[Federal Register Volume 89, Number 31 (Wednesday, February 14, 2024)]
[Rules and Regulations]
[Pages 11342-11431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01363]



[[Page 11341]]

Vol. 89

Wednesday,

No. 31

February 14, 2024

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Empire Wind Project, Offshore New 
York; Final Rule

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

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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.

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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-other-energy-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:
    <bullet> 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);
    <bullet> Take--to harass, hunt, capture, or kill, or attempt to 
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362);
    <bullet> 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);
    <bullet> Serious Injury--any injury that will likely result in 
mortality (50 CFR 216.3);
    <bullet> 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
    <bullet> 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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Summary of Major Provisions Within the Final Rule

    The major provisions within this final rule include:
    <bullet> The authorized take of marine mammals by Level A 
harassment and/or Level B harassment;
    <bullet> No mortality or serious injury of any marine mammal is 
authorized;
    <bullet> 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);
    <bullet> A requirement for both visual and passive acoustic 
monitoring (PAM) to occur by trained, NOAA Fisheries-approved Protected 
Species Observers (PSOs) and PAM (where required) operators before, 
during, and after select activities;
    <bullet> 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;
    <bullet> A requirement to use sound attenuation device(s) during 
all impact pile driving installation activities to reduce noise levels;
    <bullet> A delay to the start of foundation installation if a North 
Atlantic right whale is observed at any distance by PSOs or 
acoustically detected;
    <bullet> A delay to the start of foundation installation if other 
marine mammals are observed entering or within their respective 
clearance zones;
    <bullet> 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;
    <bullet> 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;
    <bullet> A requirement to implement soft starts during impact pile 
driving using the least hammer energy necessary for installation;
    <bullet> A requirement to implement ramp-up during the use of high-
resolution geophysical (HRG) marine site characterization survey 
equipment;
    <bullet> A requirement for PSOs to continue to monitor for 30 
minutes after any impact pile driving for foundation installation;
    <bullet> 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;
    <bullet> A requirement to implement various vessel strike avoidance 
measures;
    <bullet> 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
    <bullet> 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-covered-projects/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/protected-resource-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-empire-offshore-wind-llc-construction-empire-wind-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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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/incidental-take-authorizations-other-energy-activities-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 
third-party 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 activity-specific durations can be 
found in the proposed rule and are not repeated here.

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     Table 1--Activity Schedule To Construct and Operate the Project
------------------------------------------------------------------------
                              Expected timing   Expected timing  Empire
      Project activity          Empire Wind 1            Wind 2
------------------------------------------------------------------------
Submarine Export Cables.....  Q3 2024; Q3      Q3-Q4 2025.
                               2025.
OSS Jacket Foundation and     Q2 \1\-Q4 2025.  Q2 \1\-Q4 2025; Q2\1\-Q4
 Topside.                                       2026.\2\
Monopile Foundation           Q2 \1\-Q4 2025.  Q2 \1\-Q4 2025; Q2\1\-Q4
 Installation.                                  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   n/a............  Q4 2024-Q2 2025.
 Construction.
------------------------------------------------------------------------
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.
\2\ Empire Wind 2 OSS jacket installation is planned for 2025, only
  Empire Wind 2 topside work is planned for 2026.
\3\ While 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 Mid-Atlantic 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.
[GRAPHIC] [TIFF OMITTED] TR14FE24.087


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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-under-marine-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

[[Page 11347]]

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, on-the-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-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic) 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) [mu]Pa (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

[[Page 11348]]

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 
full-time 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 Sec.  
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 (SEL<INF>cum</INF>) 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 Sec.  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

[[Page 11349]]

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

[[Page 11350]]

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 year-round 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 project-related 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.

[[Page 11351]]

    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 year-round 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 
km\2\) and November (0.016 animals/100 km\2\) as compared to the months 
of January through April (0.088, 0.116 animals/100 km\2\). 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

[[Page 11352]]

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 pile-driving 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 Sec.  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 
phase-by-phase and project-by-project approach'' to authorizations.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA

[[Page 11353]]

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 mid-construction 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 non-commercial 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 direct-drive 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

[[Page 11354]]

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 Sec.  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

[[Page 11355]]

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 inter-
agency 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 one-
third 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 pairs, 
pods, or large assemblages of non-

[[Page 11356]]

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/marine-mammal-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-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) annual reports available 
from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-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.

[[Page 11357]]

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 low-frequency 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.

[[Page 11358]]

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 Sec.  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 
causatively-associated 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.,

[[Page 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 
full-scale 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, long-finned pilot whales, and short-

[[Page 11360]]

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

[[Page 11361]]

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 Sec.  
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 Sec.  
217.281.
    For clarity, we revised one paragraph in Sec.  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 in-water 
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 
sub-bottom profilers (SBPs) in Sec.  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 ramp-ups 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 Sec.  217.285, 
``Requirements for monitoring and reporting,'' and the

[[Page 11362]]

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 Sec.  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 Sec.  
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 (<a href="/cdn-cgi/l/email-protection#a7c9cac1d489c0c6d589cec9c4cec3c2c9d3c6cb8ad3c6ccc2e7c9c8c6c689c0c8d1"><span class="__cf_email__" data-cfemail="e7898a8194c9808695c98e89848e83828993868bca93868c82a789888686c9808891">[email protected]</span></a>) 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/marine-mammal-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-mammal-protection/draft-marine-mammal-stock-assessment-reports.

[[Page 11363]]



                              Table 2--Marine Mammal Species That May Occur in the Project Area and Be Taken by Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        ESA/ MMPA status;   Stock abundance (CV,
           Common name \1\                Scientific name               Stock            strategic (Y/N)      Nmin, most recent       PBR      Annual M/
                                                                                               \2\          abundance survey) \3\               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),           0.7    \6\ 31.2
                                                                                                            356 (346-363, 2022)
                                                                                                            \5\.
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y            6,802 (0.24; 5,573;            11         1.8
                                                                                                            2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y            6,292 (1.02; 3,098;           6.2         0.8
                                                                                                            2016).
    Minke whale.....................  Balaenoptera             Canadian Eastern         -, -, N            21,968 (0.31; 17,002;         170        10.6
                                       acutorostrata.           Coastal.                                    2016).
    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;           3.9           0
                                                                                                            2016).
Family Delphinidae:
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N            93,233 (0.71; 54,433;         544          27
                                                                                                            2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N            39,921 (0.27; 32,032;         320           0
                                                                                                            2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -, -, N            62,851 (0.23; 51,914;         519          28
                                                                Offshore.                                   2016).
                                                               Northern Migratory       -, -, Y            6,639 (0.41; 4,759;            48   12.2-21.5
                                                                Coastal.                                    2016).
    Long-finned pilot whales........  Globicephala melas.....  Western North Atlantic.  -, -, N            39,215 (0.3; 30,627;          306          29
                                                                                                            2016).
    Short-finned pilot whales.......  Globicephala             Western North Atlantic.  -, -, N            28,924 (0.24; 23,637;         236         136
                                       macrorhynchus.                                                       2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N            35,215 (0.19; 30,051;         301          34
                                                                                                            2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N            172,897 (0.21;              1,452         390
                                                                                                            145,216; 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N            95,543 (0.31; 74,034;         851          16
                                                                Fundy.                                      2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \7\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N            27,300 (0.22; 22,785;       1,458       4,453
                                                                                                            2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N            61,336 (0.08; 57,637;       1,729         339
                                                                                                            2018).
    Harp seal \8\...................  Pagophilus               Western North Atlantic.  -, -, N            7,600,000 (UNK,           426,000     178,573
                                       grownlandicus.                                                       7,100,000).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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).
\2\ ESA 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.
\4\ These 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).
\5\ The 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).
\6\ Total 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

[[Page 11364]]

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 (N<INF>best</INF>) 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-north-atlantic-right-whale-unusual-mortality-event.

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-mortality-event-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-mortality-event-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-minke-whale-unusual-mortality-event-along-atlantic-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 low-frequency 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   7 Hz to 35 kilohertz (kHz).
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).

[[Page 11365]]

 
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
------------------------------------------------------------------------
* 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 
(Hemil[auml] 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 St[ouml]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., root-mean-square (RMS)) of a 
6.3 MW direct-drive 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

[[Page 11366]]

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/marine-mammal-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-mean-squared pressure 
received levels (RMS SPL) of 120 dB (re 1 [mu]Pa) for continuous (e.g., 
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa 
for non-explosive 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 [mu]Pa (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 non-impulsive 
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/marine-mammal-acoustic-technical-guidance.

                          Table 4--Onset of PTS
                              [NMFS, 2018]
------------------------------------------------------------------------
                                    PTS onset thresholds \*\ (received
                                                  level)
          Hearing group          ---------------------------------------
                                       Impulsive         Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Cell 1:...........  Cell 2:
                                  Lp,0-pk,flat: 219   LE,p, LF,24h: 199
                                   dB;.                dB.
                                  LE,p, LF,24h: 183
                                   dB.
Mid-Frequency (MF) Cetaceans....  Cell 3:...........  Cell 4:
                                  Lp,0-pk,flat: 230   LE,p, MF,24h: 198
                                   dB;.                dB.
                                  LE,p, MF,24h: 185
                                   dB.
High-Frequency (HF) Cetaceans...  Cell 5:...........  Cell 6:
                                  Lp,0-pk,flat: 202   LE,p, HF,24h: 173
                                   dB;.                dB.
                                  LE,p,HF,24h: 155
                                   dB.
Phocid Pinnipeds (PW)             Cell 7:...........  Cell 8:
 (Underwater).                    Lp,0-pk.flat: 218   LE,p,PW,24h: 201
                                   dB;.                dB.
                                  LE,p,PW,24h: 185
                                   dB.
Otariid Pinnipeds (OW)            Cell 9:...........  Cell 10:
 (Underwater).                    Lp,0-pk,flat: 232   LE,p,OW,24h: 219
                                   dB;.                dB.
                                  LE,p,OW,24h: 203
                                   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
  [micro]Pa, and weighted cumulative sound exposure level (LE,p) has a
  reference value of 1[micro]Pa\2\s. 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.


[[Page 11367]]

    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/apply-incidental-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-empire-offshore-wind-llc-construction-empire-wind-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 second-
highest-density months. Empire Wind also assumed that all 17 difficult-
to-drive 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

[[Page 11368]]

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.
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[[Page 11369]]


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BILLING CODE 3510-22-C

[[Page 11370]]



 Table 6--The Highest Average Seasonal Marine Mammal Densities (Animals
 per 100 km\2\) Used for Analysis of Empire Wind's HRG Survey Effort for
             the Project Area From January Through December
------------------------------------------------------------------------
                                           Project area highest average
         Marine mammal species              seasonal density (No./100
                                                      km\2\)
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
\a\ Species is listed as endangered under the ESA.
\b\ Bottlenose 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
----------------------------------------------------------------------------------------------------------------
                                         Average group
         Marine mammal species               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.
----------------------------------------------------------------------------------------------------------------
\1\ For 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-to-drive 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 difficult-to-drive (including as many as 7 difficult-to-drive 
foundations for Empire Wind 1 and as many as 10 difficult-to-drive 
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

[[Page 11371]]

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-to-drive 
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 K[uuml]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
----------------------------------------------------------------------------------------------------------------
                                         Modeled maximum                  Pile wall      Seabed       Number of
            Foundation type               impact hammer    Pile length    thickness    penetration    piles per
                                           energy (kJ)         (m)          (mm)           (m)           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.
\2\ T1 = normal soil conditions.
\3\ U3 = softer soil conditions.
\4\ Typical 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)
                                                               -------------------------------------------------
                                                     Pile                                              Pile
       Energy level (kJ)         Strike count     penetration     Energy level     Strike count     penetration
                                                   depth (m)          (kJ)                           depth (m)
----------------------------------------------------------------------------------------------------------------
Initial sink depth............               0               2  Initial sink                   0               2
                                                                 depth.
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                     30
                                                                 (strikes/min).
----------------------------------------------------------------------------------------------------------------


                         Table 10--Hammer Energy Schedule and Number of Strikes per Monopiles Under Three Pile Driving Scenarios
                                                         [11-m Diameter pile; IHC S-5500 hammer]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          R3-harder soil conditions (11-  T1-normal soil conditions (11-  U3-softer soil conditions (11-
                                                                    m monopile)                     m monopile)                     m monopile)
                                                         -----------------------------------------------------------------------------------------------
                    Energy level (kJ)                                          Pile                            Pile                            Pile
                                                           Strike count     penetration    Strike count     penetration    Strike count     penetration
                                                                             depth (m)                       depth (m)                       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  ..............  ..............

[[Page 11372]]

 
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
----------------------------------------------------------------------------------------------------------------
                                                     Pile                                              Pile
       Energy level (kJ)         Strike count     penetration     Energy level     Strike count     penetration
                                                   depth (m)          (kJ)                           depth (m)
----------------------------------------------------------------------------------------------------------------
Initial sink depth............               0               8  Initial sink                   0               5
                                                                 depth.
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...........              47
                                                                Total...........
----------------------------------------------------------------------------------------------------------------
Strike rate (strikes/min).....                30                Strike rate                     30
                                                                 (strikes/min).
----------------------------------------------------------------------------------------------------------------

    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 difficult-to-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:
    <bullet> Maximum of two, 9.6-m or 11-m monopiles installed per day 
(3.5 hours per monopile with a 1-hour pre-clearance period; 9 hours 
total with 7 hours of active pile driving time), although only one 
monopile may be installed on some days;
    <bullet> No concurrent monopile and/or pin pile driving and no 
overlap in pile-driving activities between Empire Wind 1 and Empire 
Wind 2 would occur;
    <bullet> Monopiles would be 73-101 millimeters (mm) thick and would 
be composed of steel;
    <bullet> Impact Pile Driving for monopiles: IHC S-5500 kilojoules 
(kJ) rated energy;
    <bullet> Impact hammers would have a maximum energy capacity of 
5,500 kJ;
    <bullet> 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;
    <bullet> Pin piles would be 50 mm thick; and
    <bullet> 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-empire-offshore-wind-llc-construction-empire-wind-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; 
K[uuml]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),

[[Page 11373]]

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 K[uuml]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 
K[uuml]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 K[uuml]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 (R<INF>max</INF>) 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, 
R<INF>95</INF><not-eq>, 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 R<INF>max</INF> and R<INF>95</INF><not-eq> depends 
on the source directivity and the heterogeneity of the acoustic 
environment. R<INF>95</INF><not-eq> 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 R<INF>95</INF><not-eq> exposure ranges, not 
acoustic ranges, to estimate take and determine mitigation distances 
for the reasons described below.
    In order to best evaluate the SEL<INF>cum</INF> 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 (K[uuml]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 (ER<INF>95</INF><not-eq>). The 
ER<INF>95</INF><not-eq> 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 ER<INF>95</INF><not-eq> 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

[[Page 11374]]

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<not-eq>) 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               ``Typical'' (in km)                                             ``Difficult-to-drive'' (in km)
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                                                               One pile per day                  Two piles per day                   One pile per day                  Two piles per day
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Level B                            Level B                            Level B                            Level B
                                                      Level A harass- ment    harass-    Level A harass- ment    harass-    Level A harass- ment    harass-    Level A harass- ment    harass-
                                                          (SEL; dB re 1     ment (dB re        (dB re 1        ment (dB re        (dB re 1        ment (dB re        (dB re 1        ment (dB re
                                                      [micro]Pa2[middot]s)       1       [micro]Pa2[middot]s)       1       [micro]Pa2[middot]s)       1       [micro]Pa2[middot]s)       1
                                                                             [micro]Pa)                         [micro]Pa)                         [micro]Pa)                         [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-19, I-20, I-23, and I-24 in K[uuml]sel et al., 2022 (appendix I).


 Table 13--Exposure Ranges (ER95<not-eq>) 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               ``Typical'' (in km)                                             ``Difficult-to-drive'' (in km)
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                                                               One pile per day                  Two piles per day                   One pile per day                  Two piles per day
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Level B                            Level B                            Level B                            Level B
                                                      Level A harass- ment    harass-    Level A harass- ment    harass-                            harass-    Level A harass- ment    harass-
                                                          (SEL; dB re 1     ment (dB re        (dB re 1        ment (dB re   Level A v (dB re 1   ment (dB re        (dB re 1        ment (dB re
                                                      [micro]Pa2[middot]s)       1       [micro]Pa2[middot]s)       1       [micro]Pa2[middot]s)       1       [micro]Pa2[middot]s)       1
                                                                             [micro]Pa)                         [micro]Pa)                         [micro]Pa)                         [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ These values represent the maximum Level B.
\c\ The values here were found in tables I-21, I-22, I-25, and I-26 in K[uuml]sel et al., 2022 (appendix I).


[[Page 11375]]


 Table 14--Exposure Ranges (ER95<not-eq>) 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
----------------------------------------------------------------------------------------------------------------
                                                         Normal (T1) Soil Conditions (in km)
                                   -----------------------------------------------------------------------------
                                               One pile per day                      Two piles per day
              Species              -----------------------------------------------------------------------------
                                     Level A harassment       Level B       Level A harassment       Level B
                                          (dB re 1         harassment (dB        (dB re 1         harassment (dB
                                    [micro]Pa2[middot]s)  re 1 [micro]Pa)  [micro]Pa2[middot]s)  re 1 [micro]Pa)
----------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-31 and I-32 in K[uuml]sel et al., 2022 (appendix I).


 Table 15--Exposure Ranges (ER95<not-eq>) 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
----------------------------------------------------------------------------------------------------------------
                                                         Normal (T1) soil conditions (in km)
                                   -----------------------------------------------------------------------------
                                               One pile per day                      Two piles per day
                                   -----------------------------------------------------------------------------
              Species                                         Level B
                                     Level A harassment      harassment     Level A harassment       Level B
                                          (dB re 1        behavior (dB re        (dB re 1         harassment (dB
                                    [micro]Pa2[middot]s)    1 [micro]Pa)   [micro]Pa2[middot]s)  re 1 [micro]Pa)
----------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-33 and I-34 in K[uuml]sel et al., 2022 (appendix I).


[[Page 11376]]


 Table 16--Exposure Ranges (ER95<not-eq>) 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       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
                                                    --------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Level B                            Level B                              Level                             Level B
                                                      Level A harassment    harassment   Level A harassment    harassment   Level A harassment   Bvharassment   Level A harassment    harassment
                                                           (dB re 1          (dB re 1         (dB re 1          (dB re 1         (dB re 1          (dB re 1          (dB re 1          (dB re 1
                                                     [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)   [micro]Pa2[middot]s)   [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values for U3 were found in tables I-27 and I-28 in K[uuml]sel et al., 2022 (appendix I). The values for R3 were found in tables I-35 and I-36 in K[uuml]sel et al., 2022 (appendix I).


 Table 17--Exposure Ranges (ER95<not-eq>) 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        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
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Level B                            Level B                            Level B                            Level B
                                                       Level A harassment    harassment   Level A harassment    harassment   Level A harassment    harassment   Level A harassment    harassment
                                                            (dB re 1          (dB re 1         (dB re 1          (dB re 1         (dB re 1          (dB re 1         (dB re 1          (dB re 1
                                                      [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values for U3 were found in tables I-29 and I-30 in K[uuml]sel et al., 2022 (appendix I). The values for R3 were found in tables I-37 and I-38 in K[uuml]sel et al., 2022 (appendix I).


[[Page 11377]]


  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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              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
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Level B                            Level B                            Level B                            Level B
                                                       Level A harassment    harassment   Level A harassment    harassment   Level A harassment    harassment   Level A harassment    harassment
                                                            (dB re 1          (dB re 1         (dB re 1          (dB re 1         (dB re 1          (dB re 1         (dB re 1          (dB re 1
                                                      [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-39, I-40, I-43, and I-44 in K[uuml]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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          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
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Level B                            Level B                            Level B                            Level B
                                                       Level A harassment    harassment   Level A harassment    harassment   Level A harassment    harassment   Level A harassment    harassment
                                                            (dB re 1          (dB re 1         (dB re 1          (dB re 1         (dB re 1          (dB re 1         (dB re 1          (dB re 1
                                                      [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)  [micro]Pa2[middot]s)   [micro]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in tables I-41, I-42, I-45, and I-46 in K[uuml]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.

[[Page 11378]]

    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 re-run 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 low-probability 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 SPL<INF>pk</INF> and 
SEL<INF>cum</INF> 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 (SEL<INF>cum</INF>) 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 
(R<INF>95</INF><not-eq>) to the Level A harassment SEL<INF>cum</INF> 
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 SEL<INF>cum</INF> 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 SEL<INF>cum</INF> thresholds. 
However, those distances are small (less than 1 km) and only applicable 
to harbor porpoise. Please see tables 34-37 in K[uuml]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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Level A harassment Pk (in km)   Level B harassment 160 dB SPL
                                                                                Marine   --------------------------------             (in km)
              Foundation type                 Modeled maximum impact hammer     mammal                                   -------------------------------
                                                       energy (kJ)              group      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  3.77 \g\ (5.49
                                                                                                                                    \j\)            \j\)

[[Page 11379]]

 
                                                                                      MF     -\b\ (-\b\)     -\b\ (-\b\)
                                                                                      HF   0.1 \c\ (0.15  0.11 \c\ (0.17
                                                                                                    \d\)            \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.
\a\ Assumes a 2-dB post-piling shift.
\b\ A dash (-) indicates that the threshold was not exceeded.
\c\ Found in table H-11 in K[uuml]sel et al., 2022 (appendix H).
\d\ Found in table H-47 in K[uuml]sel et al., 2022 (appendix H).
\e\ Found in table H-31 in K[uuml]sel et al., 2022 (appendix H).
\f\ Found in table H-51 in K[uuml]sel et al., 2022 (appendix H).
\g\ Found in table H-343 in K[uuml]sel et al., 2022 (appendix H).
\h\ Found in table H-439 in K[uuml]sel et al., 2022 (appendix H).
\i\ Found in table H-495 in K[uuml]sel et al., 2022 (appendix H).
\j\ Found in table H-479 in K[uuml]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 second-highest-
density months. Empire Wind also assumed that all 17 difficult-to-drive 
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 highest-density 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 highest-density 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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Year 1                                              Year 2
                                                 -------------------------------------------------------------------------------------------------------
                                                              Days of impact pile driving                         Days of impact pile driving
                 Foundation type                 -------------------------------------------------------------------------------------------------------
                                                  1st highest  2nd highest  3rd highest  4th highest  1st highest  2nd highest  3rd highest  4th highest
                                                    density      density      density      density      density      density      density      density
                                                     month        month        month        month        month        month        month        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

[[Page 11380]]

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 
K[uuml]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 ESA-
listed 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-empire-offshore-wind-llc-construction-empire-wind-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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Calculated exposures         Calculated      Authorized      Authorized
                                                                         --------------------------------    exposures         take            take
                                                                                Level A harassment       -----------------------------------------------
               Hearing group                           Species           --------------------------------     Level B
                                                                                                            harassment        Level A         Level B
                                                                                LE              LpK      ----------------   harassment      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               0.1               0            2.36               0          \f\ 11
                                             \a\.
                                            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

[[Page 11381]]

 
                                            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.
\b\ Based 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).
\g\ Gray 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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Calculated exposures         Calculated      Authorized      Authorized
                                                                         --------------------------------    exposures         take            take
                                                                                Level A harassment       -----------------------------------------------
               Hearing group                           Species           --------------------------------     Level B
                                                                                                            harassment        Level A         Level B
                                                                                LE              LpK      ----------------   harassment      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              0.05               0            1.57           \b\ 0          \g\ 11
                                             \a\.
                                            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           \d\68
                                            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.
\c\ Based 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.
\d\ Authorized 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.
\e\ Authorized 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).
\f\ Authorized take adjusted by 1 group size per day as follows: 30 common dolphins (Reeves et al., 2002), 15 bottlenose dolphins (Jefferson et al.,
  2015).
\g\ Authorized 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).

[[Page 11382]]

 
\h\ Gray 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 [micro]Pa 
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 K[uuml]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 = [pi]r2,

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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          PTS onset by hearing group (m)                    Behavioral
                                                         ----------------------------------------------------------------   harassment      Area within
                                                                LF              MF              HF              PW       ----------------    estimated
                        Location                         ----------------------------------------------------------------       ALL           Level B
                                                           199 LE, 24 hr   198 LE, 24 hr   173 LE, 24 hr   201 LE, 24 hr ----------------   harassment
                                                                                                                            120 SPL RMS    zone (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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' Multi-Species 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
----------------------------------------------------------------------------------------------------------------
                                                               #strikes per
          Structure               dB SEL          dB rms           pile        Piles per day   Transmission loss
----------------------------------------------------------------------------------------------------------------
Casing pipe.................             166             182          43,200               1  15 log.
Goal Posts..................             174             184           2,000               2
----------------------------------------------------------------------------------------------------------------


[[Page 11383]]


        Table 26--Distances (Meters) to the Level A and Level B Harassment Threshold Isopleths for Casing Pipe and Goal Post Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              PTS onset by hearing group (m)
                                                 ----------------------------------------------------------------------------------------   Behavioral
                    Scenario                               LF                    MF                    HF                    PW           harassment SPL
                                                 ----------------------------------------------------------------------------------------       (m)
                                                     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 SEL<INF>cum</INF> 
metric, it should be noted that modeled distances based on the 
SEL<INF>cum</INF> 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 km\2\) for Vibratory Pile Driving of Empire
                                    Wind's Cofferdam Installation and Removal
----------------------------------------------------------------------------------------------------------------
                                                                      Empire Wind 1 cofferdams (2024) and Empire
                        Marine mammal species                            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
----------------------------------------------------------------------------------------------------------------
\a\ Species listed under the ESA.
\b\ Bottlenose 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.
\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., 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 x ZOI x d,

where:

D = average highest seasonal species density (number per km\2\)

[[Page 11384]]

ZOI = maximum ensonified area to MMPA threshold for impulsive noise 
(160 dB RMS 90 percent re 1 [mu]Pa)
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
----------------------------------------------------------------------------------------------------------------
                                                             Estimated Level B harassment
                                                                       exposures                Total estimated
                                                        --------------------------------------      Level B
                        Species                                               Empire Wind 2        harassment
                                                           Empire Wind 1    cofferdams (2024-      exposures
                                                         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                   2.03                1.9               3.93
 Coastal Stock) \a\....................................
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
----------------------------------------------------------------------------------------------------------------
\a\ Bottlenose 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.
\b\ Pilot whale density values from Duke University (Roberts et al., 2022) reported as ``Globicephala spp.'' and
  not species-specific.
\c\ Pinniped 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
----------------------------------------------------------------------------------------------------------------
                                                                  Authorized take by Level B harassment
                                                        --------------------------------------------------------
                        Species                                               Empire Wind 2
                                                           Empire Wind 1    cofferdams (2024-   Total authorized
                                                         cofferdams (2024)        2025)               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                    180                270                450
 Coastal Stock) \a\....................................
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

[[Page 11385]]

 
Harbor porpoise........................................                  1                  1                  2
Harbor seal \d\........................................                 60                 90                150
Gray seal \d\..........................................                 60                 90                150
----------------------------------------------------------------------------------------------------------------
\a\ Bottlenose 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).
\c\ Pilot whale density values (Roberts et al., 2023) reported as ``Globicephala spp.'' and not species-
  specific.
\d\ Pinniped 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
----------------------------------------------------------------------------------------------------------------
                                          PTS onset by hearing group (Level A harassment)           Behavioral
                                 ----------------------------------------------------------------    response
                                        LF              MF              HF              PW           (Level B
                                 ----------------------------------------------------------------   harassment)
            Location                                                                             ---------------
                                   199 LE, 24hr    199 LE, 24hr    199 LE, 24hr    199 LE, 24hr         All
                                                                                                 ---------------
                                                                                                    120 SPL RMS
----------------------------------------------------------------------------------------------------------------
Marina Bulkhead Work (Sheet pile            43.2             3.8            63.8            26.2           1,000
 installation)..................
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
----------------------------------------------------------------------------------------------------------------
                                                                                  Marina work (2024)
                               Species                               -------------------------------------------
                                                                         Authorized take by Level B harassment
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin (Western N.A. Northern Migratory Coastal Stock)                                          735
 \a\................................................................
Harbor seal \b\.....................................................                                        245
Gray seal \b\.......................................................                                        245
----------------------------------------------------------------------------------------------------------------
\a\ 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. The authorized take was adjusted to account for one
  group size, 15 individuals (Jefferson et al., 2015) per day of bottlenose.
\b\ Pinniped 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 non-
impulsive 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

[[Page 11386]]

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 (SPL<INF>rms</INF>) 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 frequency-dependent 
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 [mu]Pa 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
----------------------------------------------------------------------------------------------------------------
                                                                  Source level (SLRMS)   Lateral distance (m) to
                     HRG survey equipment                           (dB re 1[mu]Pa)         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 dB<INF>RMS90</INF><not-eq> re 1 [micro]Pa) include the 
noise produced by various non-parametric 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 
dB<INF>RMS90</INF><not-eq> re 1 [mu]Pa 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 Project-specific noise-
generating activities, and estimated duration of individual activities 
when the maximum noise-generating 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 dB<INF>RMS90</INF><not-eq> re 1 [mu]Pa 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
----------------------------------------------------------------------------------------------------------------
                                                                                               Calculated daily
                 Survey segment                     Number of active     Estimated distance     ensonified area
                                                   survey vessel days       per day (km)            (km\2\)
----------------------------------------------------------------------------------------------------------------
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

[[Page 11387]]

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
----------------------------------------------------------------------------------------------------------------
                                              2024--       2025--       2026--       2027--     2028 to January
                 Species                    Calculated   Calculated   Calculated   Calculated   2029--calculated
                                            exposures    exposures    exposures    exposures       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
----------------------------------------------------------------------------------------------------------------
\a\ Estimated 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.
\b\ Pinniped 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
----------------------------------------------------------------------------------------------------------------
                                                                                                        Total
                                  2024--       2025--       2026--       2027--        2028 to       authorized
           Species              Authorized   Authorized   Authorized   Authorized   January 2029--   take across
                                   take         take         take         take     authorized take     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

[[Page 11388]]

 
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
----------------------------------------------------------------------------------------------------------------
\a\ Authorized 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).
\b\ Bottlenose 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.
\c\ As 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.
\d\ As 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.
\e\ Pinniped 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 x area x 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

[[Page 11389]]

monitoring measures, provided in the Mitigation and Monitoring and 
Reporting sections, which are activity-specific and are designed to 
minimize acoustic exposures to marine mammal species.
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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
----------------------------------------------------------------------------------------------------------------
                                                                                5-Year totals
                                                           -----------------------------------------------------
           Marine mammal species              NMFS stock     Authorized    Authorized     5-Year sum  (Level A
                                               abundance       Level A       Level B      harassment  + Level B
                                                             harassment    harassment          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          62,851             0         2,565                     2,565
 Offshore) \a\............................
Bottlenose Dolphin (Northern Migratory               6,639             0         1,455                     1,455
 Coastal) \a\.............................
Bottlenose Dolphin (WNA Offshore and                69,490             0         8,730                     8,730
 Northern Migratory Coastal) \a\..........
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

[[Page 11392]]

 
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.
\a\ Total 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
----------------------------------------------------------------------------------------------------------------
                                                                  Maximum annual take authorized
                                                ----------------------------------------------------------------
                                                                                                  Total percent
    Marine mammal species         NMFS stock       Maximum                                         stock taken
                                   abundance       Level A     Maximum Level B   Maximum annual      based on
                                                  harassment     harassment         take \a\      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    62,851..........            0  1,800 (pile       1,800 (pile      2.86.
 North Atlantic Offshore) \c\.                                 driving only).    driving only).
Bottlenose Dolphin (Northern   6,639...........            0  1,185 (pile       1,185 (pile      17.85.
 Migratory Coastal) \c\.                                       driving only).    driving only).
Bottlenose Dolphin (WNA        62,851 Western              0  2,865 (HRG        2,865 (HRG       See text
 Offshore and Northern          North Atlantic                 survey).          survey).         description in
 Migratory Coastal) \d\.        Offshore; 6,639                                                   the Small
                                Northern                                                          Numbers
                                Migratory                                                         section.
                                Coastal.
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.
----------------------------------------------------------------------------------------------------------------

[[Page 11393]]

 
                                               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).
\c\ 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 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.
\d\ The 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

[[Page 11394]]

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

[[Page 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 impact-pile-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.

[[Page 11396]]

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 L[uuml]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 L[uuml]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. D[auml]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

[[Page 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 impact-pile-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 post-completion 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 (ER<INF>95</INF><not-eq>) 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 
(ER<INF>95</INF><not-eq>). 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 shut-
down is not feasible because the shut-down 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

[[Page 11398]]

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 ER<INF>95</INF><not-eq> 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-to-drive 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                       Harbor
                Monitoring zones                          North Atlantic right whales           Other mysticetes/  Pilot whales and   porpoises   Seals
                                                                                                sperm whales (m)    delphinids (m)       (m)       (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,                                       Monopiles: 5.35 km; Pin Piles: 1.14 km
 R95percent).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The 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).
\2\ The 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.
\3\ The 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 pile-driving 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)
------------------------------------------------------------------------
                                       Clearance zone     Shutdown zone
       Hearing group (species)             (m) \1\           (m) \1\
------------------------------------------------------------------------
Low-Frequency (North Atlantic right              1,600             1,600
 whale, all other mysticetes) \2\...
High-Frequency (harbor porpoise) \3\               100               100
Mid-Frequency (dolphins and pilot                   50                50
 whales) \3\........................
Phocid Pinniped (seals) \4\.........               100               100
------------------------------------------------------------------------
\1\ Clearance and shutdown zones apply to both cofferdam and goal post
  installation.
\2\ For low-frequency cetaceans, the clearance and shutdown zones are
  larger than the distance to the Level B harassment threshold for
  Empire Wind 2.
\3\ For mid-frequency cetaceans and harbor porpoises, the clearance and
  shutdown zones are larger than the distance to the Level A harassment
  threshold.
\4\ The 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.


[[Page 11399]]

    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 non-impulsive 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
----------------------------------------------------------------------------------------------------------------
                                                          Level B harassment
                  Marine mammal species                      zone (m) for      Clearance zone     Shutdown zone
                                                                CHIRPs               (m)               (m)
----------------------------------------------------------------------------------------------------------------
Low-frequency cetacean (North Atlantic right whale).....              50.05                500               500
Other ESA-listed marine mammals (i.e., fin, sei, sperm                                     500               100
 whale).................................................
All other marine mammal species \1\.....................                                   100               100
----------------------------------------------------------------------------------------------------------------
\1\ With 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

[[Page 11400]]

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:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> 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);
    <bullet> 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;
    <bullet> How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
    <bullet> 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.

[[Page 11401]]

    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'' single-optimal-array configurations, these 
set-ups 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 at-sea 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 on-duty 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-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1.

[[Page 11402]]

Sound Field Verification

    Empire Wind must conduct SFV measurements during all impact-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 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 NMFS-approved 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 industry-standard 
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 pile-driving 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-reporting-system-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

[[Page 11403]]

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 ESA-listed 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., population-
level 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

[[Page 11404]]

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 stress-related 
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

[[Page 11405]]

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 
soft-starts, 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.

[[Page 11406]]

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 
pile-driving 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 long-term 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

[[Page 11407]]

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

[[Page 11408]]

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

[[Page 11409]]

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 pile-driving 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

[[Page 11410]]

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 soft-start 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, ramp-up 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 low-level TTS and 
masking that may limit

[[Page 11411]]

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 
km\2\, comprises only a minor portion of the New York Bight area 
(43,388 km\2\), 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 pre-exposure 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

[[Page 11412]]

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 
non-migratory 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 self-mitigate 
(i.e., reduce hearing sensitivity) the impacts of noise exposure, which

[[Page 11413]]

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

[[Page 11414]]

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, short-finned 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

[[Page 11415]]

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 in[fllig]uenza (HPAI) H5N1. Although elevated 
strandings continue, neither UME, alone or in combination, provides 
cause for concern regarding population-level 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. fishery-
related 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

[[Page 11416]]

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 one-third 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 x 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,

[[Page 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/renewable-energy/state-activities/empire-wind-final-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-under-marine-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

[[Page 11418]]

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

0
1. The authority citation for part 217 continues to read:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.


0
2. Add subpart CC, consisting of Sec. Sec.  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


Sec.  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-to-shore 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; high-resolution 
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 shore-based converter stations and inter-array cables 
between turbines.


Sec.  217.281  Effective dates.

    The regulations in this subpart are effective from February 22, 
2024, through February 21, 2029.


Sec.  217.282   Permissible methods of taking.

    Under the LOA, issued pursuant to Sec. Sec.  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          Western North
                               physalus.             Atlantic.
Humpback whale..............  Megaptera             Gulf of Maine.
                               novaeangliae.
Minke whale.................  Balaenoptera          Canadian Eastern
                               acutorostrata.        Coastal.
North Atlantic right whale..  Eubalaena glacialis.  Western North
                                                     Atlantic.
Sei whale...................  Balaenoptera          Nova Scotia.
                               borealis.
Atlantic spotted dolphin....  Stenella frontalis..  Western North
                                                     Atlantic.
Atlantic white-sided dolphin  Lagenorhynchus        Western North
                               acutus.               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          Western North
                               macrorhynchus.        Atlantic.
Risso's dolphin.............  Grampus griseus.....  Western North
                                                     Atlantic.
Sperm whale.................  Physeter              North Atlantic.
                               macrocephalus.
Gray seal...................  Halichoerus grypus..  Western North
                                                     Atlantic.
Harbor seal.................  Phoca vitulina......  Western North
                                                     Atlantic.
Harp seal...................  Pagophilus            Western North
                               groenlandicus.        Atlantic.
------------------------------------------------------------------------


[[Page 11419]]

Sec.  217.283  Prohibitions.

    Except for the takings described in Sec.  217.282 and authorized by 
an LOA issued under Sec.  217.286 or Sec.  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 Sec.  217.286 or 
Sec.  217.287;
    (b) Take any marine mammal not specified in Sec.  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 Sec.  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.


Sec.  217.284  Mitigation requirements.

    When conducting the activities identified in Sec.  217.280(c) 
within the area described in Sec.  217.280(b), LOA Holder must 
implement the mitigation measures contained in this section and any LOA 
issued under Sec.  217.286 or Sec.  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 in-water 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 in-water 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 
acoustically-triggered 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 
Sec.  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

[[Page 11420]]

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 Mid-Atlantic Bight), must have 
a dedicated visual observer on duty at all times to monitor for marine 
mammals within a 180[deg] direction of the forward path of the vessel 
(90[deg] port to 90[deg] 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., NMFS-approved 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 non-North 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., bow-riding 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

[[Page 11421]]

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 soft-start 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 m\3\/(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 NMFS-approved 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 pile-
driving 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 Sec.  217.285(c). At least three on-duty PSOs must be on 
every impact pile driving platform(s);

[[Page 11422]]

    (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., high-pass, 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 Sec.  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

[[Page 11423]]

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 Sec.  
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 Sec.  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 Sec.  
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

[[Page 11424]]

(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 pre-start 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;

[[Page 11425]]

    (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 Sec.  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.


Sec.  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 in-person, 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 conditionally-approved 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:

[[Page 11426]]

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 
real-time 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 NMFS-
approved PAM system to conduct monitoring. PAM systems are approved 
through the PAM Plan as described in Sec.  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 ESA-listed 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;

[[Page 11427]]

    (2) At least three on-duty PSOs must be stationed on each vessel-
based observer platform. If an aerial platform is used (per Sec.  
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. Off-effort 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 
(<a href="/cdn-cgi/l/email-protection#e3b3b1cdaab7b3cdae8c8d8a978c918a8d84b186938c919790a38d8c8282cd848c95"><span class="__cf_email__" data-cfemail="5202007c1b06027c1f3d3c3b263d203b3c350037223d202621123c3d33337c353d24">[email protected]</span></a>), 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 
mitigation-related 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 Sec.  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., bottom-
mounted, 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. 
1[mu] 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,

[[Page 11428]]

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-reporting-system-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 (R<INF>95percent</INF>) to compare 
with the real-world sound field measurements; peak sound pressure level 
(SPL<INF>pk</INF>), root-mean-square sound pressure level that contains 
90 percent of the acoustic energy (SPL<INF>rms</INF>), and sound 
exposure level (SEL, in single strike for pile driving, 
SEL<INF>ss,</INF>), 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

[[Page 11429]]

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 Sec.  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 (SPL<INF>pk</INF>); the root-mean-square sound pressure level 
that contains 90 percent of the acoustic energy (SPL<INF>rms</INF>); 
the single strike sound exposure level (SEL<INF>ss</INF>); the 
integration time for SPL<INF>rms</INF>; 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 (L<INF>50</INF>), and L<INF>5</INF> (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 L<INF>5</INF> (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-reporting-system-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-reporting-system-templates). Submit 
the completed data templates to <a href="/cdn-cgi/l/email-protection#a9c7c4cfda87c7ccca87d9c8cac4cdc8ddc8e9c7c6c8c887cec6df"><span class="__cf_email__" data-cfemail="d4bab9b2a7fabab1b7faa4b5b7b9b0b5a0b594babbb5b5fab3bba2">[email protected]</span></a>. 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; <a href="/cdn-cgi/l/email-protection#dfb1b2b9acf1b8beadf1b6b1bcb6bbbab1abbeb3f2abbeb4ba9fb1b0bebef1b8b0a9"><span class="__cf_email__" data-cfemail="1a74777c69347d7b6834737479737e7f746e7b76376e7b717f5a74757b7b347d756c">[email protected]</span></a>), NMFS Office of Protected Resources, and NMFS Northeast 
Fisheries Science Center (NEFSC; <a href="/cdn-cgi/l/email-protection#5e303b702c29702d2b2c283b271e30313f3f70393128"><span class="__cf_email__" data-cfemail="08666d267a7f267b7d7a7e6d714866676969266f677e">[email protected]</span></a>) 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;

[[Page 11430]]

    (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 (<a href="/cdn-cgi/l/email-protection#e1b1b3cfa8b5b1cfac8e8f88958e93888f86b384918e939592a18f8e8080cf868e97"><span class="__cf_email__" data-cfemail="9bcbc9b5d2cfcbb5d6f4f5f2eff4e9f2f5fcc9feebf4e9efe8dbf5f4fafab5fcf4ed">[email protected]</span></a>) and, if in the 
Greater Atlantic region (Maine to Virginia), NMFS Greater Atlantic 
Regional Fisheries Office (GARFO; <a href="/cdn-cgi/l/email-protection#751b1813065b1214075b1c1b161c11101b0114195801141e10351b1a14145b121a03"><span class="__cf_email__" data-cfemail="aac4c7ccd984cdcbd884c3c4c9c3cecfc4decbc687decbc1cfeac4c5cbcb84cdc5dc">[email protected]</span></a>, 
<a href="/cdn-cgi/l/email-protection#036d6e65702d6462712d707771626d676a6d64436d6c62622d646c75"><span class="__cf_email__" data-cfemail="f6989b9085d8919784d88582849798929f9891b698999797d8919980">[email protected]</span></a>) or, if in the Southeast region (North 
Carolina to Florida), NMFS Southeast Regional Office (SERO; 
<a href="/cdn-cgi/l/email-protection#631006000e020e0e020f1106130c111710230d0c02024d040c15"><span class="__cf_email__" data-cfemail="b5c6d0d6d8d4d8d8d4d9c7d0c5dac7c1c6f5dbdad4d49bd2dac3">[email protected]</span></a>), 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 (<a href="/cdn-cgi/l/email-protection#dd8d8ff394898df390b2b3b4a9b2afb4b3ba8fb8adb2afa9ae9db3b2bcbcf3bab2ab"><span class="__cf_email__" data-cfemail="6a3a3844233e3a44270504031e051803040d380f1a05181e192a04050b0b440d051c">[email protected]</span></a>) and, 
if in the Greater Atlantic region (Maine to Virginia), NMFS GARFO 
(<a href="/cdn-cgi/l/email-protection#e886858e9bc68f899ac681868b818c8d869c8984c59c89838da886878989c68f879e"><span class="__cf_email__" data-cfemail="d5bbb8b3a6fbb2b4a7fbbcbbb6bcb1b0bba1b4b9f8a1b4beb095bbbab4b4fbb2baa3">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#ddb3b0bbaef3babcaff3aea9afbcb3b9b4b3ba9db3b2bcbcf3bab2ab"><span class="__cf_email__" data-cfemail="ff9192998cd1989e8dd18c8b8d9e919b969198bf91909e9ed1989089">[email protected]</span></a>) or, if 
in the Southeast region (North Carolina to Florida), NMFS SERO 
(<a href="/cdn-cgi/l/email-protection#4b382e28262a26262a27392e3b24393f380b25242a2a652c243d"><span class="__cf_email__" data-cfemail="d8abbdbbb5b9b5b5b9b4aabda8b7aaacab98b6b7b9b9f6bfb7ae">[email protected]</span></a>). 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 
(<a href="/cdn-cgi/l/email-protection#6e0003081d40090f1c4007000d070a0b001a0f02431a0f050b2e00010f0f40090118"><span class="__cf_email__" data-cfemail="92fcfff4e1bcf5f3e0bcfbfcf1fbf6f7fce6f3febfe6f3f9f7d2fcfdf3f3bcf5fde4">[email protected]</span></a>) 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.


Sec.  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 Sec.  
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.


Sec.  217.287  Modifications of Letter of Authorization.

    (a) An LOA issued under Sec. Sec.  217.282 and 217.286 or this 
section for the activity identified in Sec.  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

[[Page 11431]]

solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  217.282 and 217.286 or this 
section for the activities identified in Sec.  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 Sec. Sec.  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.


Sec. Sec.  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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