 

monopiles. 

TABLE 12—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT PTS (SELcum) AND LEVEL B HARASSMENT THRESHOLDS FROM IMPACT PILE DRIVING OF 9.6-M DIAMETER ‘‘TYPICAL’’ AND ‘‘DIFFICULT-TO-DRIVE’’ MONOPILE FOUNDATIONS (SUMMER), ASSUMING 10-dB ATTENUATION b

Species 

‘‘Typical’’ (in km) ‘‘Difficult-to-drive’’ (in km) 

One pile per day Two piles per day One pile per day Two piles per day 

Level A 

harassment 

(SEL; dB re 

1 μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

LF: 

Fin Whale ................................................... 0.86 3.18 0.94 3.09 1.35 4.74 1.84 4.51 

Minke Whale a ............................................ 0.22 3.13 0.54 3.02 0.89 4.46 0.90 4.45 

Humpback Whale a .................................... 0.24 3.15 0.33 3.01 0.74 4.47 0.69 4.53 

North Atlantic Right Whale a ...................... 0.33 2.89 0.47 2.87 1.09 4.33 1.13 4.30 

Sei Whale a ................................................ 0.43 3.09 0.54 3.07 1.04 4.47 1.21 4.52 

MF: 

Atlantic White-sided Dolphin ...................... 0 2.98 0 2.94 0 4.24 0 4.30 

Atlantic Spotted dolphin ............................. 0 0 0 0 0 0 0 0 

Common Dolphin ....................................... 0 3.07 0 2.92 0 4.48 0 4.42 

Bottlenose Dolphin ..................................... 0 2.46 0 2.41 0 3.77 0 3.83 

Risso’s Dolphin .......................................... 0 3.07 0 2.93 0 4.73 0 4.41 

Long-Finned Pilot Whale ........................... 0 0 0 0 0 0 0 0 

Short-Finned Pilot Whale ........................... 0 0 0 0 0 0 0 0 

Sperm Whale ............................................. 0 3.25 0 2.96 0 4.59 0 4.47 

HF: 

Harbor Porpoise ......................................... 0 3.07 0 3.05 0 4.52 0 4.37 

PW: 

Gray Seal ................................................... 0 3.33 <0.01 3.26 <0.01 4.91 <0.01 4.87 

Harbor Seal ................................................ 0 3.02 0 2.97 0 4.68 0 4.38 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThe values here were found in tables I–19, I–20, I–23, and I–24 in Ku ̈sel et al., 2022 (appendix I). 

TABLE 13—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT PTS (SELcum) AND LEVEL B HARASSMENT THRESHOLDS FROM IMPACT PILE DRIVING OF 9.6-m DIAMETER ‘‘TYPICAL’’ AND ‘‘DIFFICULT-TO-DRIVE’’ MONOPILE FOUNDATIONS (WINTER), ASSUMING 10-dB ATTENUATION c

Species 

‘‘Typical’’ 

(in km) 

‘‘Difficult-to-drive’’ 

(in km) 

One pile per day Two piles per day One pile per day Two piles per day 

Level A 

harassment 

(SEL; dB re 

1 μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

v 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

LF: 

Fin Whale ................................................... 0.88 3.40 1.01 3.46 1.80 5.24 1.95 4.87 

Minke Whale a ............................................ 0.26 3.31 0.48 3.29 0.89 4.88 1.05 4.66 

Humpback Whale a .................................... 0.24 3.38 0.36 3.31 0.74 5.10 0.83 5.07 

North Atlantic Right Whale a ...................... 0.43 3.04 0.47 3.11 1.13 4.73 1.19 4.62 

Sei Whale a ................................................ 0.43 3.28 0.58 3.43 1.24 4.95 1.29 4.85 

MF: 

Atlantic White-sided Dolphin ...................... 0 3.30 0 3.19 0 4.73 0 4.72 

Atlantic Spotted dolphin ............................. 0 0 0 0 0 0 0 0 

Common Dolphin ....................................... 0 3.28 0 3.08 0 4.89 0 4.73 

Bottlenose Dolphin ..................................... 0 2.73 0 2.77 0 4.23 0 4.12 

Risso’s Dolphin .......................................... 0 3.39 0 3.32 0 5.14 0 4.92 

Long-Finned Pilot Whale ........................... 0 0 0 0 0 0 0 0 

Short-Finned Pilot Whale ........................... 0 0 0 0 0 0 0 0 

Sperm Whale ............................................. 0 3.40 0 3.19 0 4.96 0 4.92 

HF: 

Harbor Porpoise ......................................... 0 3.15 0 3.22 0 5.04 0 4.75 

PW: 

Gray Seal ................................................... 0 3.54 <0.01 3.50 <0.01 b 5.35 <0.01 5.19 

Harbor Seal ................................................ 0 3.28 0 3.29 0 4.93 0 4.71 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThese values represent the maximum Level B. 

cThe values here were found in tables I–21, I–22, I–25, and I–26 in Ku ̈sel et al., 2022 (appendix I). 


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TABLE 14—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT (PTS (SELcum)) AND LEVEL B HARASSMENT

THRESHOLDS FROM IMPACT PILE DRIVING 11-M DIAMETER MONOPILE FOUNDATIONS (SUMMER) IN NORMAL (T1) SOIL

CONDITIONS, ASSUMING 10-dB ATTENUATION b

Species 

Normal (T1) Soil Conditions 

(in km) 

One pile per day Two piles per day 

Level A 

harassment 

(dB re 1 μPa2·s) 

Level B 

harassment 

(dB re 1 μPa) 

Level A 

harassment 

(dB re 1 μPa2·s) 

Level B 

harassment 

(dB re 1 μPa) 

LF: 

Fin Whale ............................................................................. 0.87 3.32 0.83 3.16 

Humpback Whale a ............................................................... 0.25 3.01 0.16 3.1 

Minke Whale a ....................................................................... 0.17 3.1 0.35 2.98 

North Atlantic Right Whale a ................................................. 0.20 3.09 0.44 2.93 

Sei Whale a ........................................................................... 0.44 3.19 0.27 3.26 

MF: 

Atlantic White-sided Dolphin ................................................ 0 2.97 0 2.98 

Atlantic Spotted dolphin ........................................................ 0 0 0 0 

Common Dolphin .................................................................. 0 3.08 0 2.94 

Bottlenose Dolphin ............................................................... 0 2.6 0 2.62 

Risso’s Dolphin ..................................................................... 0 3.21 0 3.11 

Long-finned Pilot Whale ....................................................... 0 0 0 0 

Short-Finned Pilot Whale ..................................................... 0 0 0 0 

Sperm Whale ........................................................................ 0 3.4 0 3.19 

HF: 

Harbor Porpoise ................................................................... 0 3.06 0 3.04 

PW: 

Gray Seal .............................................................................. 0 3.39 0 3.4 

Harbor Seal .......................................................................... 0 3.25 0 3.09 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThe values here were found in tables I–31 and I–32 in Ku ̈sel et al., 2022 (appendix I). 

TABLE 15—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT (PTS (SELcum)) AND LEVEL B HARASSMENT

THRESHOLDS FROM IMPACT PILE DRIVING OF 11-m DIAMETER MONOPILE FOUNDATIONS (WINTER) IN NORMAL (T1) 

SOIL CONDITIONS, ASSUMING 10-dB ATTENUATION b

Species 

Normal (T1) soil conditions 

(in km) 

One pile per day Two piles per day 

Level A 

harassment 

(dB re 1 μPa2·s) 

Level B 

harassment 

behavior 

(dB re 1 μPa) 

Level A 

harassment 

(dB re 1 μPa2·s) 

Level B 

harassment 

(dB re 1 μPa) 

LF: 

Fin Whale ............................................................................. 0.87 3.56 0.82 3.53 

Humpback Whale a ............................................................... 0.25 3.24 0.16 3.4 

Minke Whale a ....................................................................... 0.27 3.29 0.35 3.31 

North Atlantic Right Whale a ................................................. 0.2 3.17 0.44 3.28 

Sei Whale a ........................................................................... 0.44 3.33 0.41 3.53 

MF: 

Atlantic White-sided Dolphin ................................................ 0 3.28 0 3.31 

Atlantic Spotted dolphin ........................................................ 0 0 0 0 

Common Dolphin .................................................................. 0 3.26 0 3.16 

Bottlenose Dolphin ............................................................... 0 2.73 0 2.93 

Risso’s Dolphin ..................................................................... 0 3.48 0 3.44 

Long-finned Pilot Whale ....................................................... 0 0 0 0 

Short-Finned Pilot Whale ..................................................... 0 0 0 0 

Sperm Whale ........................................................................ 0 3.48 0 3.35 

HF: 

Harbor Porpoise ................................................................... 0 3.41 0 3.35 

PW: 

Gray Seal .............................................................................. 0 3.66 0 3.66 

Harbor Seal .......................................................................... 0 3.36 0 3.36 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThe values here were found in tables I–33 and I–34 in Ku ̈sel et al., 2022 (appendix I). 


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TABLE 16—EXPOSURE RANGES (ER95%) TO PTS (SELcum) AND LEVEL B HARASSMENT THRESHOLDS FROM IMPACT PILE

DRIVING OF 11-m WTG MONOPILE FOUNDATIONS (SUMMER) IN SOFT (R3) AND SOFTER (U3) SOIL CONDITIONS, ASSUMING 10-dB ATTENUATION b

Species 

Soft (R3) soil conditions 

(in km) 

Softer (U3) soil conditions 

(in km) 

One pile per day Two piles per day One pile per day Two piles per day 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level 

Bvharassment 

(dB re 1 μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

LF: 

Fin Whale ................................................ 0.87 3.02 0.43 2.89 0.9 2.65 0.58 2.48 

Humpback Whale a ................................. 0.14 2.68 0.15 2.79 <0.01 2.26 0.11 2.31 

Minke Whale a ......................................... 0.16 2.78 0.26 2.82 0.02 2.32 0.16 2.27 

North Atlantic Right Whale a ................... 0.2 2.72 0.37 2.67 0.37 2.21 0.28 2.2 

Sei Whale a ............................................. 0.31 2.96 0.27 2.91 0.13 2.33 0.23 2.47 

MF: 

Atlantic White-sided Dolphin ................... 0 2.75 0 2.73 0 2.24 0 2.23 

Atlantic Spotted dolphin .......................... 0 0 0 0 0 0 0 0 

Common Dolphin .................................... 0 2.86 0 2.76 0 2.38 0 2.41 

Bottlenose Dolphin .................................. 0 2.29 0 2.32 0 1.92 0 1.95 

Risso’s Dolphin ....................................... 0 2.86 0 2.79 0 2.41 0 2.4 

Long-finned Pilot Whale .......................... 0 0 0 0 0 0 0 0 

Short-Finned Pilot Whale ........................ 0 0 0 0 0 0 0 0 

Sperm Whale .......................................... 0 2.77 0 2.86 0 2.36 0 2.26 

HF: 

Harbor Porpoise ...................................... 0 2.76 0 2.73 0 2.19 0 2.28 

PW: 

Gray Seal ................................................ 0 2.87 0 3.01 0 2.60 <0.01 2.58 

Harbor Seal ............................................. 0 2.91 0 2.75 0 2.50 0 2.36 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThe values for U3 were found in tables I–27 and I–28 in Ku ̈sel et al., 2022 (appendix I). The values for R3 were found in tables I–35 and I–36 in Ku ̈sel et al., 2022 

(appendix I). 

TABLE 17—EXPOSURE RANGES (ER95%) TO PTS (SELcum) AND LEVEL B HARASSMENT THRESHOLDS FROM IMPACT PILE

DRIVING OF 11-m WTG MONOPILE FOUNDATIONS (WINTER) IN SOFT (R3) AND SOFTER (U3) SOIL CONDITIONS, ASSUMING 10-dB ATTENUATION b

Species 

Soft (R3) soil conditions 

(in km) 

Softer (U3) soil conditions 

(in km) 

One pile per day Two piles per day One pile per day Two piles per day 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

LF: 

Fin Whale ................................................... 0.87 3.17 0.48 3.14 0.89 2.71 0.82 2.54 

Humpback Whale a .................................... 0.14 3.04 0.19 2.96 <0.01 2.46 0.11 2.54 

Minke Whale a ............................................ 0.19 3.12 0.28 3.02 0.2 2.5 0.23 2.59 

North Atlantic Right Whale a ...................... 0.2 2.93 0.37 2.89 0.49 2.37 0.32 2.38 

Sei Whale a ................................................ 0.46 3.09 0.27 3.11 0.13 2.6 0.28 2.56 

MF: 

Atlantic White-sided Dolphin ...................... 0 2.9 0 2.98 0 2.43 0 2.4 

Atlantic Spotted dolphin ............................. 0 0 0 0 0 0 0 0 

Common Dolphin ....................................... 0 3.08 0 3.08 0 2.5 0 2.53 

Bottlenose Dolphin ..................................... 0 2.63 0 2.41 0 2.07 0 2.11 

Risso’s Dolphin .......................................... 0 3.04 0 3.08 0 2.63 0 2.53 

Long-finned Pilot Whale ............................. 0 0 0 0 0 0 0 0 

Short-Finned Pilot Whale ........................... 0 0 0 0 0 0 0 0 

Sperm Whale ............................................. 0 3.1 0 3.04 0 2.6 0 2.38 

HF: 

Harbor Porpoise ......................................... 0 3.07 0 3.09 0 2.53 0 2.51 

PW: 

Gray Seal ................................................... 0 3.25 0 3.25 0 2.7 <0.01 2.67 

Harbor Seal ................................................ 0 3.09 0 3.03 0 2.58 0 2.54 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThe values for U3 were found in tables I–29 and I–30 in Ku ̈sel et al., 2022 (appendix I). The values for R3 were found in tables I–37 and I–38 in Ku ̈sel et al., 2022 

(appendix I). 


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TABLE 18—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT (PTS (SELcum)) AND LEVEL B HARASSMENT

THRESHOLDS FROM IMPACT PILE DRIVING OF 2.5-m DIAMETER OSS FOUNDATIONS (SUMMER), ASSUMING 10-dB ATTENUATION b

Species 

OSS 1 Foundation (km) OSS 2 Foundation (km) 

Two pin piles per day Three pin piles per day Two pin piles per day Three pin piles per day 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

LF: 

Fin Whale ................................................... 0 1.04 0 1.1 0 1.1 0 0.99 

Humpback Whale a .................................... 0 1.02 0 1.02 0 0.94 0 0.93 

Minke Whale a ............................................ 0 1 0 0.99 0 1.01 0 1.01 

North Atlantic Right Whale a ...................... 0 0.85 0 0.89 0 1.06 0 1.01 

Sei Whale a ................................................ <0.01 1.08 <0.01 1.04 0 0.94 0 0.91 

MF: 

Atlantic White-sided Dolphin ...................... 0 0.98 0 0.98 0 0.82 0 0.84 

Atlantic Spotted dolphin ............................. 0 0 0 0 0 0 0 0 

Common Dolphin ....................................... 0 1.03 0 1.03 0 0.96 0 0.96 

Bottlenose Dolphin ..................................... 0 0.82 0 0.81 0 0.72 0 0.74 

Risso’s Dolphin .......................................... 0 1.08 0 1.05 0 0.87 0 0.86 

Long-finned Pilot Whale ............................. 0 0 0 0 0 0 0 0 

Short-Finned Pilot Whale ........................... 0 0 0 0 0 0 0 0 

Sperm Whale ............................................. 0 0.88 0 0.95 0 1.03 0 1.02 

HF: 

Harbor Porpoise ......................................... 0 0.95 0 1.02 0 0.94 0 0.92 

PW: 

Gray Seal ................................................... 0 1.15 0 1.14 0 0.78 0 0.77 

Harbor Seal ................................................ 0 1.12 0 0.99 0 1.05 0 1.04 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThe values here were found in tables I–39, I–40, I–43, and I–44 in Ku ̈sel et al., 2022 (appendix I). 

TABLE 19—EXPOSURE RANGES (ER95%) TO LEVEL A HARASSMENT (PTS (SELcum)) AND LEVEL B HARASSMENT

THRESHOLDS FROM IMPACT PILE DRIVING OF 2.5-m DIAMETER OSS FOUNDATIONS (WINTER), ASSUMING 10-dB ATTENUATION b

Species 

OSS 1 Jacket Foundation (km) OSS 2 Jacket Foundation (km) 

Two pin piles per day Three pin piles per day Two pin piles per day Three pin piles per day 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

Level A 

harassment 

(dB re 1 

μPa2·s) 

Level B 

harassment 

(dB re 1 

μPa) 

LF: 

Fin Whale ................................................... 0 1.08 0.18 1.04 0 1.1 0 0.99 

Humpback Whale a .................................... 0 1.02 0 1.02 0 0.94 0 0.92 

Minke Whale a ............................................ 0 1.01 0 1.01 0 1.06 0 1.03 

North Atlantic Right Whale a ...................... 0 0.79 0 0.88 0 1.06 0 1.04 

Sei Whale a ................................................ 0 1.08 <0.01 1.05 0 0.94 0 0.90 

MF: 

Atlantic White-sided Dolphin ...................... 0 0.93 0 0.96 0 0.86 0 0.86 

Atlantic Spotted dolphin ............................. 0 0 0 0 0 0 0 0 

Common Dolphin ....................................... 0 0.96 0 0.86 0 0.96 0 0.96 

Bottlenose Dolphin ..................................... 0 0.85 0 0.84 0 0.80 0 0.74 

Risso’s Dolphin .......................................... 0 0.92 0 0.89 0 0.87 0 0.86 

Long-finned Pilot Whale ............................. 0 0 0 0 0 0 0 0 

Short-Finned Pilot Whale ........................... 0 0 0 0 0 0 0 0 

Sperm Whale ............................................. 0 0.91 0 0.89 0 1.03 0 1.02 

HF: 

Harbor Porpoise ......................................... 0 0.95 0 0.95 0 0.94 0 0.92 

PW: 

Gray Seal ................................................... 0 1.08 0 1.1 0 0.78 0 0.77 

Harbor Seal ................................................ 0 1.08 0 0.95 0 1.04 0 1.04 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. aSpecies was considered as ‘‘migrating’’ in the analysis. 

bThe values here were found in tables I–41, I–42, I–45, and I–46 in Ku ̈sel et al., 2022 (appendix I). 

JASCO’s Animal Simulation Model 

Including Noise Exposure (JASMINE) 

animal movement model was used to 

predict the number of marine mammals 

exposed to impact pile driving sound 

above NMFS’ injury and behavioral 

harassment thresholds. Sound exposure 

models like JASMINE use simulated 

animals (also known as ‘‘animats’’) to 

forecast behaviors of animals in new 

situations and locations based on 

previously documented behaviors of 

those animals. The predicted 3D sound 

fields (i.e., the output of the acoustic 

modeling process described earlier) are 

sampled by animats using movement 

rules derived from animal observations. 

The output of the simulation is the 

exposure history for each animat within 

the simulation. 


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The precise location of animats and 

their pathways are not known prior to 

a project; therefore, a repeated random 

sampling technique (i.e., Monte Carlo) is 

used to estimate exposure probability 

with many animats and randomized 

starting positions. The probability of an 

animat starting out in or transitioning 

into a given behavioral state can be 

defined in terms of the animat’s current 

behavioral state, depth, and the time of 

day. In addition, each travel parameter 

and behavioral state has a termination 

function that governs how long the 

parameter value or overall behavioral 

state persists in the simulation. 

The output of the simulation is the 

exposure history for each animat within 

the simulation, and the combined 

history of all animats gives a probability 

density function of exposure during the 

Project. Scaling the probability density 

function by the real-world density of 

animals results in the mean number of 

animats expected to be exposed to a 

given threshold over the duration of the 

Project. Due to the probabilistic nature 

of the process, fractions of animats may 

be predicted to exceed threshold. If, for 

example, 0.1 animats are predicted to 

exceed threshold in the model, that is 

interpreted as a 10-percent chance that 

one animat will exceed a relevant 

threshold during the Project, or 

equivalently, if the simulation were rerun 10 times, 1 of the 10 simulations 

would result in an animat exceeding the 

threshold. Similarly, a mean number 

prediction of 33.11 animats can be 

interpreted as re-running the simulation 

where the number of animats exceeding 

the threshold may differ in each 

simulation but the mean number of 

animats over all of the simulations is 

33.11. A portion of an individual marine 

mammal cannot be taken during a 

project, so it is common practice to 

round mean number animat exposure 

values to integers using standard 

rounding methods. However, for lowprobability events it is more precise to 

provide the actual values. 

Sound fields were input into the 

JASMINE model, as described above, 

and animats were programmed based on 

the best available information to 

‘‘behave’’ in ways that reflect the 

behaviors of the 17 marine mammal 

species (18 stocks) expected to occur in 

the Project Area during the proposed 

activity. The various parameters for 

forecasting realistic marine mammal 

behaviors (e.g., diving, foraging, surface 

times, etc.) are determined based on the 

available literature (e.g., tagging 

studies). When literature on these 

behaviors was not available for a 

particular species, it was extrapolated 

from a similar species for which 

behaviors would be expected to be 

similar to the species of interest. The 

parameters used in JASMINE describe 

animat movement in both the vertical 

and horizontal planes (e.g., direction, 

travel rate, ascent and descent rates, 

depth, bottom following, reversals, 

inter-dive surface interval). 

Animats were modeled to move 

throughout the three-dimensional sound 

fields produced by each construction 

schedule for the entire construction 

period. For PTS exposures, both SPLpk

and SELcum were calculated for each 

species based on the corresponding 

acoustic criteria. Once an animat is 

taken within a 24-hour period, the 

model does not allow it to be taken a 

second time in that same period, but 

rather resets the 24-hour period on a 

sliding scale across 7 days of exposure. 

Specifically, an individual animat’s 

accumulated energy levels (SELcum) are 

summed over that 24-hour period to 

determine its total received energy, and 

then compared to the PTS threshold. 

Takes by behavioral harassment are 

predicted when an animat enters an area 

ensonified by sound levels exceeding 

the associated behavioral harassment 

threshold. 

It is important to note that the 

calculated or predicted takes represent a 

take instance or event within 1 day and 

likely overestimate the number of 

individuals taken for some species. 

Specifically, as the 24-hour evaluation 

window means that individuals exposed 

on multiple days are counted as 

multiple takes. For example, 10 takes 

may represent 10 takes of 10 different 

individual marine mammals occurring 

within 1 day each, or it may represent 

take of 1 individual on 10 different 

days; information about the species’ 

daily and seasonal movement patterns 

helps to inform the interpretation of 

these take estimates. Also note that 

animal aversion was not incorporated 

into the JASMINE model runs that were 

the basis for the take estimate for any 

species. 

Empire Wind also calculated acoustic 

ranges which represent the distance to 

a harassment threshold based on sound 

propagation through the environment 

(i.e., independent of any receiver). As 

described above, applying animal 

movement and behavior within the 

modeled noise fields allows for a more 

realistic indication of the distances at 

which PTS acoustic thresholds are 

reached that considers the accumulation 

of sound over different durations. 

Acoustic ranges (R95%) to the Level A 

harassment SELcum metric thresholds are 

considered overly conservative, as the 

accumulation of acoustic energy does 

not account for animal movement and 

behavior and therefore assumes that 

animals are essentially stationary at that 

distance for the entire duration of the 

pile installation, a scenario that does not 

reflect realistic animal behavior. The 

acoustic ranges to the SELcum Level A 

harassment thresholds for WTG and 

OSS foundation installation can be 

found in tables 16–18 in Empire Wind’s 

application but will not be discussed 

further in this analysis. Because NMFS 

Level B harassment threshold is an 

instantaneous exposure, acoustic ranges 

are more relevant to the analysis and are 

used to derive mitigation and 

monitoring measures. Acoustic ranges to 

the Level B harassment threshold for 

each activity are provided in the 

activity-specific subsections below. The 

differences between exposure ranges 

and acoustic ranges for Level B 

harassment are minimal given it is an 

instantaneous method. Of note, in some 

cases (e.g., 9.6 m difficult-to-drive 

piles), distances to PTS peak thresholds 

exceed SELcum thresholds. However, 

those distances are small (less than 1 

km) and only applicable to harbor 

porpoise. Please see tables 34–37 in 

Ku ̈ sel et al. (2022) for more peak 

threshold modeling results. 

TABLE 20—MAXIMUM ACOUSTIC RANGES (R95%) TO LEVEL A HARASSMENT (PTS (PEAK)) AND LEVEL B HARASSMENT

THRESHOLDS (160 dB SPL) FOR 9.6-m WTG MONOPILE (TYPICAL AND DIFFICULT-TO-DRIVE SCENARIOS), 11-m 

WTG MONOPILE, AND 2.5-m OSS PIN PILES (SUMMER AND WINTER), ASSUMING 10-dB ATTENUATION

Foundation type 

Modeled maximum impact 

hammer energy 

(kJ) 

Marine 

mammal 

group 

Level A harassment 

Pk 

(in km) 

Level B harassment 

160 dB SPL 

(in km) 

R95%

(summer) 

R95%

(winter) 

R95%

(summer) 

R95%

(winter) 

WTG—9.6-m monopile ......... 2,300 kJ (5,500 kJ) ............... LF -b (-b) -b (-b) 3.51 g (5.05 j) 3.77 g (5.49 j) 


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TABLE 20—MAXIMUM ACOUSTIC RANGES (R95%) TO LEVEL A HARASSMENT (PTS (PEAK)) AND LEVEL B HARASSMENT

THRESHOLDS (160 dB SPL) FOR 9.6-m WTG MONOPILE (TYPICAL AND DIFFICULT-TO-DRIVE SCENARIOS), 11-m 

WTG MONOPILE, AND 2.5-m OSS PIN PILES (SUMMER AND WINTER), ASSUMING 10-dB ATTENUATION—Continued 

Foundation type 

Modeled maximum impact 

hammer energy 

(kJ) 

Marine 

mammal 

group 

Level A harassment 

Pk 

(in km) 

Level B harassment 

160 dB SPL 

(in km) 

R95%

(summer) 

R95%

(winter) 

R95%

(summer) 

R95%

(winter) 

MF -b (-b) -b (-b) 

HF 0.1 c (0.15 d) 0.11 c (0.17 d) 

PW -b (-b) -b (-b) 

WTG—11-m monopiles ........ 2,500 kJ ................................ LF -b -b h 3.64 h 3.92 

MF -b -b

HF e 0.11 e 0.12 

PW -b -b

OSS—2.5-m pin pile a ........... 3,200 kJ ................................ LF -b -b i 1.19 i 1.17 

MF -b -b

HF f 0.01 f 0.01 

PW -b -b

LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. 

aAssumes a 2-dB post-piling shift. 

bA dash (-) indicates that the threshold was not exceeded. 

cFound in table H–11 in Ku ̈sel et al., 2022 (appendix H). dFound in table H–47 in Ku ̈sel et al., 2022 (appendix H). eFound in table H–31 in Ku ̈sel et al., 2022 (appendix H). fFound in table H–51 in Ku ̈sel et al., 2022 (appendix H). gFound in table H–343 in Ku ̈sel et al., 2022 (appendix H). hFound in table H–439 in Ku ̈sel et al., 2022 (appendix H). iFound in table H–495 in Ku ̈sel et al., 2022 (appendix H). 

jFound in table H–479 in Ku ̈sel et al., 2022 (appendix H). 

To conservatively estimate the 

number of animals likely to be exposed 

above thresholds, Empire Wind 

assumed that a maximum of 24 

monopiles could be installed per month, 

with a maximum of 96 WTG monopiles 

and two OSS foundations installed in 

the first year of pile driving (2025) and 

the remaining 51 WTG monopile 

foundations installed in year 2 of pile 

driving (2026). In year 1 of pile driving, 

Empire Wind assumed that 24 

monopiles would be installed in the 

four highest-density months for each 

species during the May to December 

period, and that the two OSSs would be 

installed in the highest and secondhighest-density months. Empire Wind 

also assumed that all 17 difficult-todrive piles would be installed in the 

first year, but that the distribution 

would be spread relatively evenly 

among the four highest months (i.e., 

four piles per month except the highestdensity month which assumed 5 

difficult-to-drive piles, for a total of 17 

piles). In the second year, 24 monopiles 

would be installed in the two highestdensity months and the remaining 3 

monopiles would be installed in the 

third-highest-density month. This 

approach is reflected in table 21. Thus, 

each species was presumed to be 

exposed to the maximum amount of pile 

driving based on their monthly 

densities. 

TABLE 21—MOST CONSERVATIVE CONSTRUCTION SCHEDULE FOR ESTIMATING LEVEL B HARASSMENT

[One monopile per day/two pin piles per day] 1

Foundation type 

Year 1 Year 2 

Days of impact pile driving Days of impact pile driving 

1st 

highest 

density 

month 

2nd 

highest 

density 

month 

3rd 

highest 

density 

month 

4th 

highest 

density 

month 

1st 

highest 

density 

month 

2nd 

highest 

density 

month 

3rd 

highest 

density 

month 

4th 

highest 

density 

month 

WTG monopile—typical ... 19 20 20 20 24 24 3 0 

WTG monopile—difficult .. 5 4 4 4 0 0 0 0 

OSS 1 pin pile .................. 0 6 0 0 0 0 0 0 

OSS 2 pin pile .................. 6 0 0 0 0 0 0 0 

Total # of piles .......... 30 30 24 24 24 24 3 0 

1 Maximum number of piles to be driven per month for each foundation type in each of the four highest-density months for each species during 

the May to December period. 

In summary, exposures were 

estimated as follows: 

(1) The characteristics of the sound 

output from the proposed pile-driving 

activities were modeled using the 

GRLWEAP (i.e., wave equation analysis 

of pile driving) model and JASCO’s 

PDSM; 

(2) Acoustic propagation modeling 

was performed within the exposure 

model framework using JASCO’s 

MONM and FWRAM that combined the 


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outputs of the source model with the 

spatial and temporal environmental 

context (e.g., location, oceanographic 

conditions, seabed type) to estimate 

sound fields; 

(3) Animal movement modeling 

integrated the estimated sound fields 

with species-typical behavioral 

parameters in the JASMINE model to 

estimate received sound levels for the 

animals that may occur in the 

operational area; and 

(4) The number of potential exposures 

above Level A Harassment and Level B 

harassment thresholds were calculated. 

Empire Wind modeled all possible 

construction scenarios (see Ku ̈ sel et al., 

2022). Construction Schedule 1, 

consisting of one monopile and two pin 

piles per day, was determined to be the 

most conservative due to the highest 

modeled exposure estimates for ESAlisted species (i.e., fin and sei whales), 

and was carried forward to the take 

analysis. The results of marine mammal 

exposure modeling for each year of pile 

driving (2025, 2026) based upon 

Construction Schedule 1 are shown in 

tables 22 and 23 below. These values 

were presented by Empire Wind after 

the habitat-based density models were 

updated; please see the ‘‘Revised 

Density and Take Estimate Memo’’ 

available at: https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-empireoffshore-wind-llc-construction-empirewind-project-ew1?check_logged_in=1. 

Based on the exposure estimates for 

impact-pile-driving activities related to 

WTGs and OSS installation (monopile 

foundations and jacket foundations with 

pin piles), the authorized take is shown 

below in tables 22 and 23. To determine 

the authorized take numbers, the 

calculated exposures were rounded to 

the next whole number if the calculated 

exposure was greater than 0.5 animals. 

Where the calculated take was less than 

0.5 animals, the proposed take was 

reduced to zero. 

A review of Empire Wind’s PSO 

sightings data ranging from 2018 to 2021 

for the Project Area indicated that 

exposure estimates based on the 

exposure modeling methodology above 

were likely an underestimate for 

humpback whales, fin whales, and pilot 

whales (A.I.S. Inc., 2019; Alpine Ocean 

Seismic Survey, 2018; Gardline, 2021a, 

2021b; Geoquip Marine, 2021; Marine 

Ventures International, 2021; RPS, 2021; 

Smultea Environmental Sciences, 2019, 

2020, 2021). For these species, the 

highest daily averages per day were 

multiplied by the maximum potential 

number of days of pile driving 

associated with wind turbine and OSS 

foundation installation. In the event that 

one monopile or one pin pile is 

installed per day, up to 120 days of pile 

driving (i.e., 96 days of monopile 

installation and 24 days of pin pile 

installation) could occur in 2025, and 

up to 51 days of pile driving (i.e., 51 

days of monopile installation) could 

occur in 2026. 

For certain species for which the 

exposure modeling methodology 

described previously above may result 

in potential underestimates of take, and 

for which Empire Wind’s PSO sightings 

data were relatively low, adjustments to 

the authorized take were made based on 

the best available information on marine 

mammal group sizes to ensure 

conservatism. For species considered 

rare with the potential to occur in the 

Project Area, authorized take by Level B 

harassment was adjusted to one group 

size per year. NMFS concurs with this 

assessment and has authorized take by 

Level B harassment of 3 sperm whales 

per year in 2026 and 2026 (Barkaszi et 

al., 2012); 45 Atlantic spotted dolphins 

per year in 2025 and 2026 (Kenney and 

Vigness-Raposa, 2010); and 100 Risso’s 

dolphins per year in 2025 and 2026 (100 

individuals; Jefferson et al., 2015). 

For species considered relatively 

common in the Project Area, authorized 

take by Level B harassment was 

adjusted to one group size per month. 

These include Atlantic white-sided 

dolphins (52 individuals, Jefferson et 

al., 2015) and North Atlantic right 

whales. The group size determination 

for North Atlantic right whales was 

derived based on consultation with 

NOAA Fisheries. A group size of one 

animal was used for months with mean 

monthly densities less than 0.01, while 

a group size of two animals, reflective 

of the potential for a mother and calf, 

was used for months with mean 

monthly densities greater than 0.01 

(based on the Roberts et al. (2023) 

predictive densities). For the months 

when pile-driving activities may occur 

(May through December), those criteria 

result in a group size of one animal for 

the months of June through October, 

and two animals for the months of May, 

November, and December. This group 

size determination is intended to 

account for the potential presence of 

mother-calf pairs. Therefore, Empire 

Wind requested and NMFS has 

authorized 11 takes of North Atlantic 

right whale by Level B harassment per 

year in 2025 and 2026 and 416 takes of 

Atlantic white-sided dolphin by Level B 

harassment per year in 2025 and 2026. 

Common dolphins and bottlenose 

dolphins are considered common in the 

Project Area as well. For these species, 

authorized take by Level B harassment 

was adjusted to one group size per day. 

These include common dolphins (30 

individuals, Reeves et al., 2002), and 

bottlenose dolphins (15 individuals, 

Jefferson et al., 2015). Empire Wind has 

requested, and NMFS has authorized, 

3,600 and 1,530 takes of common 

dolphins by Level B harassment per 

year in 2025 and 2026. Empire Wind 

has also requested, and NMFS has 

authorized, 1,800 and 765 takes of 

bottlenose dolphins by Level B 

harassment per year in 2025 and 2026, 

respectively. 

TABLE 22—CALCULATED EXPOSURES AND AUTHORIZED TAKE FROM LEVEL A HARASSMENT AND LEVEL B HARASSMENT

RESULTING FROM MONOPILE AND OSS JACKET FOUNDATION IMPACT PILE DRIVING INSTALLATION

[Year 2] 

Hearing group Species 

Calculated exposures Calculated 

exposures 

Authorized 

take 

Authorized 

take 

Level A harassment 

Level B 

harassment Level A 

harassment 

Level B 

LE LpK harassment 

Lp 

LF ......................... Fin a .................................................... 1.15 0 8.78 b 4 c 133 

Humpback .......................................... 0.36 <0.01 8.12 0 c 60 

Minke ................................................. 3.72 0 65.05 4 65 

North Atlantic Right Whale a .............. 0.1 0 2.36 0 f 11 

Sei a ................................................... 0.27 <0.01 2.78 0 3 

MF ........................ Atlantic white-sided dolphin ............... 0 0 116.00 0 f 416 

Atlantic spotted dolphin ..................... 0 0 0 0 d 45 


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TABLE 22—CALCULATED EXPOSURES AND AUTHORIZED TAKE FROM LEVEL A HARASSMENT AND LEVEL B HARASSMENT

RESULTING FROM MONOPILE AND OSS JACKET FOUNDATION IMPACT PILE DRIVING INSTALLATION—Continued 

[Year 2] 

Hearing group Species 

Calculated exposures Calculated 

exposures 

Authorized 

take 

Authorized 

take 

Level A harassment 

Level B 

harassment Level A 

harassment 

Level B 

LE LpK harassment 

Lp 

Common dolphin ............................... 0 0 902.19 0 d 3,600 

Bottlenose dolphin ............................. 0 0 226.02 0 d 1,800 

Risso’s dolphin .................................. 0 0 5.96 0 d 100 

Pilot whales ....................................... 0 0 0 0 c 161 

Sperm whale a ................................... 0 0 0.56 0 d 3 

HF ........................ Harbor porpoise ................................. 0 0.09 133.70 0 134 

PW ....................... Gray seal g ......................................... 0.18 0 179.34 0 179 

Harbor seal g ...................................... 0 0 339.96 0 340 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. a Listed as Endangered under the ESA. 

bBased upon the average group size of fin whales in the Project Area (1.25 whales; Palka et al., 2021), NMFS has increased estimated take 

by Level A harassment to four fin whales (two groups) from one whale in 2025 and two fin whales (one group) from one whale in 2026. c Requested take adjusted based on PSO sighting data from 2018 to 2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a, 

2021b; Geoquip Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021); 0.5 humpback whales per day, 1.11 fin whales per day, 1.34 pilot whales per day. d Requested take adjusted based on 1 group size per year as follows: 3 sperm whales (Barkaszi et al., 2012), 45 Atlantic spotted dolphins 

(Kenney and Vigness-Raposa, 2010), and 100 Risso’s dolphins (Jefferson et al., 2015). e Requested take adjusted by 1 group size per day as follows: 30 short-beaked common dolphins (Reeves et al., 2002), 15 bottlenose dolphins 

(Jefferson et al., 2015). f Requested take adjusted by 1 group size per month of 52 Atlantic white-sided dolphins (Jefferson et al., 2015) and 1 (monthly density <0.01) 

or 2 (monthly density >0.01) of North Atlantic right whales (Roberts and Halpin, 2022). gGray seal and harbor seal exposure estimates and take have been updated since the proposed rule based upon updated methodology.

TABLE 23—CALCULATED EXPOSURES AND AUTHORIZED TAKE FROM LEVEL A HARASSMENT AND LEVEL B HARASSMENT

RESULTING FROM MONOPILE AND OSS JACKET FOUNDATION IMPACT PILE DRIVING INSTALLATION

[Year 3] 

Hearing group Species 

Calculated exposures Calculated 

exposures 

Authorized 

take 

Authorized 

take 

Level A harassment 

Level B 

harassment Level A 

harassment 

Level B 

LE LpK harassment 

Lp 

LF ......................... Fin whale a ......................................... 0.52 0 4 c 2 d 57 

Humpback whale ............................... 0.14 0 3.82 0 d 26 

Minke whale ....................................... 2.18 0 47.73 2 48 

North Atlantic Right whale a ............... 0.05 0 1.57 b 0 g 11 

Sei whale a ......................................... 0.16 0 1.66 0 2 

MF ........................ Atlantic white-sided dolphin ............... 0 0 59.23 0 g 416 

Atlantic spotted dolphin ..................... 0 0 0 0 e 45 

Common dolphin ............................... 0 0 560.75 0 f 1,530 

Bottlenose dolphin ............................. 0 0 110.28 0 f 765 

Risso’s dolphin .................................. 0 0 4.09 0 e 100 

Pilot whales ....................................... 0 0 0 0 d68 

Sperm whale a ................................... 0 0 0.29 0 e 3 

HF ........................ Harbor porpoise ................................. 0 0 98.43 0 98 

PW ....................... Gray seal h ......................................... 0 0 123.58 0 124 

Harbor seal h ...................................... 0 0 219.26 0 219 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. a Listed as Endangered under the ESA. 

b JASCO’s modeling estimated 0.01 Level A harassment exposures for North Atlantic right whales in 2025 and 0.05 Level A harassment exposures for North Atlantic right whales in 2026, but due to mitigation measures (see the Mitigation section), no Level A harassment takes are expected or authorized. cBased upon the average group size of fin whales in the Project Area (1.25 whales; Palka et al., 2021), NMFS has increased estimated take 

by Level A harassment to two fin whales (one group) from one whale in 2026. dAuthorized take adjusted based on PSO sighting data from 2018 to 2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a, 

2021b; Geoquip Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021); 0.5 humpback whales per day, 1.11 fin whales per day, 1.34 pilot whales per day. eAuthorized take adjusted based on 1 group size per year as follows: 3 sperm whales (Barkaszi et al., 2012), 45 Atlantic spotted dolphins 

(Kenney and Vigness-Raposa, 2010), and 100 Risso’s dolphins (Jefferson et al., 2015). fAuthorized take adjusted by 1 group size per day as follows: 30 common dolphins (Reeves et al., 2002), 15 bottlenose dolphins (Jefferson et 

al., 2015). 

gAuthorized take adjusted by 1 group size per month of 52 Atlantic white-sided dolphins (Jefferson et al., 2015) and 1 (when monthly density 

<0.01) or 2 (when monthly density >0.01) of North Atlantic right whales (Roberts et al., 2023). 


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hGray seal and harbor seal exposure estimates and take have been updated since the proposed rule based upon updated methodology.

Temporary Cofferdam and/or Goal Post 

Installation and Removal (Vibratory Pile 

Driving) Take Estimates 

As many as two temporary cofferdams 

may be installed for Empire Wind 1 and 

as many as three temporary cofferdams 

may be installed for Empire Wind 2. For 

vibratory pile driving of cofferdams, 

Empire Wind estimated source levels 

and frequency spectra assuming a 1,800- 

kilonewton (kN) vibratory force. 

Modeling was accomplished using 

adjusted one-third-octave band 

vibratory pile driving source levels cited 

for similar vibratory pile-driving 

activities conducted during cofferdam 

installation for the Block Island Wind 

Farm (Tetra Tech, 2012; Schultz-von 

Glahn et al., 2006). The assumed sound 

source level for vibratory pile driving 

corresponded to 195 dB SEL re 1 mPa 

and 195 dB rms at 10 m (Schultz-von 

Glahn et al., 2006). The frequency 

distribution of the vibratory pile driving 

sound source is displayed in figure 5 in 

Ku ̈ sel et al. (2022). A transmission loss 

coefficient of 15logR (cylindrical 

spreading) was assumed for both 

cofferdams and goal posts. The 

anticipated duration is 1 hour of active 

pile driving per day. 

Underwater sound propagation 

modeling for cofferdam installation was 

completed using dBSea, a software for 

the prediction of underwater noise in a 

variety of environments. The 3D model 

is built by importing bathymetry data 

and placing noise sources in the 

environment. Each source can consist of 

equipment chosen from either the 

standard or user-defined databases. 

Noise mitigation methods may also be 

included. The user has control over the 

seabed and water properties including 

sound speed profile (SSP), temperature, 

salinity, and current. 

The dBSeaPE solver uses the PE 

method. For high frequencies, the 

dBSeaRay ray tracing solver is used, 

which forms a solution by tracing rays 

from the source to the receiver. Many 

rays leave the source covering a range of 

angles, and the sound level at each 

point in the receiving field is calculated 

by coherently summing the components 

from each ray. This is currently the only 

computationally efficient method at 

high frequencies. The underwater 

acoustic modeling analysis used a split 

solver, with a specific, parabolic 

equation model (i.e., dBSeaPE) 

evaluating the 12.5 Hz to 800 Hz and 

dBSeaRay addressing 1,000 to 20,000 

Hz. 

Given the short duration of the 

activity and shallow, near coast 

location, animat exposure modeling was 

not conducted for cofferdams and goal 

posts installation and removal to 

determine potential exposures from pile 

driving. Rather, the modeled acoustic 

range distances to isopleths 

corresponding to the relatively small 

Level A harassment and Level B 

harassment threshold values were used 

to calculate the area (i.e., the Ensonified 

Area) around the cofferdams and goal 

posts predicted to be ensonified daily to 

levels that exceed the thresholds. The 

Ensonified Area is calculated as the 

following: 

Ensonified Area = pr2, 

where r is the linear acoustic range 

distance from the source to the isopleth 

to Level A harassment or Level B 

harassment thresholds. Resulting 

distances to NMFS harassment isopleths 

for cofferdam installation and 

ensonified areas for Level B harassment 

isopleths are provided in table 24 (note 

that very shallow water depths (3–4 m) 

at the cofferdam pile driving site is 

responsible for the limited acoustic 

propagation of vibratory driving noise). 

TABLE 24—DISTANCES (METERS) TO THE LEVEL A AND LEVEL B HARASSMENT THRESHOLD ISOPLETHS FOR VIBRATORY

PILE DRIVING FOR COFFERDAMS AND ESTIMATED AREA OF LEVEL B HARASSMENT ZONE

Location 

PTS onset by hearing group (m) Behavioral 

harassment Area within 

estimated 

Level B 

harassment 

zone (km2) 

LF MF HF PW 

ALL 

199 LE, 24 hr 198 LE, 24 hr 173 LE, 24 hr 201 LE, 24 hr 120 SPL RMS 

Empire Wind 1 ......................................... 122 0 44 62 1,985 2.679 

Empire Wind 2 ......................................... 13 0 12 11 1,535 1.672 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. 

Installation of goal posts would be 

done using a traditional impact 

hammer. The casing pipe may be 

installed using a pneumatic hammer; 

hence, the number of strikes would be 

considered high. Empire Wind 

estimated distances to Level A 

harassment and Level B harassment 

thresholds using the NMFS’ MultiSpecies Calculator Tool (NMFS, 2018) 

and parameter inputs are shown in table 

25 below. Modeling for impact driving 

of goal posts assumed a single strike 

SEL of 174 dB. Empire Wind did not 

propose to employ any noise mitigation 

during impact pile driving of goal posts 

or vibratory driving for cofferdams. 

NMFS does not require noise mitigation 

in the Mitigation section; therefore, no 

abatement is applied or assumed. The 

resulting distances to NMFS thresholds 

for casing pipe and goal post installation 

are provided in table 26. 

TABLE 25—ESTIMATED SOURCE LEVELS (AT 10 m) AND INSTALLATION RATES FOR CASING PIPE AND GOAL POST

INSTALLATION

Structure dB SEL dB rms #strikes per 

pile Piles per day Transmission loss 

Casing pipe .......................................................................... 166 182 43,200 1 15 log. 

Goal Posts ........................................................................... 174 184 2,000 2 


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TABLE 26—DISTANCES (METERS) TO THE LEVEL A AND LEVEL B HARASSMENT THRESHOLD ISOPLETHS FOR CASING PIPE

AND GOAL POST IMPACT PILE DRIVING

Scenario 

PTS onset by hearing group (m) 

Behavioral 

harassment 

SPL (m) 

LF MF HF PW 

peak SEL peak SEL peak SEL peak SEL 

Pile ....................................... 219 183 230 185 202 155 218 185 160 

42-inch casing pipe .............. 0.3 904.5 0.1 32.2 4.6 1,077.4 0.4 484 293 

12-inch steel goal post ......... 0 632.1 0 22.5 7.4 752.9 0 338.3 398.1 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. 

As described above, either cofferdams 

or goal post and casing pipe installation 

may occur as part of cable landfall 

activities, but not both. For goal post 

installation, 2 hours per goal post (2 

piles), for 3 goal posts (6 piles) per HDD, 

for a total of 18 piles and 36 total hours 

of pile driving are anticipated. For 

cofferdams, there is 1 hour per day for 

6 days (installation and removal) per 

cofferdam for a total of 18 hours pile 

driving anticipated. While modeled 

distances to the Level A harassment 

threshold for goal post pile driving were 

larger than for cofferdam vibratory 

driving based on the SELcum metric, it 

should be noted that modeled distances 

based on the SELcum metric are based on 

the assumption that an individual 

animal remains at that distance for the 

entire duration of pile driving in order 

to incur PTS. This is not considered 

realistic as marine mammals are highly 

mobile. As modeled distances to the 

Level B harassment threshold and zones 

of influence for Level B harassment 

were orders of magnitude larger for 

cofferdam vibratory driving compared to 

goal post pile driving (compare tables 24 

and 26), the amount of take resulting 

from cofferdam vibratory driving 

activities were determined to be greater 

than that of the alternative goal post and 

casing pipe scenario. Therefore, to be 

conservative the cofferdam scenario was 

carried forward for the analysis of 

potential takes by harassment from 

cable landfall activities. As such, goal 

post pile driving is not analyzed further. 

Animal movement and exposure 

modeling was not performed by JASCO 

to determine potential exposures from 

vibratory pile driving. Rather, Empire 

Wind considered the ensonified areas 

and density estimates to calculate 

potential exposures (table 28). Empire 

Wind overlaid the Robert et al. (2023) 

densities on the modeled Level B 

harassment zones to estimate exposures. 

The maximum monthly densities for 

each marine mammal species were 

averaged by season (table 27; Roberts et 

al., 2023): spring (March through May), 

summer (June through August), fall 

(September through November), and 

winter (December through February). To 

be conservative, the maximum average 

seasonal density for each species was 

then carried forward in the take 

calculations. As the noise from 

cofferdam installation would not extend 

beyond the 20-m isobath where the 

coastal bottlenose dolphin stock 

predominates, it is expected that only 

the coastal stock of bottlenose dolphins 

is likely to be taken by this activity. 

TABLE 27—AVERAGE SEASONAL MARINE MAMMAL DENSITIES (ANIMALS PER 100 km2) FOR VIBRATORY PILE DRIVING OF

EMPIRE WIND’S COFFERDAM INSTALLATION AND REMOVAL

Marine mammal species 

Empire Wind 1 cofferdams (2024) and 

Empire Wind 2 cofferdams (2024–2025) 

average seasonal density 

Fin whale a ........................................................................................................................................... 0.097 

Humpback whale ................................................................................................................................. 0.099 

Minke whale ......................................................................................................................................... 0.526 

North Atlantic right whale a .................................................................................................................. 0.073 

Sei whale a ........................................................................................................................................... 0.03 

Sperm whale a ...................................................................................................................................... 0.006 

Atlantic spotted dolphin ....................................................................................................................... 0.058 

Atlantic white-sided dolphin ................................................................................................................. 0.469 

Bottlenose dolphin (coastal stock) b .................................................................................................... 6.299 

Common dolphin .................................................................................................................................. 2.837 

Pilot whale spp.c .................................................................................................................................. 0.019 

Risso’s dolphin ..................................................................................................................................... 0.034 

Harbor porpoise ................................................................................................................................... 3.177 

Gray seal d ........................................................................................................................................... 13.673 

Harbor seal d ........................................................................................................................................ 13.673 

aSpecies listed under the ESA. 

bBottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ‘‘bottlenose’’ and not identified to stock. Given the 

noise from cofferdam installation would not extend beyond the 20 m isobath, where the coastal stock predominates, it is expected that all estimated takes by Level B harassment of bottlenose dolphins from cofferdam installation will accrue to the coastal stock. cPilot whale density values from Duke University (Roberts et al., 2023) reported as ‘‘Globicephala spp.’’ and not species-specific. dPinniped density values from Duke University (Roberts et al., 2022) are reported as ‘‘seals’’ and are not species-specific. 

Estimates of take are computed 

according to the following formula as 

provided by NOAA Fisheries (Personal 

Communication, November 24, 2015): 

Estimated Take = D × ZOI × d, 

where: 

D = average highest seasonal species density 

(number per km2) 


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ZOI = maximum ensonified area to MMPA 

threshold for impulsive noise (160 dB 

RMS 90 percent re 1 mPa) 

d = number of days 

The area ensonified to the Level B 

harassment threshold, as well as the 

projected duration of cofferdam 

installation and removal at each 

respective vibratory pile driving 

location, was then used to produce the 

results of take calculations provided in 

table 28. As previously stated, Empire 

Wind anticipates that cofferdam or 

casing pipe or goal post installation and 

removal would occur during years 1 and 

2 (2024–2025; refer to table 1). It is 

expected to take 3 days to install and 3 

days to remove each cofferdam. 

Therefore, 6 days of vibratory pile 

driving/removal at each location were 

included. It should be noted that 

calculations do not take into account 

whether a single animal is harassed 

multiple times or whether each 

exposure is a different animal. 

Therefore, the numbers in table 28 

represent the predicted number of 

exposures above the Level B harassment 

threshold using the methods and 

assumptions described above. 

TABLE 28—ESTIMATED LEVEL B HARASSMENT EXPOSURES FROM VIBRATORY PILE INSTALLATION AND REMOVAL RELATED

TO COFFERDAMS

Species 

Estimated Level B harassment exposures Total estimated 

Level B 

harassment 

exposures 

Empire Wind 1 

cofferdams 

(2024) 

Empire Wind 2 

cofferdams 

(2024–2025) 

Fin Whale ................................................................................................................... 0.03 0.03 0.06 

Humpback Whale ...................................................................................................... 0.03 0.03 0.06 

Minke Whale .............................................................................................................. 0.17 0.16 0.33 

North Atlantic Right Whale ........................................................................................ 0.02 0.02 0.04 

Sei Whale .................................................................................................................. 0.01 0.01 0.02 

Sperm Whale ............................................................................................................. 0 0 0 

Bottlenose dolphin (Western N.A. Northern Migratory Coastal Stock) a ................... 2.03 1.9 3.93 

Atlantic Spotted Dolphin ............................................................................................ 0.02 0.02 0.04 

Common dolphin ........................................................................................................ 0.91 0.85 1.76 

Atlantic White-sided Dolphin ...................................................................................... 0.15 0.14 0.29 

Risso’s dolphin ........................................................................................................... 0.01 0.01 0.02 

Pilot whales spp. b ..................................................................................................... 0.01 0.01 0.02 

Harbor porpoise ......................................................................................................... 1.02 0.96 1.98 

Harbor seal c .............................................................................................................. 2.2 2.06 4.26 

Gray seal c ................................................................................................................. 2.2 2.06 4.26 

aBottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ‘‘bottlenose’’ and not identified to stock. Given the 

noise from cofferdam installation would not extend beyond the 20 m isobath, where the coastal stock predominates, it is expected that all estimated takes by Level B harassment of bottlenose dolphins from cofferdam installation will accrue to the coastal stock. bPilot whale density values from Duke University (Roberts et al., 2022) reported as ‘‘Globicephala spp.’’ and not species-specific. cPinniped density values from Duke University (Roberts et al., 2023) are reported as ‘‘seals’’ and are not species-specific, therefore, 50 percent of estimated exposures are expected to accrue to harbor seals and 50 percent to gray seals. 

For some species, group size data 

demonstrate that the density-based 

exposure calculations underestimate the 

potential for take. Hence, the amount of 

authorized take varies from exposure 

estimates (table 29). As the density 

models do not account for group size 

and the resulting calculated exposures 

were very small, the predicted take was 

increased to account for the exposure of 

one average-sized group per day each of 

bottlenose and common dolphins. Due 

to the presence of several seal haul outs 

in the cable landfall area, the Roberts et 

al. (2023), density-based exposure 

estimates may underestimate potential 

seal occurrence, and 10 takes of seals by 

Level B harassment per day over the 

course of 9 days were estimated. Table 

29 includes the maximum number of 

takes that are reasonably likely to occur 

during vibratory pile driving. 

TABLE 29—AUTHORIZED LEVEL B HARASSMENT TAKE RESULTING FROM VIBRATORY PILE DRIVING ASSOCIATED WITH THE

INSTALLATION AND REMOVAL OF TEMPORARY COFFERDAMS OVER 2 YEARS

Species 

Authorized take by Level B harassment 

Empire Wind 1 

cofferdams 

(2024) 

Empire Wind 2 

cofferdams 

(2024–2025) 

Total 

authorized take 

Fin Whale ................................................................................................................... 0 0 0 

Humpback Whale ...................................................................................................... 0 0 0 

Minke Whale .............................................................................................................. 0 0 0 

North Atlantic Right Whale ........................................................................................ 0 0 0 

Sei Whale .................................................................................................................. 0 0 0 

Sperm Whale ............................................................................................................. 0 0 0 

Bottlenose dolphin (Western N.A. Northern Migratory Coastal Stock) a ................... 180 270 450 

Atlantic Spotted Dolphin ............................................................................................ 0 0 0 

Common dolphin b ..................................................................................................... 360 540 900 

Atlantic White-sided Dolphin ...................................................................................... 0 0 0 

Risso’s dolphin ........................................................................................................... 0 0 0

Pilot whales spp.c ...................................................................................................... 0 0 0 


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TABLE 29—AUTHORIZED LEVEL B HARASSMENT TAKE RESULTING FROM VIBRATORY PILE DRIVING ASSOCIATED WITH THE

INSTALLATION AND REMOVAL OF TEMPORARY COFFERDAMS OVER 2 YEARS—Continued 

Species 

Authorized take by Level B harassment 

Empire Wind 1 

cofferdams 

(2024) 

Empire Wind 2 

cofferdams 

(2024–2025) 

Total 

authorized take 

Harbor porpoise ......................................................................................................... 1 1 2 

Harbor seal d .............................................................................................................. 60 90 150 

Gray seal d ................................................................................................................. 60 90 150 

aBottlenose dolphin authorized take was adjusted to account for one group size, 15 individual bottlenose dolphins (Jefferson et al., 2015) per 

day (18 days). b Common dolphin authorized take was adjusted to account for one group size, 30 individual common dolphins (Reeves et al., 2002) per day 

(18 days). cPilot whale density values (Roberts et al., 2023) reported as ‘‘Globicephala spp.’’ and not species-specific. dPinniped density values (Roberts et al., 2023) reported as ‘‘seals’’ and not species-specific, therefore, 50 percent of expected takes by Level 

B harassment are expected to accrue to harbor seals and 50 percent to gray seals. Due to the presence of several seal haul outs in the area, 

authorized level B harassment seal takes were calculated by estimating 10 individuals per day (9 days) (Woo and Biolsi, 2018), divided evenly 

between harbor seals and gray seals. e Data was not available for harp seals for which take was authorized. 

Marina Activities 

Pile driving at the onshore substation 

C constitutes a small amount of work. 

Empire Wind assumed source levels 

during pile driving sheet piles at 

onshore substation C would be similar 

to that during installation of the 

cofferdams for cable landfall 

construction. Since densities are not 

available for the specific inshore region 

where the activity will occur, potential 

take by harassment for marine mammals 

using density could not be calculated. 

Instead, to be conservative, 10 takes by 

Level B harassment of seals per day (49 

days) were estimated based on pinniped 

observations in New York City between 

2011 and 2017 (Woo and Biolsi, 2018), 

which were split evenly between harbor 

and gray seals (table 6). Similarly, the 

authorized take of bottlenose dolphins 

was adjusted to account for one group 

size of 15 individuals (Jefferson et al., 

2015) per day for 49 days. 

TABLE 30—DISTANCES (METERS) TO THE LEVEL A AND LEVEL B HARASSMENT THRESHOLD ISOPLETH DISTANCES FOR

VIBRATORY DRIVING AT ONSHORE SUBSTATION C LOCATION MARINA

Location 

PTS onset by hearing group (Level A harassment) Behavioral 

response 

(Level B 

harassment) 

LF MF HF PW 

All 199 LE, 24hr 199 LE, 24hr 199 LE, 24hr 199 LE, 24hr

120 SPL RMS 

Marina Bulkhead Work (Sheet pile installation) .................. 43.2 3.8 63.8 26.2 1,000 

Marina Berthing Pile Removal ............................................. 43.5 3.9 64.3 26.5 1,600 

Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water. 

TABLE 31—AUTHORIZED TAKES BY LEVEL B HARASSMENT FROM MARINA PILE DRIVING

Species 

Marina work (2024) 

Authorized take by Level B harassment 

Bottlenose dolphin (Western N.A. Northern Migratory Coastal Stock) a ............................................. 735 

Harbor seal b ........................................................................................................................................ 245 

Gray seal b ........................................................................................................................................... 245 

aGiven the noise from cofferdam installation would not extend beyond the 20 m isobath, where the coastal stock predominates, it is expected 

that all estimated takes by Level B harassment of bottlenose dolphins from cofferdam installation will accrue to the coastal stock. The authorized 

take was adjusted to account for one group size, 15 individuals (Jefferson et al., 2015) per day of bottlenose. bPinniped density values from Duke University (Roberts et al., 2023) are reported as ‘‘seals’’ and are not species-specific, therefore, 50 percent of expected takes by Level B harassment are expected to accrue to harbor seals and 50 percent to gray seals. 

HRG Surveys 

Empire Wind’s planned HRG survey 

activity includes the use of nonimpulsive sources (i.e., CHIRP sub 

bottom profiler (SBP)) that have the 

potential to harass marine mammals. Of 

the list of equipment described in table 

2 of the proposed rule (88 FR 22696, 

April 13, 2023), Ultra-Short BaseLine 

(USBL), multibeam echosounder 

(MBES), side scan sonar (SSS), and the 

Innomar SBP were removed from 

further analysis due to either the 

extremely low likelihood of the 

equipment resulting in marine mammal 

harassment (i.e., USBL, MBES, select 

SSS) or due to negligible calculated 

isopleth distances corresponding to the 

Level B harassment threshold (<2 m) 

(i.e., select SSS and Innomar SBP). No 

boomers or sparkers will be used. 

Authorized takes will be by Level B 

harassment only in the form of 

disruption of behavioral patterns for 


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individual marine mammals resulting 

from exposure to noise from certain 

HRG acoustic sources. Based primarily 

on the characteristics of the signals 

produced by the acoustic sources 

planned for use, Level A harassment is 

neither anticipated, even absent 

mitigation, nor authorized. Therefore, 

the potential for Level A harassment is 

not evaluated further in this document. 

Empire Wind did not request, and 

NMFS has not authorized, take by Level 

A harassment incidental to HRG 

surveys. No serious injury or mortality 

is anticipated to result from HRG survey 

activities. 

Specific to HRG surveys, in order to 

better consider the narrower and 

directional beams of the sources, NMFS 

has developed a tool for determining the 

sound pressure level (SPLrms) at the 160- 

dB isopleth for the purposes of 

estimating the extent of Level B 

harassment isopleths associated with 

HRG survey equipment (NMFS, 2020). 

This methodology incorporates 

frequency-dependent absorption and 

some directionality to refine estimated 

ensonified zones. Empire Wind used 

NMFS’ methodology with additional 

modifications to incorporate a seawater 

absorption formula and account for 

energy emitted outside of the primary 

beam of the source. For sources that 

operate with different beamwidths, the 

maximum beam width was used, and 

the lowest frequency of the source was 

used when calculating the frequencydependent absorption coefficient. 

The isopleth distances corresponding 

to the Level B harassment threshold for 

each type of HRG equipment with the 

potential to result in harassment of 

marine mammals were calculated per 

‘‘NOAA Fisheries’ Interim 

Recommendation for Sound Source 

Level and Propagation Analysis for High 

Resolution Geophysical Sources.’’ The 

distances to the 160-dB RMS re 1 mPa 

isopleth for Level B harassment are 

presented in table 32. Please refer to 

section 6.3.2 of the LOA application for 

a full description of the methodology 

and formulas used to calculate distances 

to the Level B harassment threshold. 

TABLE 32—ISOPLETH DISTANCES IN METERS (m) CORRESPONDING TO LEVEL B HARASSMENT THRESHOLD FOR HRG 

EQUIPMENT

HRG survey equipment Source level (SLRMS) 

(dB re 1μPa) 

Lateral distance (m) 

to Level B 

harassment threshold 

Edgetech DW106 ..................................................................................................................... 194 50 

Edgetech 424 ........................................................................................................................... 180 8.75 

Teledyne Benthos Chirp III—TTV 170 .................................................................................... 219 50.05

The survey activities that have the 

potential to result in Level B harassment 

(160 dBRMS90% re 1 mPa) include the 

noise produced by various nonparametric sub-bottom profilers (table 

32), of which the Teledyne Benthos 

Chirp III results in the greatest 

calculated distance to the Level B 

harassment criteria at 50.05 m (164 ft). 

Therefore, to be conservative, Empire 

Wind has applied the estimated 

distance of 50.05 m (164 ft) to the 160 

dBRMS90% re 1 mPa Level B harassment 

criteria as the basis for determining 

potential take from all HRG sources. 

The basis for the take estimate is the 

number of marine mammals that would 

be exposed to sound levels in excess of 

the Level B harassment threshold (160 

dB). Typically, this is determined by 

estimating an ensonified area for the 

activity, by calculating the area 

associated with the isopleth distance 

corresponding to the Level B 

harassment threshold. This area is then 

multiplied by marine mammal density 

estimates in the Project Area and then 

corrected for seasonal use by marine 

mammals, seasonal duration of Projectspecific noise-generating activities, and 

estimated duration of individual 

activities when the maximum noisegenerating activities are intermittent or 

occasional. 

The estimated distance of the daily 

vessel track line was determined using 

the estimated average speed of the 

vessel and the 24-hour operational 

period within each of the corresponding 

survey segments. All noise-producing 

survey equipment is assumed to be 

operated concurrently. Using the 

distance of 50.05 m (164 ft) to the 160 

dBRMS90% re 1 mPa Level B harassment 

isopleth (table 32), the estimated daily 

vessel track of approximately 177.792 

km (110.475 mi) for 24-hour operations, 

inclusive of an additional circular area 

to account for radial distance at the start 

and end of a 24-hour cycle, estimates of 

the total area ensonified to the Level B 

harassment threshold per day of HRG 

surveys were calculated (table 33). 

TABLE 33—ESTIMATED NUMBER OF SURVEY DAYS, ESTIMATED SURVEY DISTANCE PER DAY, AND ESTIMATED DAILY

ENSONIFIED AREA FOR HRG SURVEYS, FROM 2024 THROUGH 2029 

Survey segment Number of active 

survey vessel days 

Estimated distance 

per day 

(km) 

Calculated daily 

ensonified area 

(km2) 

2024 Survey Effort ....................................................................................... 41 177.792 17.805 

2025 Survey Effort ....................................................................................... 191 

2026 Survey Effort ....................................................................................... 150 

2027 Survey Effort ....................................................................................... 100 

2028 to January 2029 Survey Effort ........................................................... 100 

As described in the LOA application, 

density data were mapped within the 

boundary of the Project Area (figure 1 in 

the LOA application) using geographic 

information systems; these data were 

updated based on the revised data from 

Roberts et al. (2023) (table 6). Maximum 

monthly densities as reported by 

Roberts et al. (2023) were averaged by 

season over the survey duration, for 

winter (December through February), 

spring (March through May), summer 

(June through August), and fall 

(September through November), for the 

entire HRG Project Area. To be 


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conservative, the maximum average 

seasonal density within the HRG survey 

schedule for each species (table 7), was 

then carried forward in the take 

calculations to generate exposure 

estimates (table 34). 

TABLE 34—CALCULATED ANNUAL MAXIMUM LEVEL B HARASSMENT EXPOSURES OF MARINE MAMMALS RESULTING FROM

ANNUAL DAYS OF HRG SURVEYS

Species 

2024— 

Calculated 

exposures 

2025— 

Calculated 

exposures 

2026— 

Calculated 

exposures 

2027— 

Calculated 

exposures 

2028 to January 

2029—calculated 

exposures 

Fin Whale ....................................................................................... 0.707 3.295 2.588 1.725 1.725 

Humpback Whale ........................................................................... 0.722 3.363 2.641 1.761 1.761 

Minke Whale .................................................................................. 3.836 17.87 14.034 9.356 9.356 

North Atlantic Right Whale ............................................................ 0.532 2.48 1.948 1.298 1.298 

Sei Whale ...................................................................................... 0.219 1.019 0.8 0.534 0.534 

Sperm Whale ................................................................................. 0.044 0.204 0.16 0.107 0.107 

Pilot whales spp ............................................................................. 0.139 0.645 0.507 0.338 0.338 

Bottlenose dolphin a ....................................................................... 45.937 213.997 168.06 112.04 112.04 

Atlantic White-sided Dolphin .......................................................... 3.42 15.933 12.513 8.342 8.342 

Common dolphin ............................................................................ 20.689 96.382 75.693 50.462 50.462 

Atlantic Spotted Dolphin ................................................................ 0.423 1.97 1.547 1.032 1.032 

Risso’s dolphin ............................................................................... 0.255 1.189 0.934 0.623 0.623 

Harbor porpoise ............................................................................. 23.169 107.933 84.764 56.509 56.509

Harbor seal b .................................................................................. 48.857 232.258 182.401 121.601 121.601 

Gray seal b ..................................................................................... 48.857 232.258 182.401 121.601 121.601 

aEstimated take is not distinguished between bottlenose dolphin coastal and offshore stocks as degree of survey effort cannot be differentiated 

in relation to the 20-m isobath. bPinniped density values from Duke University (Roberts et al., 2023) reported as ‘‘seals,’’ so take allocated by 50 percent accrued to harbor 

seals and 50 percent accrued to gray seals. 

The calculated exposure estimates 

based on the exposure modeling 

methodology described above were 

compared with the best available 

information on marine mammal group 

sizes and with Empire Wind’s PSO 

sightings data ranging from 2018 to 2021 

for the Project Area to ensure authorized 

take numbers associated with HRG 

survey activities were conservative and 

based on best available information. As 

a result of this comparison, it was 

determined that the calculated number 

of potential takes by Level B harassment 

based on the exposure modeling 

methodology above may be 

underestimates for some species and 

therefore warranted adjustment to 

ensure conservatism in requested take 

numbers. Despite the relatively small 

modeled Level B harassment zone (50 

m) for HRG survey activities, it was 

determined that adjustments to the 

requested numbers of take by Level B 

harassment for some dolphin species 

was warranted in some cases to be 

conservative, based on the expectation 

that dolphins may approach or bow ride 

near the survey vessel. No adjustments 

were made to take requests for large 

whale species as a result of HRG survey 

activities due to the relatively small 

Level B harassment zone (50 m) and the 

low likelihood that large whales would 

be encountered within such a short 

distance of the vessel except in rare 

circumstances. 

For certain species for which the 

density-based methodology described 

above may result in potential 

underestimates of take and Empire 

Wind’s PSO sightings data were 

relatively low, adjustments to the 

exposure estimates were made based on 

the best available information on marine 

mammal group sizes to ensure 

conservatism. For species considered 

common in the Project Area, authorized 

takes by Level B harassment were 

adjusted to one group size per HRG 

survey day (n-191) that may occur 

anytime from January through 

December. These species include 

bottlenose dolphins (15 individuals; 

Jefferson et al., 2015) and common 

dolphins (30 individuals; Reeves et al., 

2002). Note that these adjustments to 

take estimates were made previously 

and are included in the LOA 

application. For species considered less 

common in the Project Area, requested 

takes by Level B harassment were 

adjusted to one group size per month of 

HRG surveys. These species include 

Atlantic white-sided dolphins (52 

individuals; Jefferson et al., 2015). For 

species considered rare but which still 

have the potential to occur in the Project 

Area, authorized takes by Level B 

harassment were adjusted to one group 

size per year of HRG surveys. These 

species include Atlantic spotted 

dolphin (45 individuals; Kenney & 

Vigness-Raposa, 2010) and Risso’s 

dolphin (100 individuals; Jefferson et 

al., 2015). The authorized take for pilot 

whales was adjusted based on PSO data 

by multiplying the maximum reported 

daily density (1.34 individuals; Geoquip 

Marine, 2021) by the annual days of 

operation. 

TABLE 35—AUTHORIZED LEVEL B HARASSMENT TAKE RESULTING FROM HRG SITE CHARACTERIZATION SURVEYS OVER 5 

YEARS

Species 

2024— 

Authorized 

take 

2025— 

Authorized 

take 

2026— 

Authorized 

take 

2027— 

Authorized 

take 

2028 to 

January 2029— 

authorized take 

Total 

authorized 

take across 

5 years 

Fin Whale ................................................................. 1 3 3 2 2 11 

Humpback Whale ..................................................... 1 3 3 2 2 11 

Minke Whale ............................................................ 4 18 14 9 9 54 

North Atlantic Right Whale ...................................... 1 2 2 1 1 7 

Sei Whale ................................................................. 0 1 1 1 1 4 


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TABLE 35—AUTHORIZED LEVEL B HARASSMENT TAKE RESULTING FROM HRG SITE CHARACTERIZATION SURVEYS OVER 5 

YEARS—Continued 

Species 

2024— 

Authorized 

take 

2025— 

Authorized 

take 

2026— 

Authorized 

take 

2027— 

Authorized 

take 

2028 to 

January 2029— 

authorized take 

Total 

authorized 

take across 

5 years 

Sperm Whale ........................................................... 0 0 0 0 0 0 

Pilot whales spp ....................................................... 55 256 201 134 134 a 780 

Bottlenose dolphin b ................................................. 615 2,865 2,250 1,500 1,500 b 8,730 

Atlantic White-sided Dolphin .................................... 71 331 260 173 173 c 1,008 

Common dolphin ...................................................... 1,230 5,730 4,500 3,000 3,000 17,460 

Atlantic Spotted Dolphin .......................................... 45 45 45 45 45 d 225 

Risso’s dolphin ......................................................... 100 100 100 100 100 d 500 

Harbor porpoise ....................................................... 23 108 85 57 57 330 

Harbor seal e ............................................................ 50 232 182 122 122 708 

Gray seal e ............................................................... 50 232 182 122 122 708 

aAuthorized take adjusted based on PSO sighting data from 2018 to 2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a, 

2021b; Geoquip Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021). bBottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ‘‘bottlenose dolphin’’ and not identified to stock. 

HRG survey activities were not differentiated by region relative to the 20-m isopleth and therefore bottlenose takes are not identified to stock. As 

Roberts and Halpin does not account for group size, the estimated take was adjusted to account for one group size, 15 individual bottlenose dolphins (Jefferson et al., 2015) per day and 30 individual common dolphins (Reeves et al., 2002), per day. cAs Roberts et al. (2023) does not account for group size, the authorized take was adjusted to account for one group size, 52 individuals (Jefferson et al., 2015) per month of Atlantic white-sided dolphins. dAs Roberts et al. (2023) does not account for group size, the authorized take was adjusted to account for one group size, 100 individuals 

(Jefferson et al., 2015), per year of Risso’s dolphins and 45 individuals (Kenney and Vigness-Raposa, 2010) per year of Atlantic spotted dolphins. ePinniped density values from Duke University (Roberts et al., 2023) reported as ‘‘seals,’’ so take allocated by 50 percent accrued to harbor 

seals and 50 percent accrued to gray seals. 

Total Takes Across All Activity Types 

The amount of Level A harassment 

and Level B harassment NMFS is 

authorizing incidental to all project 

activities combined (i.e., impact pile 

driving to install WTG and OSS 

monopile and jacket foundations, 

vibratory pile driving to install and 

remove temporary cofferdams, marina 

activities, and HRG surveys) are shown 

in table 34. The annual amount of take 

that would occur in each year based on 

Empire Wind’s current schedules is 

provided in table 36. NMFS notes that 

while HRG surveys are expected to 

occur across all 5 years (2024–2029) of 

the effective period of the rulemaking (a 

total of 582 days across all 5 years), 

survey effort will vary. Year 1 (2024) 

take estimates include 41 days of HRG 

surveys, cofferdams or goal posts 

installation and removal, and marine 

activities. Year 2 (2025) includes 191 

days of HRG surveys, WTG impact 

installation using monopile 

foundations, OSS impact installation 

using pin piles for jacket foundations, 

and cofferdams or goal post installation 

and removal. Year 3 (2026) includes 150 

days of HRG surveys, WTG impact 

installation using monopile 

foundations, and OSS impact 

installation using pin piles for jacket 

foundations. Years 4 and 5 include 100 

days each of HRG surveys. All activities 

are expected to be completed by 2029, 

equating to the five years of activities, 

as described in this preamble. 

For the species for which modeling 

was conducted, the authorized take is 

considered conservative for a number of 

reasons. The amount of authorized take 

assumes the most impactful scenario 

with respect to project design and 

schedules. As described in the 

Description of Specific Activities 

section, Empire Wind plans to use 

monopile and jacket foundations for all 

permanent structures (i.e., WTGs and 

OSSs). If Empire Wind decides to use 

suction-buckets or gravity-based 

foundations to install bottom-frame 

WTG and OSS foundations, take would 

not occur as noise levels would not be 

elevated to the degree there is a 

potential for take (i.e., no pile driving is 

involved with installing suction buckets 

or gravity-based foundations). The 

authorized take for impact pile driving 

assumed a maximum piling schedule of 

two monopiles and three pin piles 

installed per 24-hour period. The 

authorized take from vibratory pile 

driving assumed temporary cofferdams 

using sheet piles would be installed, 

versus the alternative installation of a 

gravity-cell cofferdam, for which no take 

would be expected nor authorized. The 

authorized take numbers for pile driving 

are conservatively based on the 

maximum densities across the 

construction months. The authorized 

take numbers for Level A harassment do 

not fully account for the likelihood that 

marine mammals would avoid a 

stimulus when possible before the 

individual accumulates enough acoustic 

energy to potentially cause auditory 

injury, nor do these numbers account 

for the effectiveness of the required 

mitigation measures. Lastly, the amount 

of authorized take for nearshore 

installation of cofferdams and goal posts 

is based on a simple calculation (density 

× area × number of days of activity), 

which is thought to already be 

inherently conservative. 

Authorized takes by Level A 

harassment and Level B harassment for 

the combined activities of impact pile 

driving during the impact installation of 

monopiles and pin piles (assuming 10 

dB of sound attenuation), vibratory pile 

driving and removal for the temporary 

cofferdams, vibratory removal of 

berthing piles and installation of sheet 

piles at the Onshore Substation C 

marina, and HRG surveys are provided 

in table 36. NMFS also presents the 

percentage of each marine mammal 

stock estimated to be taken based on the 

total amount of annual take in table 38. 

Table 37 provides the total authorized 

take from the entire 5-year effective 

period of the rulemaking and issued 

LOA. NMFS recognizes that schedules 

may shift due to a number of planning 

and logistical constraints such that take 

may be redistributed throughout the 5 

years. However, the total 5-year amount 

of take for each species, shown in table 

37, and the maximum amount of take in 

any one year (table 35) would not be 

exceeded. Additionally, to reduce 

impacts to marine mammals, NMFS has 

required several mitigation and 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11389 

monitoring measures, provided in the 

Mitigation and Monitoring and 

Reporting sections, which are activityspecific and are designed to minimize acoustic exposures to marine mammal 

species. 

BILLING CODE 3510–22–P 


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Table 36 -- Level A Harassment and Level B Harassment Takes for All Activities 

Authorized During the Construction and Development of the Project 

Marine NMFS 2024 2025 2026 2027 2028 

Mamm Stock (Year 1) (Year 2) (Year 3) (Year4) (Year 5) 

al Abund 

Species ance Level Level Level Level Level Level Level Level Level Level 

A B A B A B A B A B 

harass harass harass harass harass harass harass harass harass harass 

ment ment ment ment ment ment ment ment ment ment 

Mysticetes 

Fin 6,802 0 1 4 136 2 60 0 2 0 2 

Whale* 

Humph 1,396 0 1 0 63 0 29 0 2 0 2 

ack 

Whale 

Minke 21,968 0 4 4 83 2 62 0 9 0 9 

Whale 

North 338 0 1 0 13 0 13 0 1 0 1 

Atlanti 

C Right 

Whale* 

Sei 6,292 0 0 0 4 0 3 0 1 0 1 

Whale* 

Odontocetes 

Atlanti 39,921 0 45 0 90 0 90 0 45 0 45 

C 

Spotted 

Dolphi 

n 

Atlanti 93,233 0 71 0 747 0 676 0 178 0 173 

C 

Whitesided 

Dolphi 

n 
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Bottlen 62,851 0 0 0 1,800 0 765 0 0 0 0 

ose 

dolphin 

(Weste 

m 

North 

Atlanti 

c, 

Offsho 

re 

stock)• 

Bottlen 6,639 0 1,185 0 270 0 0 0 0 0 0 

ose 

dolphin 

(Weste 

m 

North 

Atlanti 

c, 

Coastal 

Stock)" 

Bottlen 69,490 0 615 0 2,865 0 2,250 0 1,500 0 1,500 

ose 

dolphin 

(Weste 

m 

North 

Atlanti 

c, 

Offsho 

re and 

Coastal 

Stocks) b 

Comm 172,97 0 2,130f 0 9,870 0 6,030 0 3,000 0 3,000 

on 4 

Dolphi 

n 

Harbor 95,543 0 25 0 243 0 183 0 57 0 57 

Porpois 

e 

Pilot 68,139 0 55 0 417 0 269 0 134 0 134 

Whale0 

Risso's 35,215 0 100 0 200 0 200 0 100 0 100 

Dolphi 

n 

Sperm 1,180 0 0 0 3 0 3 0 0 0 0 

Whale* 

Phocid (pinnipeds) 
Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11391 

BILLING CODE 3510–22–C 

TABLE 37—TOTAL 5-YEAR AUTHORIZED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) FOR ALL ACTIVITIES

DURING THE CONSTRUCTION AND DEVELOPMENT OF THE PROJECT

Marine mammal species NMFS stock 

abundance 

5-Year totals 

Authorized 

Level A 

harassment 

Authorized 

Level B 

harassment 

5-Year sum 

(Level A harassment 

+ Level B harassment) 

Mysticetes 

Fin Whale * ......................................................................................... 6,802 6 201 207 

Humpback Whale .............................................................................. 1,396 0 97 97 

Minke Whale ...................................................................................... 21,968 6 167 173 

North Atlantic Right Whale * .............................................................. 336 0 29 29 

Sei Whale * ........................................................................................ 6,292 0 9 9 

Odontocetes 

Atlantic Spotted Dolphin .................................................................... 39,921 0 315 315 

Atlantic White-sided Dolphin .............................................................. 93,221 0 1,840 1,840 

Bottlenose Dolphin (Western North Atlantic Offshore) a .................... 62,851 0 2,565 2,565 

Bottlenose Dolphin (Northern Migratory Coastal) a ........................... 6,639 0 1,455 1,455 

Bottlenose Dolphin (WNA Offshore and Northern Migratory Coastal) a ................................................................................................. 69,490 0 8,730 8,730 

Common Dolphin ............................................................................... 172,974 0 24,030 24,030 

Harbor Porpoise ................................................................................. 95,543 0 565 565 

Pilot Whales ....................................................................................... 68,139 0 1,009 1,009 


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Gray 27,300 0 455 0 501 0 306 0 122 0 122 

Seald 

Harbor 61,336 0 455 0 662 0 401 0 122 0 122 

Seald 

Harp 7.6M 0 4 0 4 0 4 0 4 0 4 

Seal0 

* Denotes species listed under the ESA. 

a - Represents estimated take from impact pile driving, vibratory driving for cofferdams, and marina construction 

activities. For year 1, estimated take for the bottlenose dolphin coastal stock includes cofferdam construction from 

years 1 and 2 as a portion of year 2 construction may occur in year 1. 

b - Bottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as "bottlenose dolphin" 

and not identified to stock. Given the noise from cofferdam installation would not extend beyond the 20-m isobath, 

where the coastal stock predominates, all estimated takes by Level B harassment ofbottlenose dolphins from 

cofferdam installation were attributed to the coastal stock. Takes from impact pile driving were attributed to each 

stock ( coastal and offshore) according to delineation along the 20-m isobath during the animat modeling process. 

Takes from HRG survey activities were not differentiated. 

c - Pilot whale density values from Duke University (Roberts et al., 2023) reported as "Globicephala spp." and not 

species-specific. 

d - Pinniped density values from Duke University (Roberts et al., 2023) reported as "seals" and not species-specific, 

so take allocated by 50 percent accrued to harbor seals and 50 percent accrued to gray seals for cable landfall 

construction, marina construction, and HRG surveys. Scaling based on local occurrence was used for WTG and OSS 

foundation installation. For year 1, estimated take by Level B harassment also includes cofferdam activities for year 

2 for harbor and gray seals, as a portion of the year 2 cofferdam activities may take place during year 1. 

e - Harp seal occurrence is anticipated to be rare. Anecdotal stranding data indicate only a few harp seals are sighted 

within the vicinity of the Project each year. Therefore, four harp seal Level B takes have been requested per year of 

the Project. 

f - Estimated take by Level B harassment also includes estimated take for cofferdam construction during year 2 as a 

portion of these activities may take place during year 1. 
11392 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

TABLE 37—TOTAL 5-YEAR AUTHORIZED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) FOR ALL ACTIVITIES

DURING THE CONSTRUCTION AND DEVELOPMENT OF THE PROJECT—Continued 

Marine mammal species NMFS stock 

abundance 

5-Year totals 

Authorized 

Level A 

harassment 

Authorized 

Level B 

harassment 

5-Year sum 

(Level A harassment 

+ Level B harassment) 

Risso’s Dolphin .................................................................................. 35,215 0 700 700 

Sperm Whale * ................................................................................... 4,349 0 6 6 

Phocid (pinnipeds) 

Gray Seal ........................................................................................... 27,300 0 1,496 1,496 

Harbor Seal ........................................................................................ 61,336 0 1,752 1,752 

Harp Seal b ......................................................................................... UNK 0 20 20 

* Denotes species listed under the ESA. 

aTotal estimated 5-year take by Level B harassment represents estimated take from HRG surveys, estimated take for the offshore stock, and 

estimated take for the coastal stock. The estimated take for the coastal stock of year 2 cofferdam construction (270) is subtracted from the total 

5-year take as this estimate is incorporated into cofferdam estimated take for years 1 and 2. b Harp seal occurrence is anticipated to be rare. Anecdotal stranding data indicate only a few harp seals are sighted within the vicinity of the 

Project each year. Therefore, four harp seal Level B harassment takes have been requested per year of the Project. 

In making the negligible impact 

determination and the necessary small 

numbers finding, NMFS assesses the 

greatest number of takes of marine 

mammals that could occur within any 

one year (which in the case of this rule 

is based on the predicted year 2 for all 

species), although the negligible impact 

determination also examines the 

cumulative impact over the 5-year 

period. In this calculation, the 

maximum estimated number of Level A 

harassment takes in any one year is 

summed with the maximum estimated 

number of Level B harassment takes in 

any one year for each species to yield 

the highest number of estimated take 

that could occur in any year (table 38). 

We recognize that certain activities 

could shift within the 5-year effective 

period of the rule; however, the rule 

allows for that flexibility and the takes 

are not expected to exceed those shown 

in table 38 in any year. 

TABLE 38—MAXIMUM NUMBER OF AUTHORIZED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) IN ANY ONE

YEAR OF THE PROJECT AND THE PERCENT STOCK THAT WOULD BE TAKEN BASED ON THE MAXIMUM ANNUAL AUTHORIZED TAKE

Marine mammal species NMFS stock 

abundance 

Maximum annual take authorized 

Maximum 

Level A 

harassment 

Maximum 

Level B 

harassment 

Maximum 

annual take a

Total percent 

stock taken 

based on 

maximum 

annual take b

Mysticetes 

Fin Whale * ...................................... 6,802 ............................................... 4 136 ............... 140 ............... 2.06. 

Humpback Whale ........................... 1,396 ............................................... 0 63 ................. 63 ................. 4.51. 

Minke Whale ................................... 21,968 ............................................. 4 83 ................. 87 ................. 0.40. 

North Atlantic Right Whale * ........... 338 .................................................. 0 13 ................. 13 ................. 3.85. 

Sei Whale * ..................................... 6,292 ............................................... 0 4 ................... 4 ................... 0.06 

Odontocetes 

Sperm Whale * ................................ 4,349 ............................................... 0 3 ................... 3 ................... 0.07. 

Atlantic Spotted Dolphin ................. 39,921 ............................................. 0 90 ................. 90 ................. 0.23. 

Atlantic White-sided Dolphin ........... 93,221 ............................................. 0 747 ............... 747 ............... 0.80. 

Bottlenose Dolphin (Western North 

Atlantic Offshore) c.

62,851 ............................................. 0 1,800 (pile 

driving 

only).

1,800 (pile 

driving 

only).

2.86. 

Bottlenose Dolphin (Northern Migratory Coastal) c.6,639 ............................................... 0 1,185 (pile 

driving 

only).

1,185 (pile 

driving 

only).

17.85. 

Bottlenose Dolphin (WNA Offshore 

and Northern Migratory Coastal) d.

62,851 Western North Atlantic Offshore; 6,639 Northern Migratory 

Coastal.

0 2,865 (HRG 

survey).

2,865 (HRG 

survey).

See text description 

in the Small Numbers section. 

Common Dolphin ............................ 172,974 ........................................... 0 9,870 ............ 9,870 ............ 5.71. 

Harbor Porpoise .............................. 95,543 ............................................. 0 243 ............... 243 ............... 0.25. 

Pilot Whale spp ............................... 68,139 ............................................. 0 417 ............... 417 ............... 1.06. 

Risso’s Dolphin ............................... 35,215 ............................................. 0 200 ............... 200 ............... 0.57. 


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I I 
Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11393 

TABLE 38—MAXIMUM NUMBER OF AUTHORIZED TAKES (LEVEL A HARASSMENT AND LEVEL B HARASSMENT) IN ANY ONE

YEAR OF THE PROJECT AND THE PERCENT STOCK THAT WOULD BE TAKEN BASED ON THE MAXIMUM ANNUAL AUTHORIZED TAKE—Continued 

Marine mammal species NMFS stock 

abundance 

Maximum annual take authorized 

Maximum 

Level A 

harassment 

Maximum 

Level B 

harassment 

Maximum 

annual take a

Total percent 

stock taken 

based on 

maximum 

annual take b

Phocid (pinnipeds) 

Gray Seal ........................................ 27,300 ............................................. 0 501 ............... 501 ............... 1.84. 

Harbor Seal ..................................... 61,336 ............................................. 0 662 ............... 662 ............... 1.08. 

Harp Seal ........................................ 7,600,000 ........................................ 0 4 ................... 4 ................... 0.00005. 

* Denotes species listed under the ESA. 

a Calculations of the maximum annual take are based on the maximum requested Level A harassment take in any one year + the total requested Level B harassment take in any one year. b Calculations of percentage of stock taken are based on the maximum requested Level A harassment take in any one year + the total requested Level B harassment take in any one year and then compared against the best available abundance estimate. For this action, the best 

available abundance estimates are derived from the NMFS SARs (Hayes et al., 2023). cBottlenose dolphin density values from Duke University (Roberts et al., 2023) reported as ‘‘bottlenose dolphin’’ and not identified to stock. 

Given the noise from cofferdam installation would not extend beyond the 20-m isobath, where the coastal stock predominates, all estimated 

takes by Level B harassment of bottlenose dolphins from cofferdam installation were attributed to the coastal stock. Takes from impact pile driving were attributed to each stock (coastal and offshore) according to delineation along the 20-m isobath during the animat modeling process. 

Takes from HRG survey activities were not differentiated. dThe values presented here assume that all of the take from HRG surveys (n=2,865) that could occur in any given year to either the offshore 

stock or the Northern Migratory coastal stock would occur to the offshore stock. While NMFS does not believe this is a likely outcome given Empire Wind would conduct an undefined amount of HRG work outside of the offshore stock’s habitat, we have presented it here as is for simplicity. 

Mitigation 

As noted in the Changes from the 

Proposed to Final Rule section, NMFS 

has added several new mitigation 

requirements and clarified a few others 

and has increased the minimum 

visibility zone for mysticetes and 

shutdown zone for North Atlantic right 

whales. These changes are described in 

detail in the sections below. Besides 

these changes, the required measures 

remain the same as those described in 

the proposed rule. However, NMFS has 

also re-organized and simplified the 

section to avoid full duplication of the 

specific requirements that are fully 

described in the regulatory text. 

In order to promulgate a rulemaking 

under section 101(a)(5)(A) of the 

MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to the activity, and other means of 

effecting the least practicable adverse 

impact on the species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stock for 

taking for certain subsistence uses (latter 

not applicable for this action). NMFS’ 

regulations require applicants for ITAs 

to include information about the 

availability and feasibility (e.g., 

economic and technological) of 

equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (e.g., likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (i.e., the 

probability of accomplishing the 

mitigating result if implemented as 

planned), the likelihood of effective 

implementation (i.e., the probability if 

implemented as planned); and 

(2) The practicability of the measures 

for applicant implementation, which 

may consider factors such as cost, 

impact on operations, and, in the case 

of a military readiness activity, 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. 

The mitigation strategies described 

below are consistent with those required 

and successfully implemented under 

previous ITAs issued in association 

with in-water construction activities 

(e.g., soft-start, establishing shutdown 

zones). Additional measures have also 

been incorporated to account for the fact 

that the construction activities would 

occur offshore. Modeling was performed 

to estimate harassment zones, which 

were used to inform mitigation 

measures for the Project’s activities to 

minimize Level A harassment and Level 

B harassment to the extent practicable, 

while providing estimates of the areas 

within which Level B harassment might 

occur. 

Generally speaking, the mitigation 

measures considered and required here 

fall into three categories: temporal (i.e., 

seasonal and daily) and spatial work 

restrictions, real-time measures (e.g., 

shutdown, clearance, and vessel strike 

avoidance), and noise attenuation/ 

reduction measures. Temporal and 

spatial work restrictions are designed to 

avoid or minimize operations when 

marine mammals are concentrated or 

engaged in behaviors that make them 

more susceptible or make impacts more 

likely, in order to reduce both the 

number and severity of potential takes, 

and are effective in reducing both 

chronic (longer-term) and acute effects. 

Real-time measures, such as 

implementation of shutdown and 

clearance zones, as well as vessel strike 

avoidance measures, are intended to 

reduce the probability or severity of 

harassment by taking steps in real time 

once a higher-risk scenario is identified 

(e.g., once animals are detected within 

an impact zone). Noise attenuation 


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measures such as bubble curtains are 

intended to reduce the noise at the 

source, which reduces both acute 

impacts, as well as the contribution to 

aggregate and cumulative noise that may 

result in longer term chronic impacts. 

Below, we briefly describe the 

required training, coordination, and 

vessel strike avoidance measures that 

apply to all activity types, and in the 

following subsections we describe the 

measures that apply specifically to 

foundation installation, nearshore 

installation and removal activities for 

cable laying and marina activities, and 

HRG surveys. Details on specific 

requirements can be found in 50 CFR 

part 217, subpart CC, set out at the end 

of this rulemaking. 

Training and Coordination 

NMFS requires all Empire Wind 

employees and contractors conducting 

activities on the water, including but 

not limited to, all vessel captains and 

crew to be trained in marine mammal 

detection and identification, 

communication protocols, and all 

required measures to minimize impacts 

on marine mammals and support 

Empire Wind’s compliance with the 

LOA, if issued. Additionally, all 

relevant personnel and the marine 

mammal species monitoring team(s) are 

required to participate in joint, onboard 

briefings prior to the beginning of 

project activities. The briefing must be 

repeated whenever new relevant 

personnel (e.g., new PSOs, construction 

contractors, relevant crew) join the 

Project before work commences. During 

this training, Empire Wind is required 

to instruct all project personnel 

regarding the authority of the marine 

mammal monitoring team(s). For 

example, the HRG acoustic equipment 

operator, pile driving personnel, etc., is 

required to immediately comply with 

any call for a delay or shutdown by the 

Lead PSO. Any disagreement between 

the Lead PSO and the Project personnel 

must only be discussed after delay or 

shutdown has occurred. In particular, 

all captains and vessel crew must be 

trained in marine mammal detection 

and vessel strike avoidance measures to 

ensure marine mammals are not struck 

by any project or project-related vessel. 

Prior to the start of in-water 

construction activities, vessel operators 

and crews will receive training about 

marine mammals and other protected 

species known or with the potential to 

occur in the Project Area, making 

observations in all weather conditions, 

and vessel strike avoidance measures. In 

addition, training will include 

information and resources available 

regarding applicable Federal laws and 

regulations for protected species. 

Empire Wind will provide 

documentation of training to NMFS. 

Since the proposed rule, NMFS has 

added requirements for a description of 

the training program to be provided to 

NMFS at least 60 days prior to the 

initial training before in-water activities 

begin and for confirmation of all 

required training to be documented on 

a training course log sheet and reported 

to NMFS Office of Protected Resources 

prior to initiating project activities. 

These measures were added in response 

to several commenters’ concerns 

regarding strengthening mitigation and 

monitoring measures. 

North Atlantic Right Whale Awareness 

Monitoring 

Empire Wind must use available 

sources of information on North 

Atlantic right whale presence, including 

daily monitoring of the Right Whale 

Sightings Advisory System, monitoring 

of Coast Guard VHF Channel 16 

throughout each day to receive 

notifications of any sightings, and 

information associated with any 

regulatory management actions (e.g., 

establishment of a zone identifying the 

need to reduce vessel speeds). 

Maintaining daily awareness and 

coordination affords increased 

protection of North Atlantic right 

whales by understanding North Atlantic 

right whale presence in the area through 

ongoing visual and PAM efforts and 

opportunities (outside of Empire Wind’s 

efforts), and allows for planning of 

construction activities, when 

practicable, to minimize potential 

impacts on North Atlantic right whales. 

The vessel strike avoidance measures 

apply to all vessels associated with the 

Project within U.S. waters and on the 

high seas. 

Vessel Strike Avoidance Measures 

This final rule contains numerous 

vessel strike avoidance measures that 

reduce the risk that a vessel and marine 

mammal could collide. While the 

likelihood of a vessel strike is generally 

low, they are one of the most common 

ways that marine mammals are 

seriously injured or killed by human 

activities. Therefore, enhanced 

mitigation and monitoring measures are 

required to avoid vessel strikes to the 

extent practicable. While many of these 

measures are proactive intending to 

avoid the heavy use of vessels during 

times when marine mammals of 

particular concern may be in the area, 

several are reactive and occur when a 

marine mammal is sighted by project 

personnel. The mitigation requirements 

are described generally here and in 

detail in the regulatory text at the end 

of this final rule (see 50 CFR 

217.284(b)). Empire Wind will be 

required to comply with these measures, 

except under circumstances when doing 

so would create an imminent and 

serious threat to a person or vessel, or 

to the extent that a vessel is unable to 

maneuver and, because of the inability 

to maneuver, the vessel cannot comply. 

While underway, Empire Wind is 

required to monitor for and maintain a 

safe distance from marine mammals, 

and operate vessels in a manner that 

reduces the potential for vessel strike. 

Regardless of the vessel’s size, all vessel 

operators, crews, and dedicated visual 

observers (i.e., PSO or trained crew 

member) must maintain a vigilant watch 

for all marine mammals and slow down, 

stop their vessel, or alter course as 

appropriate to avoid striking any marine 

mammal. The dedicated visual observer, 

equipped with suitable monitoring 

technology (e.g., binoculars, night vision 

devices), must be located at an 

appropriate vantage point for ensuring 

vessels are maintaining required vessel 

separation distances from marine 

mammals (e.g., 500 m from North 

Atlantic right whales). 

In the event that any project-related 

vessel, regardless of size, observes any 

large whale, any mother/calf pair, or 

large assemblages of non-delphinid 

cetaceans within 500 m of the vessel, 

the vessel is required to immediately 

reduce speeds to 10 kn or less. 

Additionally, all project vessels, 

regardless of size, must maintain a 100- 

m minimum separation zone from 

sperm whales and non-North Atlantic 

right whale baleen species. Vessels are 

also required to keep a minimum 

separation distance of 50 m from all 

delphinid cetaceans and pinnipeds, 

with an exception made for those 

species that approach the vessel (i.e., 

bow-riding dolphins). If any of these 

non-North Atlantic right whale marine 

mammals are sighted, the underway 

vessel must shift its engine to neutral 

and the engines must not be engaged 

until the animal(s) have been observed 

to be outside of the vessel’s path and 

beyond 100 m (for sperm whales and 

non-North Atlantic right whale large 

whales) or 50 m (for delphinids and 

pinnipeds). 

All of the Project-related vessels are 

required to comply with existing NMFS 

vessel speed restrictions for North 

Atlantic right whales and the measures 

within this rulemaking for operating 

vessels around North Atlantic right 

whales and other marine mammals. 

When NMFS vessel speed restrictions 

are not in effect and a vessel is traveling 

at greater than 10 kn, in addition to the 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11395 

required dedicated visual observer, 

Empire Wind is required to monitor the 

transit corridor in real-time with PAM 

prior to and during transits. To maintain 

awareness of North Atlantic right whale 

presence in the Project Area, vessel 

operators, crew members, and the 

marine mammal monitoring team will 

monitor U.S. Coast Guard VHF Channel 

16, WhaleAlert, the Right Whale 

Sighting Advisory System (RWSAS), 

and the PAM system. Any North 

Atlantic right whale or large whale 

detection will be immediately 

communicated to PSOs, PAM operators, 

and all vessel captains. All vessels will 

be equipped with an AIS and Empire 

Wind must report all Maritime Mobile 

Service Identify (MMSI) numbers to 

NMFS Office of Protected Resources 

prior to initiating in-water activities. 

The requirement for vessels to be 

equipped with AIS has been added 

since the proposed rule to increase the 

accountability of project vessels. Empire 

Wind will submit a NMFS-approved 

North Atlantic right whale vessel strike 

avoidance plan at least 90 days prior to 

commencement of vessel use. 

Compliance with these measures 

would reduce the likelihood of vessel 

strike by increasing awareness of marine 

mammal presence in the Project Area 

(e.g., monitoring, communication), 

reducing vessel speed when marine 

mammals are detected (by PSOs, PAM, 

and/or through another source (e.g., 

RWSAS)), and maintaining separation 

distances when marine mammals are 

encountered. While visual monitoring is 

useful, reducing vessel speed is one of 

the most effective, feasible options 

available to minimize the likelihood of 

a vessel strike and, if a strike does 

occur, decreases the potential for 

serious injury or lethal outcomes. 

Numerous studies have indicated that 

slowing the speed of vessels reduces the 

risk of lethal vessel collisions, 

particularly in areas where right whales 

are abundant, vessel traffic is common, 

and vessels are traveling at high speeds 

(Vanderlaan and Taggart, 2007; Conn 

and Silber, 2013; Van der Hoop et al., 

2014; Martin et al., 2015; Crum et al., 

2019). 

Given the vessel strike avoidance 

measures included herein, NMFS 

considers the potential for vessel strike 

to be de minimis and does not authorize 

take from this activity. 

Seasonal and Daily Restrictions 

Temporal restrictions in places where 

marine mammals are concentrated, 

engaged in biologically important 

behaviors, and/or present in sensitive 

life stages are effective measures for 

reducing the magnitude and severity of 

human impacts. The temporal 

restrictions required here are built 

around the protection of North Atlantic 

right whales. Based upon the best 

scientific information available (Roberts 

et al., 2023), the highest densities of 

North Atlantic right whales in the 

Project Area are expected during the 

months of January through April, with 

an increase in density starting in 

December. However, North Atlantic 

right whales may be present in the 

Project Area throughout the year, 

although the numbers of North Atlantic 

right whales would not be as large as 

would be expected in a foraging or 

calving ground. 

NMFS is requiring seasonal work 

restrictions to minimize the risk of noise 

exposure to North Atlantic right whales 

incidental to certain specified activities 

to the extent practicable. These seasonal 

work restrictions are expected to greatly 

reduce the number of takes of North 

Atlantic right whales. These seasonal 

restrictions also afford protection to 

other marine mammals that are known 

to use the Project Area with greater 

frequency during winter months, 

including other baleen whales. 

As described previously, no impactpile-driving activities may occur 

January 1 through April 30. A new 

measure included in this final rule 

requires that Empire Wind install the 

foundations as quickly as possible and 

avoid pile driving in December to the 

maximum extent practicable; however, 

pile driving may occur in December if 

it is unavoidable upon approval from 

NMFS. Furthermore, pile driving will be 

limited to daylight hours only, subject 

to the exceptions described below, to 

reduce impacts on migrating species 

(e.g., North Atlantic right whales) and to 

ensure that visual PSOs can confirm 

appropriate clearance of the site prior to 

pile-driving activities. 

No more than two foundation 

monopiles or three pin piles for jacket 

foundations would be installed per day. 

Monopiles must be no larger than 11-m 

in diameter and pin piles must be no 

larger than 2.5-m in diameter. For all 

monopiles and pin piles, the minimum 

amount of hammer energy necessary to 

effectively and safely install and 

maintain the integrity of the piles must 

be used. Hammer energies must not 

exceed 5,500 kJ for monopile 

installation or 3,200 kJ for pin pile 

installation. 

Impact pile driving will be initiated 

only during daylight hours no earlier 

than 1 hour after civil sunrise. Impact 

pile driving will not be initiated later 

than 1.5 hours before civil sunset. 

Generally, pile driving may continue 

after dark when the installation of the 

same pile began during daylight (1.5 

hours before civil sunset), when 

clearance zones were fully visible for at 

least 30 minutes and must proceed for 

human safety or installation feasibility 

reasons. The exception to this would be 

if Empire Wind submits, and NMFS 

approves, an Alternative Monitoring 

Plan as part of the Pile Driving and 

Marine Mammal Monitoring Plan that 

reliably demonstrates the efficacy of 

detecting marine mammals at night with 

its proposed devices. Impact pile 

driving will not be initiated when the 

minimum visibility zones cannot be 

fully visually monitored, as determined 

by the lead PSO on duty. 

Empire Wind has planned to 

construct the cofferdams or a casing 

pipe with goal posts anytime within the 

year during the first and second years of 

the effective period of the regulations 

and LOA. However, NMFS is not 

requiring any seasonal restrictions due 

to the relatively short durations in 

which work would occur (i.e., low 

associated impacts). Although North 

Atlantic right whales do migrate in 

coastal waters, they do not typically 

migrate very close to shore off of New 

York and/or within New York bays 

where work would be occurring. Given 

the distance to the Level B harassment 

isopleth is conservatively modeled at 

approximately 2 km, any exposure to 

vibratory pile driving during cofferdams 

would be at levels closer to the 120-dB 

Level B harassment threshold and not at 

louder source levels. Empire Wind will 

be required, however, to conduct 

vibratory pile driving associated with 

cofferdams or casing pipe and goal post 

installation during daylight hours only. 

Given the very small harassment 

zones resulting from HRG surveys and 

that the best available science indicates 

that any harassment from HRG surveys, 

should a marine mammal be exposed, 

the exposure would manifest as minor 

behavioral harassment only (e.g., 

potentially some avoidance of the 

vessel). Thus, NMFS is not requiring 

any seasonal and daily restrictions for 

HRG surveys. 

More information on activity-specific 

seasonal and daily restrictions can be 

found in the regulatory text at the end 

of this rulemaking. 

Noise Abatement Systems 

Empire Wind is required to employ 

noise abatement systems (NASs) during 

all foundation installation (i.e., impact 

pile driving) activities to reduce the 

sound pressure levels that are 

transmitted through the water in an 

effort to reduce ranges to acoustic 

thresholds and minimize any acoustic 

impacts resulting from these activities. 


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Empire Wind is required to use at least 

two NASs to ensure that measured 

sound levels do not exceed the levels 

modeled for a 10-dB sound level 

reduction for foundation installation, 

which is likely to include a double big 

bubble curtain, as well as the 

adjustment of operational protocols to 

minimize noise levels. This requirement 

has been updated since the proposed 

rule as a single bubble curtain, alone or 

in combination with another NAS 

device, may not be used for either pile 

driving as received SFV data reveals this 

approach is unlikely to attenuate sounds 

to the degree distances to harassment 

thresholds are at or smaller than those 

modeled assuming 10 dB of attenuation. 

As part of adaptive management should 

the research and development phase of 

newer systems demonstrate 

effectiveness, Empire Wind may submit 

data on the effectiveness of these 

systems and request approval from 

NMFS to use them during foundation 

installation activities. 

Two categories of NASs exist: primary 

and secondary. A primary NAS would 

be used to reduce the level of noise 

produced by foundation installation 

activities at the source, typically 

through adjustments on to the 

equipment (e.g., hammer strike 

parameters). Primary NASs are still 

evolving and will be considered for use 

during mitigation efforts when the NAS 

has been demonstrated as effective in 

commercial projects. However, as 

primary NASs are not fully effective at 

eliminating noise, a secondary NAS 

would be employed. The secondary 

NAS is a device or group of devices that 

would reduce noise as it was 

transmitted through the water away 

from the pile, typically through a 

physical barrier that would reflect or 

absorb sound waves and therefore, 

reduce the distance the higher energy 

sound propagates through the water 

column. Together, these systems must 

reduce noise levels to those not 

exceeding modeled ranges to Level A 

harassment and Level B harassment 

isopleths corresponding to those 

modeled assuming 10-dB sound 

attenuation, pending results of SFV (see 

the Sound Field Verification section 

below and 50 CFR part 217). 

Noise abatement systems, such as 

bubble curtains, are used to decrease the 

sound levels radiated from a source. 

Bubbles create a local impedance 

change that acts as a barrier to sound 

transmission. The size of the bubbles 

determines their effective frequency 

band, with larger bubbles needed for 

lower frequencies. There are a variety of 

bubble curtain systems, confined or 

unconfined bubbles, and some with 

encapsulated bubbles or panels. 

Attenuation levels also vary by type of 

system, frequency band, and location. 

Small bubble curtains have been 

measured to reduce sound levels but 

effective attenuation is highly 

dependent on depth of water, current, 

and configuration and operation of the 

curtain (Austin et al., 2016; Koschinski 

and Lu ̈demann, 2013). Bubble curtains 

vary in terms of the sizes of the bubbles 

and those with larger bubbles tend to 

perform a bit better and more reliably, 

particularly when deployed with two 

separate rings (Bellmann, 2014; 

Koschinski and Lu ̈demann, 2013; Nehls 

et al., 2016). Encapsulated bubble 

systems (e.g., Hydro Sound Dampers 

(HSDs)), can be effective within their 

targeted frequency ranges (e.g., 100–800 

Hz), and when used in conjunction with 

a bubble curtain appear to create the 

greatest attenuation. The literature 

presents a wide array of observed 

attenuation results for bubble curtains. 

The variability in attenuation levels is 

the result of variation in design as well 

as differences in site conditions and 

difficulty in properly installing and 

operating in-water attenuation devices. 

Da ̈hne et al. (2017) found that single 

bubble curtains that reduce sound levels 

by 7 to 10 dB reduced the overall sound 

level by approximately 12 dB when 

combined as a double bubble curtain for 

6-m steel monopiles in the North Sea. 

During installation of monopiles 

(consisting of approximately 8-m in 

diameter) for more than 150 WTGs in 

comparable water depths (>25 m) and 

conditions in Europe indicate that 

attenuation of 10 dB is readily achieved 

(Bellmann, 2019; Bellmann et al., 2020) 

using single BBCs for noise attenuation. 

When a double big bubble curtain is 

used (noting a single bubble curtain is 

not allowed), Empire Wind is required 

to maintain numerous operational 

performance standards. These standards 

are defined in the regulatory text at the 

end of this rulemaking, and include, but 

are not limited to, construction 

contractors must train personnel in the 

proper balancing of airflow to the 

bubble ring and Empire Wind must 

submit a performance test and 

maintenance report to NMFS within 72 

hours following the performance test. 

Corrections to the attenuation device to 

meet regulatory requirements must 

occur prior to use during foundation 

installation activities. In addition, a full 

maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed. If Empire Wind 

uses a noise mitigation device in 

addition to a double big bubble curtain, 

similar quality control measures are 

required. Should the research and 

development phase of newer systems 

demonstrate effectiveness, as part of 

adaptive management, Empire Wind 

may submit data on the effectiveness of 

these systems and request approval from 

NMFS to use them during foundation 

installation activities. 

Empire Wind is required to submit an 

SFV plan to NMFS for approval at least 

180 days prior to installing foundations. 

They are also required to submit interim 

and final SFV data results to NMFS and 

make corrections to the NASs in the 

case that any SFV measurements 

demonstrate noise levels are above those 

modeled assuming 10 dB. These 

frequent and immediate reports allow 

NMFS to better understand the sound 

fields to which marine mammals are 

being exposed and require immediate 

corrective action should they be 

misaligned with anticipated noise levels 

within our analysis. 

Noise abatement devices are not 

required during HRG surveys, cofferdam 

(i.e., sheet pile), goal post (i.e., pipe pile) 

installation/removal, and marina piling 

activities. Regarding cofferdam sheet 

pile and goal post pipe pile installation 

and removal as well as marina piling 

activities, NAS is not practicable to 

implement due to the physical nature of 

linear sheet piles and angled pipe piles, 

and is of low risk for impacts to marine 

mammals due to the short work 

duration and lower noise levels 

produced during the activities. 

Regarding HRG surveys, NAS cannot 

practicably be employed around a 

moving survey ship, but Empire Wind is 

required to make efforts to minimize 

source levels by using the lowest energy 

settings on equipment that has the 

potential to result in harassment of 

marine mammals (e.g., CHIRPs) and 

turning off equipment when not actively 

surveying. Overall, minimizing the 

amount and duration of noise in the 

ocean from any of the Project’s activities 

through use of all means necessary (e.g., 

noise abatement, turning off power) will 

effect the least practicable adverse 

impact on marine mammals. 

Clearance and Shutdown Zones 

NMFS requires the establishment of 

both clearance and, where technically 

feasible, shutdown zones during project 

activities that have the potential to 

result in harassment of marine 

mammals. The purpose of ‘‘clearance’’ 

of a particular zone is to minimize 

potential instances of auditory injury 

and more severe behavioral 

disturbances by delaying the 

commencement of an activity if marine 

mammals are near the activity. The 

purpose of a shutdown is to prevent a 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11397 

specific acute impact, such as auditory 

injury or severe behavioral disturbance 

of sensitive species, by halting the 

activity. 

All relevant clearance and shutdown 

zones during project activities would be 

monitored by NMFS-approved PSOs 

and PAM operators as described in the 

regulatory text at the end of this 

rulemaking. At least one PAM operator 

must review data from at least 24 hours 

prior to foundation installation and 

must actively monitor hydrophones for 

60 minutes prior to commencement of 

impact-pile-driving activities. Any 

North Atlantic right whale sighting at 

any distance by foundation installation 

PSOs, or acoustically detected within 

the PAM monitoring zone (10 km), 

triggers a delay to commencing pile 

driving and shutdown. Any large whale 

sighted by a PSO or acoustically 

detected by a PAM operator that cannot 

be identified as a non-North Atlantic 

right whale must be treated as if it were 

a North Atlantic right whale. 

Prior to the start of certain specified 

activities (i.e., foundation installation, 

cofferdam install and removal, HRG 

surveys, and marina activities), Empire 

Wind must ensure designated areas (i.e., 

clearance zones as provided in tables 

39–41) are clear of marine mammals 

prior to commencing activities to 

minimize the potential for and degree of 

harassment. For foundation installation, 

PSOs must visually monitor clearance 

zones for marine mammals for a 

minimum of 60 minutes. During this 

period, the clearance zones will be 

monitored by both PSOs and a PAM 

operator. Prior to the start of impactpile-driving activities, Empire Wind 

will ensure the area is clear of marine 

mammals, per the clearance zones in 

table 39, to minimize the potential for, 

and the degree of, harassment. All 

clearance zones must be confirmed to be 

free of marine mammals for 30 minutes 

immediately prior to starting a soft-start 

of pile driving. If a marine mammal is 

observed within a clearance zone during 

the pre-start clearance period, impact 

pile driving will be delayed and may 

not begin until the animal(s) has been 

observed exiting its respective zone, or 

until an additional time period has 

elapsed with no further sightings (i.e., 

15 minutes for small odontocetes and 

pinnipeds and 30 minutes for all other 

species). In addition, impact pile 

driving will be delayed upon a 

confirmed PAM detection of a North 

Atlantic right whale if the PAM 

detection is confirmed to have been 

located within the 5 km North Atlantic 

right whale PAM Clearance zone. Any 

large whale sighted by a PSO within 

1,000 m of the pile that cannot be 

identified to species must be treated as 

if it were a North Atlantic right whale. 

PSO and PAM must continue 

throughout the duration of monopile 

installation and for 30 minutes postcompletion of installation. 

Clearance and shutdown zones have 

been developed in consideration of 

modeled distances to relevant PTS 

thresholds with respect to minimizing 

the potential for take by Level A 

harassment. The clearance and 

shutdown zones for North Atlantic right 

whales during monopile and OSS 

foundation installation is any distance 

from PSOs or any acoustic detection 

within the PAM monitoring zone 

(10km). The visual and acoustic 

clearance zones for large whales other 

than North Atlantic right whales are 

2,000 m, which corresponds to the 

largest modeled exposure range (ER95%) 

distances to Level A harassment 

thresholds (SEL and peak) under all 

scenarios for all whales, rounded up to 

the nearest 0.5 km (tables 12 and 13). 

The visual and acoustic shutdown zones 

for large whales other than North 

Atlantic right whales are 1,500 m for all 

typical piles and one difficult-to-drive 

pile for all other large whales, and 2,000 

m for two difficult-to-drive piles for all 

other large whales. These distances are 

also larger than the largest Level A 

harassment modeled exposure range 

(ER95%). For other species, the clearance 

and shutdown zones represent the 

lowest practicable adverse impact 

(LPAI) and minimize the amount of take 

by Level B harassment. For North 

Atlantic right whales, there is an 

additional requirement that the 

clearance zone may only be declared 

clear if no confirmed North Atlantic 

right whale acoustic detections (in 

addition to visual) have occurred during 

the 60-minute monitoring period. 

Once an activity begins, any marine 

mammal entering their respective 

shutdown zone would trigger the 

activity to cease. In the case of pile 

driving, the shutdown requirement may 

be waived if is not practicable due to 

imminent risk of injury or loss of life to 

an individual, risk of damage to a vessel 

that creates risk of injury or loss of life 

for individuals, or where the lead 

engineer determines there is pile refusal 

or pile instability. In situations when 

shutdown is called for during impact 

pile driving, but Empire Wind 

determines shutdown is not practicable 

due to aforementioned emergency 

reasons, reduced hammer energy must 

be implemented when the lead engineer 

determines it is practicable. 

Specifically, pile refusal or pile 

instability could result in not being able 

to shut down pile driving immediately. 

Pile refusal occurs when the pile driving 

sensors indicate the pile is approaching 

refusal and a shut-down would lead to 

a stuck pile which then poses an 

imminent risk of injury or loss of life to 

an individual, or risk of damage to a 

vessel that creates risk for individuals. 

Pile instability occurs when the pile is 

unstable and unable to stay standing if 

the piling vessel were to ‘‘let go.’’ 

During these periods of instability, the 

lead engineer may determine a shutdown is not feasible because the shutdown combined with impending 

weather conditions may require the 

piling vessel to ‘‘let go’’, which then 

poses an imminent risk of injury or loss 

of life to an individual, or risk of 

damage to a vessel that creates risk for 

individuals. Empire Wind must 

document and report to NMFS all cases 

where the emergency exemption is 

taken. 

After shutdown, impact pile driving 

may be reinitiated once all clearance 

zones are clear of marine mammals for 

the minimum species-specific periods, 

or, if required to maintain pile stability, 

at which time the lowest hammer 

energy must be used to maintain 

stability. If pile driving has been shut 

down due to the presence of a North 

Atlantic right whale, pile driving must 

not restart until the North Atlantic right 

whale has neither been visually or 

acoustically detected by pile driving 

PSOs and PAM operators for 30 

minutes. Upon re-starting pile driving, 

soft-start protocols must be followed if 

pile driving has ceased for 30 minutes 

or longer. 

The clearance and shutdown zone 

sizes vary by species and are shown in 

tables 39, 40, and 41. Empire Wind is 

allowed to request modification to these 

zone sizes pending results of SFV (see 

the regulatory text at the end of this 

rulemaking). Any changes to zone size 

would be part of adaptive management 

and would require NMFS’ approval. The 

10 km PAM monitoring zone for North 

Atlantic right whales has been added to 

this final rule. In addition, the visual 

shutdown, PAM clearance, and PAM 

shutdown zones for North Atlantic right 

whales have been increased to any 

distance to align with the North Atlantic 

right whale visual clearance zone and 

with the updated BiOp requirements. 

The increase to these zones also 

increases protections for North Atlantic 

right whales during impact pile driving. 

A 10-km distance is a reasonable 

distance for a PAM system to monitor; 

thus, 10 km was added as the 

requirement for the PAM monitoring 

zone. 

In addition to the clearance and 

shutdown zones that would be 


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11398 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

monitored both visually and 

acoustically, Empire Wind will establish 

a minimum visibility zone to ensure 

both visual and acoustic methods are 

used in tandem to detect marine 

mammals, resulting in maximum 

detection capability. For foundation 

installation, the minimum visibility 

zone would extend 1.5 km from the pile 

driving source (table 39). This value 

corresponds to the largest modeled 

ER95% distance to the Level A 

harassment isopleth of all marine 

mammals when up to two typical piles 

per day are installed (summer or winter; 

see tables 12 and 13) or one difficult-todrive pile is installed in summer (i.e., 

when Empire intends to complete all 

pile driving; see table 12), rounded up 

to the closest 0.5 km for PSO 

implementation ease. This distance also 

corresponds to approximately the Level 

B harassment isopleth for OSS 

foundation installation, assuming 10-dB 

attenuation. The minimum visibility 

zone has been increased from 1.2 km, as 

was provided in the proposed rule, to 

1.5 km to be consistent with the 

shutdown zone for mysticetes as well as 

to be consistent with the increase in the 

minimum visibility zone in the BiOp. 

The entire minimum visibility zone 

must be visible (i.e., not obscured by 

dark, rain, fog, etc.) for a full 30 minutes 

immediately prior to commencing 

impact pile driving. 

TABLE 39—MINIMUM VISIBILITY, CLEARANCE, SHUTDOWN, AND LEVEL B HARASSMENT ZONES DURING IMPACT PILE

DRIVING FOR MONOPILES AND PIN PILES

Monitoring zones North Atlantic 

right whales 

Other 

mysticetes/sperm 

whales 

(m) 

Pilot whales 

and delphinids 

(m) 

Harbor 

porpoises 

(m) 

Seals 

(m) 

Minimum Visibility Zone 1 ............................................................................. 1,500 

Clearance Zone 2 ......................................................................................... Any visual distance ...... 2,000 200 400 200 

PAM Clearance Zone 2 ................................................................................ Any distance ................. 2,000 200 400 200 

Shutdown Zone 3 .......................................................................................... Any visual distance ...... 1,500 (2,000) 200 400 200 

PAM Shutdown Zone 3 ................................................................................. Any distance ................. 1,500 (2,000) n/a n/a n/a 

PAM Monitoring Zone .................................................................................. 10,000 m 

Maximum Level B Harassment (Exposure Range, R95percent) .................... Monopiles: 5.35 km; Pin Piles: 1.14 km 

1The minimum visibility zone corresponds to the largest modeled ER95percent distances to the Level A harassment isopleth of all marine mammals when up to two 

typical piles per day are installed (summer or winter, see tables 12 and 13) or one difficult-to-drive pile is installed in summer (when Empire intends to complete all 

pile driving; see table 12), rounded up to the closest 0.5 km (for PSO implementation ease). 2The large whale (other than North Atlantic right whale) clearance zone corresponds to the largest modeled exposure range (ER95percent) distances to Level A harassment thresholds (SEL and peak) under all scenarios for all whales, rounded up to the nearest 0.5 km. The clearance zones for pilot whales and delphinids, harbor 

porpoises, and seals represent LPAI and minimize the amount of take by Level B harassment. 3The large whale (other than North Atlantic right whale) shutdown zone of 2,000 m applies during days of installing two difficult-to-drive piles by impact pile driving. 

Otherwise, the 1,500 m shutdown zone is in effect. These zones correspond to the largest Level A harassment distance (ER95percent) for all large whales under these 

scenarios. The shutdown zones for pilot whales and delphinids, harbor porpoises, and seals represent LPAI and minimize the amount of take by Level B harassment. 

For cofferdam and goal post pile 

driving, HRG surveys, and marina 

activities, monitoring must be 

conducted for 30 minutes prior to 

initiating activities, and the clearance 

zones must be free of marine mammals 

during that time. For vibratory piledriving activities associated with sheet 

pile installation and impact/pneumatic 

hammering for casing pipe installation, 

Empire Wind will establish clearance 

and shutdown zones, as shown in table 

40. PSOs would monitor the clearance 

zone for 30 minutes before the start of 

cable landfall activities, during pile 

driving associated with cable landfall, 

and for 30 minutes after pile driving of 

cable landfall. If a marine mammal is 

observed entering or is observed within 

the respective zones, activities will not 

commence until the animal has exited 

the zone or a specific amount of time 

has elapsed since the last sighting (i.e., 

30 minutes for large whales and 15 

minutes for dolphins, porpoises, and 

pinnipeds). If a marine mammal is 

observed entering or is within the 

respective shutdown zone after 

vibratory pile driving or pneumatic 

hammering has begun, the PSO will call 

for a temporary cessation of the activity. 

Pile driving or hammering must not be 

restarted until either the marine 

mammal(s) has voluntarily left the 

specific clearance zones and has been 

visually confirmed beyond that 

clearance zone or when specific time 

periods have elapsed with no further 

sightings or acoustic detections have 

occurred (i.e., 15 minutes for small 

odontocetes and 30 minutes for all other 

marine mammal species). Because a 

vibratory hammer can grip a pile 

without operating, pile instability 

should not be a concern and no caveat 

for re-starting pile driving due to pile 

instability is planned. 

TABLE 40—CLEARANCE AND SHUTDOWN ZONES FOR SHEET PILE VIBRATORY DRIVING FOR COFFERDAMS AND IMPACT/ 

PNEUMATIC HAMMERING FOR CASING PIPES FOR GOAL POSTS (m) 

Hearing group (species) Clearance zone 

(m) 1

Shutdown zone 

(m) 1

Low-Frequency (North Atlantic right whale, all other mysticetes) 2 ................................................................ 1,600 1,600 

High-Frequency (harbor porpoise) 3 ................................................................................................................ 100 100 

Mid-Frequency (dolphins and pilot whales) 3 .................................................................................................. 50 50 

Phocid Pinniped (seals) 4 ................................................................................................................................. 100 100 

1 Clearance and shutdown zones apply to both cofferdam and goal post installation. 

2For low-frequency cetaceans, the clearance and shutdown zones are larger than the distance to the Level B harassment threshold for Empire 

Wind 2. 3For mid-frequency cetaceans and harbor porpoises, the clearance and shutdown zones are larger than the distance to the Level A harassment threshold. 4The shutdown zone and clearance zone for pinnipeds has been increased from 50 m to 100 m to encompass the distance to PTS onset for 

these activities (62 m) as pinniped take by Level A harassment is not authorized. 


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For HRG surveys, there are no 

mitigation measures prescribed for 

sound sources operating at frequencies 

greater than 180 kHz, as these would be 

expected to fall outside of marine 

mammal hearing ranges and would not 

result in harassment. However, all HRG 

survey vessels would be subject to the 

aforementioned vessel strike avoidance 

measures described earlier in this 

section. Furthermore, due to the 

frequency range and characteristics of 

some of the sound sources, shutdown, 

clearance, and ramp-up procedures are 

not planned to be conducted during 

HRG surveys utilizing only nonimpulsive sources (e.g., USBL and other 

parametric sub-bottom profilers), with 

exception to usage of SBPs and other 

non-parametric sub-bottom profilers. 

PAM would not be required during HRG 

surveys. While NMFS agrees that PAM 

can be an important tool for augmenting 

detection capabilities in certain 

circumstances, its utility in further 

reducing impacts during HRG survey 

activities is limited. We have provided 

a thorough description of our reasoning 

for not requiring PAM during HRG 

surveys in several Federal Register 

notices (e.g., 87 FR 40796, July 8, 2022; 

87 FR 52913, August 3, 2022; 87 FR 

51356, August 22, 2022). 

Empire Wind will be required to 

implement a 30-minute clearance period 

of the clearance zones (table 39) 

immediately prior to the commencing of 

the survey, or when there is more than 

a 30-minute break in survey activities 

and PSOs have not been actively 

monitoring. If a marine mammal is 

observed within a clearance zone during 

the clearance period, ramp up 

(described below) may not begin until 

the animal(s) have been observed 

voluntarily exiting its respective 

clearance zone or until an additional 

time period has elapsed with no further 

sighting (i.e., 15 minutes for small 

odontocetes and seals, and 30 minutes 

for all other species). When the 

clearance process has begun in 

conditions with good visibility, 

including via the use of night vision 

equipment (i.e., infrared (IR)/thermal 

camera), and the Lead PSO has 

determined that the clearance zones are 

clear of marine mammals, survey 

operations would be allowed to 

commence (i.e., no delay is required) 

despite periods of inclement weather 

and/or loss of daylight. 

Once the survey has commenced, 

Empire Wind would be required to shut 

down SBPs if a marine mammal enters 

a respective shutdown zone (table 39). 

In cases where the shutdown zones 

become obscured for brief periods due 

to inclement weather, survey operations 

would be allowed to continue (i.e., no 

shutdown is required) so long as no 

marine mammals have been detected. 

The use of SBPs will not be allowed to 

commence or resume until the animal(s) 

has been confirmed to have left the 

shutdown zone or until a full 15 

minutes (for small odontocetes and 

seals) or 30 minutes (for all other marine 

mammals) have elapsed with no further 

sighting. Any large whale sighted by a 

PSO within 1,000 m of the SBPs that 

cannot be identified as a non-North 

Atlantic right whale would be treated as 

if it were a North Atlantic right whale. 

Once the survey has commenced, 

Empire Wind would be required to shut 

down SBPs if a marine mammal enters 

a respective shutdown zone (table 39). 

In cases when the shutdown zones 

become obscured for brief periods due 

to inclement weather, survey operations 

would be allowed to continue (i.e., no 

shutdown is required) so long as no 

marine mammals have been detected. 

The use of SBPs will not be allowed to 

commence or resume until the animal(s) 

has been confirmed to have left the 

shutdown zone or until a full 15 

minutes (for small odontocetes and 

seals) or 30 minutes (for all other marine 

mammals) have elapsed with no further 

sighting. Any large whale sighted by a 

PSO within 1,000 m of the SBPs that 

cannot be identified as a non-North 

Atlantic right whale would be treated as 

if it were a North Atlantic right whale. 

If a SBP is shut down for reasons 

other than mitigation (e.g., mechanical 

difficulty) for less than 30 minutes, it 

would be allowed to be activated again 

without ramp-up only if (1) PSOs have 

maintained constant observation, and 

(2) no additional detections of any 

marine mammal occurred within the 

respective shutdown zones. If a SBP was 

shut down for a period longer than 30 

minutes, then all clearance and ramp-up 

procedures would be required, as 

previously described. 

TABLE 41—LEVEL B HARASSMENT THRESHOLD RANGES AND MITIGATION ZONES DURING HRG SURVEYS

Marine mammal species 

Level B 

harassment zone 

(m) for CHIRPs 

Clearance zone 

(m) 

Shutdown zone 

(m) 

Low-frequency cetacean (North Atlantic right whale) ................................................... 50.05 500 500 

Other ESA-listed marine mammals (i.e., fin, sei, sperm whale) ................................... 500 100 

All other marine mammal species 1 ............................................................................... 100 100 

1With the exception of seals and delphinid(s) from the genera Delphinus, Lagenorhynchus, Stenella, or Tursiops, as described above. 

For any other in-water construction 

heavy machinery activities (e.g., 

trenching, cable laying, etc.), if a marine 

mammal is on a path towards or comes 

within 10 m (32.8 ft) of equipment, 

Empire Wind is required to cease 

operations until the marine mammal has 

moved more than 10 m on a path away 

from the activity to avoid direct 

interaction with equipment. 

Soft-Start/Ramp-Up 

The use of a soft-start or ramp-up 

procedure is believed to provide 

additional protection to marine 

mammals by warning them or providing 

them with a chance to leave the area, 

prior to the hammer or HRG equipment 

operating at full capacity. Soft-start 

typically involves initiating hammer 

operation at a reduced energy level 

relative to full operating capacity 

followed by a waiting period. NMFS 

notes that it is difficult to specify a 

reduction in energy for any given 

hammer because of variation across 

drivers and installation conditions. 

Typically, NMFS requires a soft-start 

procedure of the applicant performing 

four to six strikes per minute at 10 to 20 

percent of the maximum hammer 

energy, for a minimum of 20 minutes. 

NMFS notes that it is difficult to specify 

a reduction in energy for any given 

hammer because of variation across 

drivers and installation conditions. 

Empire Wind has expressed concern 

with this approach as it could 

potentially damage the impact pile 

driving hammer as well as result in 

safety issues, particularly if pile driving 

stops before target pile penetration 

depth is reached which may result in 

pile refusal. As such, while general soft 

start requirements are incorporated into 

the regulatory text, specific soft start 

protocols considering final design 

details, including site-specific soil 


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properties and other considerations, are 

not included in the regulatory text but 

will be incorporated into the LOA. 

Empire Wind, with approval from 

NMFS, may also modify the soft start 

procedures through adaptive 

management. 

HRG survey operators are required to 

ramp-up sources when the acoustic 

sources are used unless the equipment 

operates on a binary on/off switch. The 

ramp-up would involve starting from 

the smallest setting to the operating 

level over a period of approximately 30 

minutes. 

Soft-start and ramp-up will be 

required at the beginning of each day’s 

activity and at any time following a 

cessation of activity of 30 minutes or 

longer. Prior to soft-start or ramp-up 

beginning, the operator must receive 

confirmation from the PSO that the 

clearance zone is clear of any marine 

mammals. 

Fishery Monitoring Surveys 

While the likelihood of Empire 

Wind’s fishery monitoring surveys 

impacting marine mammals is minimal, 

NMFS requires Empire Wind to adhere 

to gear and vessel mitigation measures 

to reduce potential impacts to the extent 

practicable. In addition, all crew 

undertaking the fishery monitoring 

survey activities are required to receive 

protected species identification training 

prior to activities occurring and attend 

the aforementioned onboarding training. 

The specific requirements that NMFS 

has set for the fishery monitoring 

surveys can be found in the regulatory 

text at the end of this rulemaking. 

Based on our evaluation of the 

mitigation measures, as well as other 

measures considered by NMFS, NMFS 

has determined that these measures will 

provide the means of affecting 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. 

Monitoring and Reporting 

As noted in the Changes from the 

Proposed to Final Rule section, we have 

added, modified, or clarified a number 

of monitoring and reporting measures 

since the proposed rule. These changes 

are described in detail below. Since the 

proposed rule, we have increased the 

number of required active PSOs per 

platform (i.e., pile driving vessel or 

dedicated PSO vessel, if used) during 

impact pile driving from two to three 

PSOs. This requirement will increase 

monitoring effort to promote more 

effective detection of marine mammals 

during impact-pile-driving activities. In 

addition, we have added specific 

requirements for SFV monitoring. 

In order to promulgate a rulemaking 

for an activity, section 101(a)(5)(A) of 

the MMPA states that NMFS must set 

forth requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the action area. Effective 

reporting is critical both to compliance 

as well as ensuring that the most value 

is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (i.e., individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (i.e., behavioral or 

physiological) to acoustic stressors (i.e., 

acute, chronic, or cumulative), other 

stressors, or cumulative impacts from 

multiple stressors; 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and/or 

• Mitigation and monitoring 

effectiveness. 

Separately, monitoring is also 

regularly used to support mitigation 

implementation (i.e., mitigation 

monitoring) and monitoring plans 

typically include measures that both 

support mitigation implementation and 

increase our understanding of the 

impacts of the activity on marine 

mammals. 

During the planned activities, visual 

monitoring by NMFS-approved PSOs 

would be conducted before, during, and 

after all impact pile driving, vibratory 

pile driving, and HRG surveys. PAM 

would also be conducted during all 

impact pile driving. Visual observations 

and acoustic detections would be used 

to support the activity-specific 

mitigation measures (e.g., clearance 

zones). To increase understanding of the 

impacts of the activity on marine 

mammals, PSOs must record all 

incidents of marine mammal occurrence 

at any distance from the piling locations 

and near the HRG acoustic sources. 

PSOs would document all behaviors 

and behavioral changes, in concert with 

distance from an acoustic source. The 

required monitoring is described below, 

beginning with PSO measures that are 

applicable to all the aforementioned 

activities, followed by activity-specific 

monitoring requirements. 

Protected Species Observer and PAM 

Operator Requirements 

Empire Wind is required to employ 

NMFS-approved PSOs and PAM 

operators. PSOs are trained 

professionals who are tasked with 

visually monitoring for marine 

mammals during pile driving and HRG 

surveys. The primary purpose of a PSO 

is to carry out the monitoring, collect 

data, and, when appropriate, call for the 

implementation of mitigation measures. 

In addition to visual observations, 

NMFS requires Empire Wind to conduct 

PAM by PAM operators during impact 

pile driving and vessel transit. 

The inclusion of PAM, which would 

be conducted by NMFS-approved PAM 

operators, following a standardized 

measurement, processing methods, 

reporting metrics, and metadata 

standards for offshore wind, alongside 

visual data collection is valuable to 

provide the most accurate record of 

species presence as possible. These two 

monitoring methods are well 

understood to provide best results when 

combined (e.g., Barlow and Taylor, 

2005; Clark et al., 2010; Gerrodette et 

al., 2011; Van Parijs et al., 2021). 

Acoustic monitoring, in addition to 

visual monitoring, increases the 

likelihood of detecting marine mammals 

within the shutdown and clearance 

zones of project activities, which when 

applied in combination of required 

shutdowns helps to further reduce the 

risk of marine mammals being exposed 

to sound levels that could otherwise 

result in acoustic injury or more intense 

behavioral harassment. 


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The exact configuration and number 

of PAM systems depends on the size of 

the zone(s) being monitored, the amount 

of noise expected in the area, and the 

characteristics of the signals being 

monitored. More closely-spaced 

hydrophones would allow for more 

directionality and range to the 

vocalizing marine mammals. Larger 

baleen cetacean species (i.e., 

mysticetes), which produce loud and 

lower-frequency vocalizations, may be 

able to be heard with fewer 

hydrophones spaced at greater 

distances. However, smaller cetaceans 

(e.g., mid-frequency delphinids; 

odontocetes) may necessitate more 

hydrophones and to be spaced closer 

together given the shorter range of the 

shorter, mid-frequency acoustic signals 

(e.g., whistles and echolocation clicks). 

As there are no ‘‘perfect fit’’ singleoptimal-array configurations, these setups would need to be considered on a 

case-by-case basis. 

NMFS does not formally administer 

any PSO or PAM operator training 

programs or endorse specific providers 

but will approve PSOs and PAM 

operators that have successfully 

completed courses that meet the 

curriculum and training requirements 

referenced below and further specified 

in the regulatory text at the end of this 

rulemaking. PSOs can act as PAM 

operators or visual PSOs (but not 

simultaneously) as long as they 

demonstrate that their training and 

experience are sufficient to perform 

each task. 

NMFS will provide PSO and PAM 

operator approvals in the context of the 

need to ensure that PSOs and PAM 

operators have the necessary training 

and/or experience to carry out their 

duties competently. In order for PSOs 

and PAM operators to be approved, 

NMFS must review and approve PSO 

and PAM operator resumes indicating 

successful completion of an acceptable 

training course. PSOs and PAM 

operators must have previous 

experience observing marine mammals 

and must have the ability to work with 

all required and relevant software and 

equipment. NMFS may approve PSOs 

and PAM operators as conditional or 

unconditional. A conditional approval 

may be given to one who is trained but 

has not yet attained the requisite 

experience. An unconditional approval 

is given to one who is trained and has 

attained the necessary experience. The 

specific requirements for conditional 

and unconditional approval can be 

found in the regulatory text at the end 

of this rulemaking. 

Conditionally-approved PSOs and 

PAM operators would be paired with an 

unconditional-approved PSO (or PAM 

operator, as appropriate) to ensure that 

the quality of marine mammal 

observations and data recording is kept 

consistent. Additionally, activities 

requiring PSO and/or PAM operator 

monitoring must have a lead on duty. 

The visual PSO field team, in 

conjunction with the PAM team (i.e., 

marine mammal monitoring team), 

would have a lead member (designated 

as the ‘‘Lead PSO’’ or ‘‘Lead PAM 

operator’’) who would be required to 

meet the unconditional approval 

standard. NMFS has added a 

requirement that the Lead PSO must 

also have a minimum of 90 days of atsea experience and must have obtained 

this experience within the last 18 

months. This requirement was added to 

ensure that Lead PSOs have adequate 

and recent observer experience. 

Empire Wind is required to request 

PSO and PAM operator approvals 60 

days prior to those personnel 

commencing work. An initial list of 

previously approved PSO and PAM 

operators must be submitted by Empire 

Wind at least 30 days prior to the start 

of the Project. Should Empire Wind 

require additional PSOs or PAM 

operators throughout the Project, 

Empire Wind must submit a subsequent 

list of pre-approved PSOs and PAM 

operators to NMFS at least 15 days prior 

to planned use of that PSO or PAM 

operator. A PSO may be trained and/or 

experienced as both a PSO and PAM 

operator and may perform either duty, 

pursuant to scheduling requirements. 

A minimum number of PSOs would 

be required to actively observe for the 

presence of marine mammals during 

certain project activities, with more 

PSOs being required as the mitigation 

zone sizes increase. A minimum 

number of PAM operators would be 

required to actively monitor for the 

presence of marine mammals during 

foundation installation. The types of 

equipment required (e.g., big eyes on the 

pile driving vessel) are also designed to 

increase marine mammal detection 

capabilities. Specifics on these types of 

requirements can be found in the 

regulations at the end of this 

rulemaking. At least three PSOs must be 

on duty at a time on the impact pile 

driving vessel. A minimum of three 

PSOs must be active on a dedicated PSO 

vessel or an alternate monitoring 

technology (e.g., unmanned aircraft 

system (UAS)) must be used that has 

been demonstrated as having greater 

visual monitoring capability compared 

to three PSOs on a dedicated PSO vessel 

and is approved by NMFS. If a 

dedicated PSO vessel is selected, the 

vessel must be located at the best 

vantage point to observe and document 

marine mammal sightings in proximity 

to the clearance and shutdown zones. If 

an alternate monitoring technology is 

used in place of a dedicated PSO vessel, 

the technology must be described in the 

pile driving monitoring plan and 

demonstrate a greater visual monitoring 

capability as described above. In 

summary, at least three PSOs and one 

PAM operator per acoustic data stream 

(i.e., equivalent to the number of 

acoustic buoys) must be on-duty and 

actively monitoring per platform during 

impact foundation installation. 

At least two PSOs must be on-duty 

during vibratory pile driving and 

impact/pneumatic hammering during 

cable landfall and marina construction 

activities. At least one PSO must be onduty during HRG surveys conducted 

during daylight hours; and at least two 

PSOs must be on-duty during HRG 

surveys conducted during nighttime. 

In addition to monitoring duties, 

PSOs and PAM operators are 

responsible for data collection. The data 

collected by PSO and PAM operators 

and subsequent analysis provide the 

necessary information to inform an 

estimate of the amount of take that 

occurred during the Project, better 

understand the impacts of the Project on 

marine mammals, address the 

effectiveness of monitoring and 

mitigation measures, and to adaptively 

manage activities and mitigation in the 

future. Data reported includes 

information on marine mammal 

sightings, activity occurring at time of 

sighting, monitoring conditions, and if 

mitigative actions were taken. Specific 

data collection requirements are 

contained within the regulations at the 

end of this rulemaking. 

Empire Wind is required to submit a 

Pile Driving Monitoring Plan and a PAM 

Plan to NMFS 180 days in advance of 

foundation installation activities. The 

Plan must include details regarding PSO 

and PAM monitoring protocols and 

equipment proposed for use, as 

described in the regulatory text at the 

end of this rulemaking. NMFS must 

approve the plan prior to foundation 

installation activities commencing. 

Specific details on NMFS’ PSO or PAM 

operator qualifications and 

requirements can be found in 50 CFR 

part 217, subpart CC, set out at the end 

of this rulemaking. Additional 

information can be found in Empire 

Wind’s Protected Species Mitigation 

and Monitoring Plan (PSMMP; 

appendix B) found on NMFS’ website at 

https://www.fisheries.noaa.gov/action/ 

incidental-take-authorization-empireoffshore-wind-llc-construction-empirewind-project-ew1?check_logged_in=1. 


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Sound Field Verification 

Empire Wind must conduct SFV 

measurements during all impact-piledriving activities associated with the 

installation of, at minimum, the first 

three monopile foundations. SFV 

measurements must continue until at 

least three consecutive piles 

demonstrate distances to thresholds that 

are at or below those modeled assuming 

10 dB of attenuation. Subsequent SFV 

measurements are also required should 

larger piles be installed or additional 

piles be driven that are anticipated to 

produce longer distances to harassment 

isopleths than those previously 

measured (e.g., higher hammer energy, 

greater number of strikes, etc.). 

Abbreviated SFV monitoring must be 

performed on all foundation 

installations for which the complete 

SFV monitoring described above is not 

conducted. In addition, SFV 

measurements must be conducted upon 

commencement of turbine operations to 

estimate turbine operational source 

levels, in accordance with a NMFSapproved Foundation Installation Pile 

Driving SFV Plan. The measurements 

and reporting associated with SFV can 

be found in the regulatory text at the 

end of this rulemaking. The 

requirements are extensive to ensure 

monitoring is conducted appropriately 

and the reporting frequency is such that 

Empire Wind is required to make 

adjustments quickly (e.g., ensure bubble 

curtain hose maintenance, check bubble 

curtain air pressure supply, add 

additional sound attenuation, etc.) to 

ensure marine mammals are not 

experiencing noise levels above those 

considered in this analysis. For 

recommended SFV protocols for impact 

pile driving, please consult 

International Organization for 

Standardization (ISO) 18406, 

‘‘Underwater acoustics—Measurement 

of radiated underwater sound from 

percussive pile driving’’ (2017). 

Reporting 

Prior to any construction activities 

occurring, Empire Wind will provide a 

report to NMFS Office of Protected 

Resources that demonstrates that all 

Empire Wind personnel, including the 

vessel crews, vessel captains, PSOs, and 

PAM operators, have completed all 

required trainings. 

NMFS will require standardized and 

frequent reporting from Empire Wind 

during the life of the regulations and the 

LOA. All data collected relating to the 

Project will be recorded using industrystandard software (e.g., Mysticetus or a 

similar software) installed on field 

laptops and/or tablets. Empire Wind is 

required to submit weekly, monthly, 

annual, and situational reports. The 

specifics of what we require to be 

reported can be found in the regulatory 

text at the end of this final rule. 

Weekly Report—During foundation 

installation activities, Empire Wind 

would be required to compile and 

submit weekly marine mammal 

monitoring reports for foundation 

installation pile driving to NMFS Office 

of Protected Resources that document 

the daily start and stop of all piledriving activities, the start and stop of 

associated observation periods by PSOs, 

details on the deployment of PSOs, a 

record of all visual and acoustic 

detections of marine mammals, any 

mitigation actions (or if mitigation 

actions could not be taken, provide 

reasons why), and details on the noise 

abatement system(s) (e.g., system type, 

distance deployed from the pile, bubble 

rate, etc.). Weekly performance reports 

should also be included for abbreviated 

SFV monitoring. Weekly reports will be 

due on Wednesday for the previous 

week (Sunday–Saturday). The weekly 

reports are also required to identify 

which turbines become operational and 

when, and a map must be provided. 

Once all foundation pile installation is 

complete, weekly reports would no 

longer be required. 

Monthly Report—Empire Wind is 

required to compile and submit monthly 

reports to NMFS Office of Protected 

Resources that include a summary of all 

information in the weekly reports, 

including project activities carried out 

in the previous month, vessel transits 

(number, type of vessel, and route), 

number of piles installed, all detections 

of marine mammals, and any mitigative 

actions taken. Monthly reports would be 

due on the 15th of the month for the 

previous month. The monthly report 

would also identify which turbines 

become operational and when, and a 

map must be provided. Once all 

foundation pile installation is complete, 

monthly reports would no longer be 

required. 

Annual Reporting—Empire Wind is 

required to submit an annual marine 

mammal monitoring (for both PSOs and 

PAMs) report to NMFS Office of 

Protected Resources no later than 90 

days following the end of a given 

calendar year describing, in detail, all of 

the information required in the 

monitoring section above. A final 

annual report must be prepared and 

submitted within 30 calendar days 

following receipt of any NMFS 

comments on the draft report. 

Final 5-Year Reporting—Empire Wind 

must submit its draft 5-year report(s) to 

NMFS Office of Protected Resources on 

all visual and acoustic monitoring 

conducted under the LOA within 90 

calendar days of the completion of 

activities occurring under the LOA. A 

final 5-year report must be prepared and 

submitted within 60 calendar days 

following receipt of any NMFS 

comments on the draft report. 

Information contained within this report 

is described at the beginning of this 

section. 

Situational Reporting—Specific 

situations encountered during the 

development of the Project require 

immediate reporting. For instance, if a 

North Atlantic right whale is observed 

at any time by PSOs or project 

personnel, the sighting must be 

immediately reported to NMFS, or, if 

not feasible, as soon as possible and no 

longer than 24 hours after the sighting. 

If a North Atlantic right whale is 

acoustically detected at any time via a 

project-related PAM system, the 

detection must be reported as soon as 

possible and no longer than 24 hours 

after the detection to NMFS via the 24- 

hour North Atlantic right whale 

Detection Template (https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates). Calling the hotline is 

not necessary when reporting PAM 

detections via the template. 

If a sighting of a stranded, entangled, 

injured, or dead marine mammal occurs, 

the sighting would be reported within 

24 hours to NMFS Office of Protected 

Resources, the NMFS Greater Atlantic 

Stranding Coordinator for the New 

England/Mid-Atlantic area (866–755– 

6622) in the Northeast Region (if in the 

Southeast Region (NC to FL), contact 

877–942–5343), and the U.S. Coast 

Guard within 24 hours. In the event of 

a vessel strike of a marine mammal by 

any vessel associated with the Project or 

if project activities cause a non-auditory 

injury or death of a marine mammal, 

Empire Wind must immediately report 

the incident to NMFS. If in the Greater 

Atlantic Region (Maine to Virginia), 

Empire Wind must call the NMFS 

Greater Atlantic Stranding Hotline. 

Separately, Empire Wind must also and 

immediately report the incident to 

NMFS Office of Protected Resources and 

GARFO. Empire Wind must 

immediately cease all on-water 

activities, including pile driving, until 

NMFS Office of Protected Resources is 

able to review the circumstances of the 

incident and determine what, if any, 

additional measures are appropriate to 

ensure compliance with the terms of the 

MMPA. NMFS Office of Protected 

Resources may impose additional 

measures covered in the adaptive 

management provisions of this rule to 


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minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. Empire Wind may not 

resume their activities until notified by 

NMFS. 

In the event of any lost gear associated 

with the fishery surveys, Empire Wind 

must report to as soon as possible or 

within 24 hours of the documented time 

of missing or lost gear. This report must 

include information on any markings on 

the gear and any efforts undertaken or 

planned to recover the gear. 

Sound Field Verification—Empire 

Wind is required to submit interim SFV 

reports after each foundation 

installation monitored as soon as 

possible but within 48 hours for 

thorough SFV. Abbreviated SFV reports 

must be included in the weekly 

monitoring reports. A final SFV report 

for all monopile foundation installation 

will be required within 90 days 

following completion of acoustic 

monitoring. 

Adaptive Management 

These regulations contain an adaptive 

management component. Our 

understanding of the effects of offshore 

wind construction activities (e.g., 

acoustic stressors) on marine mammals 

continues to evolve, which makes the 

inclusion of an adaptive management 

component both valuable and necessary 

within the context of 5-year regulations. 

The monitoring and reporting 

requirements in this final rule provide 

NMFS with information that helps us to 

better understand the impacts of the 

Project’s activities on marine mammals 

and informs our consideration of 

whether any changes to mitigation and 

monitoring are appropriate. The use of 

adaptive management allows NMFS to 

consider new information and modify 

mitigation, monitoring, or reporting 

requirements, as appropriate, with input 

from Empire Wind regarding 

practicability, if such modifications will 

have a reasonable likelihood of more 

effectively accomplishing the goal of the 

measures. 

The following are some of the 

possible general sources of new 

information to be considered through 

the adaptive management process: (1) 

results from monitoring reports, 

including the weekly, monthly, 

situational, and annual reports, as 

required; (2) results from marine 

mammal and sound research; and (3) 

any information which reveals that 

marine mammals may have been taken 

in a manner, extent, or number not 

authorized by these regulations or 

subsequent LOA. Also, specifically here, 

mitigation measures for HRG surveys 

are based upon the required project 

design criteria (PDCs) outlined by 

GARFO’s Protected Resources Division 

(PRD) BOEM 2021 ESA section 7 

consultation on offshore wind site 

assessment and site characterization 

activities. As mitigation measures are 

based upon the PDCs, and compliance 

with PDCs is required to ensure 

activities do not adversely affect ESAlisted species, updates to the PDCs may 

result in updates to mitigation measures 

for HRG surveys as well. During the 

course of the rule, Empire Wind (and 

other LOA Holders conducting offshore 

wind development activities) is required 

to participate in one or more adaptive 

management meetings convened by 

NMFS and/or BOEM, in which the 

above information will be summarized 

and discussed in the context of potential 

changes to the mitigation or monitoring 

measures. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

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 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

by mortality, serious injury, or by Level 

A harassment and Level B harassment, 

we consider other factors, such as the 

likely nature of any behavioral 

responses (e.g., intensity, duration), the 

context of any such responses (e.g., 

critical reproductive time or location, 

migration), as well as effects on habitat, 

and the likely effectiveness of 

mitigation. We also assess the number, 

intensity, and context of estimated takes 

by evaluating this information relative 

to population status. Consistent with the 

1989 preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

In the Estimated Take section, we 

estimated the maximum number of 

takes by Level A harassment and Level 

B harassment that are reasonably likely 

to occur from Empire Wind’s specified 

activities based on the methods 

described. The impact that any given 

take would have is dependent on many 

case-specific factors that need to be 

considered in the negligible impact 

analysis (e.g., the context of behavioral 

exposures such as duration or intensity 

of a disturbance, the health of impacted 

animals, the status of a species that 

incurs fitness-level impacts to 

individuals, etc.). In this final rule, we 

evaluate the likely impacts of the 

enumerated harassment takes that are 

authorized in the context of the specific 

circumstances surrounding these 

predicted takes. We also collectively 

evaluate this information, as well as 

other more taxa-specific information 

and mitigation measure effectiveness, in 

group-specific discussions that support 

our negligible impact conclusions for 

each stock. As described above, no 

serious injury or mortality is expected 

or authorized for any species or stock. 

The Description of the Specified 

Activities section describes Empire 

Wind’s specified activities that may 

result in take of marine mammals and 

an estimated schedule for conducting 

those activities. Empire Wind has 

provided a realistic construction 

schedule although we recognize 

schedules may shift for a variety of 

reasons (e.g., weather or supply delays). 

However, the total amount of take 

would not exceed the 5-year totals and 

maximum annual total in any given year 

indicated in tables 34 and 35, 

respectively. 

We base our analysis and negligible 

impact determination on the maximum 

number of takes that are reasonably 

likely to occur and are authorized 

annually and across the effective period 

of these regulations and extensive 

qualitative consideration of other 

contextual factors that influence the 

degree of impact of the takes on the 

affected individuals and the number 

and context of the individuals affected. 

As stated before, the number of takes, 

both maximum annual and 5-year total, 

alone are only a part of the analysis. 

Last, we provide a negligible impact 

determination for each species or stock, 

providing species or stock-specific 

information or analysis, where 

appropriate, for example, for North 

Atlantic right whales given their 

population status. Organizing our 

analysis by grouping species or stocks 

that share common traits or that would 

respond similarly to effects of Empire 

Wind’s activities and then providing 

species- or stock-specific information 

allows us to avoid duplication while 

ensuring that we have analyzed the 


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effects of the specified activities on each 

affected species or stock. It is important 

to note that in the group or species 

sections, we base our negligible impact 

analysis on the maximum annual take 

that is predicted under the 5-year rule 

and that the negligible impact 

determination also examines the total 

taking over the 5-year period; however, 

the majority of the impacts are 

associated with WTG foundation and 

OSS foundation installation, which 

would occur largely during years 2 and 

3 (2025 through 2026). The estimated 

take in the other years is expected to be 

notably less, which is reflected in the 

total take that would be allowable under 

the rule (see tables 33, 34, and 35). 

As described previously, no serious 

injury or mortality is anticipated or 

authorized in this rule. Any Level A 

harassment authorized would be in the 

form of auditory injury (i.e., PTS). The 

amount of harassment Empire Wind has 

requested, and NMFS is authorizing, is 

based on exposure models that consider 

the outputs of acoustic source and 

propagation models and other data such 

as frequency of occurrence or group 

sizes. Several conservative parameters 

and assumptions are ingrained into 

these models, such as assuming forcing 

functions that consider direct contact 

with piles (i.e., no cushion allowances) 

and application of the highest monthly 

sound speed profile to all months 

within a given season. The exposure 

model results do not reflect any 

mitigation measures (other than 10-dB 

sound attenuation) or avoidance 

response. The amount of take requested 

and authorized also reflects careful 

consideration of other data (e.g., group 

size data) and for Level A harassment 

potential of some large whales, the 

consideration of mitigation measures. 

For all species, the amount of take 

authorized represents the maximum 

amount of Level A harassment and 

Level B harassment that is reasonably 

likely to occur. 

Behavioral Disturbance 

In general, NMFS anticipates that 

impacts on an individual that has been 

harassed are likely to be more intense 

when exposed to higher received levels 

and for a longer duration, though this is 

in no way a strictly linear relationship 

for behavioral effects across species, 

individuals, or circumstances, and less 

severe impacts result when exposed to 

lower received levels for a brief 

duration. However, there is also growing 

evidence of the importance of 

contextual factors such as distance from 

a source in predicting marine mammal 

behavioral response to sound (i.e., 

sounds of a similar level emanating 

from a more distant source have been 

shown to be less likely to evoke a 

response of equal magnitude (DeRuiter 

and Doukara, 2012; Falcone et al., 

2017)). As described in the ‘‘Potential 

Effects to Marine Mammals and their 

Habitat’’ section of the proposed rule, 

the intensity and duration of any impact 

resulting from exposure to Empire 

Wind’s activities is dependent upon a 

number of contextual factors including, 

but not limited to, sound source 

frequencies, whether the sound source 

is moving towards the animal, hearing 

ranges of marine mammals, behavioral 

state at time of exposure, status of 

individual exposed (e.g., reproductive 

status, age class, health) and an 

individual’s experience with similar 

sound sources. Southall et al. (2021), 

Ellison et al. (2012), and Moore and 

Barlow (2013), among others, emphasize 

the importance of context (e.g., 

behavioral state of the animals, distance 

from the sound source) in evaluating 

behavioral responses of marine 

mammals to acoustic sources. 

Harassment of marine mammals may 

result in behavioral modifications (e.g., 

avoidance, temporary cessation of 

foraging or communicating, changes in 

respiration or group dynamics, masking) 

or may result in auditory impacts such 

as hearing loss. In addition, some of the 

lower-level physiological stress 

responses (e.g., change in respiration, 

change in heart rate) discussed 

previously would likely co-occur with 

the behavioral modifications, although 

these physiological responses are more 

difficult to detect and fewer data exist 

relating these responses to specific 

received levels of sound. Takes by Level 

B harassment, then, may have a stressrelated physiological component as 

well; however, we would not expect 

Empire Wind’s activities to produce 

conditions of long-term and continuous 

exposure to noise leading to long-term 

physiological stress responses in marine 

mammals that could affect reproduction 

or survival. 

In the range of behavioral effects that 

might be expected to be part of a 

response that qualifies as an instance of 

Level B harassment by behavioral 

disturbance (which by nature of the way 

it is modeled/counted, occurs within 1 

day), the less severe end might include 

exposure to comparatively lower levels 

of a sound, at a greater distance from the 

animal, for a few or several minutes. A 

less severe exposure of this nature could 

result in a behavioral response such as 

avoiding an area that an animal would 

otherwise have chosen to move through 

or feed in for some amount of time, or 

breaking off one or a few feeding bouts. 

More severe effects could occur if an 

animal gets close enough to the source 

to receive a comparatively higher level, 

is exposed continuously to one source 

for a longer time, or is exposed 

intermittently to different sources 

throughout a day. Such effects might 

result in an animal having a more severe 

flight response and leaving a larger area 

for a day or more or potentially losing 

feeding opportunities for a day. 

However, such severe behavioral effects 

are expected to occur infrequently. 

Many species perform vital functions, 

such as feeding, resting, traveling, and 

socializing, on a diel cycle (i.e., a 24- 

hour cycle). Behavioral reactions to 

noise exposure, when taking place in a 

biologically important context, such as 

disruption of critical life functions, 

displacement, or avoidance of important 

habitat, are more likely to be significant 

if they last more than 1 day or recur on 

subsequent days (Southall et al., 2007) 

due to diel and lunar patterns in diving 

and foraging behaviors observed in 

many cetaceans (Baird et al., 2008; 

Barlow et al., 2020; Henderson et al., 

2016; Schorr et al., 2014). It is important 

to note the water depth in the Project 

Area is shallow (5 to 44 m) and deep 

diving species, such as sperm whales, 

are not expected to be engaging in deep 

foraging dives when exposed to noise 

above NMFS harassment thresholds 

during the specified activities. 

Therefore, we do not anticipate impacts 

to deep foraging behavior to be 

impacted by the specified activities. 

It is also important to identify that the 

estimated number of takes does not 

necessarily equate to the number of 

individual animals Empire Wind 

expects to harass (which is lower) but 

rather to the instances of take (i.e., 

exposures above the Level B harassment 

thresholds) that may occur. These 

instances may represent either brief 

exposures of seconds to minutes for 

HRG surveys or, in some cases, longer 

durations of exposure within a day (e.g., 

pile driving). Some individuals of a 

species may experience recurring 

instances of take over multiple days 

throughout the year while some 

members of a species or stock may 

experience one exposure as they move 

through an area, which means that the 

number of individuals taken is smaller 

than the total estimated takes. In short, 

for species that are more likely to be 

migrating through the area and/or for 

which only a comparatively smaller 

number of takes are predicted (e.g., 

some of the mysticetes), it is more likely 

that each take represents a different 

individual whereas for non-migrating 

species with larger amounts of predicted 

take, we expect that the total anticipated 


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takes represent exposures of a smaller 

number of individuals of which some 

would be taken across multiple days. 

For Empire Wind, impact pile driving 

of foundation piles is most likely to 

result in a higher magnitude and 

severity of behavioral disturbance than 

other activities (i.e., impact driving of 

casing pipe, vibratory pile driving, and 

HRG surveys). Impact pile driving has 

higher source levels and longer 

durations (on an annual basis) than any 

nearshore pile-driving activities. HRG 

survey equipment also produces much 

higher frequencies than pile driving, 

resulting in minimal sound propagation. 

While foundation installation impact 

pile driving is anticipated to be most 

impactful for these reasons, impacts are 

minimized through implementation of 

mitigation measures, including softstarts, use of a sound attenuation 

system, the implementation of clearance 

zones that would facilitate a delay of 

pile driving commencement, and the 

implementation of shutdown zones. For 

example, given sufficient notice through 

the use of soft-start, marine mammals 

are expected to move away from a 

sound source that is disturbing prior to 

becoming exposed to very loud noise 

levels. The requirement to couple visual 

monitoring and PAM before and during 

all foundation installation will increase 

the overall capability to detect marine 

mammals compared to one method 

alone. 

Occasional, milder behavioral 

reactions are unlikely to cause long-term 

consequences for individual animals or 

populations, and even if some smaller 

subset of the takes are in the form of a 

longer (several hours or a day) and more 

severe response, if they are not expected 

to be repeated over numerous or 

sequential days, impacts to individual 

fitness are not anticipated. Also, the 

effect of disturbance is strongly 

influenced by whether it overlaps with 

biologically important habitats when 

individuals are present—avoiding 

biologically important habitats will 

provide opportunities to compensate for 

reduced or lost foraging (Keen et al., 

2021). Nearly all studies and experts 

agree that infrequent exposures of a 

single day or less are unlikely to impact 

an individual’s overall energy budget 

(Farmer et al., 2018; Harris et al., 2017; 

King et al., 2015; National Academy of 

Science, 2017; New et al., 2014; 

Southall et al., 2007; Villegas-Amtmann 

et al., 2015). 

Temporary Threshold Shift 

TTS is one form of Level B 

harassment that marine mammals may 

incur through exposure to Empire 

Wind’s activities and, as described 

earlier, the takes by Level B harassment 

may represent takes in the form of 

behavioral disturbance, TTS, or both. As 

discussed in the ‘‘Potential Effects of 

Specified Activities on Marine 

Mammals and their Habitat’’ section of 

the proposed rule, in general, TTS can 

last from a few minutes to days, be of 

varying degree, and occur across 

different frequency bandwidths, all of 

which determine the severity of the 

impacts on the affected individual, 

which can range from minor to more 

severe. Impact and vibratory pile 

driving are broadband noise sources but 

generate sounds in the lower frequency 

ranges (with most of the energy below 

1–2 kHz, but with a small amount 

energy ranging up to 20 kHz); therefore, 

in general and all else being equal, we 

would anticipate the potential for TTS 

is higher in low-frequency cetaceans 

(i.e., mysticetes) than other marine 

mammal hearing groups, and would be 

more likely to occur in frequency bands 

in which they communicate. However, 

we would not expect the TTS to span 

the entire communication or hearing 

range of any species given that the 

frequencies produced by these activities 

do not span entire hearing ranges for 

any particular species. Additionally, 

though the frequency range of TTS that 

marine mammals might sustain would 

overlap with some of the frequency 

ranges of their vocalizations, the 

frequency range of TTS from Empire 

Wind’s pile-driving activities would not 

typically span the entire frequency 

range of one vocalization type, much 

less span all types of vocalizations or 

other critical auditory cues for any given 

species. The required mitigation 

measures further reduce the potential 

for TTS in mysticetes. 

Generally, both the degree of TTS and 

the duration of TTS would be greater if 

the marine mammal is exposed to a 

higher level of energy (which would 

occur when the peak dB level is higher 

or the duration is longer). The threshold 

for the onset of TTS was discussed 

previously (refer back to Estimated Take 

section). However, source level alone is 

not a predictor of TTS. An animal 

would have to approach closer to the 

source or remain in the vicinity of the 

sound source appreciably longer to 

increase the received SEL, which would 

be difficult considering the required 

mitigation and the nominal speed of the 

receiving animal relative to the 

stationary sources such as impact pile 

driving. The recovery time is also of 

importance when considering the 

potential impacts from TTS. In TTS 

laboratory studies (as discussed in the 

‘‘Potential Effects of the Specified 

Activities on Marine Mammals and their 

Habitat’’ section of the proposed rule), 

some using exposures of almost an hour 

in duration or up to 217 SEL, almost all 

individuals recovered within 1 day or 

less (often in minutes) and we note that 

while the pile-driving activities last for 

hours a day, it is unlikely that most 

marine mammals would stay in the 

close vicinity of the source long enough 

to incur more severe TTS. Overall, given 

the small number of times that any 

individual might incur TTS, the low 

degree of TTS and the short anticipated 

duration, and the unlikely scenario that 

any TTS overlapped the entirety of a 

critical hearing range, it is unlikely that 

TTS (of the nature expected to result 

from the Project’s activities) would 

result in behavioral changes or other 

impacts that would impact any 

individual’s (of any hearing sensitivity) 

reproduction or survival. 

Permanent Threshold Shift 

NMFS is authorizing a very small 

amount of take by PTS to some marine 

mammal individuals. The numbers of 

authorized annual takes by Level A 

harassment are relatively low for all 

marine mammal stocks and species 

(table 33). The only activity incidental 

to which we anticipate PTS may occur 

is from exposure to impact pile driving, 

which produces sounds that are both 

impulsive and primarily concentrated in 

the lower frequency ranges (below 1 

kHz) (David, 2006; Krumpel et al., 

2021). 

There are no PTS data on cetaceans 

and only one recorded instance of PTS 

being induced in older harbor seals 

(Reichmuth et al., 2019). However, 

available TTS data of mid-frequency 

hearing specialists exposed to mid- or 

high-frequency sounds (Southall et al., 

2007; NMFS, 2018; Southall et al., 2019) 

suggest that most threshold shifts occur 

in the frequency range of the source up 

to one octave higher than the source. We 

would anticipate a similar result for 

PTS. Further, no more than a small 

degree of PTS is expected to be 

associated with any of the incurred 

Level A harassment, given that it is 

unlikely that animals would stay in the 

close vicinity of a source for a duration 

long enough to produce more than a 

small degree of PTS. 

PTS would consist of minor 

degradation of hearing capabilities 

occurring predominantly at frequencies 

one-half to one octave above the 

frequency of the energy produced by 

pile driving (i.e., the low-frequency 

region below 2 kHz) (Cody and 

Johnstone, 1981; McFadden, 1986; 

Finneran, 2015), which is not 

considered a severe hearing impairment. 


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If hearing impairment occurs from 

impact pile driving, it is most likely that 

the affected animal would lose a few 

decibels in its hearing sensitivity, which 

in most cases is not likely to 

meaningfully affect its ability to forage 

and communicate with conspecifics. 

Though it could happen, and we have 

analyzed the potential resulting impacts 

to any animals that incur PTS, given 

sufficient notice through use of soft-start 

prior to implementation of full hammer 

energy during impact pile driving, 

marine mammals are expected to move 

away from a sound source that is 

disturbing prior to it resulting in severe 

PTS. 

Auditory Masking or Communication 

Impairment 

The ultimate potential impacts of 

masking on an individual are similar to 

those discussed for TTS (e.g., decreased 

ability to communicate, forage 

effectively, or detect predators), but an 

important difference is that masking 

only occurs during the time of the 

signal, versus TTS, which continues 

beyond the duration of the signal. 

Masking may also result from the sum 

of exposure to multiple signals, none of 

which might individually cause TTS. 

Fundamentally, masking is referred to 

as a chronic effect because one of the 

key potential harmful components of 

masking is its duration—the fact that an 

animal would have reduced ability to 

hear or interpret critical cues becomes 

much more likely to cause a problem 

the longer it is occurring. Inherent in the 

concept of masking is the fact that the 

potential for the effect is only present 

during the times that the animal and the 

source are in close enough proximity for 

the effect to occur (and further, this time 

period would need to coincide with a 

time that the animal was utilizing 

sounds at the masked frequency). 

As our analysis has indicated, for this 

project we expect that impact pile 

driving foundations have the greatest 

potential to mask marine mammal 

signals, and this pile driving may occur 

for several, albeit intermittent, hours per 

day, for multiple days per year. Masking 

is fundamentally more of a concern at 

lower frequencies (which are piledriving dominant frequencies) because 

low frequency signals propagate 

significantly further than higher 

frequencies. Low frequency signals are 

also more likely to overlap with the 

narrower low frequency calls of 

mysticetes, many non-communication 

cues related to fish and invertebrate 

prey, and geologic sounds that inform 

navigation. However, the area in which 

masking would occur for all marine 

mammal species and stocks (e.g., 

predominantly in the vicinity of the 

foundation pile being driven) is small 

relative to the extent of habitat used by 

each species and stock. 

In summary, the nature of Empire 

Wind’s activities, paired with habitat 

use patterns by marine mammals, makes 

it unlikely that the level of masking that 

could occur would have the potential to 

affect reproductive success or survival 

would occur. 

Impacts on Habitat and Prey 

Construction activities may result in 

fish and invertebrate mortality or injury 

very close to the source, and all Empire 

Wind’s activities may cause some fish to 

leave the area of disturbance. It is 

anticipated that any mortality or injury 

would be limited to a very small subset 

of available prey and the 

implementation of mitigation measures 

such as the use of a NAS during impact 

pile driving would further limit the 

degree of impact. Behavioral changes in 

prey in response to construction 

activities could temporarily impact 

marine mammals’ foraging 

opportunities in a limited portion of the 

foraging range but, because of the 

relatively small area of the habitat that 

may be affected at any given time (e.g., 

around a pile being driven), the impacts 

to marine mammal habitat are not 

expected to cause significant or longterm negative consequences. 

Cable presence is not anticipated to 

impact marine mammal habitat as these 

would be buried, and any 

electromagnetic fields emanating from 

the cables are not anticipated to result 

in consequences that would impact 

marine mammals prey to the extent they 

would be unavailable for consumption. 

The presence of wind turbines within 

the Lease Area could have longer-term 

impacts on marine mammal habitat, as 

the Project would result in the 

persistence of the structures within 

marine mammal habitat for more than 

30 years. The presence of an extensive 

number of structures such as wind 

turbines are, in general, likely to result 

in local and broader oceanographic 

effects in the marine environment, and 

may disrupt dense aggregations and 

distribution of marine mammal 

zooplankton prey through altering the 

strength of tidal currents and associated 

fronts, changes in stratification, primary 

production, the degree of mixing, and 

stratification in the water column (Chen 

et al., 2021; Johnson et al., 2021; 

Christiansen et al., 2022; Dorrell et al., 

2022). However, the scale of impacts is 

difficult to predict and may vary from 

hundreds of meters for local individual 

turbine impacts (Schultze et al., 2020) to 

large-scale changes stretching hundreds 

of kilometers (Christiansen et al., 2022). 

As discussed in the ‘‘Potential Effects 

of the Specified Activities on Marine 

Mammals and their Habitat’’ section of 

the proposed rule, the Project would 

consist of no more than 149 foundations 

(147 WTGs and 2 OSSs) in the Lease 

Area, which will gradually become 

operational following construction 

completion, by the end of year 4 (2027) 

of the rule. While there are likely to be 

oceanographic impacts from the 

presence of the Project, meaningful 

oceanographic impacts relative to 

stratification and mixing that would 

significantly affect marine mammal 

habitat and prey over large areas in key 

foraging habitats during the effective 

period of the regulations is not 

anticipated. Although this area supports 

aggregations of zooplankton (i.e., baleen 

whale prey) that could be impacted if 

long-term oceanographic changes 

occurred, prey densities are typically 

significantly less in the Project Area 

than in known baleen whale foraging 

habitats to the east and north (e.g., south 

of Nantucket and Martha’s Vineyard, 

Great South Channel). For these reasons, 

if oceanographic features are affected by 

the Project during the effective period of 

the regulations, the impact on marine 

mammal habitat and their prey is likely 

to be comparatively minor. 

The Empire Wind Biological Opinion 

provided an evaluation of the presence 

and operation of the Project on, among 

other species, listed marine mammals 

and their prey. While the consultation 

considered the life of the Project (i.e., 

25+ years), we considered the potential 

impacts to marine mammal habitat and 

prey within the 5-year effective time 

frame of this rule. Overall, the 

Biological Opinion concluded that 

impacts from loss of soft bottom habitat 

from the presence of turbines and 

placement of scour protection as well as 

any beneficial reef effects, are expected 

to be so small that they cannot be 

meaningfully measured, evaluated, or 

detected and are, therefore, 

insignificant. The Biological Opinion 

also concluded that while the presence 

and operation of the wind farm may 

change the distribution of plankton with 

the wind farm, these changes are not 

expected to affect the oceanographic 

forces transporting zooplankton into the 

area. Therefore, the Biological Opinion 

concluded that an overall reduction in 

biomass of plankton is not an 

anticipated outcome of operating the 

Project. Thus, because changes in the 

biomass of zooplankton are not 

anticipated, any higher trophic level 

impacts are also not anticipated. That is, 

no effects to pelagic fish or benthic 


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invertebrates that depend on plankton 

as forage food are expected to occur. 

Zooplankton, fish, and invertebrates are 

all considered marine mammal prey 

and, as fully described in the Biological 

Opinion, measurable, detectable, or 

significant changes to marine mammal 

prey abundance and distribution from 

wind farm operation are not anticipated. 

Mitigation To Reduce Impact on All 

Species 

This rulemaking includes an 

extensive suite of mitigation measures 

designed to minimize impacts on all 

marine mammals, with a focus on North 

Atlantic right whales. For impact pile 

driving of foundation piles, ten 

overarching mitigation measures are 

required, which are intended to reduce 

both the number and intensity of marine 

mammal takes: (1) seasonal/time of day 

work restrictions; (2) use of multiple 

PSOs to visually observe for marine 

mammals (with any detection within 

specifically designated zones that would 

trigger a delay or shutdown); (3) use of 

PAM to acoustically detect marine 

mammals, with a focus on detecting 

baleen whales (with any detection 

within designated zones triggering delay 

or shutdown); (4) implementation of 

clearance zones; (5) implementation of 

shutdown zones; (6) use of soft-start; (7) 

use of noise attenuation technology; (8) 

maintaining situational awareness of 

marine mammal presence through the 

requirement that any marine mammal 

sighting(s) by Empire Wind personnel 

must be reported to PSOs; (9) SFV 

monitoring; and (10) vessel strike 

avoidance measures to reduce the risk of 

a collision with a marine mammal and 

vessel. For cofferdam and goal post 

installation and removal, we are 

requiring five overarching mitigation 

measures: (1) time of day work 

restrictions; (2) use of multiple PSOs to 

visually observe for marine mammals 

(with any detection with specifically 

designated zones that would trigger a 

delay or shutdown); (3) implementation 

of clearance zones; (4) implementation 

of shutdown zones; and (5) maintaining 

situational awareness of marine 

mammal presence through the 

requirement that any marine mammal 

sighting(s) by Empire Wind personnel 

must be reported to PSOs. Lastly, for 

HRG surveys, we are requiring six 

measures: (1) measures specifically for 

Vessel Strike Avoidance; (2) specific 

requirements during daytime and 

nighttime HRG surveys; (3) 

implementation of clearance zones; (4) 

implementation of shutdown zones; (5) 

use of ramp-up of acoustic sources; and 

(6) maintaining situational awareness of 

marine mammal presence through the 

requirement that any marine mammal 

sighting(s) by Empire Wind personnel 

must be reported to PSOs. 

For activities with large harassment 

isopleths, Empire Wind is committed to 

reducing the noise levels generated to 

the lowest levels practicable and is 

required to ensure that they do not 

exceed a noise footprint above that 

which was modeled, assuming a 10-dB 

attenuation. Use of a soft-start during 

impact pile driving will allow animals 

to move away from (i.e., avoid) the 

sound source prior to applying higher 

hammer energy levels needed to install 

the pile (i.e., Empire Wind will not use 

a hammer energy greater than necessary 

to install piles). Similarly, ramp-up 

during HRG surveys would allow 

animals to move away and avoid the 

acoustic sources before they reach their 

maximum energy level. For all 

activities, clearance zone and shutdown 

zone implementation, which are 

required when marine mammals are 

within given distances associated with 

certain impact thresholds for all 

activities, will reduce the magnitude 

and severity of marine mammal take. 

Additionally, the use of multiple PSOs 

(e.g., WTG and OSS foundation 

installation, cable landfall activities, 

HRG surveys), PAM operators (for 

impact foundation installation), and 

maintaining awareness of marine 

mammal sightings reported in the region 

during all specified activities will aid in 

detecting marine mammals that would 

trigger the implementation of the 

mitigation measures. The reporting 

requirements including SFV reporting 

(for foundation installation and 

foundation operation), will assist NMFS 

in identifying if impacts beyond those 

analyzed in this final rule are occurring, 

potentially leading to the need to enact 

adaptive management measures in 

addition to or in place of the mitigation 

measures. 

Mysticetes 

Five mysticete species (comprising 

five stocks) of cetaceans (i.e., North 

Atlantic right whale, humpback whale, 

fin whale, sei whale, and minke whale) 

may be taken by harassment. These 

species, to varying extents, utilize the 

specified geographic region, including 

the Project Area, for the purposes of 

migration, foraging, and socializing. 

Mysticetes are in the low-frequency 

hearing group. 

Behavioral data on mysticete 

reactions to pile-driving noise are scant. 

Kraus et al. (2019) predicted that the 

three main impacts of offshore wind 

farms on marine mammals would 

consist of displacement, behavioral 

disruptions, and stress. Broadly, we can 

look to studies that have focused on 

other noise sources such as seismic 

surveys and military training exercises, 

which suggest that exposure to loud 

signals can result in avoidance of the 

sound source (or displacement if the 

activity continues for a longer duration 

in a place where individuals would 

otherwise have been staying, which is 

less likely for mysticetes in this area), 

disruption of foraging activities (if they 

are occurring in the area), local masking 

around the source, associated stress 

responses, impacts to prey, and TTS or 

PTS (in some cases). 

Mysticetes encountered in the Project 

Area are expected to be migrating or 

foraging. The extent to which an animal 

engages in these behaviors in the area is 

species-specific and varies seasonally. 

Given that extensive feeding 

Biologically Important Areas (BIAs) for 

the North Atlantic right whale, 

humpback whale, fin whale, sei whale, 

and minke whale exist to the east and 

north of the Project Area (LaBrecque et 

al., 2015; Van Parijs et al, 2015), many 

mysticetes are expected to 

predominantly be migrating through the 

Project Area towards or from these 

feeding grounds. While we 

acknowledged above that mortality, 

hearing impairment, or displacement of 

mysticete prey species may result 

locally from impact pile driving, given 

the very short duration of and broad 

availability of prey species in the area 

and the availability of alternative 

suitable foraging habitat for the 

mysticete species most likely to be 

affected, any impacts on mysticete 

foraging is expected to be minor. Whales 

temporarily displaced from the Project 

Area are expected to have sufficient 

remaining feeding habitat available to 

them and would not be prevented from 

feeding in other areas within the 

biologically important feeding habitats 

found further north. In addition, any 

displacement of whales or interruption 

of foraging bouts would be expected to 

be relatively temporary in nature. 

The potential for repeated exposures 

is dependent upon the residency time of 

whales, with migratory animals unlikely 

to be exposed on repeated occasions and 

animals remaining in the area to be 

more likely exposed repeatedly. Here, 

for mysticetes, where relatively low 

amounts of species-specific take by 

Level B harassment are predicted 

(compared to the abundance of each 

mysticete species or stock, such as is 

indicated in table 33) and movement 

patterns in the area suggest that 

individuals would not necessarily linger 

in a particular area for multiple days, 

each predicted take likely represents an 

exposure of a different individual. The 


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behavioral impacts to any individual 

would, therefore, primarily be expected 

to occur within a single day within a 

year—an amount that would clearly not 

be expected to impact reproduction or 

survival. 

In general, for this project, the 

duration of exposures would not be 

continuous throughout any given day 

and pile driving would not occur on all 

consecutive days within a given year, 

due to weather delays or any number of 

logistical constraints Empire Wind has 

identified. Species-specific analysis 

regarding potential for repeated 

exposures and impacts is provided 

below. 

Fin and minke whales are the only 

mysticete species for which PTS is 

anticipated and authorized. As 

described previously, PTS for 

mysticetes from some project activities 

may overlap frequencies used for 

communication, navigation, or detecting 

prey. However, given the nature and 

duration of the activity, the mitigation 

measures, and likely avoidance 

behavior, any PTS is expected to be of 

a small degree, would be limited to 

frequencies where pile-driving noise is 

concentrated (i.e., only a small subset of 

their expected hearing range) and would 

not be expected to impact reproductive 

success or survival. 

North Atlantic Right Whale 

North Atlantic right whales are listed 

as endangered under the ESA and as 

both a depleted and strategic stock 

under the MMPA. As described in the 

‘‘Potential Effects to Marine Mammals 

and Their Habitat’’ section of the 

proposed rule, North Atlantic right 

whales are threatened by a low 

population abundance, higher than 

average mortality rates, and lower than 

average reproductive rates. Recent 

studies have reported individuals 

showing high stress levels (e.g., 

Corkeron et al., 2017) and poor health, 

which has further implications on 

reproductive success and calf survival 

(Christiansen et al., 2020; Stewart et al., 

2021; Stewart et al., 2022). As described 

below, a UME has been designated for 

North Atlantic right whales. Given this, 

the status of the North Atlantic right 

whale population is of heightened 

concern and, therefore, merits 

additional analysis and consideration. 

No injury or mortality is anticipated or 

authorized for this species. 

For North Atlantic right whales, this 

rule authorizes up to 29 takes, by Level 

B harassment only, over the 5-year 

period, with a maximum annual 

allowable take of 13 (equating to 

approximately 3.85 percent of the stock 

abundance, if each take were considered 

to be of a different individual), with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). The Project Area is 

known as a migratory corridor for North 

Atlantic right whales and given the 

nature of migratory behavior (e.g., 

continuous path), as well as the low 

number of total takes, we anticipate that 

few, if any, of the instances of take 

would represent repeat takes of any 

individual. 

The highest density of North Atlantic 

right whales in the Project Area occurs 

in the winter (table 7). The New York 

Bight, including the Project Area, may 

be a stopover site for migrating North 

Atlantic right whales moving to or from 

southeastern calving grounds. As 

described above, the Project Area 

represents part of an important 

migratory area for right whales. 

Quintana-Rizzo et al. (2021) noted that 

southern New England, northeast of the 

Project Area, may be a stopover site for 

migrating right whales moving to or 

from southeastern calving grounds. The 

right whales observed during the study 

period were primarily concentrated in 

the northeastern and southeastern 

sections of the MA WEA during the 

summer (June–August) and winter 

(December–February). Right whale 

distribution did shift to the west into 

the Rhode Island/Massachusetts Wind 

Energy Area (RI/MA WEA) in the spring 

(March–May). Overall, the Project Area 

contains habitat less frequently utilized 

by North Atlantic right whales than the 

more northerly southern New England 

region. 

In general, North Atlantic right 

whales in the Project Area are expected 

to be engaging in migratory behavior. 

Given the species’ migratory behavior in 

the Project Area, we anticipate 

individual whales would be typically 

migrating through the area during most 

months when foundation installation 

would occur, given the seasonal 

restrictions on foundation installation 

from January through April, rather than 

lingering in the Project Area for 

extended periods of time). Other work 

that involves either much smaller 

harassment zones (e.g., HRG surveys) or 

is limited in amount (e.g., cable landfall 

construction) may also occur during 

periods when North Atlantic right 

whales are using the habitat for 

migration. Therefore, it is likely that 

many of the takes would occur to 

separate individual whales, each 

exposed on no more than 1 day. It is 

important to note that the activities 

occurring from December through May 

that may impact North Atlantic right 

whales would be primarily HRG surveys 

and cable landfall construction, neither 

of which would result in very high 

received levels, if any at all, because 

mitigation and monitoring measures 

avoid or minimize impacts. Across all 

years, while it is possible an animal 

could have been exposed during a 

previous year, the low amount of take 

being authorized during the 5-year 

period of the rule makes this scenario 

possible but unlikely. However, if an 

individual were to be exposed during a 

subsequent year, the impact of that 

exposure is likely independent of the 

previous exposure and would cause no 

additive effect given the duration 

between exposures. 

As described in the Description of 

Marine Mammals in the Geographic 

Area section, North Atlantic right 

whales are presently experiencing an 

ongoing UME (beginning in June 2017). 

Preliminary findings support human 

interactions, specifically vessel strikes 

and entanglements, as the cause of 

death for the majority of North Atlantic 

right whales. Given the current status of 

the North Atlantic right whale, the loss 

of even one individual could 

significantly impact the population. No 

mortality, serious injury, or injury of 

North Atlantic right whales as a result 

of the Project is expected or authorized. 

Any disturbance to North Atlantic right 

whales due to Empire Wind’s activities 

is expected to result in temporary 

avoidance of the immediate area of 

construction. As no injury, serious 

injury, or mortality is expected or 

authorized, and Level B harassment of 

North Atlantic right whales will be 

reduced to the level of least-practicable 

adverse impact through use of 

mitigation measures, the authorized 

number of takes of North Atlantic right 

whales would not exacerbate or 

compound the effects of the ongoing 

UME. 

As described in the general Mysticetes 

section above, foundation installation is 

likely to result in the highest amount of 

annual take and is of greatest concern 

given loud source levels. This activity 

would likely be limited to up to 171 

days over a maximum of 2 years, during 

times when, based on the best available 

scientific data, North Atlantic right 

whales are less frequently encountered 

due to their migratory behavior. The 

potential types, severity, and magnitude 

of impacts are also anticipated to mirror 

that described in the general Mysticetes 

section above, including avoidance (the 

most likely outcome), changes in 

foraging or vocalization behavior, 

masking, a small amount of TTS, and 

temporary physiological impacts (e.g., 

change in respiration, change in heart 

rate). Importantly, the effects of the 


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activities are expected to be sufficiently 

low-level and localized to specific areas 

as to not meaningfully impact important 

behaviors such as migratory behavior of 

North Atlantic right whales. These takes 

are expected to result in temporary 

behavioral reactions, such as slight 

displacement (but not abandonment) of 

migratory habitat or temporary cessation 

of feeding. Further, given these 

exposures are generally expected to 

occur to different individual right 

whales migrating through (i.e., many 

individuals would not be impacted on 

more than 1 day in a year), and with 

some subset potentially being exposed 

on no more than a few days within the 

year, they are unlikely to result in 

energetic consequences that could affect 

reproduction or survival of any 

individuals. 

Overall, NMFS expects that any 

behavioral harassment of North Atlantic 

right whales incidental to the specified 

activities would not result in changes to 

their migration patterns or foraging 

success, as only temporary avoidance of 

an area during construction is expected 

to occur. As described previously, North 

Atlantic right whales migrating through 

the Project Area are not expected to 

remain in this habitat for extensive 

durations, and any temporarily 

displaced animals would be able to 

return to or continue to travel through 

and forage in these areas once activities 

have ceased. 

Although acoustic masking may occur 

in the vicinity of the foundation 

installation activities, based on the 

acoustic characteristics of noise 

associated with pile driving (e.g., 

frequency spectra, short duration of 

exposure) and construction surveys 

(e.g., intermittent signals), NMFS 

expects masking effects to be minimal 

(e.g., effects of impact pile driving) to 

none (e.g., effects of HRG surveys). In 

addition, masking would likely only 

occur during the period of time that a 

North Atlantic right whale is in the 

relatively close vicinity of pile driving, 

which is expected to be intermittent 

within a day, and confined to the 

months in which North Atlantic right 

whales are at lower densities and 

primarily moving through the area, 

anticipated mitigation effectiveness, and 

likely avoidance behaviors. TTS is 

another potential form of Level B 

harassment that could result in brief 

periods of slightly reduced hearing 

sensitivity, affecting behavioral patterns 

by making it more difficult to hear or 

interpret acoustic cues within the 

frequency range (and slightly above) of 

sound produced during impact pile 

driving. However, any TTS would likely 

be of low amount, limited duration, and 

limited to frequencies where most 

construction noise is centered (i.e., 

below 2 kHz). NMFS expects that right 

whale hearing sensitivity would return 

to pre-exposure levels shortly after 

migrating through the area or moving 

away from the sound source. 

As described in the ‘‘Potential Effects 

to Marine Mammals and Their Habitat’’ 

section of the proposed rule, the 

distance of the receiver to the source 

influences the severity of response, with 

greater distances typically eliciting less 

severe responses. NMFS recognizes 

North Atlantic right whales migrating 

could be pregnant females (in the fall) 

and mothers with older calves (in the 

spring) and that these animals may 

slightly alter their migration course in 

response to any foundation pile driving. 

However, as described in the ‘‘Potential 

Effects to Marine Mammals and Their 

Habitat’’ section of the proposed rule, 

we anticipate that course diversion 

would be of small magnitude. Hence, 

while some avoidance of the piledriving activities may occur, we 

anticipate any avoidance behavior of 

migratory North Atlantic right whales 

would be similar to that of gray whales 

(Tyack et al., 1983), on the order of 

hundreds of meters up to 1 to 2 km. 

This diversion from a migratory path 

otherwise uninterrupted by the Project’s 

activities is not expected to result in 

meaningful energetic costs that would 

impact annual rates of recruitment of 

survival. NMFS expects that North 

Atlantic right whales would be able to 

avoid areas during periods of active 

noise production while not being forced 

out of this portion of their habitat. 

North Atlantic right whale presence 

in the Project Area is year-round. 

However, abundance during summer 

months is lower compared to the winter 

months, with spring and fall serving as 

‘‘shoulder seasons’’ wherein abundance 

waxes (fall) or wanes (spring). Given 

this year-round habitat usage, in 

recognition that where and when 

whales may actually occur during 

project activities is unknown as it 

depends on the annual migratory 

behaviors, NMFS is requiring a suite of 

mitigation measures designed to reduce 

impacts to North Atlantic right whales 

to the maximum extent practicable. 

These mitigation measures (e.g., 

seasonal/daily work restrictions, vessel 

separation distances, reduced vessel 

speed) would not only avoid the 

likelihood of vessel strikes but also 

would minimize the severity of 

behavioral disruptions by minimizing 

impacts (e.g., through sound reduction 

using attenuation systems and reduced 

temporal overlap of project activities 

and North Atlantic right whales). This 

would further ensure that the number of 

takes by Level B harassment that are 

estimated to occur are not expected to 

affect reproductive success or 

survivorship by detrimental impacts to 

energy intake or cow/calf interactions 

during migratory transit. However, even 

in consideration of recent habitat-use 

and distribution shifts, Empire Wind 

would still be installing foundations 

when the presence of North Atlantic 

right whales is expected to be lower. 

As described in the Description of 

Marine Mammals in the Geographic 

Area section, Empire Wind would be 

constructed within the North Atlantic 

right whale migratory corridor BIA, 

which represent areas and months 

within which a substantial portion of a 

species or population is known to 

migrate. The area over which North 

Atlantic right whales may be harassed is 

relatively small compared to the width 

of the migratory corridor. The width of 

the migratory corridor in this area is 

approximately 243.6 km while the 

width of the Lease Area, at the longest 

point, is approximately 37.6 km. North 

Atlantic right whales may be displaced 

from their normal path and preferred 

habitat in the immediate activity area 

primarily from pile-driving activities; 

however, we do not anticipate 

displacement to be of high magnitude 

(e.g., beyond a few kilometers). Thereby, 

any associated bio-energetic 

expenditure is anticipated to be small. 

There are no known North Atlantic right 

whale feeding, breeding, or calving 

areas within the Project Area. Prey 

species are mobile (e.g., calanoid 

copepods can initiate rapid and directed 

escape responses) and are broadly 

distributed throughout the Project Area 

(noting again that North Atlantic right 

whale prey is not particularly 

concentrated in the Project Area relative 

to nearby habitats). Therefore, any 

impacts to prey that may occur are also 

unlikely to impact North Atlantic right 

whales. 

The most significant measure to 

minimize impacts to individual North 

Atlantic right whales during monopile 

installations is the seasonal moratorium 

on impact pile driving of monopiles 

from January 1 through April 30 when 

North Atlantic right whale abundance in 

the Project Area is expected to be 

highest. NMFS also expects this 

measure to greatly reduce the potential 

for mother/calf pairs to be exposed to 

impact pile driving noise above the 

Level B harassment threshold during 

their annual spring migration through 

the Project Area from calving grounds to 

primary foraging grounds (e.g., Cape 

Cod Bay). Further, NMFS expects that 

exposures to North Atlantic right whales 


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would be reduced due to the additional 

mitigation measures that would ensure 

that any exposures above the Level B 

harassment threshold would result in 

only short-term effects to individuals 

exposed. Impact pile driving may only 

begin in the absence of North Atlantic 

right whales, as determined by visual 

and passive acoustic monitoring. If 

impact pile driving has commenced, 

NMFS anticipates North Atlantic right 

whales would avoid the area, utilizing 

nearby waters to carry on pre-exposure 

behaviors. However, impact pile driving 

must be shut down if a North Atlantic 

right whale is sighted at any distance, 

unless a shutdown is not feasible due to 

risk of injury or loss of life. Shutdown 

may occur anywhere if North Atlantic 

right whales are seen within or beyond 

the Level B harassment zone, further 

minimizing the duration and intensity 

of exposure. NMFS anticipates that if 

North Atlantic right whales go 

undetected and are exposed to impact 

pile driving noise, it is unlikely a North 

Atlantic right whale would approach 

the impact pile driving locations to the 

degree that they would purposely 

expose themselves to very high noise 

levels. These measures are designed to 

avoid PTS and also reduce the severity 

of Level B harassment, including the 

potential for TTS. While some TTS 

could occur, given the planned 

mitigation measures (e.g., delay pile 

driving upon a sighting or acoustic 

detection and shutting down upon a 

sighting or acoustic detection), the 

potential for TTS to occur is low. 

The clearance and shutdown 

measures are most effective when 

detection efficiency is maximized, as 

the measures are triggered by a visual or 

acoustic detection. To maximize 

detection efficiency, NMFS requires the 

combination of PAM and visual 

observers. NMFS is requiring 

communication protocols with other 

project vessels, and other heightened 

awareness efforts (e.g., daily monitoring 

of North Atlantic right whale sighting 

databases) such that as a North Atlantic 

right whale approaches the source, and 

thereby could be exposed to higher 

noise energy levels, PSO detection 

efficacy would increase, the whale 

would be detected, and a delay to 

commencing foundation installation or 

shutdown (if feasible) would occur. In 

addition, the implementation of a softstart for impact pile driving would 

provide an opportunity for whales to 

move away from the source if they are 

undetected, reducing their received 

levels. Further, Empire Wind will not 

install two monopile foundations or 

OSS foundations simultaneously. North 

Atlantic right whales would, therefore, 

not be exposed to concurrent impact 

pile driving on any given day and the 

area ensonified at any given time would 

be limited. 

The temporary cofferdam Level B 

harassment zones are relatively small 

(i.e., 1,985 m for Empire Wind 1 and 

1,535 m for Empire Wind 2), and the 

cofferdams would be installed within 

Narragansett Bay over a short timeframe 

(i.e., 56 hours total; 28 hours for 

installation and 28 hours for removal). 

Therefore, it is unlikely that any North 

Atlantic right whales would be exposed 

to vibratory installation noises. 

For HRG surveys, the maximum 

distance to the Level B harassment 

threshold is 50.05 m. The estimated 

take, by Level B harassment only, 

associated with HRG surveys is to 

account for any North Atlantic right 

whale sightings PSOs may miss when 

HRG acoustic sources are active. 

However, because of the short 

maximum distance to the Level B 

harassment isopleth (50.05 m), the 

requirement that vessels maintain a 

distance of 500 m from any North 

Atlantic right whales, the fact whales 

are unlikely to remain in close 

proximity to an HRG survey vessel for 

any length of time, and that the acoustic 

source would be shut down if a North 

Atlantic right whale is observed within 

500 m of the source, any exposure to 

noise levels above the harassment 

threshold (if any) would be very brief. 

To further minimize exposures, rampup of sub-bottom profilers must be 

delayed during the clearance period if 

PSOs detect a North Atlantic right 

whale, or any other ESA-listed species, 

within 500 m of the acoustic source. 

With implementation of the mitigation 

requirements, take by Level A 

harassment is unlikely and, therefore, 

not authorized. Potential impacts 

associated with Level B harassment 

would include low-level, temporary 

behavioral modifications, most likely in 

the form of avoidance behavior. Given 

the high level of precautions taken to 

minimize both the amount and intensity 

of Level B harassment on North Atlantic 

right whales, it is unlikely that the 

anticipated low-level exposures would 

lead to reduced reproductive success or 

survival. 

As described above, no serious injury 

or mortality, or Level A harassment, of 

North Atlantic right whale is anticipated 

or authorized. Extensive North Atlantic 

right whale-specific mitigation measures 

beyond the robust suite required for all 

species are expected to further minimize 

the amount and severity of Level B 

harassment. Given the documented 

habitat use within the area, the majority 

of the individuals predicted taken (i.e., 

no more than 29 instances of take, by 

Level B harassment only, over the 

course of the 5-year rule, with an annual 

maximum of no more than 13 takes) 

would be impacted on only 1, or maybe 

2, days in a year, and any impacts to 

North Atlantic right whales are expected 

to be in the form of lower-level 

behavioral disturbance. Given the 

magnitude and severity of the impacts 

discussed above, and in consideration of 

the required mitigation and other 

information presented, Empire Wind’s 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 

For these reasons, we have determined 

that the take, by Level B harassment 

only, anticipated and authorized would 

have a negligible impact on the North 

Atlantic right whale. 

Fin Whale 

The fin whale is listed as Endangered 

under the ESA, and the western North 

Atlantic stock is considered both 

Depleted and Strategic under the 

MMPA. No UME has been designated 

for this species or stock. No serious 

injury or mortality is anticipated or 

authorized for this species. 

The rule authorizes up to 207 takes, 

by harassment only, over the 5-year 

period. The maximum annual allowable 

take by Level A harassment and Level 

B harassment, would be 4 and 136, 

respectively. Combined, this annual 

take (n=140) equates to approximately 

2.06 percent of the stock abundance, if 

each take were considered to be of a 

different individual, with far lower 

numbers than that expected in the years 

without foundation installation (e.g., 

years when only HRG surveys would be 

occurring). As described previously, the 

Project Area is located 140 km 

southwest of a fin whale feeding BIA 

that is active from March to October. It 

is likely that some subset of the 

individual whales exposed could be 

taken several times annually. However, 

any impacts from any of the planned 

activities to feeding activities would be 

minor. In addition, monopile 

installations have seasonal work 

restrictions, such that the temporal 

overlap between these project activities 

and the active BIA timeframe would 

exclude the months of March or April. 

There is no spatial overlap of the Project 

Area and the feeding BIA. 

Level B harassment is expected to be 

in the form of behavioral disturbance, 

primarily resulting in avoidance of the 

Project Area where foundation 

installation is occurring, and some lowlevel TTS and masking that may limit 


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the detection of acoustic cues for 

relatively brief periods of time. Any 

potential PTS would be minor (i.e., 

limited to a few dB) and any TTS would 

be of short duration and concentrated at 

half or one octave above the frequency 

band of pile-driving noise with most 

sound below 2 kHz, which does not 

include the full predicted hearing range 

of fin whales. 

Fin whales are present in the waters 

off of New York year-round and are one 

of the most frequently observed large 

whales and cetaceans in continental 

shelf waters, principally from Cape 

Hatteras in the Mid-Atlantic northward 

to Nova Scotia, Canada (Sergeant, 1977; 

Sutcliffe and Brodie, 1977; Cetacean and 

Turtle Assessment Program (CETAP), 

1982; Hain et al., 1992; Geo-Marine, 

2010; BOEM, 2012; Edwards et al., 

2015; Hayes et al., 2022). 

Fin whales have high relative 

abundance in the New York Bight and 

Project Area with lower densities 

occurring during the fall (Roberts et al., 

2023). Fin whales typically feed in 

waters off of New England and within 

the Gulf of Maine, areas north of the 

Project Area (Hayes et al., 2023), 

although feeding also takes place in the 

small feeding BIA, offshore of Montauk 

Point, described above (Hain et al., 

1992; LaBrecque et al., 2015). 

Given the documented habitat use 

within the area, some of the individuals 

taken would likely be exposed on 

multiple days. However, as described 

the Project Area does not include areas 

where fin whales are known to 

concentrate for feeding or reproductive 

behaviors and the predicted takes are 

expected to be in the form of lower-level 

impacts. 

Given the magnitude and severity of 

the impacts discussed above, including 

no more than 207 takes by harassment 

only over the course of the 5-year rule, 

and a maximum annual allowable take 

by Level A harassment and Level B 

harassment, of 4 and 136, respectively, 

and in consideration of the required 

mitigation and other information 

presented, Empire Wind’s activities are 

not expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have determined that 

the take by harassment anticipated and 

authorized will have a negligible impact 

on the western North Atlantic stock of 

fin whales. 

Humpback Whale 

The West Indies DPS of humpback 

whales is not listed as threatened or 

endangered under the ESA. However, as 

described in the Description of Marine 

Mammals in the Geographic Area, 

humpback whales along the Atlantic 

Coast have been experiencing an active 

UME as elevated humpback whale 

mortalities have occurred along the 

Atlantic coast from Maine through 

Florida since January 2016. Of the cases 

examined, approximately 40 percent 

had evidence of human interaction (i.e., 

vessel strike or entanglement). The UME 

does not yet provide cause for concern 

regarding population-level impacts and 

take from vessel strike and 

entanglement is not authorized. Despite 

the UME, the relevant population of 

humpback whales (the West Indies 

breeding population, or DPS of which 

the Gulf of Maine stock is a part) 

remains stable at approximately 12,000 

individuals. 

The rule authorizes up to 97 takes by 

Level B harassment only over the 5-year 

period. No take by Level A harassment 

is authorized. The maximum annual 

allowable take by Level B harassment 

would be 63, respectively (this 

maximum annual take (n=63) equates to 

approximately 4.5 percent of the stock 

abundance, if each take were considered 

to be of a different individual), with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). Among the 

activities analyzed, impact pile driving 

is likely to result in the highest amount 

of Level B harassment annual take (i.e., 

63) of humpback whales. 

A recent study examining humpback 

whale occurrence in the New York Bight 

area has shown that humpback whales 

exhibit extended occupancy (mean 37.6 

days) in the Bight area and were likely 

to return from one year to the next 

(mean 31.3 percent). Whales were also 

seen at a variety of other sites in the 

New York Bight within the same year, 

suggesting that they may occupy this 

broader area throughout the feeding 

season. The majority of whales were 

seen during summer (July–September, 

62.5 percent), followed by autumn 

(October–December, 23.5 percent), and 

spring (April–June, 13.9 percent) 

(Brown et al., 2022). These data suggest 

that the 0 and 63 maximum annual 

instances of predicted takes by Level A 

harassment and Level B harassment, 

respectively, could consist of 

individuals exposed to noise levels 

above the harassment thresholds once 

during migration through the Project 

Area and/or individuals exposed on 

multiple days if they are utilizing the 

area as foraging habitat. The Lease Area, 

which is 321 km2, comprises only a 

minor portion of the New York Bight 

area (43,388 km2), and a few repeated 

takes of the same individuals would be 

unlikely to meaningfully impact the 

energetics of any individuals given the 

availability of favorable foraging habitat 

across the Bight. 

For all the reasons described in the 

Mysticetes section above, we anticipate 

any potential PTS and TTS would be 

concentrated at one half or one octave 

above the frequency band of pile-driving 

noise (most sound is below 2 kHz), 

which does not include the full 

predicted hearing range of baleen 

whales. If TTS is incurred, hearing 

sensitivity would likely return to preexposure levels relatively shortly after 

exposure ends. Any masking or 

physiological responses would also be 

of low magnitude and severity for 

reasons described above. 

Given the magnitude and severity of 

the impacts discussed above, including 

no more than 97 takes over the course 

of the 5-year rule, and a maximum 

annual allowable take by Level B 

harassment of 63, and in consideration 

of the required mitigation measures and 

other information presented, Empire 

Wind’s activities are not expected to 

result in impacts on the reproduction or 

survival of any individuals, much less 

affect annual rates of recruitment or 

survival. For these reasons, we have 

determined that the take by harassment 

anticipated and authorized will have a 

negligible impact on the Gulf of Maine 

stock of humpback whales. 

Minke Whale 

Minke whales are not listed under the 

ESA, and the Canadian East Coast stock 

is neither considered depleted nor 

strategic under the MMPA. There are no 

known areas of specific biological 

importance in or adjacent to the Project 

Area. As described in the Description of 

Marine Mammals in the Geographic 

Area section, a UME has been 

designated for this species but is 

pending closure. No serious injury or 

mortality is anticipated or authorized 

for this species. 

The rule authorizes up to 173 takes, 

by harassment only, over the 5-year 

period. The maximum annual allowable 

take by Level A harassment and Level 

B harassment would be 4 and 83, 

respectively (combined, this annual take 

(n=87) equates to approximately 0.4 

percent of the stock abundance, if each 

take were considered to be of a different 

individual), with far lower numbers 

than that expected in the years without 

foundation installation (e.g., years when 

only HRG surveys would be occurring). 

Minke whales are common offshore 

the U.S. Eastern Seaboard with a strong 

seasonal component in the continental 

shelf and in deeper, off-shelf waters 

(CETAP, 1982; Hayes et al., 2022). In the 


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Project Area, minke whales are 

predominantly migratory and their 

known feeding areas are to the north, 

including a feeding BIA in the 

southwestern Gulf of Maine and 

George’s Bank. Therefore, they would be 

more likely to be moving through the 

Project Area, with each take 

representing a separate individual. 

However, it is possible that some subset 

of the individual whales exposed could 

be taken up to a few times annually. 

As described in the Description of 

Marine Mammals in the Geographic 

Area section, there is a UME for Minke 

whales, along the Atlantic coast from 

Maine through South Carolina, with 

highest number of deaths in 

Massachusetts, Maine, and New York, 

and preliminary findings in several of 

the whales have shown evidence of 

human interactions or infectious 

diseases. However, we note that the 

population abundance is greater than 

21,000 and the take authorized through 

this action is not expected to exacerbate 

the UME in any way. 

We anticipate the impacts of this 

harassment to follow those described in 

the general Mysticetes section above. 

Any potential PTS would be minor (i.e., 

limited to a few dB) and any TTS would 

be of short duration and concentrated at 

one half or one octave above the 

frequency band of pile-driving noise 

(most sound is below 2 kHz), which 

does not include the full predicted 

hearing range of minke whales. Level B 

harassment would be temporary, with 

primary impacts being temporary 

displacement of the Project Area but not 

abandonment of any migratory or 

foraging behavior. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than 173 takes of the course of 

the 5-year rule, and a maximum annual 

allowable take by Level A harassment 

and Level B harassment, of 4 and 83, 

respectively), and in consideration of 

the required mitigation and other 

information presented, Empire Wind’s 

activities are not expected to result in 

impacts on the reproduction or survival 

of any individuals, much less affect 

annual rates of recruitment or survival. 

For these reasons, we have determined 

that the take by harassment anticipated 

and authorized will have a negligible 

impact on the Canadian Eastern Coastal 

stock of minke whales. 

Sei Whale 

Sei whales are listed as Endangered 

under the ESA, and the Nova Scotia 

stock is considered both depleted and 

strategic under the MMPA. There are no 

known areas of specific biological 

importance in or adjacent to the Project 

Area and no UME has been designated 

for this species or stock. No serious 

injury or mortality is anticipated or 

authorized for this species. 

The rule authorizes up to nine takes, 

by Level B harassment only, over the 5- 

year period. The maximum annual 

allowable take by Level B harassment, 

would be four (this annual take equates 

to approximately 0.6 percent of the 

stock abundance, if each take were 

considered to be of a different 

individual). NMFS is not authorizing 

take by Level A harassment. Similar to 

other mysticetes, we would anticipate 

the number of takes to represent 

individuals taken only once or, in rare 

cases two or three times, as most whales 

in the Project Area would be migrating. 

To a small degree, sei whales may forage 

in the Project Area, although the 

currently identified foraging habitats 

(BIAs) are 280 km northeast of the area 

in which Empire Wind’s activities 

would occur (LaBrecque et al., 2015). 

With respect to the severity of those 

individual takes by behavioral Level B 

harassment, we would anticipate 

impacts to be limited to low-level, 

temporary behavioral responses with 

avoidance and potential masking 

impacts in the vicinity of the turbine 

installation to be the most likely type of 

response. Any potential PTS and TTS 

would likely be concentrated at half or 

one octave above the frequency band of 

pile-driving noise (most sound is below 

2 kHz), which does not include the full 

predicted hearing range of sei whales. 

Moreover, any TTS would be of a small 

degree. Any avoidance of the Project 

Area due to the Project’s activities 

would be expected to be temporary. 

Given the magnitude and severity of 

the impacts discussed above (including 

no more than nine takes of the course 

of the 5-year rule, and a maximum 

annual allowable take by Level B 

harassment of four), and in 

consideration of the required mitigation 

and other information presented, 

Empire Wind’s activities are not 

expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have determined that 

the take by harassment anticipated and 

authorized will have a negligible impact 

on the Nova Scotia stock of sei whales. 

Odontocetes 

In this section, we include 

information that applies to all of the 

odontocete species and stocks addressed 

below. Odontocetes include dolphins, 

porpoises, and all other whales 

possessing teeth, and we further divide 

them into the following subsections: 

sperm whales, small whales and 

dolphins, and harbor porpoises. These 

subsections include more specific 

information, as well as conclusions, for 

each stock represented. 

All of the takes of odontocetes 

authorized incidental to Empire Wind’s 

specified activities are by pile driving 

and HRG surveys. No Level A 

harassment, serious injury, or mortality 

is authorized. We anticipate that, given 

ranges of individuals (i.e., that some 

individuals remain within a small area 

for some period of time), and nonmigratory nature of some odontocetes in 

general and especially as compared to 

mysticetes, these takes are more likely 

to represent multiple exposures of a 

smaller number of individuals than is 

the case for mysticetes, though some 

takes may also represent one-time 

exposures to an individual. Foundation 

installation is likely to disturb 

odontocetes to the greatest extent 

compared to HRG surveys. While we 

expect animals to avoid the area during 

foundation installation, their habitat 

range is extensive compared to the area 

ensonified during these activities. 

As described earlier, Level B 

harassment may include direct 

disruptions in behavioral patterns (e.g., 

avoidance, changes in vocalizations 

(from masking) or foraging), as well as 

those associated with stress responses or 

TTS. Odontocetes are highly mobile 

species, and, similar to mysticetes, 

NMFS expects any avoidance behavior 

to be limited to the area near the sound 

source. While masking could occur 

during foundation installation, it would 

only occur in the vicinity of and during 

the duration of the activity, and would 

not generally occur in a frequency range 

that overlaps most odontocete 

communication or any echolocation 

signals. The mitigation measures (e.g., 

use of sound attenuation systems, 

implementation of clearance and 

shutdown zones) would also minimize 

received levels such that the severity of 

any behavioral response would be 

expected to be less than exposure to 

unmitigated noise exposure. 

Any masking or TTS effects are 

anticipated to be of low severity. First, 

the frequency range of pile driving, the 

most impactful activity to be conducted 

in terms of response severity, falls 

within a portion of the frequency range 

of most odontocete vocalizations. 

However, odontocete vocalizations span 

a much wider range than the low 

frequency construction activities 

planned for the Project. As described 

above, recent studies suggest 

odontocetes have a mechanism to selfmitigate (i.e., reduce hearing sensitivity) 

the impacts of noise exposure, which 


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could potentially reduce TTS impacts. 

Any masking or TTS is anticipated to be 

limited and would typically only 

interfere with communication within a 

portion of an odontocete’s range and as 

discussed earlier, the effects would only 

be expected to be of a short duration 

and, for TTS, which is a relatively small 

degree. 

Furthermore, odontocete echolocation 

occurs predominantly at frequencies 

significantly higher than low frequency 

construction activities. Therefore, there 

is little likelihood that threshold shift 

would interfere with feeding behaviors. 

For HRG surveys, the sources operate at 

higher frequencies than foundation 

installation activities. However, sounds 

from these sources attenuate very 

quickly in the water column, as 

described above. Therefore, any 

potential for PTS and TTS and masking 

is very limited. Further, odontocetes 

(e.g., common dolphins, spotted 

dolphins, and bottlenose dolphins) have 

demonstrated an affinity to bow-ride 

actively surveying HRG surveys. 

Therefore, the severity of any 

harassment, if it does occur, is 

anticipated to be minimal based on the 

lack of avoidance previously 

demonstrated by these species. 

The waters off the coast of New York 

are used by several odontocete species. 

However, none except the sperm whale 

are listed under the ESA, and there are 

no known habitats of particular 

importance. In general, odontocete 

habitat ranges are far-reaching along the 

Atlantic coast of the United States, and 

the waters off of New York, including 

the Project Area, do not contain any 

particularly unique odontocete habitat 

features. 

Sperm Whale 

Sperm whales are listed as 

endangered under the ESA, and the 

North Atlantic stock is considered both 

Depleted and Strategic under the 

MMPA. The North Atlantic stock spans 

the East Coast out into oceanic waters 

well beyond the U.S. exclusive 

economic zone (EEZ). Although listed as 

endangered, the primary threat faced by 

the sperm whale across its range (i.e., 

commercial whaling) has been 

eliminated. Current potential threats to 

the species globally include vessel 

strikes, entanglement in fishing gear, 

anthropogenic noise, exposure to 

contaminants, climate change, and 

marine debris. There is no currently 

reported trend for the stock and, 

although the species is listed as 

endangered under the ESA, there are no 

specific issues with the status of the 

stock that cause particular concern (e.g., 

no UMEs). There are no known areas of 

biological importance (e.g., critical 

habitat or BIAs) in or near the Project 

Area. No mortality or serious injury is 

anticipated or authorized for this 

species. 

The rule authorizes up to six takes, by 

Level B harassment only, over the 5-year 

period. No Level A harassment, serious 

injury, or mortality is authorized. The 

maximum annual allowable take by 

Level B harassment would be three, 

which equates to approximately 0.07 

percent of the stock abundance, if each 

take were considered to be of a different 

individual, with lower numbers than 

that expected in the years without 

foundation installation (e.g., years when 

only HRG surveys would be occurring). 

Given sperm whale’s preference for 

deeper waters, especially for feeding, it 

is unlikely that individuals will remain 

in the Project Area for multiple days, 

and therefore, the estimated takes likely 

represent exposures of different 

individuals on 1 day annually. 

If sperm whales are present in the 

Project Area during any Project 

activities, they will likely be only 

transient visitors and not engaging in 

any significant behaviors. Further, the 

potential for TTS is low for reasons 

described in the general Odontocetes 

section, but if it does occur, any hearing 

shift would be small and of a short 

duration. Because whales are not 

expected to be foraging in the Project 

Area, any TTS is not expected to 

interfere with foraging behavior. 

Given the magnitude and severity of 

the impacts discussed above (i.e., no 

more than six takes, by Level B 

harassment only, over the course of the 

5-year rule, and a maximum annual 

allowable take of three), and in 

consideration of the required mitigation 

and other information presented, 

Empire Wind’s activities are not 

expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have determined that 

the take by harassment anticipated and 

authorized will have a negligible impact 

on the North Atlantic stock of sperm 

whales. 

Dolphins and Small Whales (Including 

Delphinids) 

The seven species and eight stocks 

included in this group (which are 

indicated in table 2 in the Delphinidae 

family) are not listed under the ESA; 

however, short-finned pilot whales are 

listed as Strategic under the MMPA. 

There are no known areas of specific 

biological importance in or around the 

Project Area for any of these species and 

no UMEs have been designated for any 

of these species. No serious injury or 

mortality is anticipated or authorized 

for these species. 

The seven delphinid species with 

takes authorized for the Project are 

Atlantic spotted dolphin, Atlantic 

white-sided dolphin, common 

bottlenose dolphin, common dolphin, 

long-finned pilot whale, short-finned 

pilot whale, and Risso’s dolphin. The 

rule would allow for the authorization 

of 315 to 24,030 takes (depending on 

species) by Level B harassment, over the 

5-year period. The maximum annual 

allowable take for these species by Level 

B harassment, would range from 90 to 

9,870, (this annual take equates to 

approximately 0.23 to 5.71 percent of 

the stock abundance, depending on each 

species, if each take were considered to 

be of a different individual), with far 

lower numbers than those expected in 

the years without foundation 

installation (e.g., years when only HRG 

surveys would be occurring). No Level 

A harassment, serious injury, or 

mortality is authorized. 

For common dolphin, given the 

higher relative number of takes, while 

many of the takes likely represent 

exposures of different individuals on 1 

day a year, some subset of the 

individuals exposed could be taken up 

to a few times annually. For the 

Northern Migratory coastal stock of 

bottlenose dolphins, given the higher 

number of takes relative to the stock 

abundance, it is likely that the takes 

represent exposures of different 

individuals on 1 day a year. However, 

it is also possible that some subset of the 

individuals exposed could be taken 

several times annually. Specifically, 

Empire Wind was able to estimate the 

number of takes per bottlenose dolphin 

stock (i.e., Western North Atlantic 

offshore and Northern Migratory coastal 

stocks) incidental to pile driving given 

the work effort and area were known. 

For example, all takes incidental to 

cable landfall construction and marina 

work are allocated to the Northern 

Migratory coastal stock because noise 

from this activity does not extend into 

offshore stock habitat. NMFS is 

authorizing a maximum of 1,800 and 

1,185 takes in any given year incidental 

to pile driving to the offshore stock and 

Northern Migratory coastal stock, 

respectively. However, Empire Wind 

was not able to differentiate the amount 

of take per stock incidental to HRG 

surveys due to the inability to 

differentiate between the Western North 

Atlantic offshore and Northern 

Migratory coastal stocks of bottlenose 

dolphin in the underlying density data 

and that the amount of HRG survey 

effort in each stock’s preferred habitat is 


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unknown. The predicted maximum 

annual take by Level B harassment for 

these two stocks from HRG surveys 

combined is 2,865. The most likely 

scenario is that the take is split across 

the two stocks; however, both stocks can 

occur within the Project Area and it is 

challenging to predict with confidence 

the proportion of the takes that will be 

incurred to each stock. However, as 

described in the Small Numbers section 

below, the Project Area is located at the 

edge of the northern boundary of the 

Northern Migratory coastal stock’s 

habitat, though bottlenose dolphins are 

using the New York-New Jersey Harbor 

estuary more frequently (e.g., Trabue et 

al., 2022) than in previous years, likely 

due to warming waters. In addition, the 

stock demonstrates strong migratory 

behavior patterns. Bottlenose dolphins 

have been rarely observed during cold 

water months in coastal waters north of 

the North Carolina/Virginia border 

(Hayes et al., 2021); therefore, they are 

limited to the Project Area in warm 

water months. For these reasons, NMFS 

estimates approximately 930 takes by 

Level B harassment from the coastal 

stock may be expected incidental to 

HRG surveys, at an estimated group size 

of 15 per Jefferson et al. (2015), per day 

during warm water months (i.e., 62 

days, July and August) (see Small 

Numbers section below for more 

details). Overall, it is unlikely that all 

takes would occur to a different 

individual given work may occur on 

consecutive days (thereby increasing 

chance of repeated exposure if animals 

were to remain in the area) and, in 

particular for inshore waters (where 

cable landfall work and marina work 

would occur) dolphins are likely to be 

remaining in the area to forage (e.g., 

Trabue et al., 2022). Even for these 

stocks in which some individuals may 

be exposed on several days within the 

year, the anticipated intensity of a given 

exposure and the comparatively small 

number of annual exposures and their 

intermittency would not be expected to 

incur impacts that would affect 

reproductive success or survival. 

Overall, the number of takes, likely 

movement patterns of the affected 

dolphin and small whale species, and 

the intensity of any Level B 

harassments, combined with the 

availability of alternate nearby foraging 

habitat suggests that the likely impacts 

would not impact the reproduction or 

survival of any individuals. While 

delphinids may be taken on several 

occasions, none of these species are 

known to have small home ranges 

significantly overlapping the Project 

Area or known to be particularly 

sensitive to anthropogenic noise. Some 

TTS can occur in delphinids, but it 

would be limited to the frequency 

ranges of the activity and any loss of 

hearing sensitivity is anticipated to 

return to pre-exposure conditions 

shortly after the animals move away 

from the source or the source ceases. 

Given the magnitude and severity of 

the impacts discussed above and in 

consideration of the required mitigation 

and other information presented, 

Empire Wind’s activities are not 

expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have determined that 

the take by harassment anticipated and 

authorized will have a negligible impact 

on all of the dolphin and small whale 

species and stocks addressed in this 

section (i.e., Atlantic spotted dolphin, 

Atlantic white-sided dolphin, bottlenose 

dolphin (western North Atlantic 

offshore stock and northern migratory 

coastal stock), common dolphin, shortfinned pilot whale, long-finned pilot 

whale, and Risso’s dolphin). 

Harbor Porpoise 

Harbor porpoises are not listed as 

Threatened or Endangered under the 

ESA, and the Gulf of Maine/Bay of 

Fundy stock is neither considered 

depleted or strategic under the MMPA. 

The stock is found predominantly in 

northern United States coastal waters, at 

less than 150 m depth and up into 

Canada’s Bay of Fundy, between New 

Brunswick and Nova Scotia. Although 

the population trend is not known, there 

are no UMEs or other factors that cause 

particular concern for this stock. 

The rule would allow for the 

authorization of up to 565 takes, by 

Level B harassment only, over the 5-year 

period. The maximum annual allowable 

take by Level B harassment would be 

243 (this annual take equates to 

approximately 0.25 percent of the stock 

abundance, if each take were considered 

to be of a different individual), with far 

lower numbers than that expected in the 

years without foundation installation 

(e.g., years when only HRG surveys 

would be occurring). Given the number 

of takes, while many of the takes likely 

represent exposures of different 

individuals on 1 day a year, some subset 

of the individuals exposed could be 

taken up to a few times annually. No 

Level A harassment, serious injury, or 

mortality is authorized. 

Regarding the severity of takes by 

Level B harassment, because harbor 

porpoises are particularly sensitive to 

noise, it is likely that a fair number of 

the responses could be of a moderate 

nature, particularly to pile driving. In 

response to pile driving, harbor 

porpoises are likely to avoid the area 

during construction, as previously 

demonstrated in Tougaard et al. (2009) 

in Denmark, in Dahne et al. (2013) in 

Germany, and in Vallejo et al. (2017) in 

the United Kingdom, although a study 

by Graham et al. (2019) may indicate 

that the avoidance distance could 

decrease over time. However, 

foundation installation is scheduled to 

occur off the coast of New York and, 

given alternative foraging areas, any 

avoidance of the area by individuals is 

not likely to impact the reproduction or 

survival of any individuals. 

PTS is not anticipated or authorized. 

With respect to TTS, the effects on an 

individual are likely relatively low 

given the frequency bands of pile 

driving (most energy below 2 kHz) 

compared to harbor porpoise hearing 

(150 Hz to 160 kHz peaking around 40 

kHz). Specifically, TTS is unlikely to 

impact hearing ability in their more 

sensitive hearing ranges, or the 

frequencies in which they communicate 

and echolocate. 

As discussed in Hayes et al. (2023), 

harbor porpoises are seasonally 

distributed. During fall (October– 

December) and spring (April–June), 

harbor porpoises are widely dispersed 

from New Jersey to Maine, with lower 

densities farther north and south. 

During winter (January to March), 

intermediate densities of harbor 

porpoises can be found in waters off 

New Jersey to North Carolina, and lower 

densities are found in waters off New 

York to New Brunswick, Canada. In 

non-summer months they have been 

seen from the coastline to deep waters 

(i.e., >1800 m; Westgate et al., 1998), 

although the majority are found over the 

continental shelf. While harbor 

porpoises are likely to avoid the area 

during any of the Project’s construction 

activities, as demonstrated during 

European wind farm construction, the 

time of year in which work would occur 

is when harbor porpoises are not in 

highest abundance, and any work that 

does occur would not result in the 

species’ abandonment of the waters off 

of New York. 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, 

Empire Wind’s activities are not 

expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have determined that 

the take by harassment anticipated and 

authorized will have a negligible impact 


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on the Gulf of Maine/Bay of Fundy 

stock of harbor porpoises. 

Phocids (Harbor Seals, Gray Seals, and 

Harp Seals) 

The harbor seal, gray seal, and harp 

seal are not listed under the ESA, and 

neither the western North Atlantic stock 

of gray seal, western North Atlantic 

stock of harp seal, nor the western North 

Atlantic stock of harbor seal are 

considered depleted or strategic under 

the MMPA. There are no known areas 

of specific biological importance in or 

around the Project Area. As described in 

the Description of Marine Mammals in 

the Geographic Area section, a UME has 

been designated for harbor seals and 

gray seals and is described further 

below. No serious injury or mortality is 

anticipated or authorized for these 

species. 

For the three seal species, the rule 

authorizes up to between 20 and 1,752 

takes for each species by Level B 

harassment only over the 5-year period. 

Level A harassment is not authorized. 

The maximum annual allowable take for 

these species by Level B harassment, 

would range from 4 (harp seals) to 501 

(gray seals) to 662 (harbor seals) (this 

annual take equates to approximately 

0.00005 percent of the stock abundance 

for harp seals, 1.84 percent of the stock 

abundance for gray seals, and 1.08 

percent of the stock abundance for 

harbor seals, if each take were 

considered to be of a different 

individual), with far lower numbers 

than that expected in the years without 

foundation installation (e.g., years when 

only HRG surveys would be occurring). 

Though gray seals, harbor seals, and 

harp seals are considered migratory and 

no specific feeding areas have been 

designated in the area, the higher 

number of takes relative to the stock 

abundance suggests that while some of 

the takes likely represent exposures of 

different individuals on 1 day a year, it 

is likely that some subset of the 

individuals exposed could be taken 

several times annually. 

Harbor and gray seals occur in New 

York waters most often in winter, when 

impact pile driving would not occur. 

Harp seals are anticipated to be rare but 

could still occur in the Project Area. 

Seals are more likely to be close to shore 

(e.g., closer to the edge of the area 

ensonified above NMFS’ harassment 

threshold), such that exposure to 

foundation installation would be 

expected to be at comparatively lower 

levels. There are no gray seal pupping 

colonies or known haul-out sites near 

the Project Area, although gray seals 

may haul out at known harbor seal haul 

out sites. The nearest known gray seal 

pupping sites are greater than 250 

nautical miles (nmi) (463 km) away, at 

Muskeget Island in the Nantucket 

Sound, Monomoy National Wildlife 

Refuge, and in eastern Maine (Rough, 

1995). Known haul out locations are 

located closer to Monomoy Refuge and 

on Nantucket in Massachusetts (Kenney 

and Vigness-Raposa, 2010). Harbor seals 

have the potential to occur in areas 

adjacent to the export cable corridors 

and landfall sites. Although there are no 

known harbor seal haul outs in the 

Project Area, harbor seals occur 

throughout the New York coastline and 

have the potential to haul out at many 

beach sites. As the closest documented 

pinniped haul out sites are located 

further than 463 km away from the 

Project Area, NMFS does not expect any 

harassment to occur and has not 

authorized any take from in-air impacts 

on hauled-out seals. 

As described in the ‘‘Potential Effects 

to Marine Mammals and Their Habitat’’ 

section in the proposed rule, 

construction of wind farms in Europe 

resulted in pinnipeds temporarily 

avoiding construction areas but 

returning within short time frames after 

construction was complete (Carroll et 

al., 2010; Hamre et al., 2011; Hastie et 

al., 2015; Russell et al., 2016; Brasseur 

et al., 2010). Effects on pinnipeds that 

are taken by Level B harassment in the 

Project Area would likely be limited to 

reactions such as increased swimming 

speeds, increased surfacing time, or 

decreased foraging (if such activity were 

occurring). Most likely, individuals 

would simply move away from the 

sound source and be temporarily 

displaced from those areas (Lucke et al., 

2006; Edren et al., 2010; Skeate et al., 

2012; Russell et al., 2016). Given the 

low anticipated magnitude of impacts 

from any given exposure (e.g., 

temporary avoidance), even potential 

repeated Level B harassment across a 

few days of some small subset of 

individuals, is unlikely to result in 

impacts on the reproduction or survival 

of any individuals. Moreover, pinnipeds 

would benefit from the mitigation 

measures described in 50 CFR part 217. 

As described above, noise from pile 

driving is mainly low frequency. PTS is 

not anticipated or authorized. Any TTS 

that does occur would fall within the 

lower end of pinniped hearing ranges 

(i.e., 50 Hz to 86 kHz), TTS would not 

occur at frequencies where pinniped 

hearing is most sensitive. In summary, 

any TSS would be of small degree and 

not occur across the entire, or even the 

most sensitive, hearing range. Hence, 

any impacts from TTS are likely to be 

of low severity and not interfere with 

behaviors critical to reproduction or 

survival. 

Elevated numbers of harbor seal and 

gray seal mortalities were first observed 

in July 2018 and occurred across Maine, 

New Hampshire, and Massachusetts 

until 2020. Based on tests conducted so 

far, the main pathogen found in the 

seals belonging to that UME was 

phocine distemper virus, although 

additional testing to identify other 

factors that may be involved in this 

UME are underway. Currently, the only 

active UME is occurring in Maine with 

some harbor and gray seals testing 

positive for highly pathogenic avian 

inÖuenza (HPAI) H5N1. Although 

elevated strandings continue, neither 

UME, alone or in combination, provides 

cause for concern regarding populationlevel impacts to any of these stocks. For 

harbor seals, the population abundance 

is over 61,000 and the annual mortality/ 

serious injury (M/SI; 339) for the seals 

is well below PBR (i.e., 1,729) (Hayes et 

al., 2020). The population abundance 

for gray seals in the United States is 

over 27,000, with an estimated overall 

abundance, including seals in Canada, 

of approximately 450,000. In addition, 

the abundance of gray seals is likely 

increasing in the United States Atlantic, 

as well as in Canada (Hayes et al., 2020). 

For harp seals, for which there is no 

recent UME, the total U.S. fisheryrelated mortality and serious injury for 

this stock is very low relative to the 

stock size and can be considered 

insignificant and approaching zero 

mortality and serious injury rate (Hayes 

et al., 2022). The harp seal stock 

abundance appears to have stabilized 

(Hayes et al., 2022). 

Given the magnitude and severity of 

the impacts discussed above, and in 

consideration of the required mitigation 

and other information presented, 

Empire Wind’s activities are not 

expected to result in impacts on the 

reproduction or survival of any 

individuals, much less affect annual 

rates of recruitment or survival. For 

these reasons, we have determined that 

the take by harassment anticipated and 

authorized will have a negligible impact 

on harbor, gray, and harp seals. 

Negligible Impact Determination 

No mortality or serious injury is 

anticipated to occur or authorized. As 

described in the analysis above, the 

impacts resulting from the Project’s 

activities cannot be reasonably expected 

to, and are not reasonably likely to, 

adversely affect any of the species or 

stocks through effects on annual rates of 

recruitment or survival. Based on the 

analysis contained herein of the likely 

effects of the specified activity on 


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11416 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

marine mammals and their habitat, and 

taking into consideration the 

implementation of the required 

mitigation and monitoring measures, 

NMFS finds that the marine mammal 

take from all of Empire Wind’s specified 

activities combined will have a 

negligible impact on all affected marine 

mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) and (D) of 

the MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers; 

therefore, in practice, and where 

estimated numbers are available, NMFS 

compares the number of individuals 

estimated to be taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is less than one-third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

NMFS is authorizing incidental take 

by Level A harassment and/or Level B 

harassment of 17 species of marine 

mammals (with 18 managed stocks). 

The maximum number of instances of 

takes by combined Level A harassment 

and Level B harassment possible within 

any 1 year relative to the best available 

population abundance is less than onethird for all species and stocks 

potentially impacted. Unless otherwise 

noted, the small numbers analysis 

conservatively assumes each take occurs 

to a different individual in the 

population. 

For 16 stocks, less than 6 percent of 

the stock abundance is authorized for 

take by harassment. Specific to the 

North Atlantic right whale, the 

maximum amount of take per year, 

which is by Level B harassment only, is 

13, or 3.85 percent of the stock 

abundance, assuming that each instance 

of take represents a different individual. 

Please see table 38 for information 

relating to this small numbers analysis. 

For bottlenose dolphins, Empire Wind 

was able to identify the amount of take 

by all activities other than HRG surveys 

on a per stock basis (offshore or 

Northern Migratory coastal; see table 

38). Taking into account public 

comment related to these issues, NMFS 

has taken a finer look at calculating the 

percentage of take expected for the two 

affected stocks of bottlenose dolphins. 

The Project Area is located at the 

northern habitat boundary edge for the 

Northern Migratory coastal stock. As 

described in Hayes et al. (2021), this 

stock, as described in its name, migrates 

along the coast of the U.S. throughout 

the year. During warm water months 

(primarily July and August), this stock 

occupies coastal waters from the 

shoreline to approximately the 20-m 

isobath between Assateague, Virginia, 

and Long Island, New York. The stock 

occupies more southern coastal waters 

from approximately Cape Lookout, 

North Carolina, to the North Carolina/ 

Virginia border during colder months; 

bottlenose dolphins have been rarely 

observed during cold water months in 

coastal waters north of the North 

Carolina/Virginia border (Hayes et al., 

2021). Empire Wind requested, and 

NMFS has authorized, take equating to 

one average group size (n=15) of 

bottlenose dolphins on each survey day 

(n=191) which could occur January 

through December. Habitat distribution 

alone precludes the Northern Migratory 

coastal stock from being present within 

or near the Project Area during cooler 

months. Therefore, to assume this stock 

could be taken year-round (i.e., subject 

to harassment every day HRG surveys 

would occur) is not reasonable or based 

on the best available science. 

For purposes of this analysis, NMFS 

has conservatively assumed that every 

day during summer months (July and 

August; as identified in Hayes et al., 

2021) when it is most likely this stock 

could occur in the Project Area, one 

average group size per day could be 

taken by harassment incidental to HRG 

surveys. That is, harassment could 

occur to the coastal stock on 

approximately 62 days, noting these 62 

days could be spread out over a longer 

time period (e.g., June through 

September) when waters are warm 

enough to host this stock. These 

assumptions equate to 930 takes (i.e., 62 

days × 15 dolphins per day) from HRG 

surveys. Combined with the take 

authorized incidental to pile driving 

(i.e., 1,185 takes), the maximum total 

take authorized in a given year is 2,115. 

If one assumes that all takes are of a 

different individual, this equates to 31.9 

percent of the population. However, the 

assumptions that all takes are of a 

different individual (i.e., harassment on 

more than one day could occur to the 

same individual) and all takes could be 

attributed to the coastal stock are also 

not likely scenarios; therefore, in 

addition to the fact that the Project Area 

is the most northern boundary of known 

habitat, the actual percentage of stock 

taken by harassment is expected to be 

less than 31.9 percent. 

Regarding the Western North Atlantic 

offshore stock of bottlenose dolphins, if 

one assumes that all take authorized for 

HRG surveys (2,865) occurs to the 

offshore stock, the total amount of take 

authorized in any given year (4,655) 

equates to 7.4 percent of the population 

(62,851). NMFS expects this percentage 

to also be an overestimate, given that 

this estimate assumes each take is of a 

different individual, an unlikely 

scenario as discussed above, and 

assumes that all of the expected 

bottlenose dolphin takes are attributed 

to the offshore stock, also a very 

unlikely scenario. 

Based on the analysis contained 

herein of the activities (including the 

required mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals 

would be taken relative to the 

population size of the affected species 

or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Classification 

Endangered Species Act 

Section 7(a)(2) of the ESA of 1973 (16 

U.S.C. 1531 et seq.) requires that each 

Federal agency ensure 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 promulgation of 

rulemakings, NMFS consults internally 

whenever we propose to authorize take 

for endangered or threatened species, 

and in this case, consulted with the 

NOAA GARFO. 

The NMFS Office of Protected 

Resources has authorized the take of 

four marine mammal species, which are 

listed under the ESA: the North Atlantic 

right, sei, fin, and sperm whale. The 

Permit and Conservation Division 

requested initiation of section 7 

consultation on April 12, 2023, with 

GARFO for the promulgation of the 

rulemaking. NMFS issued a Biological 

Opinion on September 8, 2023, 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11417 

concluding that the promulgation of the 

rule and issuance of LOAs thereunder is 

not likely to jeopardize the continued 

existence of threatened and endangered 

species under NMFS’ jurisdiction and is 

not likely to result in the destruction or 

adverse modification of designated or 

proposed critical habitat. The Biological 

Opinion is available at https://

repository.library.noaa.gov/view/noaa/ 

55324. 

Empire Wind is required to abide by 

the promulgated regulations, as well as 

the reasonable and prudent measure and 

terms and conditions of the Biological 

Opinion and Incidental Take Statement, 

as issued by NMFS. 

National Environmental Policy Act 

To comply with NEPA (42 U.S.C. 

4321 et seq.) and the NOAA 

Administrative Order (NAO) 216–6A, 

NMFS must evaluate our proposed 

action (i.e., promulgation of regulation) 

and alternatives with respect to 

potential impacts on the human 

environment. NMFS participated as a 

cooperating agency on the BOEM 2023 

Final EIS (FEIS), which was finalized on 

September 11, 2023, and is available at: 

https://www.boem.gov/renewableenergy/state-activities/empire-windfinal-eis. In accordance with 40 CFR 

1506.3, NMFS independently reviewed 

and evaluated the 2023 Empire Wind 

FEIS and determined that it is adequate 

and sufficient to meet our 

responsibilities under NEPA for the 

promulgation of this rule and issuance 

of the associated LOA. NMFS, therefore, 

has adopted the 2023 Empire Wind 1 

FEIS through a joint Record of Decision 

(ROD) with BOEM. The joint ROD for 

adoption of the 2023 Empire Wind FEIS 

and promulgation of this final rule and 

subsequent issuance of a LOA can be 

found at: https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. 

Executive Order 12866 

The Office of Management and Budget 

has determined that this rule is not 

significant for purposes of Executive 

Order 12866. 

Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), the Chief 

Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for the 

certification was published in the 

proposed rule and is not repeated here. 

No comments were received regarding 

this certification. As a result, a 

regulatory flexibility analysis was not 

required and none was prepared. 

Paperwork Reduction Act 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act unless that collection of 

information displays a currently valid 

Office of Management and Budget 

(OMB) control number. These 

requirements have been approved by 

OMB under control number 0648–0151 

and include applications for regulations, 

subsequent LOA, and reports. Send 

comments regarding any aspect of this 

data collection, including suggestions 

for reducing the burden, to NMFS. 

Coastal Zone Management Act 

The Coastal Zone Management Act 

requires that any applicant for a 

required Federal license or permit to 

conduct an activity, within the coastal 

zone or within the geographic location 

descriptions (i.e., areas outside the 

coastal zone in which an activity would 

have reasonably foreseeable coastal 

effects), affecting any land or water use 

or natural resource of the coastal zone 

be consistent with the enforceable 

policies of a state’s federally approved 

coastal management program. As 

required, on June 24, 2021, Empire 

Wind submitted a Federal consistency 

certification to New York and 

voluntarily submitted a Federal 

consistency certification to New Jersey 

for approval of the COP by BOEM and 

the issuance of an Individual Permit by 

United States Army Corps of Engineers, 

under sections 10 and 14 of the Rivers 

and Harbors Act and section 404 of the 

Clean Water Act (15 CFR part 930, 

subpart E). New York began its review 

of the proposed activity pursuant to 15 

CFR part 930, subpart D, on November 

18, 2022. 

NMFS determined that Empire 

Wind’s application for MMPA ITRs is 

an unlisted activity under the State of 

New York’s coastal management 

program and, thus, is not subject to 

Federal consistency requirements in the 

absence of the receipt and prior 

approval of an unlisted activity review 

request from the State by the Director of 

NOAA’s Office for Coastal Management. 

Pursuant to 15 CFR 930.54, NMFS 

published a NOR of Empire Wind’s 

application in the Federal Register on 

September 9, 2022 (87 FR 55409), and 

published the proposed rule on April 

13, 2023 (88 FR 22696). The State of 

New York did not request approval from 

the Director of NOAA’s Office for 

Coastal Management to review Empire 

Wind’s application as an unlisted 

activity, and the time period for making 

such request has expired. Therefore, 

NMFS has determined the ITA is not 

subject to Federal consistency review. 

Waiver of Delay in Effective Date 

The Assistant Administrator for 

Fisheries has determined that there is a 

sufficient basis under the 

Administrative Procedure Act (APA) to 

waive the 30-day delay in the effective 

date of the measures contained in the 

final rule. Section 553 of the APA 

provides that the required publication 

or service of a substantive rule shall be 

made not less than 30 days before its 

effective date with certain exceptions, 

including (1) for a substantive rule that 

relieves a restriction or (2) when the 

agency finds and provides good cause 

for foregoing delayed effectiveness 5 

U.S.C 553(d)(1) and (d)(3). Here, the 

issuance of regulations under section 

101(a)(5)(A) of the MMPA is a 

substantive action that relieves the 

statutory prohibition on the taking of 

marine mammals, specifically, the 

incidental taking of marine mammals 

associated with Empire Wind’s 

specified activities during the 

construction of the Project offshore of 

New York. Until the effective date of 

these regulations, Empire Wind is 

prohibited from taking marine mammals 

incidental to the Project. 

In addition, good cause exists for 

waiving the delay in effective date. In 

order for Empire Wind to start cable 

landfall construction activities in Spring 

2024, which is pertinent for 

construction activity sequencing and 

vessel and other services procurement 

and availability, Empire Wind must 

submit a certified verification agent 

reviewed and certified Fabrication and 

Installation Report, which includes all 

Federal, State, and local permits, to 

Bureau of Safety and Environmental 

Enforcement (BSEE) at least 60 days 

prior to the start of such activities (30 

CFR 285.700). 

Moreover, offshore wind projects, 

such as the Project, that are developed 

to generate renewable energy have great 

societal and economic importance, and 

delays in completing the Project are 

contrary to the public interest. 

Finally, Empire Wind has informed 

NMFS that it does not require 30 days 

to prepare for implementation of the 

regulations and requests that this final 

rule take effect on or before February 22, 

2024. For these reasons, the subject 


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11418 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

regulations will be made effective on 

February 22, 2024. 

List of Subjects in 50 CFR Part 217 

Administrative practice and 

procedure, Endangered and threatened 

species, Fish, Fisheries, Marine 

mammals, Penalties, Reporting and 

recordkeeping requirements, Wildlife. 

Dated: January 18, 2024. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

PART 217—REGULATIONS 

GOVERNING THE TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES 

■ 1. The authority citation for part 217 

continues to read: 

Authority: 16 U.S.C. 1361 et seq., unless 

otherwise noted. 

■ 2. Add subpart CC, consisting of 

§§ 217.280 through 217.289, to read as 

follows: 

Subpart CC—Taking Marine Mammals 

Incidental to the Empire Wind Project 

Offshore of New York 

Sec. 

217.280 Specified activity and specified 

geographical region. 

217.281 Effective dates. 

217.282 Permissible methods of taking. 

217.283 Prohibitions. 

217.284 Mitigation requirements. 

217.285 Requirements for monitoring and 

reporting. 

217.286 Letter of Authorization. 

217.287 Modifications of Letter of 

Authorization. 

217.288—217.289 [Reserved] 

Subpart CC—Taking Marine Mammals 

Incidental to the Empire Wind Project, 

Offshore New York 

§ 217.280 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

to activities associated with the Empire 

Wind Project (hereafter referred to as the 

‘‘Project’’) by Empire Offshore Wind, 

LLC (hereafter referred to as ‘‘LOA 

Holder’’), and those persons it 

authorizes or funds to conduct activities 

on its behalf in the area outlined in 

paragraph (b) of this section. 

Requirements imposed on LOA Holder 

must be implemented by those persons 

it authorizes or funds to conduct 

activities on its behalf. (b) The specified 

geographical region is the Mid-Atlantic 

Bight, which includes, but is not limited 

to, the Bureau of Ocean Energy 

Management (BOEM) Lease Area Outer 

Continental Shelf (OCS)-A 0512 

Commercial Lease of Submerged Lands 

for Renewable Energy Development, two 

export cable routes, and two sea-toshore transition points located at South 

Brooklyn Marine Terminal, in Brooklyn, 

NY (Empire Wind 1), and Long Island, 

NY (Empire Wind 2). 

(c) The specified activities are impact 

pile driving of up to 147 wind turbine 

generator (WTGs) and up to two 

offshore substation (OSSs) foundations; 

impact and vibratory pile driving 

associated with cable landfall 

construction and marina activities; highresolution geophysical (HRG) site 

characterization surveys; vessel transit 

within the specified geographical region 

to transport crew, supplies, and 

materials; WTG operation; fishery and 

ecological monitoring surveys; 

placement of scour protection; and 

trenching, laying, and burial activities 

associated with the installation of the 

export cable route from OSSs to shorebased converter stations and inter-array 

cables between turbines. 

§ 217.281 Effective dates. 

The regulations in this subpart are 

effective from February 22, 2024, 

through February 21, 2029. 

§ 217.282 Permissible methods of taking. 

Under the LOA, issued pursuant to 

§§ 216.106 and 217.286, LOA Holder, 

and those persons it authorizes or funds 

to conduct activities on its behalf, may 

incidentally, but not intentionally, take 

marine mammals within the vicinity of 

BOEM Lease Area OCS–A 0512 

Commercial Lease of Submerged Lands 

for Renewable Energy Development, 

along export cable routes, and at the two 

sea-to-shore transition points located at 

the South Brooklyn Marine Terminal, in 

Brooklyn, NY (Empire Wind 1), and 

Long Island, NY (Empire Wind 2), in the 

following ways, provided LOA Holder is 

in complete compliance with all terms, 

conditions, and requirements of the 

regulations in this subpart and the 

appropriate LOA: 

(a) By Level B harassment associated 

with the acoustic disturbance of marine 

mammals by impact pile driving (WTG 

and OSS foundation installation), 

impact and vibratory pile driving during 

cable landfall and marina activities, and 

HRG site characterization surveys; 

(b) By Level A harassment associated 

with the acoustic disturbance of marine 

mammals by impact pile driving of 

WTG and OSS foundations; (c) Take by 

mortality (death) or serious injury of any 

marine mammal species is not 

authorized; and (d) The incidental take 

of marine mammals by the activities 

listed in paragraphs (a) and (b) of this 

section is limited to the following 

species: 

TABLE 1 TO PARAGRAPH (d) 

Marine mammal species Scientific name Stock 

Fin whale ............................................................ Balaenoptera physalus .................................... Western North Atlantic. 

Humpback whale ................................................ Megaptera novaeangliae ................................. Gulf of Maine. 

Minke whale ....................................................... Balaenoptera acutorostrata .............................. Canadian Eastern Coastal. 

North Atlantic right whale ................................... Eubalaena glacialis .......................................... Western North Atlantic. 

Sei whale ............................................................ Balaenoptera borealis ...................................... Nova Scotia. 

Atlantic spotted dolphin ...................................... Stenella frontalis .............................................. Western North Atlantic. 

Atlantic white-sided dolphin ................................ Lagenorhynchus acutus ................................... Western North Atlantic. 

Bottlenose dolphin .............................................. Tursiops truncatus ........................................... Western North Atlantic, offshore. 

Bottlenose dolphin .............................................. Tursiops truncatus ........................................... Western North Atlantic, coastal. 

Short-beaked common dolphin .......................... Delphinus delphis ............................................. Western North Atlantic. 

Harbor porpoise .................................................. Phocoena phocoena ........................................ Gulf of Maine/Bay of Fundy. 

Long-finned pilot whale ...................................... Globicephala melas ......................................... Western North Atlantic. 

Short-finned pilot whale ...................................... Globicephala macrorhynchus .......................... Western North Atlantic. 

Risso’s dolphin ................................................... Grampus griseus .............................................. Western North Atlantic. 

Sperm whale ...................................................... Physeter macrocephalus ................................. North Atlantic. 

Gray seal ............................................................ Halichoerus grypus .......................................... Western North Atlantic. 

Harbor seal ......................................................... Phoca vitulina ................................................... Western North Atlantic. 

Harp seal ............................................................ Pagophilus groenlandicus ................................ Western North Atlantic. 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11419 

§ 217.283 Prohibitions. 

Except for the takings described in 

§ 217.282 and authorized by an LOA 

issued under § 217.286 or § 217.287, it 

is unlawful for any person to do any of 

the following in connection with the 

activities described in this subpart: 

(a) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or an LOA issued under 

§ 217.286 or § 217.287; 

(b) Take any marine mammal not 

specified in § 217.282(d); 

(c) Take any marine mammal 

specified in the LOA in any manner 

other than as specified in the LOA; or 

(d) Take any marine mammal 

specified in § 217.282(d), after NMFS 

Office of Protected Resources 

determines such taking results in more 

than a negligible impact on the species 

or stocks of such marine mammals. 

§ 217.284 Mitigation requirements. 

When conducting the activities 

identified in § 217.280(c) within the 

area described in § 217.280(b), LOA 

Holder must implement the mitigation 

measures contained in this section and 

any LOA issued under § 217.286 or 

§ 217.287. These mitigation measures 

include, but are not limited to: 

(a) General conditions. LOA Holder 

must comply with the following general 

measures: 

(1) A copy of any issued LOA must be 

in the possession of LOA Holder and its 

designees, all vessel operators, visual 

protected species observers (PSOs), 

passive acoustic monitoring (PAM) 

operators, pile driver operators, and any 

other relevant designees operating 

under the authority of the issued LOA; 

(2) LOA Holder must conduct training 

for construction, survey, and vessel 

personnel and the marine mammal 

monitoring team (PSO and PAM 

operators) prior to the start of all inwater construction activities in order to 

explain responsibilities, communication 

procedures, marine mammal detection 

and identification, mitigation, 

monitoring, and reporting requirements, 

safety and operational procedures, and 

authorities of the marine mammal 

monitoring team(s). This training must 

be repeated for new personnel who join 

the work during the Project. A 

description of the training program must 

be provided to NMFS at least 60 days 

prior to the initial training before inwater activities begin. Confirmation of 

all required training must be 

documented on a training course log 

sheet and reported to NMFS Office of 

Protected Resources prior to initiating 

project activities; 

(3) Prior to, and when conducting, 

any in-water activities and vessel 

operations, LOA Holder personnel and 

contractors (e.g., vessel operators, PSOs) 

must use available sources of 

information on North Atlantic right 

whale presence in or near the Project 

Area including daily monitoring of the 

Right Whale Sightings Advisory System, 

and monitoring of U.S. Coast Guard 

VHF Channel 16 throughout the day to 

receive notification of any sightings 

and/or information associated with any 

Slow Zones (i.e., Dynamic Management 

Areas (DMAs) and/or acousticallytriggered slow zones) to provide 

situational awareness for both vessel 

operators, PSO(s), and PAM operator(s). 

The marine mammal monitoring team 

must monitor these systems no less than 

every 4 hours; 

(4) Any marine mammal observed by 

project personnel must be immediately 

communicated to any on-duty PSOs, 

PAM operator(s), and all vessel 

captains. Any large whale observation 

or acoustic detection by PSOs or PAM 

operators must be conveyed to all vessel 

captains; 

(5) For North Atlantic right whales, 

any visual detection by a PSO or 

acoustic detection by PAM operators at 

any distance (where applicable for the 

specified activities) must trigger a delay 

to the commencement of pile driving 

and HRG surveys; 

(6) In the event that a large whale is 

sighted or acoustically detected that 

cannot be confirmed as a non-North 

Atlantic right whale, it must be treated 

as if it were a North Atlantic right whale 

for purposes of mitigation, unless a PSO 

or PAM operator confirms it is another 

type of whale; 

(7) The LOA Holder must instruct all 

vessel personnel regarding the authority 

of the PSO(s). If a delay to commencing 

an activity is called for by the Lead PSO 

or PAM operator, LOA Holder must take 

the required mitigative action. If a 

shutdown of an activity is called for by 

the Lead PSO or PAM operator, LOA 

Holder must take the required mitigative 

action unless shutdown would result in 

imminent risk of injury or loss of life to 

an individual, pile refusal, or pile 

instability. Any disagreements between 

the Lead PSO, PAM operator, and the 

activity operator regarding delays or 

shutdowns would only be discussed 

after the mitigative action has occurred; 

(8) If an individual from a species for 

which authorization has not been 

granted, or a species for which 

authorization has been granted but the 

authorized take number has been met, is 

observed entering or within the relevant 

Level B harassment zone prior to 

beginning a specified activity, the 

activity must be delayed. If the activity 

is ongoing, it must be shut down 

immediately, unless shutdown would 

result in imminent risk of injury or loss 

of life to an individual, pile refusal, or 

pile instability. The activity must not 

commence or resume until the animal(s) 

has been confirmed to have left and is 

on a path away from the Level B 

harassment zone or after 15 minutes for 

small odontocetes and pinnipeds, and 

30 minutes for all other species with no 

further sightings; 

(9) Any marine mammals observed 

within a clearance or shutdown zone 

must be allowed to remain in the area 

(i.e., must leave of their own volition) 

prior to commencing pile driving 

activities or HRG surveys; 

(10) For in-water construction heavy 

machinery activities listed in 

§ 217.280(c), if a marine mammal is on 

a path towards or comes within 10 

meters (m) (32.8 feet) of equipment, 

LOA Holder must cease operations until 

the marine mammal has moved more 

than 10 m on a path away from the 

activity to avoid direct interaction with 

equipment; 

(11) All vessels must be equipped 

with a properly installed, operational 

Automatic Identification System (AIS) 

device and LOA Holder must report all 

Maritime Mobile Service Identity 

(MMSI) numbers to NMFS Office of 

Protected Resources; 

(12) By accepting the issued LOA, 

LOA Holder consents to on-site 

observation and inspections by Federal 

agency personnel (including NOAA 

personnel) during activities described in 

this subpart, for the purposes of 

evaluating the implementation and 

effectiveness of measures contained 

within the LOA and this subpart; and 

(13) It is prohibited to assault, harm, 

harass (including sexually harass), 

oppose, impede, intimidate, impair, or 

in any way influence or interfere with 

a PSO, PAM Operator, or vessel crew 

member acting as an observer, or 

attempt the same. This prohibition 

includes, but is not limited to, any 

action that interferes with an observer’s 

responsibilities, or that creates an 

intimidating, hostile, or offensive 

environment. Personnel may report any 

violations to the NMFS Office of Law 

Enforcement. 

(b) Vessel strike avoidance measures. 

LOA Holder must comply with the 

following vessel strike avoidance 

measures, unless an emergency 

situation presents a threat to the health, 

safety, or life of a person or when a 

vessel, actively engaged in emergency 

rescue or response duties, including 

vessel-in-distress or environmental 

crisis response, requires speeds in 

excess of 10 knots (kn) (18.5 kilometers 

per hour (km/hr)) to fulfill those 


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11420 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

responsibilities, while in the specified 

geographical region. An emergency is 

defined as a serious event that occurs 

without warning and requires 

immediate action to avert, control, or 

remedy harm. All vessel speeds are 

referenced to speed over ground: 

(1) Prior to the start of the Project’s 

activities involving vessels, all vessel 

personnel must receive a protected 

species training that covers, at a 

minimum, identification of marine 

mammals that have the potential to 

occur where vessels would be operating; 

detection observation methods in both 

good weather conditions (i.e., clear 

visibility, low winds, low sea states) and 

bad weather conditions (i.e., fog, high 

winds, high sea states, with glare); 

sighting communication protocols; all 

vessel speed and approach limit 

mitigation requirements (e.g., vessel 

strike avoidance measures); and 

information and resources available to 

the Project personnel regarding the 

applicability of Federal laws and 

regulations for protected species. This 

training must be repeated for any new 

vessel personnel who join the Project. 

Confirmation of the observers’ training 

and understanding of the Incidental 

Take Authorization (ITA) requirements 

must be documented on a training 

course log sheet and reported to NMFS; 

(2) All vessel operators must maintain 

a vigilant watch for all marine mammals 

and slow down, stop their vessel, or 

alter course to avoid striking any marine 

mammal; 

(3) All underway vessels operating at 

any speed, transiting within the 

specified geographic area (i.e., the MidAtlantic Bight), must have a dedicated 

visual observer on duty at all times to 

monitor for marine mammals within a 

180° direction of the forward path of the 

vessel (90° port to 90° starboard) located 

at an appropriate vantage point for 

ensuring vessels are maintaining 

appropriate separation distances. 

Dedicated visual observers may be 

third-party observers (i.e., NMFSapproved PSOs) or trained crew 

members, as defined in paragraph (b)(1) 

of this section. Dedicated visual 

observers must be equipped with 

alternative monitoring technology (e.g., 

night vision devices, infrared cameras) 

for periods of low visibility (e.g., 

darkness, rain, fog, etc.). The dedicated 

visual observer must not have any other 

duties while observing and must receive 

prior training on protected species 

detection and identification, vessel 

strike minimization procedures, how 

and when to communicate with the 

vessel captain, and reporting 

requirements in this subpart; 

(4) All vessel operators and/or the 

dedicated visual observer on each 

transiting vessel must continuously 

monitor the U.S. Coast Guard VHF 

Channel 16 at the onset of transiting 

through the duration of transiting, over 

which North Atlantic right whale 

sightings are broadcasted. At the onset 

of transiting and at least once every 4 

hours, vessel operators and/or dedicated 

visual observer(s) must also monitor the 

Project’s Situational Awareness System 

(if applicable), WhaleAlert, and relevant 

NOAA information systems such as the 

Right Whale Sighting Advisory System 

(RWSAS) for the presence of North 

Atlantic right whales; 

(5) Any large whale sighting by any 

project-personnel must be immediately 

communicated to all project-associated 

vessels; 

(6) All vessel operators must abide by 

existing applicable vessel speed rule 

regulations at 50 CFR part 224 (nothing 

in this subpart exempts vessels from any 

other applicable marine mammal speed 

and approach regulations); 

(7) Vessels must not travel over 10 kn 

(18.5 km/hr) from November 1 through 

April 30, annually, in the specified 

geographic region, within any active 

North Atlantic right whale Slow Zone 

(i.e., DMAs or acoustically-triggered 

slow zone); 

(8) If vessel(s) are traveling at speeds 

greater than 10 kn (18.5 km/hr) (i.e., no 

speed restrictions are enacted) in a 

transit corridor (defined as from a port 

to the Lease Area or return), in addition 

to the required dedicated visual 

observer, LOA Holder must monitor the 

transit corridor in real-time with PAM 

prior to and during transits. If a North 

Atlantic right whale is detected via 

visual observation or PAM detection 

within or approaching the transit 

corridor, all vessels in the transit 

corridor must travel at 10 kn (18.5 km/ 

hr) or less for 24 hours following the 

detection. Each subsequent detection 

shall trigger a 24-hour reset. A 

slowdown in the transit corridor expires 

when there has been no further visual 

or acoustic detection in the transit 

corridor in the past 24 hours; 

(9) All vessel operators, regardless of 

their vessel’s size, must immediately 

reduce speed to 10 kn (18.5 km/hr) or 

less for at least 24 hours when a North 

Atlantic right whale is sighted at any 

distance by any project-related 

personnel or acoustically detected by 

any project-related PAM system. Each 

subsequent observation or acoustic 

detection in the Project Area shall 

trigger an additional 24-hour period. If 

a North Atlantic right whale is reported 

via any of the monitoring systems (refer 

back to paragraph (b)(4) of this section) 

within 10 km (6.2 miles (mi)) of a 

transiting vessel(s), that vessel must 

operate at 10 kn (18.5 km/hr) or less for 

24 hours following the reported 

detection; 

(10) All vessel operators, regardless of 

their vessel’s size, must immediately 

reduce speed to 10 kn (18.5 km/hr) or 

less when any large whale (other than 

a North Atlantic right whale- refer back 

to paragraph (b)(7) of this section), 

mother/calf pairs, or large assemblages 

of cetaceans are sighted within 500 m of 

a transiting vessel; 

(11) All vessels must maintain a 

minimum separation distance of 500 m 

from North Atlantic right whales. If 

underway, all vessels must steer a 

course away from any sighted North 

Atlantic right whale at 10 kn (18.5 km/ 

hr) or less such that the 500-m 

minimum separation distance 

requirement is not violated. If a North 

Atlantic right whale is sighted within 

500 m of an underway vessel, that 

vessel must reduce speed and shift the 

engine to neutral. Engines must not be 

engaged until the whale has moved 

outside of the vessel’s path and beyond 

500 m. If a whale is observed but cannot 

be confirmed as a species other than a 

North Atlantic right whale, the vessel 

operator must assume that it is a North 

Atlantic right whale and take the vessel 

strike avoidance measures described in 

this paragraph (b)(11); 

(12) All vessels must maintain a 

minimum separation distance of 100 m 

(328 ft) from sperm whales and nonNorth Atlantic right whale baleen 

whales. If one of these species is sighted 

within 100 m of a transiting vessel, the 

vessel must reduce speed and shift the 

engine to neutral. Engines must not be 

engaged until the whale has moved 

outside of the vessel’s path and beyond 

100 m; 

(13) All vessels must maintain a 

minimum separation distance of 50 m 

(164 ft) from all delphinid cetaceans and 

pinnipeds with an exception made for 

those that approach the vessel (i.e., bowriding dolphins). If a delphinid cetacean 

or pinniped is sighted within 50 m of 

a transiting vessel, the vessel must shift 

the engine to neutral, with an exception 

made for those that approach the vessel 

(e.g., bow-riding dolphins). Engines 

must not be engaged until the animal(s) 

has moved outside of the vessel’s path 

and beyond 50 m; 

(14) When a marine mammal(s) is 

sighted while the vessel(s) is transiting, 

the vessel must take action as necessary 

to avoid violating the relevant 

separation distances (e.g., attempt to 

remain parallel to the animal’s course, 

slow down, and avoid abrupt changes in 


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direction until the animal has left the 

area); 

(15) All vessels underway must not 

divert or alter course to approach any 

marine mammal; 

(16) Vessel operators must check, 

daily, for information regarding the 

establishment of mandatory or 

voluntary vessel strike avoidance areas 

(i.e., DMAs, Seasonal Management 

Areas (SMAs), Slow Zones) and any 

information regarding North Atlantic 

right whale sighting locations; and 

(17) LOA Holder must submit a North 

Atlantic Right Whale Vessel Strike 

Avoidance Plan to NMFS Office of 

Protected Resources for review and 

approval at least 180 days prior to the 

planned start of vessel activity. The plan 

must provide details on the vessel-based 

observer and PAM protocols for 

transiting vessels. If a plan is not 

submitted or approved by NMFS prior 

to vessel operations, all project vessels 

must travel at speeds of 10 kn (18.5 km/ 

hr) or less. LOA Holder must comply 

with any approved North Atlantic Right 

Whale Vessel Strike Avoidance Plan. 

(c) WTG and OSS foundation 

installation. The following requirements 

apply to impact pile driving activities 

associated with the installation of WTG 

and OSS foundations: 

(1) Foundation pile driving must not 

occur January 1 through April 30, 

annually. Foundation pile driving must 

not be planned and must be avoided to 

the maximum extent practicable in 

December; however, it may occur if 

necessary to complete the Project with 

prior approval by NMFS. Empire Wind 

must notify NMFS in writing by 

September 1 of that year that 

circumstances are expected to 

necessitate pile driving in December; 

(2) Monopiles must be no larger than 

11 m in diameter. Hammer energies 

must not exceed 5,500 kilojoules (kJ) for 

monopile installation. No more than 

two monopiles may be installed per day. 

Pin piles must be no larger than 2.5 m 

in diameter. Hammer energies must not 

exceed 3,200 kJ for pin pile installation. 

No more than three pin piles may be 

installed per day; 

(3) LOA Holder must only perform 

foundation pile driving during daylight 

hours, defined as no later than 1.5 hours 

prior to civil sunset and no earlier than 

1 hour after civil sunrise, and may only 

continue into darkness if stopping 

operations represents a risk to human 

health, safety, and/or pile stability and 

an Alternative Monitoring Plan, as part 

of the Pile Driving and Marine Mammal 

Monitoring Plan for Nighttime Pile 

Driving that reliably demonstrates the 

efficacy of their night vision methods, 

has been approved by NMFS. No new 

pile driving may begin when pile 

driving continues into darkness; 

(4) LOA Holder must utilize a softstart protocol as described in the LOA. 

Soft-start must occur at the beginning of 

impact driving and at any time 

following a cessation of impact pile 

driving of 30 minutes or longer; 

(5) LOA Holder must establish 

clearance and shutdown zones, which 

must be measured using the radial 

distance from the pile being driven. 

PSOs must visually monitor clearance 

zones for marine mammals for a 

minimum of 60 minutes prior to 

commencing pile driving. At least one 

PAM operator must review data from at 

least 24 hours prior to pile driving and 

actively monitor hydrophones for 60 

minutes prior to pile driving, at all 

times during pile driving, and for 30 

minutes after pile driving. The entire 

minimum visibility zone must be visible 

(i.e., not obscured by dark, rain, fog, 

etc.) for a full 60 minutes immediately 

prior to commencing impact pile 

driving. All clearance zones must be 

confirmed to be free of marine mammals 

for 30 minutes immediately prior to the 

beginning of soft-start procedures. PAM 

operators must immediately 

communicate all detections of marine 

mammals at any distance to the Lead 

PSO, including any determination 

regarding species identification, 

distance, and bearing and the degree of 

confidence in the determination. If a 

marine mammal is detected within, or is 

about to enter, the applicable clearance 

zones, during this 30-minute period, 

impact pile driving must be delayed 

until the animal has been visually 

observed exiting the clearance zone or 

until a specific time period has elapsed 

with no further sightings. The specific 

time periods are 15 minutes for small 

odontocetes and pinnipeds, and 30 

minutes for all other species; 

(6) For North Atlantic right whales, 

any visual observation by a protected 

species observer at any distance or 

acoustic detection within the PAM 

Monitoring Zone must trigger a delay to 

the commencement of pile driving. The 

North Atlantic right whale clearance 

zone may only be declared clear if no 

North Atlantic right whale acoustic or 

visual detections have occurred during 

the 60-minute monitoring period. Any 

large whale sighting by a PSO or 

detected by a PAM operator that cannot 

be identified as a non-North Atlantic 

right whale must be treated as if it were 

a North Atlantic right whale; 

(7) LOA Holder must deploy at least 

two functional noise attenuation devices 

that reduce noise levels to the modeled 

harassment isopleths, assuming 10- 

decibels (dB) attenuation, during all 

foundation pile driving, and comply 

with the following measures: 

(i) A single bubble curtain must not be 

used; 

(ii) The bubble curtain(s) must 

distribute air bubbles using an air flow 

rate of at least 0.5 m3/(minute*m). The 

bubble curtains must surround 100 

percent of the piling perimeter 

throughout the full depth of the water 

column. In the unforeseen event of a 

single compressor malfunction, the 

offshore personnel operating the bubble 

curtains must adjust the air supply and 

operating pressure such that the 

maximum possible sound attenuation 

performance of the bubble curtain(s) is 

achieved; 

(iii) The lowest bubble ring must be 

in contact with the seafloor for the full 

circumference of the ring, and the 

weights attached to the bottom ring 

must ensure 100-percent seafloor 

contact; 

(iv) No parts of the ring or other 

objects may prevent full seafloor contact 

with a bubble curtain ring; 

(v) Construction contractors must 

train personnel in the proper balancing 

of airflow to the bubble curtain ring. 

LOA Holder must provide NMFS Office 

of Protected Resources with a bubble 

curtain performance test and 

maintenance report to review within 72 

hours after each pile using a bubble 

curtain is installed. Additionally, a full 

maintenance check (e.g., manually 

clearing holes) must occur prior to each 

pile being installed; and 

(vi) Corrections to the bubble rings to 

meet the performance standards in this 

paragraph (c)(7) must occur prior to 

impact pile driving of monopiles. For 

any noise mitigation device in addition 

to the bubble curtains, LOA Holder 

must inspect and carry out appropriate 

maintenance on the system and ensure 

the system is functioning properly prior 

to every pile driving event; 

(8) LOA Holder must utilize NMFSapproved PAM systems, as described in 

paragraph (c)(15) of this section. The 

PAM system components (i.e., acoustic 

buoys) must not be placed closer than 

1 km to the pile being driven so that the 

activities do not mask the PAM system. 

LOA Holder must demonstrate and 

prove the detection range of the system 

they plan to deploy while considering 

potential masking from concurrent piledriving and vessel noise. The PAM 

system must be able to detect a 

vocalization of North Atlantic right 

whales up to 10 km (6.2 mi); 

(9) LOA Holder must utilize PSO(s) 

and PAM operator(s), as described in 

§ 217.285(c). At least three on-duty 

PSOs must be on every impact pile 

driving platform(s); 


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(10) If a marine mammal is detected 

(visually or acoustically) entering or 

within the respective shutdown zone 

after pile driving has begun, the PSO or 

PAM operator must call for a shutdown 

of pile driving and LOA Holder must 

stop pile driving immediately, unless 

shutdown is not practicable due to 

imminent risk of injury or loss of life to 

an individual or risk of damage to a 

vessel that creates risk of injury or loss 

of life for individuals, or the lead 

engineer determines there is a risk of 

pile refusal or pile instability. If pile 

driving is not shutdown in one of these 

situations, LOA Holder must reduce 

hammer energy to the lowest level 

practicable and the reason(s) for not 

shutting down must be documented and 

reported to NMFS Office of Protected 

Resources within the applicable 

monitoring reports (e.g., weekly, 

monthly) (see 217.285(f)); 

(11) A visual observation or acoustic 

detection of a North Atlantic right whale 

at any distance by foundation 

installation PSOs or an acoustic 

detection within 10 km triggers 

shutdown requirements under 

paragraph (c)(10) of this section. If pile 

driving has been shut down due to the 

presence of North Atlantic right whales, 

pile driving may not restart until the 

North Atlantic right whale has neither 

been visually or acoustically detected by 

pile driving PSOs and PAM operators 

for 30 minutes; 

(12) If pile driving has been shut 

down due to the presence of a marine 

mammal other than a North Atlantic 

right whale, pile driving must not restart 

until either the marine mammal(s) has 

voluntarily left the specific clearance 

zones and has been visually or 

acoustically confirmed beyond that 

clearance zone, or when specific time 

periods have elapsed with no further 

sightings or acoustic detections have 

occurred. The specific time periods are 

15 minutes for small odontocetes and 

pinnipeds and 30 minutes for all other 

marine mammal species. In cases where 

these criteria are not met, pile driving 

may restart only if necessary to maintain 

pile stability or to avoid pile refusal, at 

which time LOA Holder must use the 

lowest hammer energy practicable to 

maintain stability; 

(13) LOA Holder must conduct 

thorough sound field verification (SFV) 

measurements during pile driving 

activities associated with the 

installation of, at minimum, the first 

three monopile foundations. SFV 

measurements must continue until at 

least three consecutive piles 

demonstrate noise levels are at or below 

those modeled, assuming 10 dB of 

attenuation. Subsequent SFV 

measurements are also required should 

larger piles be installed or if additional 

piles are driven that may produce 

louder sound fields than those 

previously measured (e.g., higher 

hammer energy, greater number of 

strikes, etc.). In addition to thorough 

SFV monitoring, LOA Holder also must 

conduct abbreviated SFV for all 

foundations, using at least one acoustic 

recorder for every foundation for which 

thorough SFV monitoring is not 

conducted: 

(i) Thorough SFV measurements must 

be made at a minimum of four distances 

from the pile(s) being driven, along a 

single transect, in the direction of 

lowest transmission loss (i.e., projected 

lowest transmission loss coefficient), 

including, but not limited to, 750 m 

(2,460 ft) and three additional ranges 

selected such that measurement of Level 

A harassment and Level B harassment 

isopleths are accurate, feasible, and 

avoids extrapolation. At least one 

additional measurement at an azimuth 

90 degrees from the array at 750 m must 

be made. At each location, there must be 

a near bottom and mid-water column 

hydrophone (measurement systems); 

(ii) The recordings must be 

continuous throughout the duration of 

all pile driving of each foundation; 

(iii) The SFV measurement systems 

must have a sensitivity appropriate for 

the expected sound levels from pile 

driving received at the nominal ranges 

throughout the installation of the pile. 

The frequency range of SFV 

measurement systems must cover the 

range of at least 20 hertz (Hz) to 20 

kilohertz (kHz). The SFV measurement 

systems must be designed to have 

omnidirectional sensitivity so that the 

broadband received level of all pile 

driving exceeds the system noise floor 

by at least 10 dB. The dynamic range of 

the SFV measurement system must be 

sufficient such that at each location, and 

the signals avoid poor signal-to-noise 

ratios for low amplitude signals and 

avoid clipping, nonlinearity, and 

saturation for high amplitude signals; 

(iv) All hydrophones used in SFV 

measurements systems are required to 

have undergone a full system, traceable 

laboratory calibration conforming to 

International Electrotechnical 

Commission (IEC) 60565, or an 

equivalent standard procedure, from a 

factory or accredited source to ensure 

the hydrophone receives accurate sound 

levels, at a date not to exceed 2 years 

before deployment. Additional in-situ 

calibration checks using a pistonphone 

are required to be performed before and 

after each hydrophone deployment. If 

the measurement system employs filters 

via hardware or software (e.g., highpass, low-pass, etc.), which is not 

already accounted for by the calibration, 

the filter performance (i.e., the filter’s 

frequency response) must be known, 

reported, and the data corrected before 

analysis; 

(v) LOA Holder must be prepared 

with additional equipment (e.g., 

hydrophones, recording devices, 

hydrophone calibrators, cables, 

batteries, etc.), which exceeds the 

amount of equipment necessary to 

perform the measurements, such that 

technical issues can be mitigated before 

measurement; 

(vi) LOA Holder must submit interim 

reports within 48 hours after each 

foundation is measured (see § 217.285(f) 

section for interim and final reporting 

requirements); 

(vii) LOA Holder must not exceed 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds, assuming 10- 

dB attenuation, for foundation 

installation. If any of the interim SFV 

measurement reports submitted for the 

first three monopiles indicate the 

modeled distances to NMFS marine 

mammal Level A harassment and Level 

B harassment thresholds assuming 10- 

dB attenuation, then LOA Holder must 

implement additional sound attenuation 

measures on all subsequent foundations. 

LOA Holder must also increase 

clearance and shutdown zone sizes to 

those identified by NMFS until SFV 

measurements on at least three 

additional foundations demonstrate 

acoustic distances to harassment 

thresholds meet or are less than those 

modeled assuming 10-dB of attenuation. 

LOA Holder must optimize the sound 

attenuation systems (e.g., ensure hose 

maintenance, pressure testing, etc.) to 

meet noise levels modeled, assuming 

10-dB attenuation, within three piles or 

else foundation installation activities 

must cease until NMFS and LOA Holder 

can evaluate the situation and ensure 

future piles must not exceed noise 

levels modeled assuming 10-dB 

attenuation; 

(viii) If, after additional measurements 

conducted pursuant to requirements of 

paragraph (c)(13)(vii) of this section, 

acoustic measurements indicate that 

ranges to isopleths corresponding to the 

Level A harassment and Level B 

harassment thresholds are less than the 

ranges predicted by modeling (assuming 

10-dB attenuation), LOA Holder may 

request to NMFS Office of Protected 

Resources a modification of the 

clearance and shutdown zones. For 

NMFS Office of Protected Resources to 

consider a modification request for 

reduced zone sizes, LOA Holder must 

have conducted SFV measurements on 


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an additional three foundations and 

ensure that subsequent foundations 

would be installed under conditions 

that are predicted to produce smaller 

harassment zones than those modeled 

assuming 10-dB of attenuation; 

(ix) LOA Holder must conduct SFV 

measurements upon commencement of 

turbine operations to estimate turbine 

operational source levels, in accordance 

with a NMFS-approved Foundation 

Installation Pile Driving SFV Plan. SFV 

must be conducted in the same manner 

as previously described in this 

paragraph (c)(13), with appropriate 

adjustments to measurement distances, 

number of hydrophones, and 

hydrophone sensitivities being made, as 

necessary; and 

(x) LOA Holder must submit a SFV 

Plan to NMFS Office of Protected 

Resources for review and approval at 

least 180 days prior to planned start of 

foundation installation activities and 

abide by the Plan if approved. At 

minimum, the SFV Plan must describe 

how LOA Holder would ensure that the 

first three monopile foundation 

installation sites selected for SFV 

measurements are representative of the 

rest of the monopile installation sites 

such that future pile installation events 

are anticipated to produce similar sound 

levels to those piles measured. In the 

case that these sites/scenarios are not 

determined to be representative of all 

other pile installation sites, LOA Holder 

must include information in the SFV 

Plan on how additional sites/scenarios 

would be selected for SFV 

measurements. The SFV Plan must also 

include methodology for collecting, 

analyzing, and preparing SFV 

measurement data for submission to 

NMFS Office of Protected Resources and 

describe how the effectiveness of the 

sound attenuation methodology would 

be evaluated based on the results. SFV 

for pile driving may not occur until 

NMFS approves the SFV Plan for this 

activity; 

(14) LOA Holder must submit a 

Foundation Installation Pile Driving 

Marine Mammal Monitoring Plan to 

NMFS Office of Protected Resources for 

review and approval at least 180 days 

prior to planned start of pile driving and 

abide by the Plan if approved. LOA 

Holder must obtain both NMFS Office of 

Protected Resources and NMFS Greater 

Atlantic Regional Fisheries Office 

Protected Resources Division’s 

concurrence with this Plan prior to the 

start of any pile driving. The Plan must 

include a description of all monitoring 

equipment and PAM and PSO protocols 

(including number and location of 

PSOs) for all pile driving. No foundation 

pile installation can occur without 

NMFS’ approval of the Plan; and 

(15) LOA Holder must submit a 

Passive Acoustic Monitoring Plan (PAM 

Plan) to NMFS Office of Protected 

Resources for review and approval at 

least 180 days prior to the planned start 

of foundation installation activities 

(impact pile driving) and abide by the 

Plan if approved. The PAM Plan must 

include a description of all proposed 

PAM equipment, address how the 

proposed passive acoustic monitoring 

must follow standardized measurement, 

processing methods, reporting metrics, 

and metadata standards for offshore 

wind. The Plan must describe all 

proposed PAM equipment, procedures, 

and protocols including proof that 

vocalizing North Atlantic right whales 

will be detected within the clearance 

and shutdown zones. No pile 

installation can occur if LOA Holder’s 

PAM Plan does not receive approval 

from NMFS Office of Protected 

Resources and NMFS Greater Atlantic 

Regional Fisheries Office Protected 

Resources Division. 

(d) Cable landfall construction and 

marina activities. The following 

requirements apply to cable landfall and 

marina construction activities: 

(1) Installation and removal of 

cofferdams and goal posts must not 

occur during nighttime hours (defined 

as the hours between 1.5 hours prior to 

civil sunset and 1 hour after civil 

sunrise); 

(2) LOA Holder must establish and 

implement clearance zones for the 

installation and removal of cofferdams 

and goal posts using visual monitoring. 

These zones must be measured using 

the radial distance from the cofferdam 

and goal post being installed and/or 

removed; 

(3) LOA Holder must utilize PSO(s), 

as described in § 217.285(d). At least 

two on-duty PSOs must monitor for 

marine mammals at least 30 minutes 

before, during, and 30 minutes after 

impact and vibratory pile driving 

associated with cofferdam and casing 

pipe installation and removal and 

marine activities; and 

(4) If a marine mammal is observed 

entering or within the respective 

shutdown zone after pile driving has 

begun, the PSO must call for a 

shutdown of pile driving. LOA Holder 

must stop pile driving immediately 

unless shutdown is not practicable due 

to imminent risk of injury or loss of life 

to an individual or if there is a risk of 

damage to the vessel that would create 

a risk of injury or loss of life for 

individuals or if the lead engineer 

determines there is refusal or instability. 

In any of these situations, LOA Holder 

must document the reason(s) for not 

shutting down and report the 

information to NMFS Office of Protected 

Resources in the next available weekly 

report (as described in § 217.285(f)). 

(5) Pile driving must not restart until 

either the marine mammal(s) has 

voluntarily left the specific clearance 

zones and has been visually or 

acoustically confirmed beyond that 

clearance zone, or when specific time 

periods have elapsed with no further 

sightings or acoustic detections have 

occurred. The specific time periods are 

15 minutes for small odontocetes and 

pinnipeds and 30 minutes for all other 

marine mammal species. In cases where 

these criteria are not met, pile driving 

may restart only if necessary to maintain 

pile stability at which time LOA Holder 

must use the lowest hammer energy 

practicable to maintain stability. 

(e) HRG surveys. The following 

requirements apply to HRG surveys 

operating sub-bottom profilers (SBPs) 

(i.e., boomers, sparkers, and 

Compressed High Intensity Radiated 

Pulse (CHIRPS)): 

(1) LOA Holder must establish and 

implement clearance and shutdown 

zones for HRG surveys using visual 

monitoring, as described in paragraph 

(c) of this section; 

(2) LOA Holder must utilize PSO(s), 

as described in § 217.285(e); 

(3) LOA Holder must abide by the 

relevant Project Design Criteria (PDCs 4, 

5, and 7) of the programmatic 

consultation completed by NMFS’ 

Greater Atlantic Regional Fisheries 

Office on June 29, 2021 (revised 

September 2021), pursuant to section 7 

of the Endangered Species Act (ESA). 

To the extent that any relevant Best 

Management Practices (BMPs) described 

in these PDCs are more stringent than 

the requirements in this subpart, those 

BMPs supersede the requirements in 

this subpart; 

(4) SBPs (hereinafter referred to as 

‘‘acoustic sources’’) must be deactivated 

when not acquiring data or preparing to 

acquire data, except as necessary for 

testing. Acoustic sources must be used 

at the lowest practicable source level to 

meet the survey objective, when in use, 

and must be turned off when they are 

not necessary for the survey; 

(5) Prior to starting the survey and 

after receiving confirmation from the 

PSO, that the clearance zone is clear of 

any marine mammals, LOA Holder is 

required to ramp-up acoustic sources to 

half power for 5 minutes prior to 

commencing full power, unless the 

equipment operates on a binary on/off 

switch (in which case ramp-up is not 

required). LOA Holder must also ensure 

visual clearance zones are fully visible 


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11424 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

(e.g., not obscured by darkness, rain, 

fog, etc.) and clear of marine mammals, 

as determined by the Lead PSO, for at 

least 30 minutes immediately prior to 

the initiation of survey activities using 

acoustic sources specified in the LOA; 

(6) Ramp-up and activation must be 

delayed if a marine mammal(s) enters its 

respective shutdown zone. Ramp-up 

and activation may only be reinitiated if 

the animal(s) has been observed exiting 

its respective shutdown zone or until 15 

minutes for small odontocetes and 

pinnipeds, and 30 minutes for all other 

species, has elapsed with no further 

sightings; 

(7) Prior to a ramp-up procedure 

starting or activating acoustic sources, 

the acoustic source operator (operator) 

must notify a designated PSO of the 

planned start of ramp-up as agreed upon 

with the Lead PSO. The notification 

time should not be less than 60 minutes 

prior to the planned ramp-up or 

activation in order to allow the PSOs 

time to monitor the clearance zone(s) for 

30 minutes prior to the initiation of 

ramp-up or activation (pre-start 

clearance). During this 30-minute prestart clearance period, the entire 

applicable clearance zone must be 

visible, except as indicated in paragraph 

(e)(13) of this section; 

(8) Ramp-ups must be scheduled so as 

to minimize the time spent with the 

source activated; 

(9) A PSO conducting pre-start 

clearance observations must be notified 

again immediately prior to reinitiating 

ramp-up procedures and the operator 

must receive confirmation from the PSO 

to proceed; 

(10) LOA Holder must implement a 

30-minute clearance period of the 

clearance zones immediately prior to 

the commencing of the survey or when 

there is more than a 30-minute break in 

survey activities or PSO monitoring. A 

clearance period is a period when no 

marine mammals are detected in the 

relevant zone; 

(11) If a marine mammal is observed 

within a clearance zone during the 

clearance period, ramp-up or acoustic 

surveys may not begin until the 

animal(s) has been observed voluntarily 

exiting its respective clearance zone or 

until a specific time period has elapsed 

with no further sighting. The specific 

time period is 15 minutes for small 

odontocetes and pinnipeds and 30 

minutes for all other species; 

(12) In any case when the clearance 

process has begun in conditions with 

good visibility, including via the use of 

night vision equipment (infrared (IR)/ 

thermal camera), and the Lead PSO has 

determined that the clearance zones are 

clear of marine mammals, survey 

operations would be allowed to 

commence (i.e., no delay is required) 

despite periods of inclement weather 

and/or loss of daylight. Ramp-up may 

occur at times of poor visibility, 

including nighttime, if appropriate 

visual monitoring has occurred with no 

detections of marine mammals in the 30 

minutes prior to beginning ramp-up; 

(13) Once the survey has commenced, 

LOA Holder must shut down acoustic 

sources if a marine mammal enters a 

respective shutdown zone, except in 

cases when the shutdown zones become 

obscured for brief periods due to 

inclement weather, survey operations 

may continue (i.e., no shutdown is 

required) so long as no marine mammals 

have been detected. The shutdown 

requirement does not apply to small 

delphinids of the following genera: 

Delphinus, Stenella, Lagenorhynchus, 

and Tursiops. If there is uncertainty 

regarding the identification of a marine 

mammal species (i.e., whether the 

observed marine mammal belongs to 

one of the delphinid genera for which 

shutdown is waived), the PSOs must 

use their best professional judgment in 

making the decision to call for a 

shutdown. Shutdown is required if a 

delphinid that belongs to a genus other 

than those specified in this paragraph 

(e)(13) is detected in the shutdown 

zone; 

(14) If an acoustic source has been 

shut down due to the presence of a 

marine mammal, the use of an acoustic 

source may not commence or resume 

until the animal(s) has been confirmed 

to have left the Level B harassment zone 

or until a full 15 minutes for small 

odontocetes and seals or 30 minutes for 

all other marine mammals have elapsed 

with no further sighting; 

(15) LOA Holder must immediately 

shut down any acoustic source if a 

marine mammal is sighted entering or 

within its respective shutdown zones. If 

there is uncertainty regarding the 

identification of a marine mammal 

species (i.e., whether the observed 

marine mammal belongs to one of the 

delphinid genera for which shutdown is 

waived), the PSOs must use their best 

professional judgment in making the 

decision to call for a shutdown. 

Shutdown is required if a delphinid that 

belongs to a genus other than those 

specified in paragraph (e)(13) of this 

section is detected in the shutdown 

zone; and 

(16) If an acoustic source is shut down 

for a period longer than 30 minutes, all 

clearance and ramp-up procedures must 

be repeated. If an acoustic source is shut 

down for reasons other than mitigation 

(e.g., mechanical difficulty) for less than 

30 minutes, acoustic sources may be 

activated again without ramp-up only if 

PSOs have maintained constant 

observation and no additional 

detections of any marine mammal 

occurred within the respective 

shutdown zones. 

(17) If multiple HRG vessels are 

operating concurrently, any 

observations of marine mammals must 

be communicated to PSOs on all nearby 

survey vessels. 

(f) Fisheries monitoring surveys. The 

following measures apply to fishery 

monitoring surveys: 

(1) Survey gear must be deployed as 

soon as possible once the vessel arrives 

on station. Gear must not be deployed 

if there is a risk of interaction with 

marine mammals. Gear may be 

deployed after 15 minutes of no marine 

mammal sightings within 1 nautical 

mile (nmi; 1,852 m) of the sampling 

station; 

(2) LOA Holder and/or its cooperating 

institutions, contracted vessels, or 

commercially-hired captains must 

implement the following ‘‘move-on’’ 

rule: if marine mammals are sighted 

within 1 nmi (1.85 km) of the planned 

location and 15 minutes before gear 

deployment, then LOA Holder and/or 

its cooperating institutions, contracted 

vessels, or commercially hired captains, 

as appropriate, must move the vessel 

away from the marine mammal to a 

different section of the sampling area. If, 

after moving on, marine mammals are 

still visible from the vessel, LOA Holder 

and its cooperating institutions, 

contracted vessels, or commercially 

hired captains must move again or skip 

the station; 

(3) If a marine mammal is at risk of 

interacting with deployed gear, all gear 

must be immediately removed from the 

water. If marine mammals are sighted 

before the gear is fully removed from the 

water, the vessel must slow its speed 

and maneuver the vessel away from the 

animals to minimize potential 

interactions with the observed animal; 

(4) LOA Holder must maintain visual 

marine mammal monitoring effort 

during the entire period of time that 

gear is in the water (i.e., throughout gear 

deployment, fishing, and retrieval). If 

marine mammals are sighted before the 

gear is fully removed from the water, 

LOA Holder will take the most 

appropriate action to avoid marine 

mammal interaction; 

(5) All fisheries monitoring gear must 

be fully cleaned and repaired (if 

damaged) before each use/deployment; 

(6) Trawl tows must be limited to a 

maximum of a 20-minute trawl time; 

(7) All gear must be emptied as close 

to the deck/sorting area and as quickly 

as possible after retrieval; 


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(8) During trawl surveys, vessel crew 

must open the codend of the trawl net 

close to the deck in order to avoid injury 

to animals that may be caught in the 

gear; 

(9) All in-water survey gear, including 

buoys, must be properly labeled with 

the scientific permit number or 

identification as LOA Holder’s research 

gear. All labels and markings on the 

gear, buoys, and buoy lines must also be 

compliant with the Atlantic Large 

Whale Take Reduction Plan regulations 

at § 229.32, and all buoy markings must 

comply with instructions received by 

the NOAA Greater Atlantic Regional 

Fisheries Office Protected Resources 

Division; 

(10) All captains and crew conducting 

fishery surveys will be trained in marine 

mammal detection and identification. 

Marine mammal monitoring will be 

conducted by the captain and/or a 

member of the scientific crew before 

(within 1 nmi (1.85 km) and 15 minutes 

prior to deploying gear), during, and 

after haul back; 

(11) All survey gear must be removed 

from the water whenever not in active 

survey use (i.e., no wet storage); 

(12) All reasonable efforts, that do not 

compromise human safety, must be 

undertaken to recover gear; and 

(13) Any lost gear associated with the 

fishery surveys must be reported to the 

NOAA Greater Atlantic Regional 

Fisheries Office Protected Resources 

Division within 24 hours. 

§ 217.285 Requirements for monitoring 

and reporting. 

(a) Protected species observer (PSO) 

and passive acoustic monitoring (PAM) 

operator qualifications. LOA Holder 

must implement the following measures 

applicable to PSOs and PAM operators: 

(1) LOA Holder must use 

independent, NMFS-approved PSOs 

and PAM operators, meaning that the 

PSOs and PAM operators must be 

employed by a third-party observer 

provider, must have no tasks other than 

to conduct observational effort, collect 

data, and communicate with and 

instruct relevant crew with regard to the 

presence of protected species and 

mitigation requirements; 

(2) All PSOs and PAM operators must 

have successfully attained a bachelor’s 

degree from an accredited college or 

university with a major in one of the 

natural sciences, a minimum of 30 

semester hours or equivalent in the 

biological sciences, and at least one 

undergraduate course in math or 

statistics. The educational requirements 

may be waived if the PSO or PAM 

operator has acquired the relevant skills 

through a suitable amount of alternate 

experience. Requests for such a waiver 

must be submitted to NMFS Office of 

Protected Resources and must include 

written justification containing 

alternative experience. Alternative 

experience that may be considered 

includes, but is not limited to: previous 

work experience conducting academic, 

commercial, or government-sponsored 

marine mammal visual and/or acoustic 

surveys; or previous work experience as 

a PSO/PAM operator. All PSOs and 

PAM operators should demonstrate 

good standing and consistently good 

performance of all assigned duties; 

(3) PSOs must have visual acuity in 

both eyes (with correction of vision 

being permissible) sufficient enough to 

discern moving targets on the water’s 

surface with the ability to estimate the 

target size and distance (binocular use is 

allowable); ability to conduct field 

observations and collect data according 

to the assigned protocols; sufficient 

training, orientation, or experience with 

the construction operation to provide 

for personal safety during observations; 

writing skills sufficient to document 

observations, including but not limited 

to, the number and species of marine 

mammals observed, the dates and times 

of when in-water construction activities 

were conducted, the dates and time 

when in-water construction activities 

were suspended to avoid potential 

incidental take of marine mammals from 

construction noise within a defined 

shutdown zone, and marine mammal 

behavior; and the ability to 

communicate orally, by radio, or inperson, with project personnel to 

provide real-time information on marine 

mammals observed in the area; 

(4) All PSOs must be trained in 

northwestern Atlantic Ocean marine 

mammal identification and behaviors 

and must be able to conduct field 

observations and collect data according 

to assigned protocols. Additionally, 

PSOs must have the ability to work with 

all required and relevant software and 

equipment necessary during 

observations (as described in paragraphs 

(b)(4) and (5) of this section); 

(5) All PSOs and PAM operators must 

successfully complete a relevant 

training course within the last 5 years, 

including obtaining a certificate of 

course completion; 

(6) PSOs and PAM operators are 

responsible for obtaining NMFS’ 

approval. NMFS may approve PSOs and 

PAM operators as conditional or 

unconditional. A conditionallyapproved PSO or PAM operator may be 

one who has completed training in the 

last 5 years but has not yet attained the 

requisite field experience. An 

unconditionally approved PSO or PAM 

operator is one who has completed 

training within the last 5 years and 

attained the necessary experience (i.e., 

demonstrate experience with 

monitoring for marine mammals at 

clearance and shutdown zone sizes 

similar to those produced during the 

respective activity). Lead PSO or PAM 

operators must be unconditionally 

approved and have a minimum of 90 

days in a northwestern Atlantic Ocean 

offshore environment performing the 

role (either visual or acoustic), with the 

conclusion of the most recent relevant 

experience not more than 18 months 

previous. A conditionally approved PSO 

or PAM operator must be paired with an 

unconditionally approved PSO or PAM 

operator; 

(7) PSOs for cable landfall 

construction, marina activities, and 

HRG surveys may be unconditionally or 

conditionally approved. PSOs and PAM 

operators for foundation installation 

activities must be unconditionally 

approved; 

(8) At least one on-duty PSO and 

PAM operator, where applicable, for 

each activity (e.g., impact pile driving, 

vibratory pile driving, and HRG surveys) 

must be designated as the Lead PSO or 

Lead PAM operator. The Lead PSO 

should be unconditionally approved for 

Tiers 1–3; 

(9) LOA Holder must submit NMFS 

previously approved PSO and PAM 

operator resumes to NMFS Office of 

Protected Resources for review and 

confirmation of their approval for 

specific roles at least 30 days prior to 

commencement of the activities 

requiring PSOs/PAM operators or 15 

days prior to when new PSOs/PAM 

operators are required after activities 

have commenced; 

(10) For prospective PSOs and PAM 

operators not previously approved, or 

for PSOs and PAM operators whose 

approval is not current, LOA Holder 

must submit resumes for approval at 

least 60 days prior to PSO and PAM 

operator use. Resumes must include 

information related to relevant 

education, experience, and training, 

including dates, duration, location, and 

description of prior PSO or PAM 

operator experience. Resumes must be 

accompanied by relevant 

documentation of successful completion 

of necessary training and include which 

specific roles and activities the PSOs/ 

PAM operators are being requested for. 

PAM operator experience must also 

include the information described in 

paragraph (a)(11) of this section; 

(11) PAM operators are responsible 

for obtaining NMFS’ approval. To be 

approved as a PAM operator, the person 

must meet the following qualifications: 


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The PAM operator must demonstrate 

that they have prior large whale PAM 

experience with real-time acoustic 

detection systems and/or have 

completed specialized training for the 

PAM system(s) that will be used for the 

Project; PAM operators must 

demonstrate they are able to detect and 

identify Atlantic Ocean marine 

mammals sounds, in particular: North 

Atlantic right whale sounds, humpback 

whale sounds, and that they are able to 

deconflict humpback whale sounds 

from similar North Atlantic right whale 

sounds, and other co-occurring species’ 

sounds in the area including sperm 

whales; must be able to distinguish 

between whether a marine mammal or 

other species sound is detected, 

possibly detected, or not detected; 

where localization of sounds or deriving 

bearings and distance are possible, the 

PAM operators need to have 

demonstrated experience in the 

localization of sounds or deriving 

bearings and distance; PAM operators 

must be independent observers (i.e., not 

construction personnel); PAM operators 

must demonstrate experience with 

relevant acoustic software and 

equipment; PAM operators must have 

the qualifications and relevant 

experience/training to safely deploy and 

retrieve equipment and program the 

software, as necessary; PAM operators 

must be able to test software and 

hardware functionality prior to 

operation; and PAM operators must 

have evaluated their acoustic detection 

software using the PAM Atlantic baleen 

whale annotated data set available at 

National Centers for Environmental 

Information (NCEI) and provide 

evaluation/performance metrics; 

(12) PAM operators must be able to 

review and classify acoustic detections 

in near real-time prioritizing North 

Atlantic right whales and noting 

detection of other cetaceans) during the 

real-time monitoring periods; and 

(13) PSOs may work as PAM 

operators and vice versa, pending 

NMFS-approval; however, they may 

only perform one role at any one time 

and must not exceed work time 

restrictions, which must be tallied 

cumulatively. 

(b) General PSO and PAM operator 

requirements. The following measures 

apply to PSOs and PAM operators and 

must be implemented by LOA Holder: 

(1) All PSOs must be located at the 

best vantage point(s) on any platform, as 

determined by the Lead PSO, in order 

to obtain 360-degree visual coverage of 

the entire clearance and shutdown 

zones around the activity area, and as 

much of the Level B harassment zone as 

possible. PAM operators may be located 

on a vessel or remotely on-shore. The 

PAM operator(s) must assist PSOs in 

ensuring full coverage of the clearance 

and shutdown zones. The PAM operator 

must monitor to and past the clearance 

zone for large whales; 

(2) All on-duty PSOs must remain in 

real-time contact with the on-duty PAM 

operator(s), PAM operators must 

immediately communicate all acoustic 

detections of marine mammals to PSOs, 

including any determination regarding 

species identification, distance, and 

bearing (where relevant) relative to the 

pile being driven and the degree of 

confidence (e.g., detected, possibly 

detected, not detected) in the 

determination. All on-duty PSOs and 

PAM operator(s) must remain in realtime contact with the on-duty 

construction personnel responsible for 

implementing mitigations (e.g., delay to 

pile driving) to ensure communication 

on marine mammal observations can 

easily, quickly, and consistently occur 

between all on-duty PSOs, PAM 

operator(s), and on-water Project 

personnel; 

(3) The PAM operator must inform the 

Lead PSO(s) on duty of animal 

detections approaching or within 

applicable ranges of interest to the 

activity occurring via the data collection 

software system (i.e., Mysticetus or 

similar system) who must be 

responsible for requesting that the 

designated crewmember implement the 

necessary mitigation procedures (i.e., 

delay); 

(4) PSOs must use high magnification 

(25x) binoculars, standard handheld 

(7x) binoculars, and the naked eye to 

search continuously for marine 

mammals. During foundation 

installation, at least three PSOs on the 

pile driving and any dedicated PSO 

vessel that may be used must be 

equipped with functional Big Eye 

binoculars (e.g., 25 x 150; 2.7 view 

angle; individual ocular focus; height 

control). These must be pedestal 

mounted on the deck at the best vantage 

point that provides for optimal sea 

surface observation and PSO safety. A 

minimum of 3 PSOs must be active on 

a dedicated PSO vessel or an alternate 

monitoring technology (e.g., UAS) must 

be used that has been demonstrated as 

having greater visual monitoring 

capability compared to 3 PSOs on a 

dedicated PSO vessel and is approved 

by NMFS. PAM operators must have the 

appropriate equipment (i.e., a computer 

station equipped with a data collection 

software system available wherever they 

are stationed) and use a NMFSapproved PAM system to conduct 

monitoring. PAM systems are approved 

through the PAM Plan as described in 

§ 217.284(c)(15); 

(5) During periods of low visibility 

(e.g., darkness, rain, fog, poor weather 

conditions, etc.), PSOs must use 

alternative technology (i.e., infrared or 

thermal cameras) to monitor the 

clearance and shutdown zones as 

approved by NMFS; 

(6) PSOs and PAM operators must not 

exceed 4 consecutive watch hours on 

duty at any time, must have a 2-hour 

(minimum) break between watches, and 

must not exceed a combined watch 

schedule of more than 12 hours in a 24- 

hour period; 

(7) Any PSO has the authority to call 

for a delay or shutdown of project 

activities; 

(8) Any visual observations of ESAlisted marine mammals must be 

communicated immediately to PSOs 

and vessel captains associated with 

other vessels to increase situational 

awareness; and 

(9) LOA Holder personnel and PSOs 

are required to use available sources of 

information on North Atlantic right 

whale presence to aid in monitoring 

efforts. These include daily monitoring 

of the Right Whale Sightings Advisory 

System, consulting of the WhaleAlert 

app, and monitoring of the Coast 

Guard’s VHF Channel 16 throughout the 

day to receive notifications of any 

sightings and information associated 

with any Dynamic Management Areas, 

to plan construction activities and 

vessel routes, if practicable, to minimize 

the potential for co-occurrence with 

North Atlantic right whales. 

(c) PSO and PAM operator 

requirements during WTG and OSS 

foundation installation. The following 

measures apply to PSOs and PAM 

operators during WTG and OSS 

foundation installation and must be 

implemented by LOA Holder: 

(1) PSOs and PAM operator(s), using 

a NMFS-approved PAM system, must 

monitor for marine mammals 60 

minutes prior to, during, and 30 

minutes following all pile-driving 

activities. If PSOs cannot visually 

monitor the minimum visibility zone 

prior to foundation pile driving at all 

times using the equipment described in 

paragraphs (b)(4) and (5) of this section, 

pile-driving operations must not 

commence or must shutdown if they are 

currently active. Foundation pile 

driving may only commence when the 

minimum visibility zone is fully visible 

(e.g., not obscured by darkness, rain, 

fog, etc.) and the clearance zones are 

clear of marine mammals for at least 30 

minutes, as determined by the Lead 

PSO, immediately prior to the initiation 

of impact pile driving; 


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(2) At least three on-duty PSOs must 

be stationed on each vessel-based 

observer platform. If an aerial platform 

is used (per § 217.284(e)(7)), at least two 

on-duty PSOs must be actively 

searching for marine mammals. 

Concurrently, at least one PAM operator 

per acoustic data stream (i.e., equivalent 

to the number of acoustic buoys) must 

be actively monitoring for marine 

mammals 60 minutes before and during, 

and 30 minutes after impact pile driving 

in accordance with a NMFS-approved 

PAM Plan; and 

(3) LOA Holder must conduct PAM 

for at least 24 hours immediately prior 

to pile driving activities. The PAM 

operator must review all detections from 

the previous 24-hour period 

immediately prior to pile driving 

activities. 

(d) PSO requirements during cable 

landfall construction activities. The 

following measures apply to PSOs 

during cable landfall construction 

activities and must be implemented by 

LOA Holder: 

(1) At least two PSOs must be on 

active duty during all activities related 

to cable landfall construction. These 

PSOs must be located at the best vantage 

points for observing marine mammals; 

(2) PSOs must ensure that there is 

appropriate visual coverage for the 

entire clearance and shutdown zones 

and as much of the Level B harassment 

zone as possible; and 

(3) PSOs must monitor the clearance 

zone for the presence of marine 

mammals for 30 minutes before and 

throughout pile driving, and for 30 

minutes after all pile driving activities 

have ceased. Pile driving must only 

commence when visual clearance zones 

are fully visible (e.g., not obscured by 

darkness, rain, fog, etc.) and clear of 

marine mammals, as determined by the 

Lead PSO, for at least 30 minutes 

immediately prior to initiation of pile 

driving. 

(e) PSO requirements during HRG 

surveys. The following measures apply 

to PSOs during HRG surveys using 

acoustic sources that have the potential 

to result in harassment (i.e., Compressed 

High Intensity Radiated Pulse (CHIRPs), 

boomers, and sparkers) and must be 

implemented by LOA Holder: 

(1) At least one PSO must be on active 

duty monitoring during HRG surveys 

conducted during daylight (i.e., from 30 

minutes prior to civil sunrise through 30 

minutes following civil sunset) and at 

least two PSOs must be on active duty 

monitoring during HRG surveys 

conducted at night; 

(2) PSOs on HRG vessels must begin 

monitoring 30 minutes prior to 

activating acoustic sources, during the 

use of these acoustic sources, and for 30 

minutes after use of these acoustic 

sources has ceased; 

(3) Any observations of marine 

mammals must be communicated to 

PSOs on all nearby survey vessels 

during concurrent HRG surveys; and 

(4) During daylight hours when 

survey equipment is not operating, LOA 

Holder must ensure that visual PSOs 

conduct, as rotation schedules allow, 

observations for comparison of sighting 

rates and behavior with and without use 

of the specified acoustic sources. Offeffort PSO monitoring must be reflected 

in the monthly PSO monitoring reports. 

(f) Reporting. LOA Holder must 

comply with the following reporting 

measures: 

(1) Prior to initiation of any on-water 

project activities, LOA Holder must 

demonstrate in a report submitted to 

NMFS Office of Protected Resources 

that all required training for LOA 

Holder personnel (including the vessel 

crews, vessel captains, PSOs, and PAM 

operators) has been completed; 

(2) LOA Holder must use a 

standardized reporting system during 

the effective period of the LOA. All data 

collected related to the Project must be 

recorded using industry-standard 

software that is installed on field 

laptops and/or tablets. Unless stated 

otherwise, all reports must be submitted 

to NMFS Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov), 

dates must be in MM/DD/YYYY format, 

and location information must be 

provided in Decimal Degrees and with 

the coordinate system information (e.g., 

NAD83, WGS84, etc.); 

(3) For all visual monitoring efforts 

and marine mammal sightings, the 

following information must be collected 

and reported to NMFS Office of 

Protected Resources: the date and time 

that monitored activity begins or ends; 

the construction activities occurring 

during each observation period; the 

watch status (i.e., sighting made by PSO 

on/off effort, opportunistic, crew, 

alternate vessel/platform); the PSO who 

sighted the animal; the time of sighting; 

the weather parameters (e.g., wind 

speed, percent cloud cover, visibility); 

the water conditions (e.g., Beaufort sea 

state, tide state, water depth); all marine 

mammal sightings, regardless of 

distance from the construction activity; 

species (or lowest possible taxonomic 

level possible); the pace of the 

animal(s); the estimated number of 

animals (minimum/maximum/high/ 

low/best); the estimated number of 

animals by cohort (e.g., adults, 

yearlings, juveniles, calves, group 

composition, etc.); the description (i.e., 

as many distinguishing features as 

possible of each individual seen, 

including length, shape, color, pattern, 

scars or markings, shape and size of 

dorsal fin, shape of head, and blow 

characteristics); the description of any 

marine mammal behavioral observations 

(e.g., observed behaviors such as feeding 

or traveling) and observed changes in 

behavior, including an assessment of 

behavioral responses thought to have 

resulted from the specific activity; the 

animal’s closest distance and bearing 

from the pile being driven or specified 

HRG equipment and estimated time 

entered or spent within the Level A 

harassment and/or Level B harassment 

zone(s); the activity at time of sighting 

(e.g., vibratory installation/removal, 

impact pile driving, construction 

survey), use of any noise attenuation 

device(s), and the specific phase of the 

activity (e.g., ramp-up of HRG 

equipment, HRG acoustic source on/off, 

soft-start for pile driving, active pile 

driving, etc.); the marine mammal 

occurrence in Level A harassment or 

Level B harassment zones; the 

description of any mitigation-related 

action implemented, or mitigationrelated actions called for but not 

implemented, in response to the 

sighting (e.g., delay, shutdown, etc.) and 

time and location of the action; other 

human activity in the area, and; other 

applicable information, as required in 

any LOA issued under § 217.286; 

(4) If a marine mammal is acoustically 

detected during PAM monitoring, the 

following information must be recorded 

and reported to NMFS: location of 

hydrophone (i.e., latitude longitude; in 

Decimal Degrees) and site name; bottom 

depth and depth of recording unit (in 

meters); recorder (model manufacturer) 

and platform type (i.e., bottommounted, electric glider, etc.), and 

instrument ID of the hydrophone and 

recording platform (if applicable); time 

zone for sound files and recorded date/ 

times in data and metadata (in relation 

to UTC. i.e., EST time zone is UTC–5); 

duration of recordings (i.e., start/end 

dates and times; in ISO 8601 format, 

yyyy-mm-ddTHH:MM:SS.sssZ); 

deployment/retrieval dates and times 

(in ISO 8601 format); recording 

schedule (must be continuous); 

hydrophone and recorder sensitivity (in 

dB re. 1m Pa); calibration curve for each 

recorder; bandwidth/sampling rate (in 

Hz); sample bit-rate of recordings; and 

detection range of equipment for 

relevant frequency bands (in meters). 

The following information must be 

reported for each detection: species 

identification (if possible); call type and 

number of calls (if known); temporal 

aspects of vocalization (e.g., date, time, 


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duration, etc.; date times in ISO 8601 

format); confidence of detection (i.e., 

detected, or possibly detected); 

comparison with any concurrent visual 

sightings, location and/or directionality 

of call (if determined) relative to 

acoustic recorder or construction 

activities; location of recorder and 

construction activities at time of call; 

name and version of detection or sound 

analysis software used, with protocol 

reference; minimum and maximum 

frequencies viewed/monitored/used in 

detection (in Hz); and the name(s) of 

PAM operator(s) on duty; 

(i) For each detection, the following 

information the following information 

must be noted: species identification (if 

possible); call type and number of calls 

(if known); temporal aspects of 

vocalization (e.g., date, time, duration, 

etc.; date times in ISO 8601 format); 

confidence of detection (i.e., detected, 

or possibly detected); comparison with 

any concurrent visual sightings; location 

and/or directionality of call (if 

determined) relative to acoustic recorder 

or construction activities; location of 

recorder and construction activities at 

time of call; name and version of 

detection or sound analysis software 

used, with protocol reference; minimum 

and maximum frequencies viewed/ 

monitored/used in detection (in Hz); 

and the name(s) of PAM operator(s) on 

duty; 

(ii) [Reserved] 

(5) LOA Holder must compile and 

submit weekly reports during 

foundation installation to NMFS Office 

of Protected Resources that document 

the daily start and stop of all pile 

driving associated with the Project; the 

start and stop of associated observation 

periods by PSOs; details on the 

deployment of PSOs; a record of all 

acoustic and visual detections of marine 

mammals; any mitigation actions (or if 

mitigation actions could not be taken, 

provide reasons why); and details on the 

noise attenuation system(s) used and its 

performance. Weekly reports are due on 

Wednesday for the previous week 

(Sunday to Saturday) and must include 

the information required under this 

section. The weekly report must also 

identify which turbines become 

operational and when (a map must be 

provided). Once all foundation pile 

installation is completed, weekly 

reports are no longer required by LOA 

Holder; 

(6) LOA Holder must compile and 

submit monthly reports to NMFS Office 

of Protected Resources during 

foundation installation that include a 

summary of all information in the 

weekly reports, including project 

activities carried out in the previous 

month, vessel transits (number, type of 

vessel, MMIS number, and route), 

number of piles installed, all detections 

of marine mammals, and any mitigative 

action taken. Monthly reports are due 

on the 15th of the month for the 

previous month. The monthly report 

must also identify which turbines 

become operational and when (a map 

must be provided). Full PAM detection 

data and metadata must also be 

submitted monthly on the 15th of every 

month for the previous month via the 

webform on the NMFS North Atlantic 

Right Whale Passive Acoustic Reporting 

System website at https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates; 

(7) LOA Holder must submit a draft 

annual report to NMFS Office of 

Protected Resources no later than 90 

days following the end of a given 

calendar year. LOA Holder must 

provide a final report within 30 days 

following resolution of NMFS’ 

comments on the draft report. The draft 

and final reports must detail the 

following: the total number of marine 

mammals of each species/stock detected 

and how many were within the 

designated Level A harassment and 

Level B harassment zone(s) with 

comparison to authorized take of marine 

mammals for the associated activity 

type; marine mammal detections and 

behavioral observations before, during, 

and after each activity; what mitigation 

measures were implemented (e.g., 

number of shutdowns or clearance zone 

delays, etc.) or, if no mitigative actions 

was taken, why none were taken; 

operational details (e.g., days and 

duration of impact and vibratory pile 

driving, days and amount of HRG 

survey effort, etc.); any PAM systems 

used; the results, effectiveness, and 

which noise attenuation systems were 

used during relevant activities (i.e., 

impact pile driving); summarized 

information related to situational 

reporting; and any other important 

information relevant to the Project, 

including additional information that 

may be identified through the adaptive 

management process. The final annual 

report must be prepared and submitted 

within 30 calendar days following the 

receipt of any comments from NMFS on 

the draft report. If no comments are 

received from NMFS within 60 calendar 

days of NMFS’ receipt of the draft 

report, the report must be considered 

final; 

(8) LOA Holder must submit its draft 

5-year report to NMFS Office of 

Protected Resources on all visual and 

acoustic monitoring conducted within 

90 calendar days of the completion of 

activities occurring under the LOA. A 5- 

year report must be prepared and 

submitted within 30 calendar days 

following receipt of any NMFS Office of 

Protected Resources comments on the 

draft report. If no comments are 

received from NMFS Office of Protected 

Resources within 30 calendar days of 

NMFS Office of Protected Resources 

receipt of the draft report, the report 

shall be considered final; 

(9) For those foundation piles 

requiring thorough SFV measurements, 

LOA Holder must provide the initial 

results of the SFV measurements to 

NMFS Office of Protected Resources in 

an interim report after each foundation 

installation event as soon as they are 

available and prior to a subsequent 

foundation installation, but no later 

than 48 hours after each completed 

foundation installation event. The 

report must include, at minimum: 

hammer energies/schedule used during 

pile driving, including the total number 

of strikes and the maximum hammer 

energy; the model-estimated acoustic 

ranges (R95percent) to compare with the 

real-world sound field measurements; 

peak sound pressure level (SPLpk), rootmean-square sound pressure level that 

contains 90 percent of the acoustic 

energy (SPLrms), and sound exposure 

level (SEL, in single strike for pile 

driving, SELss,), for each hydrophone, 

including at least the maximum, 

arithmetic mean, minimum, median 

(L50), and L5 (95 percent exceedance) 

statistics for each metric; estimated 

marine mammal Level A harassment 

and Level B harassment acoustic 

isopleths, calculated using the 

maximum-over-depth L5 (95 percent 

exceedance level, maximum of both 

hydrophones) of the associated sound 

metric; comparison of modeled results 

assuming 10-dB attenuation against the 

measured marine mammal Level A 

harassment and Level B harassment 

acoustic isopleths; estimated 

transmission loss coefficients; pile 

identifier name, location of the pile, and 

each hydrophone array in latitude/ 

longitude; depths of each hydrophone; 

one-third-octave band single strike SEL 

spectra; if filtering is applied, full filter 

characteristics must be reported; and 

hydrophone specifications including the 

type, model, and sensitivity. LOA 

Holder must also report any immediate 

observations which are suspected to 

have a significant impact on the results 

including but not limited to: observed 

noise mitigation system issues; 

obstructions along the measurement 

transect; and technical issues with 

hydrophones or recording devices. If 

any in-situ calibration checks for 


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hydrophones reveal a calibration drift 

greater than 0.75 dB, pistonphone 

calibration checks are inconclusive, or 

calibration checks are otherwise not 

effectively performed, LOA Holder must 

indicate full details of the calibration 

procedure, results, and any associated 

issues in the 48-hour interim reports; 

(10) LOA Holder must conduct 

abbreviated SFV for all foundation 

installations for which the complete 

SFV monitoring is not carried out (refer 

back to § 217.284(c)(13)), whereas a 

single acoustic recorder must be placed 

at an appropriate distance from the pile, 

in alignment with the completed 

Biological Opinion. All results must be 

included in the weekly reports. Any 

indications that distances to the 

identified Level A harassment and Level 

B harassment thresholds for marine 

mammals were exceeded must be 

addressed by LOA Holder, including an 

explanation of factors that contributed 

to the exceedance and corrective actions 

that were taken to avoid exceedance on 

subsequent piles; 

(11) The final results of SFV 

measurements from each foundation 

installation must be submitted as soon 

as possible, but no later than 90 days 

following completion of each event’s 

SFV measurements. The final reports 

must include all details prescribed 

above for the interim report as well as, 

at minimum, the following: the peak 

sound pressure level (SPLpk); the rootmean-square sound pressure level that 

contains 90 percent of the acoustic 

energy (SPLrms); the single strike sound 

exposure level (SELss); the integration 

time for SPLrms; the spectrum; and the 

24-hour cumulative SEL extrapolated 

from measurements at all hydrophones. 

The final report must also include at 

least the following: the maximum, 

mean, minimum, median (L50), and L5

(95 percent exceedance) statistics for 

each metric; the SEL and SPL power 

spectral density and/or one-third octave 

band levels (usually calculated as 

decidecade band levels) at the receiver 

locations; the sound levels reported 

must be in median, arithmetic mean, 

and L5 (95 percent exceedance) (i.e., 

average in linear space), and in dB; 

range of TL coefficients; the local 

environmental conditions, such as wind 

speed, transmission loss data collected 

on-site (or the sound velocity profile); 

baseline pre- and post-activity ambient 

sound levels (broadband and/or within 

frequencies of concern); a description of 

depth and sediment type, as 

documented in the Construction and 

Operation Plan (COP), at the recording 

and foundation installation locations; 

the extents of the measured Level A 

harassment and Level B harassment 

zone(s); hammer energies required for 

pile installation and the number of 

strikes per pile; the hydrophone 

equipment and methods (i.e., recording 

device, bandwidth/sampling rate; 

distance from the pile where recordings 

were made; the depth of recording 

device(s)); a description of the SFV 

measurement hardware and software, 

including software version used, 

calibration data, bandwidth capability 

and sensitivity of hydrophone(s), any 

filters used in hardware or software, any 

limitations with the equipment, and 

other relevant information; the spatial 

configuration of the noise attenuation 

device(s) relative to the pile; a 

description of the noise abatement 

system and operational parameters (e.g., 

bubble flow rate, distance deployed 

from the pile, etc.), and any action taken 

to adjust the noise abatement system. A 

discussion, which includes any 

observations which are suspected to 

have a significant impact on the results 

including but not limited to, observed 

noise mitigation system issues, 

obstructions along the measurement 

transect, and technical issues with 

hydrophones or recording devices, must 

also be included in the final SFV report; 

(12) If at any time during the Project 

LOA Holder becomes aware of any issue 

or issues which may (to any reasonable 

subject-matter expert, including the 

persons performing the measurements 

and analysis) call into question the 

validity of any measured Level A 

harassment or Level B harassment 

isopleths to a significant degree, which 

were previously transmitted or 

communicated to NMFS Office of 

Protected Resources, LOA Holder must 

inform NMFS Office of Protected 

Resources within 1 business day of 

becoming aware of this issue or before 

the next pile is driven, whichever comes 

first; 

(13) If a North Atlantic right whale is 

acoustically detected at any time by a 

project-related PAM system, LOA 

Holder must ensure the detection is 

reported as soon as possible to NMFS, 

but no longer than 24 hours after the 

detection via the 24-hour North Atlantic 

right whale Detection Template (https:// 

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates). Calling the hotline is 

not necessary when reporting PAM 

detections via the template; 

(14) Full detection data, metadata, 

and location of recorders (or GPS tracks, 

if applicable) from all real-time 

hydrophones used for monitoring 

during construction must be submitted 

within 90 calendar days following 

completion of activities requiring PAM 

for mitigation via the ISO standard 

metadata forms available on the NMFS 

Passive Acoustic Reporting System 

website (https://

www.fisheries.noaa.gov/resource/ 

document/passive-acoustic-reportingsystem-templates). Submit the 

completed data templates to 

nmfs.nec.pacmdata@noaa.gov. The full 

acoustic recordings from real-time 

systems must also be sent to the 

National Centers for Environmental 

Information (NCEI) for archiving within 

90 days following completion of 

activities requiring PAM for mitigation. 

Submission details can be found at: 

https://www.ncei.noaa.gov/products/ 

passive-acoustic-data; 

(15) LOA Holder must submit 

situational reports if the following 

circumstances occur (including all 

instances wherein an exemption is 

taken must be reported to NMFS Office 

of Protected Resources within 24 hours): 

(i) If a North Atlantic right whale is 

observed at any time by PSOs or project 

personnel, LOA Holder must ensure the 

sighting is immediately (if not feasible, 

as soon as possible and no longer than 

24 hours after the sighting) reported to 

NMFS and the Right Whale Sightings 

Advisory System (RWSAS). If in the 

Northeast Region (Maine to Virginia/ 

North Carolina border) call (866–755– 

6622). If in the Southeast Region (North 

Carolina to Florida) call (877–WHALE– 

HELP or 877–942–5343). If calling 

NMFS is not possible, reports can also 

be made to the U.S. Coast Guard via 

channel 16 or through the WhaleAlert 

app (https://www.whalealert.org/). The 

sighting report must include the time, 

date, and location of the sighting, 

number of whales, animal description/ 

certainty of sighting (provide photos/ 

video if taken), Lease Area/project 

name, PSO/personnel name, PSO 

provider company (if applicable), and 

reporter’s contact information; 

(ii) If a North Atlantic right whale is 

observed at any time by PSOs or project 

personnel, LOA Holder must submit a 

summary report to NMFS Greater 

Atlantic Regional Fisheries (GARFO; 

nmfs.gar.incidental-take@noaa.gov), 

NMFS Office of Protected Resources, 

and NMFS Northeast Fisheries Science 

Center (NEFSC; ne.rw.survey@noaa.gov) 

within 24 hours with the above 

information and the vessel/platform 

from which the sighting was made, 

activity the vessel/platform was engaged 

in at time of sighting, project 

construction and/or survey activity at 

the time of the sighting (e.g., pile 

driving, cable installation, HRG survey), 

distance from vessel/platform to 

sighting at time of detection, and any 

mitigation actions taken in response to 

the sighting; 


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(iii) If a large whale (not including a 

North Atlantic right whale) is observed 

at any time by PSOs or project 

personnel during vessel transit, LOA 

Holder must report the sighting to the 

WhaleAlert app (https://

www.whalealert.org/); 

(iv) In the event that personnel 

involved in the Project discover a 

stranded, entangled, injured, or dead 

marine mammal, LOA Holder must 

immediately report the observation to 

NMFS. If in the Greater Atlantic Region 

(Maine to Virginia) call the NMFS 

Greater Atlantic Stranding Hotline (866– 

755–6622); if in the Southeast Region 

(North Carolina to Florida), call the 

NMFS Southeast Stranding Hotline 

(877–942–5343). Separately, LOA 

Holder must report the incident to 

NMFS Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov) 

and, if in the Greater Atlantic region 

(Maine to Virginia), NMFS Greater 

Atlantic Regional Fisheries Office 

(GARFO; nmfs.gar.incidental-take@

noaa.gov, nmfs.gar.stranding@noaa.gov) 

or, if in the Southeast region (North 

Carolina to Florida), NMFS Southeast 

Regional Office (SERO; 

secmammalreports@noaa.gov), as soon 

as feasible. The report (via phone or 

email) must include contact information 

(e.g., name, phone number, etc.), the 

time, date, and location of the first 

discovery (and updated location 

information if known and applicable); 

species identification (if known) or 

description of the animal(s) involved; 

condition of the animal(s) (including 

carcass condition if the animal is dead); 

observed behaviors of the animal(s), if 

alive; photographs or video footage of 

the animal(s) if available; and general 

circumstances under which the animal 

was discovered; and 

(v) In the event of a vessel strike of a 

marine mammal by any vessel 

associated with the Project or if the 

Project activities cause a non-auditory 

injury or death of a marine mammal, 

LOA Holder must immediately report 

the incident to NMFS. If in the Greater 

Atlantic Region (Maine to Virginia) call 

the NMFS Greater Atlantic Stranding 

Hotline (866–755–6622) and if in the 

Southeast Region (North Carolina to 

Florida) call the NMFS Southeast 

Stranding Hotline (877–942–5343). 

Separately, LOA Holder must 

immediately report the incident to 

NMFS Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov) 

and, if in the Greater Atlantic region 

(Maine to Virginia), NMFS GARFO 

(nmfs.gar.incidental-take@noaa.gov, 

nmfs.gar.stranding@noaa.gov) or, if in 

the Southeast region (North Carolina to 

Florida), NMFS SERO 

(secmammalreports@noaa.gov). The 

report must include: the time, date, and 

location of the incident; species 

identification (if known) or description 

of the animal(s) involved; vessel size 

and motor configuration (e.g., inboard, 

outboard, jet propulsion); vessel’s speed 

leading up to and during the incident; 

vessel’s course/heading and what 

operations were being conducted (if 

applicable); status of all sound sources 

in use; description of avoidance 

measures/requirements that were in 

place at the time of the strike and what 

additional measures were taken, if any, 

to avoid strike; environmental 

conditions (e.g., wind speed and 

direction, Beaufort sea state, cloud 

cover, visibility) immediately preceding 

the strike; estimated size and length of 

animal that was struck; description of 

the behavior of the marine mammal 

immediately preceding and following 

the strike; if available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; estimated fate of 

the animal (e.g., dead, injured but alive, 

injured and moving, blood or tissue 

observed in the water, status unknown, 

disappeared); and, to the extent 

practicable, photographs or video 

footage of the animal(s). LOA Holder 

must immediately cease all on-water 

activities until the NMFS Office of 

Protected Resources is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA. 

NMFS Office of Protected Resources 

may impose additional measures to 

minimize the likelihood of further 

prohibited take and ensure MMPA 

compliance. LOA Holder may not 

resume their activities until notified by 

NMFS Office of Protected Resources; 

and 

(16) LOA Holder must report any lost 

gear associated with the fishery surveys 

to the NMFS GARFO Protected 

Resources Division (nmfs.gar.incidentaltake@noaa.gov) as soon as possible or 

within 24 hours of the documented time 

of missing or lost gear. This report must 

include information on any markings on 

the gear and any efforts undertaken or 

planned to recover the gear. 

§ 217.286 Letter of Authorization. 

(a) To incidentally take marine 

mammals pursuant to this subpart, LOA 

Holder must apply for and obtain an 

LOA; 

(b) An LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed February 21, 2029, 

the expiration date of this subpart; 

(c) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, LOA Holder must apply for and 

obtain a modification of the LOA as 

described in § 217.287; 

(d) The LOA must set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting; 

(e) Issuance of the LOA must be based 

on a determination that the level of 

taking must be consistent with the 

findings made for the total taking 

allowable under the regulations of this 

subpart; and 

(f) Notice of issuance or denial of an 

LOA must be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.287 Modifications of Letter of 

Authorization. 

(a) An LOA issued under §§ 217.282 

and 217.286 or this section for the 

activity identified in § 217.280(a) shall 

be modified upon request by LOA 

Holder, provided that: 

(1) The specified activity and 

mitigation, monitoring, and reporting 

measures, as well as the anticipated 

impacts, are the same as those described 

and analyzed for this subpart (excluding 

changes made pursuant to the adaptive 

management provision in paragraph 

(c)(1) of this section); and 

(2) NMFS Office of Protected 

Resources determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under this subpart were implemented. 

(b) For a LOA modification request by 

the applicant that includes changes to 

the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in paragraph 

(c)(1) of this section), the LOA shall be 

modified, provided that: 

(1) NMFS Office of Protected 

Resources determines that the changes 

to the activity or the mitigation, 

monitoring, or reporting do not change 

the findings made for the regulations in 

this subpart and do not result in more 

than a minor change in the total 

estimated number of takes (or 

distribution by species or years); and 

(2) NMFS Office of Protected 

Resources may, if appropriate, publish a 

notice of proposed modified LOA in the 

Federal Register, including the 

associated analysis of the change, and 


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solicit public comment before issuing 

the LOA. 

(c) An LOA issued under §§ 217.282 

and 217.286 or this section for the 

activities identified in § 217.280(a) may 

be modified by NMFS Office of 

Protected Resources under the following 

circumstances: 

(1) Through adaptive management, 

NMFS Office of Protected Resources 

may modify (e.g., delete, modify, or add 

to) the existing mitigation, monitoring, 

or reporting measures after consulting 

with LOA Holder regarding the 

practicability of the modifications, if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goals of the mitigation and monitoring. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA include, but are not 

limited to: 

(A) Results from LOA Holder’s 

monitoring(s); 

(B) Results from other marine 

mammals and/or sound research or 

studies; and 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent, or number not 

authorized by the regulations in this 

subpart or subsequent LOA. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS Office of Protected 

Resources shall publish a notice of 

proposed LOA in the Federal Register 

and solicit public comment. 

(2) If NMFS Office of Protected 

Resources determines that an emergency 

exists that poses a significant risk to the 

well-being of the species or stocks of 

marine mammals specified in the LOA 

issued pursuant to §§ 217.282 and 

217.286 or this section, an LOA may be 

modified without prior notice or 

opportunity for public comment. Notice 

would be published in the Federal 

Register within 30 days of the action. 

§§ 217.288–217.289 [Reserved] 

[FR Doc. 2024–01363 Filed 2–13–24; 8:45 am] 

BILLING CODE 3510–22–P 


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