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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-01363

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 14, 2024
- **Citation:** 89 FR 11342

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240118-0017]
RIN 0648-BL97
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Empire Wind Project, Offshore New York

AGENCY:

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

ACTION:

Final rule; notification of issuance of letter of authorization.

SUMMARY:

In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS promulgates regulations to govern the incidental taking of marine mammals incidental to Empire Offshore Wind, LLC (Empire Wind), a 50-50 partnership between Equinor, ASA (Equinor) and BP p.l.c., during the construction of an offshore wind energy project (the Project) in Federal and State waters off of New York, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area (OCS-A-512) (referred to as the Lease Area) and along two export cable routes to sea-to-shore transition points (collectively, the Project Area), over the course of 5 years (February 22, 2024, through February 21, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during specific construction related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. Upon publication of this final rule and within 30 days, NMFS will issue a LOA to Empire Wind for the effective period of the final rule.

DATES:

This rulemaking and issued LOA are effective from February 22, 2024, through February 21, 2029.

FOR FURTHER INFORMATION CONTACT:

Jessica Taylor, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Availability

A copy of Empire Wind's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-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:

•
Citizen
—individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR 216.103);

•
Take
—to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362);

•
Incidental taking
—an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental (see 50 CFR 216.103);

•
Serious Injury
—any injury that will likely result in mortality (50 CFR 216.3);

•
Level A harassment
—any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362; 50 CFR 216.3); and

•
Level B harassment
—any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (16 U.S.C. 1362).

Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for proposing and, if appropriate, issuing this rule containing 5-year regulations and associated LOA. This final rule also establishes required mitigation, monitoring, and reporting requirements for Empire Wind's construction activities.

Summary of Major Provisions Within the Final Rule

The major provisions within this final rule include:

• The authorized take of marine mammals by Level A harassment and/or Level B harassment;

• No mortality or serious injury of any marine mammal is authorized;

• The establishment of a seasonal moratorium on impact pile driving foundation piles during the months of the highest presence of North Atlantic right whales (
Eubalaena glacialis
) in the Project Area (January 1 to April 30 annually);

• A requirement for both visual and passive acoustic monitoring (PAM) to occur by trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and PAM (where required) operators before, during, and after select activities;

• The establishment of clearance and shutdown zones for all in-water construction activities to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment;

• A requirement to use sound attenuation device(s) during all impact pile driving installation activities to reduce noise levels;

• A delay to the start of foundation installation if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected;

• A delay to the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones;

• A requirement to shut down pile driving (if feasible) if a North Atlantic right whale is observed or if other marine mammals are observed entering their respective shutdown zones;

• A requirement to implement sound field verification (SFV) requirements during impact pile driving of foundation piles to measure in situ noise levels for comparison against the modeled results;

• A requirement to implement soft starts during impact pile driving using the least hammer energy necessary for installation;

• A requirement to implement ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment;

• A requirement for PSOs to continue to monitor for 30 minutes after any impact pile driving for foundation installation;

• A requirement for the increased awareness of North Atlantic right whale presence through monitoring of the appropriate networks and Channel 16, as well as reporting any sightings to the sighting network;

• A requirement to implement various vessel strike avoidance measures;

• A requirement to implement measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear; and

• A requirement for frequently scheduled and situational reporting including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and SFV monitoring results.

Under section 105(a)(1) of the MMPA, failure to comply with these requirements or any other requirements in a regulation or permit implementing the MMPA may result in civil monetary penalties. Pursuant to 50 CFR 216.106, violations may also result in suspension or withdrawal of the LOA for the Project. Knowing violations may result in criminal penalties, under section 105(b) of the MMPA.

Fixing America's Surface Transportation Act (FAST-41)

This project is covered under title 41 of the Fixing America's Surface Transportation Act, or “FAST-41.” FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-6(a)(1)(A)).

The Project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the Project can be found at
https://www.permits.performance.gov/permitting-project/fast-41-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

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.

Table 1—Activity Schedule To Construct and Operate the Project

Project activity

Expected timing
Empire Wind 1

Expected timing
Empire Wind 2

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

OSS Jacket Foundation and Topside

Q2
1
-Q4 2025

Q2
1
-Q4 2025; Q2
1
-Q4 2026.
2

Monopile Foundation Installation

Q2
1
-Q4 2025

Q2
1
-Q4 2025; Q2
1
-Q4 2026.

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

Interarray Cables
Q2-Q4 2025
Q2-Q3 2026.

HRG Surveys
Q1 2024-Q4 2028
Q1 2024-Q4 2028.

Cable Landfall Construction

Q1-Q4 2024
3

Q1 2024-Q4 2025.
3

Marina Activities
n/a
Q1-Q4 2024.

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

Note:
Project activities are anticipated to start no earlier than Q1 2024. Q1 = January through March; Q2 = April through June; Q3 = July through September; Q4 = October through December.

1
Impact driving of foundation piles is prohibited between January 1 and April 30. During Q2 such activities could not start until May 1.

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.

ER14FE24.087

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

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) μPa (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

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 § 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
cum
) isopleth for the low frequency hearing group, rounded up to the nearest hundred for PSO clarity. Required monitoring and mitigation for these zones will minimize Level A harassment and Level B harassment to the extent practicable and avoid most Level A harassment of large whales (all species of large whales have six or fewer takes by Level A harassment across all 5 years of the rule). Further enlargement of these zones could interrupt and delay the Project such that a substantially higher number of days would be needed to complete the construction activities, which would incur additional costs, but importantly, also potentially increase the number of days that marine mammals are exposed to the disturbance. Accordingly, NMFS has determined that enlargement of these zones is not warranted, and that the existing required clearance and shutdown zones support a suite of measures that will effect the least practicable adverse impact on other large whales.

Comment 7:
Commenters noted that the final rule should clarify that if weather or other conditions limit the range of observation, then shutdown zones will be initiated. Commenters also questioned the feasibility of the shutdown mitigation requirements in real-world conditions and what would occur if the authorized take levels were exceeded. In addition, commenters state concerns on the required mitigation measures, assessing the effectiveness of the mitigation measures, and reporting the use of the mitigation measures in real-time.

Response:
NMFS disagrees that additional clarification should be added to describe the initiation of shutdown zones if weather conditions limit the range of observation. With respect to weather and other conditions that could impede observations, NMFS has clearly explained and established in the proposed and final rule a minimum visibility zone that must be visually clear of marine mammals before and during pile driving. If this area cannot be visually monitored, pile driving must not be initiated or must cease. In addition to visual monitoring, Empire Wind is required to conduct PAM which is not influenced by poor visibility conditions.

In regard to a scenario where Empire Wind exceeds their authorized take levels, any further take would be unauthorized and, therefore, prohibited under the MMPA. All mitigation measures stated in this notice and in the issued LOA are considered feasible. NMFS works with each ITA applicant, including Empire Wind, to ensure that project-specific mitigation measures are possible in real-world conditions. This includes shutdown zones when there is reduced visibility. As stated in the rule condition § 217.285(b)(5), Empire Wind must ensure certain equipment is provided to PSOs, such as thermal (
i.e.,
infrared) cameras, to allow PSOs to adequately complete their duties, including in reduced-visibility conditions. NMFS does not agree that additional wording is necessary within the rule to further describe the requirement and implementation of shutdown zones. Further, pursuant to the adaptive management provisions in the rule, NMFS may modify the required mitigation or monitoring measures, if doing so creates a

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

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.

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

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 § 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

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

best available methods for marine mammal detection. For North Atlantic right whales in particular, the required Clearance Zones are any distance (impact pile driving), 1,600 m (vibratory pile driving/marine activities), and 500 m (HRG surveys) and, therefore, it is unlikely that an individual would approach the harassment zone undetected.

In addition, as described in the proposed rule, NMFS is requiring that Empire Wind employ both visual and PAM methods for monitoring, as both approaches aid and complement each other (Van Parijs
et al.,
2021). The use of PAM will augment visual detections for foundation pile driving, especially for activities with the largest zones. NMFS is requiring the use of PAM to monitor 10 km zones around the piles and that the systems be capable of detecting marine mammals during pile driving within this zone. In this final rule, table 39 clearly specifies this 10 km PAM monitoring zone. For further detail on the requirements for the use of PAM, see comments 4 and 17.

Comment 23:
A commenter recommended that the LOA should require all vessels supporting site characterization to be equipped with and using Class A AIS devices at all times while on the water. A commenter suggested this requirement should apply to all vessels, regardless of size, associated with the survey.

Response:
NMFS acknowledges that vessel strikes pose a risk to marine wildlife, including North Atlantic right whales. For the final rule, NMFS has included a requirement that all vessels be equipped with AIS to facilitate compliance checks with the speed limit requirements.

Comment 24:
Several commenters recommended that NMFS increase the frequency of information review for adaptive management to at least once a quarter and to have a mechanism in place to undertake review and adaptive management on an ad hoc basis if a serious issue is identified (
e.g.,
if unauthorized levels of Level A take of marine mammals are reported or if serious injury or mortality of an animal occurs).

Response:
We disagree that the frequency at which information is reviewed should be defined in the Adaptive Management provision. The purpose of the Adaptive Management provision is to allow for the incorporation of new information as it becomes available, which could mean advancements and new information becomes available quickly (
i.e.,
days or weeks) that would necessitate NMFS to consider adapting the issued LOA, or over long periods of time as robust and conclusive information becomes available (
i.e.,
months or years). NMFS will be reviewing interim reports as they are submitted, hence, the quarterly review, as suggested by the commenter, is not necessary. NMFS retains the ability to make decisions as information becomes available, and after discussions with Empire Wind about feasibility and practicability.

We do not agree with the suggestion by the commenter for ad hoc changes in the event that additional take by Level A harassment or take via serious injury/mortality of a marine mammal occurs. NMFS has included two relevant provisions in its final ITA, one prohibiting take by mortality of serious injury (“Take by mortality or serious injury of any marine mammal species is not authorized”) and another prohibiting the taking of marine mammals in any manner other than what is specified in the LOA (“It is unlawful for any person to . . . take any marine mammal specified in the LOA in any manner other than as specified in the LOA.”) We refer the commenter to the Prohibitions portion of the final regulations text (see § 217.293). If the Project takes any marine mammal in a manner that has not been specified in the final rule and LOA (
i.e.,
unauthorized take by Level A harassment), or project vessels strike a marine mammal, Empire Wind would be in violation of its LOA and NMFS would undertake appropriate actions, as determined to be necessary.

Effects Assessment

Comment 25:
Multiple commenters stated that NMFS must make an assessment of which activities, technologies, and strategies are truly necessary to achieve site characterization to inform development of the offshore wind projects and which strategies are not critical. In addition, commenters asserted that NMFS should prescribe the appropriate survey techniques and mitigate any potential stressors to effect the least practicable impact on all affected species and stocks. Commenters further encouraged NMFS to require that the LOA holder minimize the impacts of underwater noise to the fullest extent feasible, including through the use of best available technology and methods to minimize sound levels from geophysical surveys such as through the use of technically and commercially feasible and effective noise reduction and attenuation measures. One commenter emphasized that there should be a focus on reducing impacts to species with extreme sensitivity to noise (
e.g.,
harbor porpoises) and species experiencing UMEs (
e.g.,
harbor seals).

Response:
The MMPA requires that an LOA include measures that will effect the least practicable adverse impact on the affected species and stocks, and, in practice, NMFS agrees that the LOA should include conditions for the activities that will first avoid adverse effects on marine mammal species in and around the Project Area, where practicable, and minimize the effects that cannot be avoided. NMFS has determined that the ITR and LOA meet this requirement to effect the least practicable adverse impact. As part of the analysis for all ITRs, NMFS evaluates the effects expected as a result of the specified activity, makes the necessary findings, and prescribes mitigation requirements sufficient to achieve the least practicable adverse impact on the affected species and stocks of marine mammals.

Comment 26:
A commenter asserted that NMFS must fully consider the discrete effects of each activity and the cumulative effects of the suite of approved, proposed, and potential activities on marine mammals (particularly North Atlantic right whales) and ensure that the cumulative effects are not excessive before issuing an incidental take authorization (ITA). Other commenters encouraged NMFS to consider the total takes of all species alongside takes that NMFS has authorized for other wind-related activities, and noted that the cumulative impacts of offshore wind activities on marine mammals are not yet known. Commenters objected to NMFS's conclusion that the application's take limit of 29 North Atlantic right whales for construction activities in the coastal waters between off New York will have a “negligible impact” on the species and fulfills the requirement for “small numbers” of takes, especially in light of the North Atlantic right whale's critically endangered status, the ongoing UME that this species is experiencing and, consequently, the asserted existential threat posed to the species by obstacles to even one individual's survival—and they emphasized this comment in combination with the need to consider the take from multiple projects.

Response:
NMFS is required to authorize the requested incidental take if it finds the total incidental take of small numbers of marine mammals by U.S. citizens “while engaging in that (specified) activity” within a specified geographic region during the 5-year period (or less) will have a negligible impact on such species or stock and, where applicable, will not have an

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-

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.

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.

Other

Comment 32:
A commenter noted that this proposed rule is for two separate offshore wind energy projects: Empire Wind 1 and 2 and the associated export cable areas. The commenter further recommends that ITR and LOA requests for each energy project be submitted and reviewed separately. Another commenter encouraged NMFS to issue LOAs on an annual basis, rather than a single 5-year LOA, to allow for the continuous incorporation of the best available scientific and commercial information, modify mitigation and monitoring measures as necessary and in a timely manner, and to account for the quickly evolving situation for the North Atlantic right whale.

Response:
NMFS disagrees with these comments. The MMPA allows for the authorization of incidental take within a specified geographical region, provided all the necessary findings are made. The applicant identifies the activities for which it is requesting authorization, and NMFS analyzes the request, including consideration of any germane factors that affect the analysis and may vary from one part of the Project Area to another, such as physical, biological, or chemical features. For example, the difference in the density of marine mammals between Empire Wind 1 and 2 is fully factored into the analysis. Further, it is generally considered more beneficial to evaluate the impacts of multiple activities together, where possible, as it allows for a more comprehensive assessment of the impacts and a more holistic approach to the mitigation and monitoring of those impacts. Here, Empire Wind would be responsible for conducting all construction and site characterization activities for Empire Wind 1 and 2. Some of these activities for each project would take place within the same year. For example, site characterization surveys are planned to occur during each of the 5 years across the Project Areas. In addition, impact pile driving of monopile foundations is expected to occur in Empire Wind 1 and Empire Wind 2 across years 2 and 3 of the Project. Further, the final rule includes requirements for annual reports, in addition to weekly and monthly requirements, to support annual evaluation of the activities and monitoring results, and the final rule includes an Adaptive Management provision (see § 217.297(c)) that allows NMFS to make modifications to the mitigation, monitoring, and reporting measures found in the LOA if new information supports the modifications and doing so creates a reasonable likelihood of more effectively accomplishing the goals of the measures. As requested, and supported by the findings herein, NMFS will issue a single 5-year LOA to Empire Wind for activities for both Empire Wind 1 and 2.

Comment 33:
Multiple commenters urged NMFS to deny the proposed project and/or postpone any offshore wind activities until NMFS determines effects of all offshore wind (OSW) activities on marine mammals in the region and determines that the recent whale deaths are not related to OSW activities, especially in light of recent UMEs. Similarly, some commenters provided general concerns regarding recent whale stranding events on the Atlantic Coast, including speculation that the strandings may be related to wind energy development-related activities. However, the commenters did not provide any specific information supporting these concerns.

Response:
NMFS authorizes take of marine mammals incidental to construction activities and marine site characterization surveys, provided the necessary findings are made, but does not authorize the activities themselves. Therefore, while NMFS has the authority to modify, suspend, or revoke an LOA if the LOA holder fails to abide by the conditions prescribed therein (
e.g.,
failure to comply with monitoring or reporting requirements), or if NMFS determines that (1) the authorized taking is having or is likely to have more than a negligible impact on the species or stocks of affected marine mammals, or (2) the prescribed measures are likely not or are not effecting the least practicable adverse impact on the affected species or stocks and their habitat, it is not within NMFS' jurisdiction to impose a moratorium on offshore wind development or to require activities to cease.

NMFS reiterates that there is no evidence that noise resulting from offshore wind development-related construction activities or site characterization surveys could potentially cause marine mammal stranding, and there is no evidence linking recent large whale mortalities and currently ongoing site characterization surveys. The commenters offer no such evidence. NMFS will continue to gather data to help us determine the cause of death for these stranded whales. We note the Marine Mammal Commission's recent statement: “There continues to be no evidence to link these large whale strandings to offshore wind energy development, including no evidence to link them to sound emitted during wind development-related site characterization surveys, known as HRG surveys. Although HRG surveys have been occurring off New England and the mid-Atlantic coast, HRG devices have never been implicated or 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.,

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 of

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-01363. Public record. Not legal advice.