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[Federal Register Volume 90, Number 13 (Wednesday, January 22, 2025)]
[Notices]
[Pages 7662-7663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01469]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE596]

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

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

ACTION: Notice; modification of letter of authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as 
amended, its implementing regulations, and NMFS' MMPA Regulations for 
Taking Marine Mammals Incidental to Construction of the Empire Wind 
Offshore Wind Project Offshore of New York, notification is hereby 
given that upon request from Empire Wind, LLC (Empire Wind), NMFS has 
modified a Letter of Authorization (LOA) issued to Empire Wind for the 
take of marine mammals incidental to activities associated with 
construction of the Empire Wind Offshore Wind Energy Project (hereafter 
known as the ``Project'') in Federal and State waters offshore New 
York. Specifically, NMFS has modified the LOA Holder's name as well as 
mitigation and monitoring measures related to vessel strike avoidance, 
sound field verification reporting, and requirements for passive 
acoustic monitoring (PAM). NMFS has also made modifications to 
additional measures to improve clarify and better align with the 
Biological Opinion. NMFS has determined that these modifications do not 
change the findings made for the regulations and does not result in any 
change in the total estimated number of takes of marine mammals.

DATES: The modified LOA is valid through February 21, 2029.

ADDRESSES: The issued modified LOA may be obtained online at https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1.

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

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain

[[Page 7663]]

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 
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). If such findings are made, 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 
such species or stocks for taking for certain subsistence uses 
(referred to as ``mitigation''); and requirements pertaining to the 
monitoring and reporting of such takings.
    NMFS promulgated a final rule in the Federal Register on February 
14, 2024 (89 FR 11342), which governs the incidental take of marine 
mammals incidental to Empire Wind's construction of the Project in 
Federal and State waters offshore 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-0512 and along two export cable routes to sea-
to-shore transition points. The rule became effective on February 22, 
2024, and is valid through February 21, 2029. The regulations allow 
NMFS to approve requests for modification to the LOA's specified 
activity or the mitigation, monitoring, or reporting measures if NMFS 
determines the requested change does not change the findings made for 
promulgation of the regulations and does not result in more than a 
minor change in the total estimated number of takes (see 50 CFR 
217.287(b)).
    NMFS issued a LOA to Empire Wind on February 22, 2024, and 
published a notice of issuance in the Federal Register on February 27, 
2023 (89 FR 14442). The LOA authorized Empire Wind to take, by 
harassment, marine mammals incidental to specified construction 
activities, specifically impact pile driving of wind turbine generator 
and offshore substation jacket foundations, vibratory pile driving of 
cofferdams and goal posts, pneumatic hammering of casing pipes, and 
high-resolution geophysical vessel-based site characterization surveys, 
within the specified geographical region.

Summary of Request and Analysis

    On December 4, 2024, NMFS received a request from Empire Wind to 
transfer the LOA to Empire Leaseholder LLC (Empire Leaseholder), an 
affiliate wholly owned by Empire Wind. To ensure safety during vessel 
transit, Empire Wind requested for NMFS to modify the LOA safety 
exemption language to include a provision for allowing deviations from 
the vessel strike avoidance requirements (LOA measure 3(b)) so Project 
vessels could maintain safe maneuvering speed when oceanographic, 
hydrographic, and/or meteorological conditions restrict vessel 
maneuverability. Empire Wind also requested revisions to the reporting 
timeline for bubble curtain performance and maintenance report for 
piles for which abbreviated sound field verification (SFV) monitoring 
is performed. These provisions will be more practicable and align with 
the Project's Biological Opinion, issued on September 8, 2023. In 
addition, Empire Wind requested for NMFS to allow the Pile Driving 
Mitigation and Monitoring Plan (PDMMP) to specify the number and 
location of PAM operators and to allow the PAM Plan to specify PAM 
operator protocols during foundation pile driving, instead of these 
requirements being specified in the LOA. NMFS determined none of these 
changes will affect the amount, the type of take authorized, or our 
findings as described in the final rule. Therefore, we have modified 
the attached LOA, specifically measures 3(b), 3(c)(7)(v), and 4(c)(2), 
thus fulfilling Empire Wind's request.
    In reviewing Empire Wind's request, NMFS also recognized the need 
to update additional measures to improve clarity and better align the 
LOA with the Biological Opinion. NMFS moved the safety exemption for 
foundation pile driving to the beginning of the foundation pile driving 
section (LOA measure 3 (c)) to clarify that this measure applies to all 
foundation pile driving activities. In addition, NMFS modified the 
language for the maximum hammer energies ((3)(c)(2)) and soft start 
requirements ((3)(c)(4)) to provide additional flexibility for 
application of these requirements in the field. NMFS made minor 
revisions to the language in the mitigation and monitoring sections to 
improve the clarity of the requirements. To better align with the 
Biological Opinion, NMFS made minor revisions to the language in the 
sound field verification (SFV) monitoring requirements (LOA measures 
3(c)(13)). NMFS also clarified the Protected Species Observer (PSO) and 
PAM Operator experience qualification requirements in section 4(a) of 
the LOA for foundation installation, cable landfall construction/marina 
activities, and high-resolution geophysical (HRG) surveys. NMFS' 
evaluation of the requested and necessary additional LOA modifications 
indicated that these modifications would not change the amount or 
nature of anticipated impacts of activities on marine mammals. 
Specifically, none of the benefits of any of the mitigation or 
monitoring measures that have been modified here were considered 
quantitatively in the analyses (i.e., only the 10-decibel sound 
attenuation and seasonal restrictions were quantitatively considered 
such that take numbers were reduced). In consideration of the above, 
NMFS has determined that these modifications do not result in changes 
in the total estimated take numbers or otherwise change any of the 
findings made for the regulations.

Authorization

    NMFS has issued a modified LOA to Empire Wind authorizing the take, 
by harassment, of small numbers of marine mammals incidental to 
specified construction activities associated with the Project, which 
includes the modified mitigation, monitoring, and reporting measures 
discussed herein.

    Dated: January 16, 2025.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2025-01469 Filed 1-21-25; 8:45 am]
BILLING CODE 3510-22-P
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