[Federal Register Volume 88, Number 71 (Thursday, April 13, 2023)]
[Proposed Rules]
[Pages 22696-22787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07417]



[[Page 22695]]

Vol. 88

Thursday,

No. 71

April 13, 2023

Part III





Department of Commerce





-----------------------------------------------------------------------





National Oceanic and Atmospheric Administration





-----------------------------------------------------------------------





50 CFR Part 217





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

  Federal Register / Vol. 88, No. 71 / Thursday, April 13, 2023 / 
Proposed Rules  

[[Page 22696]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 230404-0092]
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: Proposed rule; proposed letter of authorization; request for 
comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a request from Empire Offshore Wind, LLC 
(Empire Wind), a 50/50 joint venture between Equinor and BP p.l.c., for 
Incidental Take Regulations (ITR) and an associated Letter of 
Authorization (LOA). The requested regulations would govern the 
authorization of take, by Level A harassment and/or Level B harassment, 
of small numbers of marine mammals over the course of 5 years (2024-
2029) incidental to construction of the Empire Wind Project offshore 
New York in a designated lease area on the Outer Continental Shelf 
(OCS-A-512). Project activities likely to result in incidental take 
include impact pile driving, vibratory pile driving and removal, and 
site assessment surveys using high-resolution geophysical (HRG) 
equipment. As required by the Marine Mammal Protection Act (MMPA), NMFS 
requests comments on its proposed rule. NMFS will consider public 
comments prior to making any final decision on the promulgation of the 
requested incidental take authorization (ITA) and issuance of the LOA; 
agency responses to public comments will be summarized in the final 
notice of our decision. The proposed regulations, if issued, would be 
effective January 22, 2024, through January 21, 2029.

DATES: Comments and information must be received no later than May 15, 
2023.

ADDRESSES: Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to www.regulations.gov and enter NOAA-NMFS-2023-
0053 in the Search box. Click on the ``Comment'' icon, complete the 
required fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, 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 proposed rule, if issued, would provide a framework under 
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 Bureau of Ocean Energy Management 
(BOEM) Renewable Energy Lease Area OCS-A 512 and along export cable 
corridors to two landfall locations in New York. NMFS received a 
request from Empire Wind requesting 5-year regulations and a LOA that 
would authorize take of individuals of 17 species of marine mammals 
(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 is anticipated 
or proposed for authorization. Please see the Estimated Take of Marine 
Mammals section for definitions of harassment.

Legal Authority for the Proposed Action

    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 required), 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. The definitions of all applicable MMPA 
statutory terms cited above are included below.
    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 five-year regulations 
and associated LOA. As directed by this legal authority, this proposed 
rule also establishes required mitigation, monitoring, and reporting 
requirements for Empire Wind's activities.

Summary of Major Provisions Within the Proposed Rule

    The major provisions within this proposed rule are as follows:
     Establish a seasonal moratorium on impact pile driving 
during the months of highest North Atlantic right whale (Eubalaena 
glacialis) presence in the project area (January 1-April 30);
     Require both visual and passive acoustic monitoring by 
trained, NOAA Fisheries-approved Protected Species Observers (PSOs) and 
Passive Acoustic Monitoring (PAM) operators before, during, and after 
the in-water construction activities;
     Require the use of sound attenuation device(s) during all 
impact pile driving to reduce noise levels;
     Delay the start of pile driving if a North Atlantic right 
whale is observed at any distance by PSOs or acoustically detected;
     Delay the start of pile driving if other marine mammals 
are observed entering or within their respective clearance zones;

[[Page 22697]]

     Shut down pile driving (if feasible) if a North Atlantic 
right whale is observed or if other marine mammals enter their 
respective shut down zones;
     Implement sound field verification requirements during 
impact pile driving to measure in situ noise levels for comparison 
against the model results;
     Implement soft-starts for impact pile driving and use the 
least hammer energy possible;
     Require PSOs to continue to monitor for the presence of 
marine mammals for 30 minutes after any impact pile driving occurs;
     Implement ramp-up for HRG site characterization survey 
equipment;
     Increase 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;
     Implement various vessel strike avoidance measures; and
     Implement best management practices during fisheries 
monitoring surveys such as removing gear from the water if marine 
mammals are considered at-risk or are interacting with gear.
    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 CF 216.106, violations may also result in suspension or 
withdrawal of the Letter of Authorization (LOA) for the project. 
Knowing violations may result in criminal penalties, under Section 
105(b) of the MMPA.

National Environmental Policy Act (NEPA)

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate the review our proposed action (i.e., promulgation 
of regulations and subsequent issuance of a 5-year LOA) and 
alternatives with respect to potential impacts on the human 
environment.
    Accordingly, NMFS proposes to adopt the Bureau of Ocean Energy 
Management's (BOEM's) Environmental Impact Statement (EIS), provided 
our independent evaluation of the document finds that it includes 
adequate information analyzing the effects of promulgating the proposed 
regulations and LOA issuance on the human environment. NMFS is a 
cooperating agency on BOEM's EIS. BOEM's draft EIS (Empire Wind Draft 
Environmental Impact Statement (DEIS) for Commercial Wind Lease OCS-A 
512) was made available for public comment on November 18, 2022 (87 FR 
69330), beginning the 60-day comment period ending on January 17, 2023. 
The draft EIS can be found at: https://www.boem.gov/renewable-energy/state-activities/empire-wind. Additionally, BOEM held three virtual 
public hearings on December 7, 2022, December 13, 2022 and December 15, 
2022.
    Information contained within Empire Wind's ITA application and this 
proposed rule collectively provide the environmental information 
related to these proposed regulations and associated 5-year LOA for 
public review and comment. NMFS will review all comments submitted in 
response to this proposed rule prior to concluding the NEPA process or 
making a final decision on the requested 5-year ITA and LOA.

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).
    Empire Wind's proposed project is listed on the Permitting 
Dashboard (https://www.permits.performance.gov/), where milestones and 
schedules related to the environmental review and permitting for the 
project can be found: https://www.permits.performance.gov/permitting-project/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 Empire Wind Project offshore of New York in 
BOEM Lease Area OCS-A-0512. Empire Wind's request is for the 
incidental, but not intentional, taking of a small number of 17 marine 
mammal species (comprising 18 stocks) by Level B harassment (for all 18 
stocks) and by Level A harassment (for two species or stocks). Neither 
Empire Wind, nor NMFS, expect serious injury or mortality to result 
from the specified activities nor is any proposed for authorization.
    In response to our comments, and following extensive information 
exchange with NMFS, Empire Wind submitted a final, revised application 
on July 28, 2022, that NMFS deemed adequate and complete on August 11, 
2022. In June 2022, new scientific information was released regarding 
marine mammal densities (Robert and Halpin, 2022). In response, Empire 
Wind submitted a final addendum to the application on January 25, 2023, 
which included revised marine mammal densities and take estimates based 
on Roberts and Halpin 2022. The addendum also identified a revision to 
the density calculation methodology. Both of these revisions were 
recommended by NMFS. Empire Wind requests the regulations and 
subsequent LOA be valid for 5 years beginning in the first quarter of 
2024 (January 22) through the first quarter of 2029 (January 21). 
Neither Empire Wind nor NMFS expects serious injury or mortality to 
result from the specified activities. Empire Wind'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 September 9, 2022, NMFS published a notice of receipt (NOR) of 
the application in the Federal Register (87 FR 55409), requesting 
comments and soliciting information related to 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 proposed rulemaking.
    NMFS previously issued three Incidental Harassment Authorizations 
(IHAs) to Equinor and its predecessors for the taking of marine mammals 
incidental to marine site characterization surveys (using HRG 
equipment) of the Empire Wind Lease Area (OCS-A 0512) and cable 
corridors (these were not issued to Empire Wind as this subsidiary of 
Equinor had not yet been established). On April 24, 2018, NMFS issued 
an IHA to Statoil Wind U.S. LLC, effective from April 24, 2018, through 
April 23, 2019 (83 FR 19532; May 3, 2018) which included Lease

[[Page 22698]]

Area OCS-A 512 and associated cable route corridors. Since the initial 
IHA was issued, Statoil Wind U.S. LLC changed the name under which the 
company operates to Equinor. A renewal IHA was issued to Equinor and 
was effective from April 25, 2019 through April 24, 2020 (84 FR 18801) 
which covered the same area. A new IHA was issued to Equinor on 
September 25, 2020 (85 FR 60424) and was effective from September 20, 
2020, to September 19, 2021 which included OCS-A 512 and associated 
cable routes.
    To date, Equinor, the parent company of Empire Wind, has complied 
with all IHA requirements (e.g., mitigation, monitoring, and reporting) 
of these IHAs. Information regarding Equinor's take estimates and 
monitoring results may be found in the Estimated Take of Marine Mammals 
section, and the full 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 to further reduce 
the likelihood of mortalities and serious 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 (87 
FR 46921). Should a final vessel speed rule be issued and become 
effective during the effective period of this ITA (or any other MMPA 
incidental take authorization), the authorization holder would 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 would 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 would remain in place. The responsibility to 
comply with the applicable requirements of any vessel speed rule would 
become effective immediately upon the effective date of any final 
vessel speed rule and, when notice is published of the effective date, 
NMFS would 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 not longer required.

Description of the Specified Activity

Overview

    Empire Wind proposes to construct and operate two offshore wind 
projects within OCS-A 0512: Empire Wind 1 (EW 1; western portion of 
Lease Area) and Empire Wind 2 (EW 2; eastern portion of Lease Area) 
(Figure 1). Combined the two projects would produce a total of 
approximately 2,076 megawatts (MW) of renewable energy to New York. EW 
1 (816 MW) and EW 2 (1,260 MW) will be electrically isolated and 
independent of each other and each will be connected to their own 
points of interconnection (POIs) via individual submarine export cable 
routes.
    Empire Wind's project would 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 would 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 would 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.
Activities Not Considered in Empire Wind's Request for Authorization
    During construction, Empire Wind will receive equipment and 
materials to be staged and loaded onto installation vessels at one or 
more existing third-party port facilities. Empire Wind 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 EW 1. Empire Wind also has leased portions of 
SBMT for EW 1 and EW 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 and would serve the broader offshore 
wind industry in addition to the Empire Wind Project. Empire Wind 
would, therefore, not be the applicant for the authorization of marine 
mammal take incidental to these activities if an authorization for 
incidental take is warranted, and these activities are not analyzed 
further in this proposed rule.
    Empire Wind is not planning on detonating any unexploded ordnance 
(UXO) or munitions and explosives of concern (MEC) during the effective 
period of the proposed rule, if issued. Hence, Empire Wind did not 
analyze or request take associated with this activity as it would not 
occur. Other means of removing UXO/MEC may occur (e.g., lift and 
shift). As UXO/MEC detonation would not occur, it is not discussed 
further in this analysis.

Dates and Duration

    Empire Wind anticipates that activities with the potential to 
result in harassment of marine mammals would occur throughout all five 
years of the proposed regulations which, if promulgated, would be 
effective from January 22, 2024 through January 21, 2029.
    The estimated schedule, including dates and duration, for various 
activities is provided in Table 1. Detailed information about the 
activities themselves may be found in the Detailed Description of the 
Specific Activity subsection.
    Empire Wind anticipates that 96 WTG monopiles will be installed in 
2025 and the remaining 51 WTG monopiles will be installed in 2026. 
Specifically, installation of WTG monopiles is expected to begin in the 
second quarter of 2025 and end in the fourth quarter of 2025 for both 
EW 1 and EW 2. Installation of monopile foundations would resume in EW 
2 in the second quarter of 2026 and end in the fourth quarter of that 
year. OSS foundation installation would occur in 2025 for both EW 1 and 
EW 2; however, topside work on the EW 2 OSS would occur in 2026 and 
2025 and 2026 (EW 2). While Empire Wind currently anticipates adherence 
to this schedule, it is possible

[[Page 22699]]

that foundations could be installed in later time periods (but within 
the 5-year effective period of the LOA) should permitting or scheduling 
delays occur).
    Installation of foundation piles would not occur from January 1-
April 30 in any given year. In addition, impact pile driving is not 
planned from December 1 through December 31 but could only occur if 
unanticipated delays due to weather or technical problems arise that 
necessitate extending pile driving into December in which case Empire 
Wind would notify NOAA Fisheries and BOEM in advance writing by 
September 1 that circumstances are expected to necessitate pile driving 
in December. Given this uncertainty, Empire Wind has included December 
into its analysis to be precautionary; however, pile driving is 
currently planned for May through November. Each monopile pile will 
require up to 3.5 hours of impact pile driving and each pin pile will 
require up to 5 hours of impact pile driving.
    Either cofferdams or casing pipe and goal post installation may 
occur as part of cable landfall activities, but not both. EW 1 cable 
landfall work would occur sometime between Q1 to Q4 in 2024 while EW 2 
cable landfall work would occur sometime between Q1 2024-Q4 2025. 
Depending on the construction method chosen, each cable landfall site 
would require 7-30 days of work. Exact dates and durations could shift 
depending on factors such as weather delays, procurement, or 
contracting issues
    The anticipated activity schedule for all activities is shown in 
Table 1. Empire Wind anticipates that WTGs in EW 1 would become 
operational late in Q2 or early Q3 in 2026 while those in EW 2 would 
become operational in Q4 of 2027. Turbines would be commissioned 
individually by personnel on location, so the number of commissioning 
teams would dictate how quickly turbines would become operational.

              Table 1--Estimated Activity Schedule To Construct and Operate the Empire Wind Project
----------------------------------------------------------------------------------------------------------------
          Project activity               Expected timing EW 1                  Expected timing EW 2
----------------------------------------------------------------------------------------------------------------
Submarine Export Cables............  Q3 2024; Q3 2025...........  Q3-Q4 2025.
Offshore Substation Jacket           Q2 \1\-Q4 2025.............  Q2 \1\-Q4 2025; Q2 \1\-Q4 2026. \2\
 Foundation and Topside.
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          n/a........................  Q4 2024-Q2 2025.
 Construction.
----------------------------------------------------------------------------------------------------------------
Note: Project activities are anticipated to start no earlier than Q1 2024.
\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\ EW 2 OSS jacket installation is planned for 2025, only EW 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

    Empire Wind would conduct activities in state waters and Federal 
waters within the designated Lease Area OCS-A 0512 (which covers 
approximately 321 square kilometers (km\2\; 79,350 acres) and New York 
state waters (See Figure 1)). The Lease Area is located in the New York 
Bight, approximately 14 miles (mi; 12 nautical miles (nm); 22 km) south 
of Long Island, New York, and 19.5 mi (16.9 nm; 31.4 km) east of Long 
Branch, New Jersey. The New York Bight is a section of the northwestern 
Atlantic Ocean that extends along the United States East Coast between 
Cape May, New Jersey in the southwest, to Montauk Point, New York in 
the northeast. It includes the waters over the continental shelf and 
offshore to the shelf break. It is part of the larger Mid-Atlantic 
Bight, which spans from Cape Hatteras, North Carolina to Cape Cod, 
Massachusetts. A number of estuaries drain into the New York Bight and 
provide spawning and nursery areas for many of the diadromous and 
marine species that utilize the New York Bight. Important geological 
features of the area include the Hudson Shelf Valley and Hudson Canyon, 
which provide habitat for deep-sea coral that shelters benthic 
invertebrates and fish. Nutrient-rich water created by water-column 
stratification from spring through fall, known as the cold pool, plays 
an essential role in the ecosystem and supports high biodiversity and 
phytoplankton productivity. The average temperature of the cold pool 
has increased due to changes to ocean circulation. The cold pool has 
been decreasing over the last several decades with the smallest sizes 
associated with warmer years while area fish distributions have shifted 
north or offshore (Zoidis et al., 2021). The geology and geomorphology 
in the New York Bight region are diverse with glacial deposits as a 
result of the Pleistocene Epoch sea level falls and rises, and more 
recent Flandrian transgression of sea level (Messina and Stoffer, 
1996). Analysis of geophysical and geotechnical survey data collected 
across the Lease Area indicates the current geological conditions 
underlying the Lease Area are generally flat.
    Water depths vary within the Lease Area from 24 m (78 ft) to 44 m 
(144 ft), with deeper water depths in the southeast portion of the 
Lease Area. From June to September, the average temperature of the 
upper (10-15 m) water column is higher, which can lead to a surface 
layer of increased sound speeds (Kusel et al. 2022). This creates a 
downward refracting environment in which propagating sound interacts 
with the seafloor more than in a well-mixed environment. Increased wind 
mixing combined with a decrease in solar energy during winter, from 
December through March, results in a sound speed profile that is more 
uniform with depth.
    Sediments in the project area are characterized as predominantly 
sands and fine sands in the New York Bight area, which includes the 
Lease Area and most of the submarine export cable routes, to 
predominantly clays and silts in New York Bay, which includes a section 
of the EW 1 submarine export cable route. Impact pile driving would 
occur in a continental shelf environment characterized by predominantly 
fine to coarse grained sandy seabed sediments, with some clay content.
    The EW 1 submarine export cable route exits the Lease Area from the 
northwestern edge of the Lease Area and will travel northwest through 
Raritan Bay to the EW 1 export cable landfall in

[[Page 22700]]

Brooklyn, New York. Current geological conditions underlying the EW 1 
submarine export cable route trend with shoaling towards the shore, and 
with more significant variation in the bathymetry closer to shore, 
where dredging patterns influence the seabed. Water depths vary along 
the EW 1 submarine export cable route from 5.9 m (19.4 ft) to 31.7 m 
(104.0 ft). Several channels exist along the submarine export cable 
route, both natural and anthropogenic. The general gradient along the 
cable is less than 1 degree, although isolated gradients of up to five 
degrees exist along the near shore portion of the route.
    The EW 2 submarine export cable route exits the Lease Area from the 
central portion of the Lease Area and travels in a northwestern 
direction in a relatively straight line until turning north to the EW 2 
export cable landfall in Long Beach, New York. Conditions along the EW 
2 submarine export cable route exhibit a general trend of shoaling 
towards the shore. Water depth variations range, in the current 
surveyed and interpreted portion of the route, from 21.5 m (70 ft) to 
35.5 m (116 ft). The slope gradient along the EW 2 submarine export 
cable route reaches a maximum of 1 degree.
    Impact pile driving activities to install monopile and the piled 
jacket foundations will occur within the proposed WTG and offshore 
substation layout within EW 1 (Figure 3 in application). The WTGs and 
offshore substations will be located in the Wind Farm Development Area 
(WFDA), which is a subset of the Lease Area. EW 1 is located in the 
northwest portion of the WFDA. Additionally, impact pile driving 
activities to install monopile and the piled jacket foundations will 
occur within the proposed WTG and offshore substation layout within EW 
2 (Figure 3 in application). EW 2 is located in the southeast portion 
of the WFDA.
    Cable Landfall activities for EW 1 would occur at the South 
Brooklyn Marine Terminal in Brooklyn, NY along the waterfront and 
adjacent to 1st Avenue/2nd Avenue (Figure 1 in Application). The EW 1 
submarine export siting corridor itself begins on the northern edge of 
the EW 1 portion of the WFDA and extends northwest for approximately 40 
nm (74 km). EW 2 landfall locations would occur at one of the following 
locations: Landfall A (Riverside Boulevard); EW 2 Landfall B (Monroe 
Boulevard); EW 2 Landfall C (Lido Beach West Town Park); or Landfall E 
(Laurelton Boulevard). The final location is still being determined. 
The EW 2 submarine export siting corridor itself begins on the 
northwest corner of the EW 2 portion of the WFDA and extends northwest 
for approximately 26 nm (48 km).
    All marina activities, both the berthing pile removal and bulkhead 
work, would be conducted at the Onshore Substation C location along 
inshore Long Island on the Wreck Lead Channel. Wreck Lead Channel 
adjoins Reynolds Channel. Reynolds Channel's median salinity is 30-32 
practical salinity units (PSU) and dissolved oxygen levels range from 
6-12 milligrams per decilitre (mg/dL), decreasing seasonally with 
warming temperatures. The sediments in the New York Bight, outer 
harbor, and barrier islands region are composed primarily of sand, 
gravel, silt, and clay. Currents in the area are minimal and are 
expected to be similar to those reported at Rockaway Inlet, which vary 
between 0.0 and 1.0 knots.
BILLING CODE 3510-22-P

[[Page 22701]]

[GRAPHIC] [TIFF OMITTED] TP13AP23.110

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Below, we provide detailed descriptions of Empire Wind's 
activities, explicitly noting those that are anticipated to result in 
the take of marine mammals and for which incidental take authorization 
is requested. Additionally, a brief explanation is provided for those 
activities that are not expected to result in the take of marine 
mammals.
WTG and OSS Foundation Installation
    As described above, Empire Wind would construct two independent

[[Page 22702]]

projects under these proposed regulations: EW 1 and EW 2. In total, 147 
WTGs would be installed. Turbine size includes either 9.6 or 11-m 
diameter piles driven to a penetration depth of 38 m or 55 m 
respectively. Both of the 9.6-m and 11-m piles would be installed using 
a 5,500 kilojoule (kJ) impact pile driver, although only up to 5,225 kJ 
would be necessary for the 9.6-m piles and up to 2,500 kJ would be used 
for 11-m piles. Empire Wind anticipates installing up to 57 WTG 
monopile foundations and 1 OSS jacket foundation for EW 1 and up to 90 
WTG monopile foundations and 1 OSS jacket foundation for EW 2. Only one 
foundation is proposed to be installed via pile driving at a given time 
(i.e., no concurrent foundation-specific pile driving activities are 
proposed) and there would be no overlap in pile driving activities 
between EW 1 and EW 2. WTGs turbines would be installed in clearly 
marked rows aligned with the dominant trawl directions when feasible. 
Minimum spacing of no less than 0.65 nm (1.2 km) in a north-south 
orientation will be maintained between WTGs. Additionally, the layout 
maintains a 1 nm setback from existing shipping lanes.
    Monopile installation techniques are as follows. Once the 
installation vessel is in place, the steel pile is lifted into a 
vertical position and lowered onto the seabed. The steel pile is then 
driven into the seabed. Pile driving is conducted with the use of a 
large crane mounted hydraulic impact hammer being dropped, or driven, 
onto the top of a foundation pile, and driving it into the ground to a 
penetration depth of up to 38 m for 9.6-m piles and 55 m for 11-m 
piles. Each monopile pile will require a maximum of up to 3.5 hours of 
impact pile driving. All monopiles would be installed using impact 
hammers capable of reaching 5,500 kJ of energy. Typically, 9.6-m piles 
would require a maximum energy level of 2,300 kJ; however, there may be 
positions (up to 17) wherein the pile is difficult to drive due to 
seabed conditions. These difficult-to-drive piles would require hammer 
energies up to 5,225 kJ. Typically, 11-m piles require an energy level 
of up to 2,500 kJ. An additional hammer energy schedule was generated 
for difficult-to-drive monopiles (the difficult-to-drive hammer energy 
schedule was generated only for the 9.6-m diameter scenario as larger 
diameter monopiles could not be driven in difficult-to-drive 
conditions).
    Installation of each monopile will include a 20-minute soft-start 
where lower hammer energy is used at the beginning of each pile 
installation. Following pile driving, the transition piece and 
secondary ancillary equipment are installed onto the steel pile. Only 
one foundation is proposed to be installed via pile driving at a given 
time and there will be no overlap in pile driving activities between EW 
1 and EW 2.
    Installation of the OSS foundations would be similar to WTG 
foundation installation. Pin piles (2.5 m) for jacket foundations would 
be installed via impact driving and would require the installation of 
up to 12 pin piles per OSS. Once the installation vessel is in place, 
the jacket structure is lifted from the vessel and lowered onto the 
seabed. The support piles are placed in the jacket structure and then 
driven into the seabed. The piles will be driven using the same 
methodology as described for monopiles. Each pin pile will require a 
maximum of up to 4.2 hours of impact pile driving. Pin piles at both 
OSSs would require use of a hammer with an energy level of 4,000 kJ. 
However, the maximum energy level would be 3,200 kJ at each location. 
The OSS 1 location would have a penetration depth of 56 m while OSS 2 
would have a penetration depth of 47 m. Installation of each pin pile 
would include a 20-minute soft-start where lower hammer energy is used 
at the beginning of each pile installation. Following pile driving of 
the pin piles, the jacket structure is secured to the driven piles.
    Seabed preparation will include installation of a filter layer 
prior to monopile installation and an armor layer after cable 
installation on each WTG location. The filter layer and armor layer are 
rock layers installed on the seabed to prevent scour due to flow 
increase around the monopiles. This activity would not have any impacts 
on marine mammals.
    Foundation installation is scheduled for May through November in 
2025 and 2026. Pile driving in December would not occur unless 
unforeseen circumstances arise. Foundation installation pile driving 
would not occur January 1-April 30 of any year. Pile driving would 
occur during daylight hours, only extending into night if Empire Wind 
starts installing a pile 1.5 hours prior to civil sunset.
    Installation of WTG monopile foundations and OSS pin piles are 
anticipated to result in the take of marine mammals due to noise 
generated during pile driving. Therefore, Empire Wind has requested, 
and NMFS proposes to authorize, take (by Level A harassment and Level B 
harassment) of marine mammals incidental to foundation installation.
Cable Landfall Construction
    To connect the offshore export cable to the onshore cable, Empire 
Wind proposes to conduct construction related activities at two cable 
landfall sites. The export cable landfall for the EW 1 export cables 
will occur at SBMT, located along the Brooklyn waterfront and adjacent 
to 1st Avenue/2nd Avenue. The cable landfall site for EW2 has not yet 
been chosen but will occur somewhere between Jones Beach to Long Beach, 
NY. Installation of the export cable landfall will be accomplished 
using a horizontal directional drilling (HDD) methodology. HDD 
operations for an export cable landfall originate from an onshore 
landfall location and exit a certain distance offshore, which is 
determined by the water depth contour, as well as total length 
considerations. To support this installation, both onshore and offshore 
work areas are required. The onshore work areas are typically located 
within the landfall parcels. Target transition depths of landfall HDD 
paths vary by the length of the HDD, up to approximately 80 ft (24 m). 
Once the onshore work area is set up, the HDD activities commence using 
a rig that drills a borehole underneath the surface. Once the drill for 
the HDDs exits onto the seafloor, the ducts in which the submarine 
cable will be installed are floated out to sea and then pulled back 
onshore within the drilled borehole. The offshore exit locations 
require some seafloor preparation to collect any drilling fluids that 
localize during HDD completion. Preparation will include excavation of 
pits at each offshore exit location. To facilitate the retaining of 
drilling fluids, Empire Wind may utilize a casing pipe supported by 
goal posts on the exit side from a jack-up barge or cofferdams (but not 
both). The jack-up barge will also house the drill rig.
    If Empire Wind installs temporary cofferdams to facilitate 
transition of the export cable to the onshore cable, up to five 
cofferdams would be required (up to two cofferdams for EW 1 and three 
cofferdams for EW 2). Each cofferdam would be installed using vibratory 
driving over 3 days and removed over 3 days for a total of 6 days for 
each cofferdam (or 30 days total (5 cofferdams x 6 days of pile driving 
per cofferdam)). Empire Wind anticipates only 1 hour of pile driving 
would be required each day (30 hours total). The temporary offshore 
cofferdams will be constructed by installing up to 60 0.61-m (24-inch) 
steel sheet piles per cofferdam in a tight configuration around an area 
of up to 30 m by 30 m (100 ft by 100 ft). A total of up to five

[[Page 22703]]

temporary cofferdams may be constructed (two cofferdams for EW 1 and 
three cofferdams for EW 2). Variation in the final cofferdam design is 
possible, with designs ranging from 30 to 40 sheet piles per cofferdam. 
To be conservative, up to 60 sheet piles per cofferdam have been 
accounted for in the modeling (see Estimated Take of Marine Mammals 
section). Sheet piles would be installed with a vibratory hammer. 
Vibratory pile drivers install piling into the ground by applying a 
rapidly alternating force to the pile. This is generally accomplished 
by rotating eccentric weights about shafts. Each rotating eccentric 
produces a force acting in a single plane and directed toward the 
centerline of the shaft. The weights are set off-center of the axis of 
rotation by the eccentric arm. If only one eccentric is used, in one 
revolution a force will be exerted in all directions, giving the system 
a good deal of lateral whip. To avoid this problem, the eccentrics are 
paired so the lateral forces cancel each other, leaving only axial 
force for the pile.
    Seabed preparation may also be completed with installation of a 
cofferdam for each HDD and an excavation pit to remove material from 
the cofferdam. The pit would likely be excavated using a bucket--there 
are no acoustic impacts from this activity if it were to occur and 
therefore no potential for take.
    An alternative to the use of cofferdams for the cable landfall 
would be the use of a casing pipe supported by up to 3 goal posts. The 
casing pipe at each landfall location would likely be a 42'' pipe 
installed with a pneumatic hammer. Empire Wind estimates it would take 
approximately 4 hours to install the casing pipe with a strike rate of 
180 strikes/minute. Each goal post would consist of two piles for a 
total of 18 piles at each landfall location. Each goal post pile would 
be installed with an impact hammer requiring up to 2,000 strikes per 
pile over 2 hours. In total, up to 36 hours (18 piles x 2 hours per 
pile) of impact pile driving to install three goal posts may occur.
    For the goal post installation process, a barge with necessary 
support equipment is first mobilized and anchored into position. The 
support equipment on the barge will include at least one crane, a 
hydraulic impact hammer mounted at the end of the crane hook or load 
block, and the piles to be driven. An additional crane or similar 
equipment may also be located on the support barge to aid in the 
handling of the goal post piles. For each HDD installation, it is 
estimated that three goal posts will need to be installed to support 
the casing pipe. Therefore, for each HDD installation there could be up 
to ten 12-inch piles. For each goal post, a total of two 12-inch steel 
piles must be driven to complete a single goal post installation, with 
2,000 strikes per pile. The piles are installed by attaching the 
hydraulic hammer to the end of the pile, and lifting the hydraulic 
hammer with the crane, and swinging the pile into place for the goal 
post installation. The hydraulic hammer then drives the pile into the 
subsea floor by repeated percussive blows until the pile reaches a 
sufficient depth where enough strength to support the casing pipe is 
achieved. This process is repeated until all piles necessary for the 
goal post are installed.
HRG Surveys
    Empire Wind would conduct HRG surveys in the EW 1 and EW 2 marine 
environment of the approximately 321 km\2\ (79,350 acres) Lease Area 
and along the submarine export cable route corridors, inter-array cable 
locations, and export cable landfall sites. The HRG survey activities 
will include the following equipment summarized in Table 2, or 
comparable sources. HRG site characterization surveys would occur 
annually throughout the five years the rule and LOA would be effective.
    Empire Wind would conduct HRG surveys within the lease area and the 
export cable corridor, including the cable landfall sites. The 
estimated distance of the daily vessel track line was determined using 
the estimated average speed of the vessel and the 24-hour operational 
period within each of the corresponding survey segments. Empire Wind 
proposes to use up to three vessels to conduct the surveys. The 
estimated daily vessel track for all vessels is approximately 177.792 
km (110.475 mi) for 24-hour operations with a daily ensonified area of 
17.8 km\2\. The number of active survey vessel days ranges from 41 (in 
2024) to 191 (in 2025). There would be an anticipated 483 survey days 
over the 5-year LOA period covering 85,872 km. The duration of each 
survey varies as described in Table 11 in the application. The survey 
schedule is based on 24-hour operations and includes estimated weather 
down time.
    These surveys may utilize active acoustic equipment such as 
multibeam echosounders, side scan sonars, shallow penetration sub-
bottom profilers (SBPs) (e.g., Compressed High-Intensity Radiated 
Pulses (CHIRPs) non-parametric SBP), medium penetration sub-bottom 
profilers (e.g., sparkers and boomers), ultra-short baseline 
positioning equipment, and marine magnetometers, some of which are 
expected to result in the take of marine mammals. Surveys would occur 
annually, with durations dependent on the activities occurring in that 
year (i.e., construction years versus operational years).
    Of the HRG equipment types proposed for use, only Shallow 
penetration sub-bottom profilers (SBPs) have the potential to result in 
take. SBPs would be used to map the near-surface stratigraphy (top 0 to 
5 m (0 to 16 ft) of sediment below seabed). A CHIRP system emits sonar 
pulses that increase in frequency over time. The pulse length frequency 
range can be adjusted to meet project variables. These are typically 
mounted on the hull of the vessel or from a side pole. Boomers and 
sparkers would not be used during HRG surveys.
    Table 2 identifies all the representative survey equipment that 
operate below 180 kilohertz (kHz) (i.e., at frequencies that are 
audible and have the potential to disturb marine mammals) that may be 
used in support of planned geophysical survey activities. Equipment 
with operating frequencies above 180 kHz (e.g., SSS, MBES) and 
equipment that does not have an acoustic output (e.g., magnetometers) 
will also be used but are not discussed further because they are 
outside the general hearing range of marine mammals likely to occur in 
the project area. No harassment exposures can be reasonably expected 
from the operation of these sources; therefore, they are not considered 
further in this proposed action.

                                                 Table 2--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Operating                                        Primary     Pulse duration       Pulse
            Representative HRG equipment \a\                frequencies     RMS source      Peak source      beamwidth     (milliseconds    repetition
                                                               (kHz)           level           level         (degrees)         (ms))           (Hz)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kongsberg HiPAP 501/502 USBL............................          21--31             190             207            Omni               2           0.5-2

[[Page 22704]]

 
iXblue, IxSea GAPS Beacon System........................            8-16             188             194            Omni              10               1
Sonardyne Ranger 2 and Mini Ranger 2 USBL HPT 3000/5/              19-34             200             206            Omni               5               1
 7000...................................................
Reson Seabat T20P multibeam echosounder \a\.............         200-400             221             227              90           0.253  ..............
Reson 7111..............................................             100             224             228               6            1.35  ..............
Kongsberg EM2040Quad....................................         200-400               -               -               -               -  ..............
R2 Sonic 2026...........................................         170-450             191             221               1           1.115  ..............
R2 Sonic 2024...........................................         200-700               -               -               -               -  ..............
Klein 3900 SSS \a\......................................         445-900             200             226             1.8             0.1  ..............
EdgeTech DW106..........................................          1 to 6             194             197            Omni             <66               8
EdgeTech 424 \a\........................................            4-20             180             186             122             4.8  ..............
Innomar, SES-2000 compact...............................          85-115             232             238               4              40               1
Innomar, SES-2000 Light & Light Plus....................          85-115             232             238               4              40               1
Innomar, SES-2000 Standard & Standard Plus..............          85-115             234             240           1-3.5              60             1.5
Innomar, SES-2000 Smart.................................          90-110             229             235               5              40             0.5
Innomar, SES-2000 Medium-70.............................           60-80             240             246               3              40               5
Teledyne Benthos Chirp III-TTV 170......................          2 to 7             219             225             100              60              15
Coda Octopus 3D.........................................         240-300               -               -               -               -              20
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
\a\ Equipment specifications found in the 2016 Crocker and Fratantonio Report. Equipment selected would be the same or similar.
``-'' indicates Empire Wind was unable to provide this information; however, it is not relevant to the analysis herein.

    Based on the operating frequencies of some types of HRG survey 
equipment and the hearing ranges of the marine mammals that have the 
potential to occur in the Project Area, HRG survey activities will have 
the potential to result in Level B harassment of marine mammals. No 
Level A harassment is anticipated as a result of HRG survey activities.
Onshore Substation C Marina Activities
    Construction activities will also be completed to facilitate the 
connection of the cables to Onshore Substation C, located inshore Long 
Island on the Wreck Lead Channel, as shown in Figure 1. Work includes 
removing berthing piles and bulkhead repair. Up to 130 12-inch diameter 
timber berthing piles would be removed using a combination of a crane 
and vibratory hammer, depending on the condition of the piles. Two 
piles would be removed each hour with up to 15 piles per day (7-8 hours 
per day) with approximately 130 piles removed over the course of two 
weeks for a total of approximately 65 hours. Vibratory installation of 
24-inch z-type steel sheet piles would also occur at the marina 
bulkheads, consisting of 20 piles per day, with installation occurring 
for approximately 1 hour of noise generation time per day for 35 days.
    The onshore substation will be used to transform and prepare the 
power received by the export cables from EW 2 for connection to the 
points of interconnection (POIs) in New York. SMBT Vibratory 
installation of sheet piles would also occur at the marina bulkheads, 
consisting of 20 piles per day, with installation occurring for 
approximately 1 hour of noise generation time per day for 35 days for a 
total of 700 sheet piles between Q1-Q4 for EW 1 and EW 2 in 2024 and 
between Q1-Q4 for EW 2 in 2025.
Barnums Channel Cable Bridge Activities
    The cable bridge structure for EW 2 only requires two support 
columns (pile caps) located within the waterway to support the truss 
system, which will hold the cables above water. The support may be 
installed by a hammer, but other methods are under consideration. There 
could be up to six 1.5 ft (0.5 meter) diameter steel pipe piles per cap 
for a total of 12 steel pipe piles. The location is in an inland 
waterway near the Barrett Generation Station in an industrialized 
section of the island, where water depths are only 1 meter, therefore, 
marine mammals, including seals, are not expected. Sightings data 
support this assumption, as no sightings of seals have been recorded in 
the vicinity (OBIS 2023). No take is anticipated from this activity.

Cable Laying and Installation

    Submarine export cables will be installed from specialized 
installation vessels/barges, which will install the cables from a 
turntable on the lay vessel/barge. One or several vessels might be used 
for the installation of the cables depending on a number of factors, 
such as seabed depth, depth of cable protection, distance to shore, and 
cable protection method to be used. There are several cable 
installation and burial methods being considered. Some activities will 
be performed before the installation of the cables, some during the 
installation of the cables, and some after the installation of the 
cables. Cable pre-lay activities may include pre-installation grapnel 
run, route clearance and boulder removal, pre-sweeping, dredging and 
pre-trenching. The cable burial methods being considered are plowing, 
jetting, trenching, and dredging. The equipment selected will depend on 
seabed conditions, the required burial depths, as well as the results 
of various cable burial studies. More than one installation and burial 
method may be selected per route and has the potential to be used pre-
installation, during installation, and/or post-installation.
    Installation of the submarine export cables is expected to take 
approximately four months for the EW 1 submarine export cables and 
approximately four months for the EW 2 submarine export cables. The 
actual installation schedule will be subject to seabed characteristics, 
installation vessel availability, seasonal restriction windows for 
protected species, and weather. Installation of the EW 1 and EW 2 
submarine export cables may occur at the same time; however,

[[Page 22705]]

any overlap in installation activities would not occur at the same 
stage (i.e., pre-installation activities may commence for EW 2 while 
the cable lay and burial for EW 1 is being completed).
    The noise levels generated from cable laying and installation work 
are low so the potential for take of marine mammals to result is 
discountable. Empire Wind is not requesting, and NMFS is not proposing 
to authorize, take associated with cable laying activities. Therefore, 
cable laying activities are not analyzed further in this document.

Vessel Operation

    Multiple vessels will be in use during construction and operations. 
Empire Wind estimates that the Project will require approximately 18 
vessels for construction of EW 1 and approximately 18 vessels for 
construction of EW 2. Vessels including barges, tugboats, crew transfer 
vessels, heavy transport vessels, and various supply vessels are 
expected to be utilized. Helicopters may also be used to provide site 
support (Table 3).

                                            Table 3--Preliminary Summary of Offshore Vessels for Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Foundations                                                     Offshore
-----------------------------------------------------------------------------------                Substation
                                                                                                    Topside &
                                                                                        Wind       Foundation     Submarine    Interarray       Scour
                                                                                      turbines   --------------    Export        Cables      Protection
              Vessel                   Description        Monopile    Piled Jacket                 Substation      Cables
                                                                                                    Topside &
                                                                                                   Foundation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Heavy lift vessel................  Vessel for                     X             X   ............            X   ............  ............  ............
                                    installation of
                                    foundations.
Monopile supply vessel...........  Vessel for                     X   ............  ............  ............  ............  ............  ............
                                    transport of
                                    monopile
                                    foundations.
Wind turbine installation vessel.  Vessel for           ............  ............            X   ............  ............  ............  ............
                                    installation of
                                    wind turbine
                                    components.
Wind turbine supply vessel.......  Vessel for           ............  ............            X   ............  ............  ............  ............
                                    transport of wind
                                    turbine components.
Cable lay vessel/barge...........  Vessel for           ............  ............  ............  ............            X             X   ............
                                    installation of
                                    submarine cables.
Heavy transport vessel...........  Vessel for                     X             X   ............            X   ............  ............  ............
                                    transport of
                                    offshore
                                    substation topside.
Cable lay support vessel.........  Support vessel for   ............  ............  ............  ............            X             X   ............
                                    cable lay
                                    operations.
Pre-lay grapnel run vessel.......  Vessel for seabed    ............  ............  ............  ............            X             X   ............
                                    clearance along
                                    cable routes.
Fall pipe vessel.................  Vessel for                     X             X   ............            X             X             X             X
                                    installation of
                                    scour protection.
Crew transfer vessel.............  Vessel for                     X             X             X             X             X             X   ............
                                    transporting
                                    workers to and
                                    from shore.
                                                                                                 ----------------------------
Accommodation vessel.............  Vessel for worker    ............  ............  ............               X              ............  ............
                                    accommodations.
                                                                                                 ----------------------------
Construction support vessel......  Vessel for general             X             X   ............  ............            X             X   ............
                                    construction
                                    support.
Tugboat..........................  Vessel for                     X             X             X             X             X   ............  ............
                                    transporting and
                                    maneuvering barges.
Barge............................  Vessel for                     X             X             X             X   ............  ............  ............
                                    transport of
                                    construction
                                    materials.
Safety vessel....................  Vessel for                     X             X   ............  ............            X             X   ............
                                    protection of
                                    construction areas.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Fisheries and Benthic Monitoring
    Empire Wind will engage in various fisheries and benthic monitoring 
surveys that have been designed for the Project in accordance with 
recommendations set forth in ``Guidelines for Providing Information on 
Fisheries for Renewable Energy Development on the Atlantic Outer 
Continental Shelf'' (BOEM 2019). Empire Wind would conduct a number of 
surveys including trawl surveys, baited underwater video surveys, and 
hard bottom monitoring surveys.
    Because the gear types and equipment used for benthic habitat 
monitoring, and Habcam surveys do not have components with which marine 
mammals are likely to interact (i.e., become entangled in or hooked 
by), these activities are unlikely to have any impacts on marine 
mammals. Only trawl surveys, in general, have the potential to result 
in harassment to marine mammals. Empire Wind did not propose to 
implement mitigation measures to avoid take of marine mammals 
incidental to trawl surveys; however, NMFS has included them in this 
proposed rule (see Proposed Mitigation). With the implementation of 
those measures, NMFS does not anticipate, and is not proposing to 
authorize, take associated with fisheries and benthic monitoring 
surveys.

Description of Marine Mammals in the Area of Specified Activities

    Thirty-eight marine mammal species under NMFS' jurisdiction have 
geographic ranges within the western North Atlantic OCS (Hayes et al., 
2022). However, for reasons described below, Empire Wind has requested, 
and NMFS proposes to authorize, take of 17 species (comprising 18 
stocks) of marine mammals. Sections 3 and 4 of Empire Wind's 
application summarize available information regarding status and 
trends, distribution and habitat preferences, and behavior and life 
history of the potentially affected species (Empire Wind, 2022). NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions in the application, incorporated here by reference, 
instead of reprinting the information. Additional information regarding 
population trends and threats may be found in NMFS's Stock Assessment 
Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more

[[Page 22706]]

general information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).
    Of the 38 marine mammal species in the Atlantic OCS under NMFS' 
jurisdiction, 21 are not expected to be present or are considered rare 
or unexpected in the project area based on sighting and distribution 
data; they are, therefore, not discussed further beyond the explanation 
provided here. The following species are not expected to occur in the 
project area due to the location of preferred habitat outside the 
Empire Wind project area based on the best scientific information 
available: blue whale (Balaenoptera musculus), dwarf and pygmy sperm 
whales (Kogia sima and K. breviceps), northern bottlenose whale 
(hyperoodon ampullatus), cuvier's beaked whale (Ziphius cavirostris), 
four species of Mesoplodont beaked whales (Mesoplodon densitostris, M. 
europaeus, M. mirus, and M. bidens), killer whale (Orcinus orca), false 
killer whale (Pseudorca crassidens), pygmy killer whale (Feresa 
attenuate), melon-headed whale (Peponocephala electra), white-beaked 
dolphin (Lagenorhynchus albirotris), pantropical spotted dolphin 
(Stenella attenuata), Clymene dolphin (Stenella clymene), striped 
dolphin (Stenella coeruleoalba), spinner dolphin (Stenella 
longirostris), Fraser's dolphin (Lagenodelphis hosei), and rough-
toothed dolphin (Steno bredanensis) and the hooded seal (Cystophora 
cristata).
    In addition, Florida manatees (Trichechus manatus; a sub-species of 
the West Indian manatee) have been previously documented as an 
occasional visitor to the Northeast region during summer months. 
However, manatees are managed by the U.S. Fish and Wildlife Service and 
are not considered further in this document.
    In anticipation of the Empire Wind Project, Equinor (prior to 
establishing its subsidiary, Empire Wind) conducted 12 monthly aerial 
digital surveys of Empire Wind Lease Area OCS-A 0512 in the New York 
Bight between November 2017 and October 2018 using APEM Inc.'s high-
resolution camera system to capture digital still imagery. Raw counts 
and design-based abundance estimates of all species and incidental 
observations recorded during the surveys are presented here as well as 
information on species distribution, flight height and flight 
direction. The key findings from each of the monthly aerial digital 
surveys are summarized below. (Normandeau-APEM, 2019). Common dolphins 
were the most abundant marine mammal species recorded, with a peak 
count (n=68) in the May survey, followed by bottlenose dolphins, with a 
peak raw count (n=22) in the June survey. Harbor porpoises, minke 
whales and a single humpback whale were also recorded, as were three 
unidentified dolphins and three unidentified marine mammals. Marine 
mammals were recorded in peak numbers in spring. Equinor's required 
marine mammal monitoring report as part of HRG surveys covering Lease 
Area OCS-A 0512 and the associate export cable routes from September 
20, 2020 through September 19, 2021 reported sightings of humpback 
whales, bottlenose dolphins, common dolphins, unidentifiable dolphin 
species, and harbor seals. Between April 19, 2019 through July 22, 
2019, Equinor also observed fin whales, humpback whales, unidentified 
whales, common bottlenose dolphins, unidentifiable dolphins, and gray 
seals during HRG surveys. The lack of detections of any of the 22 
species listed above during these surveys reinforces the fact that they 
are not expected to occur in the project area. As these species are not 
expected to occur in the project area during the proposed activities, 
Equinor did not request, and NMFS does not propose to authorize, take 
of these species, and they are not discussed further in this document.
    Table 4 lists all species and stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (16 U.S.C. 1362(20)), as 
described in NMFS's SARs. While no mortality is anticipated or proposed 
to be authorized, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
Table 4 are the most recent available at the time of publication and 
are available in NMFS' final 2021 SARs (Hayes et al., 2022) and draft 
2022 SARs available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.

                   T able 4--Marine Mammal Species Likely To Occur Near the Project Area That May Be Taken by Empire Wind's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             338 (0; 332; 2020) \          0.7        8.1
                                                                                                             5\.
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6,802 (0.24; 5,573;            11        1.8
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian Eastern         -, -, N             21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.           Coastal.                                     2016).
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -, -, Y             1,396 (0; 1,380; 2016)         22      12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 22707]]

 
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Family Delphinidae:
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71; 54,433;         544         27
                                                                                                             2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
Common bottlenose dolphin...........  Tursiops truncatus.....  Western North Atlantic   -, -, N             62,851 (0.23; 51,914;         519         28
                                                                Offshore.                                    2016).
                                                               Migratory Coastal......  -, -, N             6,639 (0.41; 4,759;            48  12.2-21.5
                                                                                                             2016).
    Long-finned pilot whales........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3; 30,627;          306         29
                                                                                                             2016).
    Short-finned pilot whales.......  Globicephala             Western North Atlantic.  -, -, N             28,924 (0.24; 23,637;         236        136
                                       macrorhynchus.                                                        2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             35,215 (0.19; 30,051;         301         34
                                                                                                             2016).
    Common dolphin (short-beaked)...  Delphinus delphis......  Western North Atlantic.  -, -, N             172,897 (0.21;              1,452        390
                                                                                                             145,216; 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31; 74,034;         851         16
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \4\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27,300 (0.22; 22,785;       1,458      4,453
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
    Harp seal \6\...................  Pagophilus               Western North Atlantic.  -, -, N             7,600,000 (UNK,           426,000    178,573
                                       grownlandicus.                                                        7,100,000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments
  (Hayes et al., 2022). CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 451,431. The annual M/SI value given is for the total stock.
\5\ On Monday, October 24, 2022, the North Atlantic Right Whale Consortium announced that the North Atlantic right whale population estimate for 2021
  was 340 individuals. NMFS' website also indicates that less than 350 animals remain (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale whale).
\6\ Harp seals are rare in the region; however, stranding data suggest this species may be present during activities that may take marine mammals.

    As indicated above, all 17 species and 18 stocks in Table 4 
temporally and spatially co-occur with the activity to the degree that 
there is a potential for take. Four of the marine mammal species for 
which take is requested are listed as threatened or endangered under 
the ESA, including North Atlantic right, fin, sei, and sperm whales. In 
addition to what is included in Sections 3 and 4 of Empire Wind's 
application (https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1), the SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), and NMFS' website (https://www.fisheries.noaa.gov/species-directory/marine-mammals), we provide further detail below 
informing the baseline for select species (e.g., information regarding 
current Unusual Mortality Events (UME) and known important habitat 
areas, such as Biologically Important Areas (BIAs) (Van Parijs, 2015). 
There is no ESA-designated critical habitat for any species within the 
project area.
    Under the MMPA, a UME is defined as ``a stranding that is 
unexpected; involves a significant die-off of any marine mammal 
population; and demands immediate response'' (16 U.S.C. 1421h(6)). As 
of January 24, 2023, five UMEs in total are considered active, with 
four of these occurring along the U.S. Atlantic coast for various 
marine mammal species; of these, the most relevant to the Empire Wind 
Project are the right whale, humpback whale, and northeast pinniped 
UMEs, given the prevalence of these species in the project area. More 
information on UMEs, including all active, closed, or pending, can be 
found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events.
    Below we include additional information for a subset of the species 
that presently have an active or recently closed UME occurring along 
the Atlantic coast, or for which there is information available related 
to areas of biological significance. For the majority of species 
potentially present in the specific geographic region, NMFS has 
designated only a single generic stock (e.g., ``western North 
Atlantic'') for management purposes. This includes the ``Canadian east 
coast'' stock of minke whales, which includes all minke whales found in 
U.S. waters and is also

[[Page 22708]]

a generic stock for management purposes. For humpback and sei whales, 
NMFS defines stocks on the basis of feeding locations, i.e., Gulf of 
Maine and Nova Scotia, respectively. However, references to humpback 
whales and sei whales in this document refer to any individuals of the 
species that are found in the specific geographic region. Any areas of 
known biological importance (including the BIAs identified in La 
Brecque et al., 2015) that overlap spatially with the project area are 
addressed in the species sections below.

North Atlantic Right Whale

    The North Atlantic right whale has been listed as Endangered since 
the ESA was enacted in 1973. They were recently uplisted from 
Endangered to Critically Endangered on the International Union for 
Conservation of Nature (IUCN) Red List of Threatened Species (Cooke, 
2020). The uplisting was due to a decrease in population size (Pace et 
al., 2017), an increase in vessel strikes and entanglements in fixed 
fishing gear (Daoust et al., 2017; Davis & Brillant, 2019; Knowlton et 
al., 2012; Knowlton et al., 2022; Moore et al., 2021; Sharp et al., 
2019), and a decrease in birth rate (Pettis et al., 2021; Reed et al., 
2022). The Western Atlantic stock is considered depleted under the MMPA 
(Hayes et al. 2022). There is a recovery plan (NOAA Fisheries 2005) for 
the North Atlantic right whale, and NMFS completed 5-year reviews of 
the species in 2012, 2017, and 2022 which concluded no change to the 
listing status is warranted.
    The North Atlantic right whale population had only a 2.8 percent 
recovery rate between 1990 and 2011, and an overall abundance decline 
of 29.7 percent from 2011-2020 (Hayes et al. 2022). Since 2010, the 
North Atlantic right whale population has been in decline (Pace et al., 
2017; Pace et al., 2021), with a 40 percent decrease in calving rate 
(Kraus et al., 2016; Moore et al., 2021). North Atlantic right whale 
calving rates dropped from 2017 to 2020, with zero births recorded 
during the 2017-2018 season. The 2020-2021 calving season had the first 
substantial calving increase in five years, with 20 calves born, 
followed by 15 calves during the 2021-2022 calving season. However, 
mortalities continue to outpace births, and best estimates indicate 
fewer than 100 reproductively active females remain in the population.
    The project area both spatially and temporally overlaps a portion 
of the migratory corridor BIA within which right whales migrate south 
to calving grounds generally in November and December, followed by a 
northward migration into feeding areas east and north of the project 
area in March and April (LaBrecque et al., 2015; Van Parijs et al., 
2015).
    In late fall (i.e., November), a portion of the right whale 
population (including pregnant females) typically departs the feeding 
grounds in the North Atlantic, moves south along the migratory corridor 
BIA, including through the project area, to right whale calving grounds 
off Georgia and Florida. However, recent research indicates 
understanding of their movement patterns remains incomplete and not all 
of the population undergoes a consistent annual migration (Davis et 
al., 2017; Gowan et al., 2019; Krzystan et al., 2018). The results of 
multistate temporary emigration capture-recapture modeling, based on 
sighting data collected over the past 22 years, indicate that non-
calving females may remain in the feeding grounds, during the winter in 
the years preceding and following the birth of a calf to increase their 
energy stores (Gowen et al., 2019).
    Right whales are anticipated to occur in the proposed survey area 
year-round but with lower levels in the summer from July-September. 
(Estabrook et al., 2021). Recent aerial surveys in the New York Bight 
showed right whales near the proposed survey area with the highest 
sighting rate in spring, followed by winter, preferring deeper waters 
near the shelf break (right whales observed in depths ranging from 33-
1,041 m), but were observed throughout the survey area. No right whales 
were observed in summer months (Normandeau Associates and APEM, 2020; 
Zoidis et al., 2021). Similarly, passive acoustic data collected from 
2018 to 2020 in the New York Bight showed detections of right whales 
throughout the year. During the Year 3 survey period, North Atlantic 
right whales were detected in each month, except in February, March, 
and October 2020, with the most detections occurring in late fall 
through early spring. Seasonally, North Atlantic right whale acoustic 
presence was highest in the fall at sites that were closer to New York 
Harbor and during spring months at sites farthest from the Harbor 
(Zoidis et al., 2021).
    North Atlantic right whales present in the Empire Wind project area 
are primarily migrating through. Some opportunistic foraging may occur 
although core foraging habitat is located north of the project area in 
Southern New England, Gulf of Maine and Gulf of St. Lawrence. Right 
whales feed primarily on the copepod Calanus finmarchicus, a species 
whose availability and distribution has changed both spatially and 
temporally over the last decade due to an oceanographic regime shift 
that has been ultimately linked to climate change (Meyer-Gutbrod et 
al., 2021; Record et al., 2019; Sorochan et al., 2019). This 
distribution change in prey availability has led to shifts in right 
whale habitat-use patterns within the region over the same time period 
(Davis et al., 2020; Meyer-Gutbrod et al., 2022; Quintano-Rizzo et al., 
2021, O'Brien et al., 2022).
    Elevated right whale mortalities have occurred since June 7, 2017, 
along the U.S. and Canadian coast, with the leading category for the 
cause of death for this UME determined to be ``human interaction,'' 
specifically from entanglements or vessel strikes. As of February, 
2023, there have been 36 confirmed mortalities and 22 seriously injured 
free-swimming whales for a total of 58. The UME also considers animals 
with sublethal injury or illness, also known as morbidity cases. There 
have been 39 bringing the total number of whales in the UME to 97. 
2021), likely contributing to smaller body sizes at maturation, making 
them more susceptible to threats and reducing fecundity (Moore et al., 
2021; Reed et al., 2022; Stewart et al., 2022). More information about 
the North Atlantic right whale UME is available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-event.
    NMFS' regulations at 50 CFR part 224.105 designated nearshore 
waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal 
Management Areas (SMAs) for right whales in 2008. These specific SMAs 
were developed to reduce the threat of collisions between ships and 
right whales around their migratory route and calving grounds. The SMA 
southeast of Ports of New York/New Jersey is currently active from 
November 1 through April 30 of each year and may be used by right 
whales for feeding. As noted above, NMFS is proposing changes to the 
North Atlantic right whale speed rule (87 FR 46921; August 1, 2022). In 
addition, Dynamic Management Areas (DMAs) are areas of temporary 
protection established by NOAA Fisheries for particular marine mammal 
species, in an effort to respond to movements of high-risk whale 
species (such as right whale). These DMAs are determined by sighting 
reports made through vessel traffic in the larger Northern Atlantic and 
are communicated through marine communication systems and published on 
their website. The Right Whale Sighting Advisory System, a statutory

[[Page 22709]]

requirement to reduce the risk of right whale collisions, is in place 
for any DMA. As noted above, NMFS is proposing changes to the North 
Atlantic right whale speed rule (87 FR 46921; August 1, 2022).

Fin Whale

    Fin whales typically feed in the Gulf of Maine and the waters 
surrounding New England, but their mating and calving (and general 
wintering) areas are largely unknown (Hain et al. 1992, Hayes et al. 
2022). Recordings from Massachusetts Bay, New York Bight, and deep-
ocean areas have detected some level of fin whale singing from 
September through June (Watkins et al. 1987, Clark and Gagnon 2002, 
Morano et al. 2012). These acoustic observations from both coastal and 
deep-ocean regions support the conclusion that male fin whales are 
broadly distributed throughout the western North Atlantic for most of 
the year (Hayes et al. 2022).
    There are no fin whale BIAs in the immediate vicinity of the 
project area although a small feeding BIA is located approximately 140 
km to the northeast offshore of Montauk Point, from March to October 
(Hain et al., 1992; LaBrecque et al., 2015).

Minke Whale

    Minke whales are among the most widely distributed of all the 
baleen whales. They occur in the North Atlantic and North Pacific, from 
tropical to polar waters. Generally, they inhabit warmer waters during 
winter and travel north to colder regions in summer, while some animals 
migrate as far as the ice edge. There appears to be a strong seasonal 
component to minke whale distribution in the survey areas, in which 
spring to fall are times of relatively widespread and common occurrence 
while during winter the species appears to be largely absent (Waring et 
al., 2016). Recent aerial surveys in the New York Bight area found that 
minke whales were observed throughout the survey area, with highest 
numbers sighting in the spring months (Normandeau Associates and APEM). 
Minke whales are primarily documented near the continental shelf 
offshore of New Jersey (Schwartz, 1962; Mead, 1975; Potter, 1979; 
Rowlett, 1980; Potter, 1984; Winn et al., 1985, DoN, 2005). Acoustic 
recordings of minke whales have been detected north of the Lease survey 
area within the New York Bight during the fall (August to December) and 
winter (February to May) (Biedron et al., 2009). Minke whales are most 
common off New Jersey in coastal waters in the spring and early summer 
as they move north to feeding ground in New England and fall as they 
migrate south (Geo-Marine, 2010). Geo-Marine (2010) observed four minke 
whales near the survey area and surrounding waters during winter and 
spring. A juvenile minke whale was sighted northwest of the Lease 
survey area near the New York Harbor in April 2007 (Hamazaki, 2002). 
Minke whale sightings off the coast of New Jersey were within water 
depths of 36 ft to 79 ft (11 m to 24 m) and temperatures ranging from 
5.4 to 11.5 [deg]C (47 [deg]F) (Geo-Marine, 2010).
    There are no minke whale BIAs in or near the project area. The 
closest is a feeding BIA identified in the southern and southwestern 
section of the Gulf of Maine from March through November, annually 
(LeBrecque et al., 2015). A migratory route for minke whales transiting 
between northern feeding grounds and southern breeding areas may exist 
to the east of the proposed project area, as minke whales may track 
warmer waters along the continental shelf while migrating (Risch et 
al., 2014).
    Since January 2017, elevated minke whale mortalities detected along 
the Atlantic coast from Maine through South Carolina resulted in the 
declaration of a UME. However, that UME is now nonactive with closure 
pending. During the active phase of the UME, a total of 140 strandings 
had been reported with 21 occurring in New York and 11 in New Jersey. 
Previous minke whale UMEs occurred in 2003 and 2005 (NOAA Fisheries 
2018c). Full or partial necropsy examinations were conducted on more 
than 60 percent of the whales. Preliminary findings in several of the 
whales have shown evidence of human interactions or infectious disease, 
but these findings are not consistent across all of the whales 
examined, so more research is needed. More information is available at: 
https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast.

Humpback Whale

    Humpback whales are a cosmopolitan species, found worldwide in all 
oceans, but were listed as endangered under the Endangered Species 
Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced the 
ESCA, and humpbacks continued to be listed as endangered.
    On September 8, 2016, NMFS divided the once single species into 14 
distinct population segments (DPS), removed the species-level listing, 
and, in its place, listed four DPSs as endangered and one DPS as 
threatened (81 FR 62259; September 8, 2016). The remaining nine DPSs 
were not listed. The West Indies DPS, which is not listed under the 
ESA, is the only DPS of humpback whales that is expected to occur in 
the project area. Bettridge et al. (2015) estimated the size of the 
West Indies DPS population at 12,312 (95 percent CI 8,688-15,954) 
whales in 2004-05, which is consistent with previous population 
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; 
Smith et al., 1999) and the increasing trend for the West Indies DPS 
(Bettridge et al., 2015).
    The project area does not overlap any designated critical habitat, 
nor any identified BIAs or other known important areas, for the 
humpback whales. A humpback whale feeding BIA extends throughout the 
Gulf of Maine, Stellwagen Bank, and Great South Channel from May 
through December, annually (LeBrecque et al., 2015). However, this BIA 
is located further east and north of, and thus does not overlap, the 
project area.
    Four decades ago, humpback whales were infrequently sighted off the 
US mid-Atlantic states (USMA, New York, New Jersey, Delaware, Maryland, 
Virginia and North Carolina, CeTAP, 1982), but they are now regular 
visitors. Humpback whales are now frequently seen inside the New York-
New Jersey harbor estuary and in the greater New York Bight (Brown et 
al., 2018, 2019; King et al., 2021; Zoidis et al., 2021; Smith et al., 
2022). Based on a 2012-2018 dataset, mean occurrence was low (2.5 
days), mean occupancy was 37.6 days, and 31.3 percent of whales 
returned from one year to the next (Brown et al., 2022). Sightings of 
mother-calf pairs are rare in the New York Bight Area, suggesting that 
maternally directed fidelity may not be responsible for the presence of 
young whales in this area (Brown et al., 2022).
    Humpback whales belonging to the West Indies DPS typically feed in 
the waters between the Gulf of Maine and Newfoundland during spring, 
summer, and fall, but they have been observed feeding in other areas, 
such as off the coast of New York and New Jersey, including in close-
proximity to the entrance of the Port of New York and New Jersey 
(Sieswerda et al., 2015, Brown et al., 2019).
    Recent aerial surveys in the New York Bight observed humpback 
whales in the spring and winter, but sightings were reported year round 
in the area (Normandeau Associates and APEM, 2020). During 36 line-
transect aerial surveys conducted systematically nearshore out to 120 
nm from March 2017 to February 2020. Humpback whales preferred deeper 
waters near the shelf break, but were observed throughout the area. 
Additionally,

[[Page 22710]]

passive acoustic data recorded humpback whales in the New York Bight 
throughout the year, but the presence was highest in the fall and 
summer months (Estabrook et al., 2021). In addition, recent research 
has demonstrated a higher occurrence and foraging use of the New York 
Bight area by humpback whales than previously known.
    Since January 2016, elevated humpback whale mortalities along the 
Atlantic coast from Maine to Florida led to the declaration of a UME. A 
total of 27 and 36 strandings have been reported in the waters off New 
Jersey and New York, respectively. Partial or full necropsy 
examinations have been conducted on approximately half of the 189 known 
cases (as of February 2023). Of the whales examined, about 50 percent 
had evidence of human interaction, either ship strike or entanglement. 
While a portion of the whales have shown evidence of pre-mortem vessel 
strike, this finding is not consistent across all whales examined and 
more research is needed. NOAA is consulting with researchers that are 
conducting studies on the humpback whale populations, and these efforts 
may provide information on changes in whale distribution and habitat 
use that could provide additional insight into how these vessel 
interactions occurred. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2023-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    Since December 1, 2022, the number of humpback strandings along the 
mid-Atlantic coast, including New York, has been elevated. In some 
cases, the cause of death is not yet known. In others, vessel strike 
has been deemed the cause of death. As the humpback whale population 
has grown, they are seen more often in the Mid-Atlantic. Along the New 
York/New Jersey shore, these whales may be following their prey which 
are reportedly close to shore this winter. These prey also attract fish 
that are of interest to recreational and commercial fishermen. This 
increases the number of boats in these areas. More whales in the water 
in areas traveled by boats of all sizes increases the risk of vessel 
strikes. Vessel strikes and entanglement in fishing gear are the 
greatest human threats to large whales.

Phocid Seals

    Since June 2022, elevated numbers of harbor seal and gray seal 
mortalities have occurred across the southern and central coast of 
Maine. This event has been declared a UME. Preliminary testing of 
samples has found some harbor and gray seals positive for highly 
pathogenic avian influenza. While the UME is not occurring in the 
Empire Wind project area, the populations affected by the UME are the 
same as those potentially affected by the project.
    The above event was preceded by a different UME, occurring from 
2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July 
2018, elevated numbers of harbor seal and gray seal mortalities 
occurred across Maine, New Hampshire, and Massachusetts. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers, therefore the UME investigation 
encompassed all seal strandings from Maine to Virginia. A total of 
3,152 reported strandings (of all species) occurred from July 1, 2018, 
through March 13, 2020. Full or partial necropsy examinations have been 
conducted on some of the seals and samples have been collected for 
testing. Based on tests conducted thus far, the main pathogen found in 
the seals is phocine distemper virus. NMFS is performing additional 
testing to identify any other factors that may be involved in this UME, 
which is pending closure. Information on this UME is available online 
at: www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.
    There are several seal haul-out sites in New York. Harbor seals 
generally predominate in the onshore haul-out sites but gray seals 
intermix and are present as well. There are 26 known haul-out sites on 
Long Island, New York (CRESLI, 2019). During surveys from 2004-2019, a 
total of 18,321 harbor seals were documented using these sites (CRESLI, 
2019). While there are no known haul-out sites directly at or near the 
proposed nearshore activities (i.e., cable landfall construction, 
marine activities), harbor seals will occur throughout the New York 
coastline and have potential to haul out at many beach sites. The only 
known and consistently used gray seal haul out locations are along the 
sandy shoals located closer to Monomoy Refuge and on Nantucket, both in 
Massachusetts (Kenney and Vigness-Raposa 2010). This species has been 
reported with greater frequency in waters south of Cape Cod in recent 
years, likely due to a population rebound in the Mid-Atlantic (Kenney 
and Vigness-Raposa 2010).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 5.

                  Table 5--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).

[[Page 22711]]

 
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Seventeen marine mammal species (14 cetacean species (6 mysticetes and 
8 odontocetes) and 3 pinniped species (both phocid)) have the 
reasonable potential to co-occur with the proposed project activities 
(Table 4).
    NMFS notes that in 2019, Southall et al. recommended new names for 
hearing groups that are widely recognized. However, this new hearing 
group classification does not change the weighting functions or 
acoustic thresholds (i.e., the weighting functions and thresholds in 
Southall et al. (2019) are identical to NMFS 2018 Revised Technical 
Guidance). When NMFS updates our Technical Guidance, we will be 
adopting the updated Southall et al. (2019) hearing group 
classification.

Acoustic Habitat

    Acoustic habitat is defined as distinguishable soundscapes 
inhabited by individual animals or assemblages of species, inclusive of 
both the sounds they create and those they hear (NOAA, 2016). All of 
the sound present in a particular location and time, considered as a 
whole, comprises a ``soundscape'' (Pijanowski et al., 2011). When 
examined from the perspective of the animals experiencing it, a 
soundscape may also be referred to as ``acoustic habitat'' (Clark et 
al., 2009, Moore et al., 2012, Merchant et al., 2015). High value 
acoustic habitats, which vary spectrally, spatially, and temporally, 
support critical life functions (feeding, breeding, and survival) of 
their inhabitants. Thus, it is important to consider acute (e.g., 
stress or missed feeding/breeding opportunities) and chronic effects 
(e.g., masking) of noise on important acoustic habitats. Effects that 
accumulate over long periods can ultimately result in detrimental 
impacts on the individual, stability of a population, or ecosystems 
that they inhabit.

Potential Effects to Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take of Marine Mammals section later in 
this document includes a quantitative analysis of the number of 
individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take of Marine Mammals section, 
and the Proposed Mitigation section, to draw conclusions regarding the 
likely impacts of these activities on the reproductive success or 
survivorship of individuals and how those impacts on individuals are 
likely to impact marine mammal species or stocks. General background 
information on marine mammal hearing was provided previously (see the 
Description of Marine Mammals in the Area of the Specified Activities 
section). Here, the potential effects of sound on marine mammals are 
discussed.
    Empire Wind has requested, and NMFS proposes to authorize, the 
taking of marine mammals incidental to construction activities 
associated with in the EW 1 and EW 2 project area. In their 
application, Empire Wind presented analyses of potential impacts to 
marine mammals from use of acoustic sources. NMFS both carefully 
reviewed the information provided by Empire Wind, as well as 
independently reviewed applicable scientific research and literature 
and other information to evaluate the potential effects of Empire 
Wind's activities on marine mammals.
    The proposed activities would result in placement of up to 147 
permanent monopiles foundations and two OSS jacket foundations in the 
marine environment. There are a variety of the types and degrees of 
effects to marine mammals, prey species, and habitat that could occur 
as a result from the project. Below we provide a brief description of 
the types of sound sources that would be generated by the project, the 
general impacts from these types of activities, and an analysis of the 
anticipated impacts on marine mammals from the project, with 
consideration of the proposed mitigation measures.

Description of Sound Sources

    This section contains a brief technical background on sound, on the 
characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to a discussion of the potential effects of the specified 
activity on marine mammals found later in this document. For general 
information on sound and its interaction with the marine environment, 
please see, e.g., Au and Hastings (2008); Richardson et al. (1995); 
Urick (1983) as well as the Discovery of Sound in the Sea (DOSITS) 
website at https://dosits.org/.
    Sound is a vibration that travels as an acoustic wave through a 
medium such as a gas, liquid or solid. Sound waves alternately compress 
and decompress the medium as the wave travels. These compressions and 
decompressions are detected as changes in pressure by aquatic life and 
man-made sound receptors such as hydrophones (underwater microphones). 
In water, sound waves radiate in a manner similar to ripples on the 
surface of a pond and may be either directed in a beam (narrow beam or 
directional sources) or sound beams may radiate in all directions 
(omnidirectional sources).
    Sound travels in water more efficiently than almost any other form 
of energy, making the use of acoustics ideal for the aquatic 
environment and its inhabitants. In seawater, sound travels at roughly 
1500 meters per second (m/s). In-air, sound waves travel much more 
slowly, at about 340 m/s. However, the speed of sound can vary by a 
small amount based on

[[Page 22712]]

characteristics of the transmission medium, such as water temperature 
and salinity. Sound travels in water more efficiently than almost any 
other form of energy, making the use of acoustics ideal for the aquatic 
environment and its inhabitants. In seawater, sound travels at roughly 
1500 m/s. In-air, sound waves travel much more slowly, at about 340 m/
s. However, the speed of sound can vary by a small amount based on 
characteristics of the transmission medium, such as water temperature 
and salinity.
    The basic components of a sound wave are frequency, wavelength, 
velocity, and amplitude. Frequency is the number of pressure waves that 
pass by a reference point per unit of time and is measured in Hz or 
cycles per second. Wavelength is the distance between two peaks or 
corresponding points of a sound wave (length of one cycle). Higher 
frequency sounds have shorter wavelengths than lower frequency sounds, 
and typically attenuate (decrease) more rapidly, except in certain 
cases in shallower water. The intensity (or amplitude) of sounds are 
measured in decibels (dB), which are a relative unit of measurement 
that is used to express the ratio of one value of a power or field to 
another. Decibels are measured on a logarithmic scale, so a small 
change in dB corresponds to large changes in sound pressure. For 
example, a 10-dB increase is a ten-fold increase in acoustic power. A 
20-dB increase is then a 100-fold increase in power and a 30-dB 
increase is a 1000-fold increase in power. However, a ten-fold increase 
in acoustic power does not mean that the sound is perceived as being 
ten times louder. Decibels are a relative unit comparing two pressures, 
therefore a reference pressure must always be indicated. For underwater 
sound, this is 1 microPascal ([mu]Pa). For in-air sound, the reference 
pressure is 20 microPascal ([mu]Pa). The amplitude of a sound can be 
presented in various ways; however, NMFS typically considers three 
metrics. In this proposed rule, all decibel levels referenced to 
1[mu]Pa.
    Sound exposure level (SEL) represents the total energy in a stated 
frequency band over a stated time interval or event, and considers both 
amplitude and duration of exposure (represented as dB re 1 [mu]Pa\2\-
s). SEL is a cumulative metric; it can be accumulated over a single 
pulse (for pile driving this is often referred to as single-strike SEL; 
SELss), or calculated over periods containing multiple 
pulses (SELcum). Cumulative SEL represents the total energy 
accumulated by a receiver over a defined time window or during an 
event. The SEL metric is useful because it allows sound exposures of 
different durations to be related to one another in terms of total 
acoustic energy. The duration of a sound event and the number of 
pulses, however, should be specified as there is no accepted standard 
duration over which the summation of energy is measured.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Peak sound pressure (also referred to as zero-to-peak sound 
pressure or 0-pk) is the maximum instantaneous sound pressure 
measurable in the water at a specified distance from the source, and is 
represented in the same units as the rms sound pressure. Along with 
SEL, this metric is used in evaluating the potential for PTS (permanent 
threshold shift) and TTS (temporary threshold shift).
    Sounds can be either impulsive or non-impulsive. The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see NMFS et 
al. (2018) and Southall et al. (2007, 2019) for an in-depth discussion 
of these concepts. Impulsive sound sources (e.g., airguns, explosions, 
gunshots, sonic booms, impact pile driving) produce signals that are 
brief (typically considered to be less than one second), broadband, 
atonal transients (ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 
2003) and occur either as isolated events or repeated in some 
succession. Impulsive sounds are all characterized by a relatively 
rapid rise from ambient pressure to a maximal pressure value followed 
by a rapid decay period that may include a period of diminishing, 
oscillating maximal and minimal pressures, and generally have an 
increased capacity to induce physical injury as compared with sounds 
that lack these features. Impulsive sounds are typically intermittent 
in nature.
    Non-impulsive sounds can be tonal, narrowband, or broadband, brief 
or prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-impulsive sounds can be transient 
signals of short duration but without the essential properties of 
pulses (e.g., rapid rise time). Examples of non-impulsive sounds 
include those produced by vessels, aircraft, machinery operations such 
as drilling or dredging, vibratory pile driving, and active sonar 
systems.
    Sounds are also characterized by their temporal component. 
Continuous sounds are those whose sound pressure level remains above 
that of the ambient sound, with negligibly small fluctuations in level 
(NIOSH, 1998; ANSI, 2005), while intermittent sounds are defined as 
sounds with interrupted levels of low or no sound (NIOSH, 1998). NMFS 
identifies Level B harassment thresholds based on if a sound is 
continuous or intermittent.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (ICES, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, and sonar. Vessel noise typically dominates the 
total ambient sound for frequencies between 20 and 300 Hz. In general, 
the frequencies of anthropogenic sounds are below 1 kHz and, if higher 
frequency sound levels are created, they attenuate rapidly.

[[Page 22713]]

    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 dB from day to day (Richardson et al., 1995). The result 
is that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Human-generated sound is a significant contributor to the 
acoustic environment in the project location.

Potential Effects of Underwater Sound on Marine Mammals

    Anthropogenic sounds cover a broad range of frequencies and sound 
levels and can have a range of highly variable impacts on marine life, 
from none or minor to potentially severe responses, depending on 
received levels, duration of exposure, behavioral context, and various 
other factors. Broadly, underwater sound from active acoustic sources 
such as those in the Empire Wind Project can potentially result in one 
or more of the following: temporary or permanent hearing impairment, 
non-auditory physical or physiological effects (e.g., stress), 
behavioral disturbance, and masking (Richardson et al., 1995; Gordon et 
al., 2003; Nowacek et al., 2007; Southall et al., 2007; G[ouml]tz et 
al., 2009). Non-auditory physiological effects or injuries that 
theoretically might occur in marine mammals exposed to high level 
underwater sound or as a secondary effect of extreme behavioral 
reactions (e.g., change in dive profile as a result of an avoidance 
reaction) caused by exposure to sound include neurological effects, 
bubble formation, resonance effects, and other types of organ or tissue 
damage (Cox et al., 2006; Southall et al., 2007; Zimmer and Tyack, 
2007; Tal et al., 2015).
    In general, the degree of effect of an acoustic exposure is 
intrinsically related to the signal characteristics, received level, 
distance from the source, and duration of the sound exposure, in 
addition to the contextual factors of the receiver (e.g., behavioral 
state at time of exposure, age class, etc). In general, sudden, high 
level sounds can cause hearing loss as can longer exposures to lower 
level sounds. Moreover, any temporary or permanent loss of hearing will 
occur almost exclusively for noise within an animal's hearing range. We 
describe below the specific manifestations of acoustic effects that may 
occur based on the activities proposed by Empire Wind.
    Richardson et al. (1995) described zones of increasing intensity of 
effect that might be expected to occur, in relation to distance from a 
source and assuming that the signal is within an animal's hearing 
range. First (at the greatest distance) is the area within which the 
acoustic signal would be audible (potentially perceived) to the animal 
but not strong enough to elicit any overt behavioral or physiological 
response. The next zone (closer to the receiving animal) corresponds 
with the area where the signal is audible to the animal and of 
sufficient intensity to elicit behavioral or physiological 
responsiveness. The third is a zone within which, for signals of high 
intensity, the received level is sufficient to potentially cause 
discomfort or tissue damage to auditory or other systems. Overlaying 
these zones to a certain extent is the area within which masking (i.e., 
when a sound interferes with or masks the ability of an animal to 
detect a signal of interest that is above the absolute hearing 
threshold) may occur; the masking zone may be highly variable in size.
    Below, we provide additional detail regarding potential impacts on 
marine mammals and their habitat from noise in general, as well as from 
the specific activities Empire Wind plans to conduct, to the degree it 
is available (noting that there is limited information regarding the 
impacts of offshore wind construction on marine mammals or cetaceans).
Hearing Threshold Shift
    Marine mammals exposed to high-intensity sound, or to lower-
intensity sound for prolonged periods, can experience hearing threshold 
shift (TS), which NMFS defines as a change, usually an increase, in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range above a previously established reference 
level, expressed in decibels (NMFS, 2018). Threshold shifts can be 
permanent (permanent threshold shift; PTS), in which case there is an 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range, or temporary 
(temporary threshold shift; TTS), in which there is reversible increase 
in the threshold of audibility at a specified frequency or portion of 
an individual's hearing range and the animal's hearing threshold would 
fully recover over time (Southall et al., 2019). Repeated sound 
exposure that leads to TTS could cause PTS.
    When PTS occurs, there can be physical damage to the sound 
receptors in the ear (i.e., tissue damage), whereas TTS represents 
primarily tissue fatigue and is reversible (Henderson et al., 2008). In 
addition, other investigators have suggested that TTS is within the 
normal bounds of physiological variability and tolerance and does not 
represent physical injury (e.g., Ward, 1997; Southall et al., 2019). 
Therefore, NMFS does not consider TTS to constitute auditory injury.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals, and there is no PTS data for cetaceans, but such 
relationships are assumed to be similar to those in humans and other 
terrestrial mammals. Noise exposure can result in either a permanent 
shift in hearing thresholds from baseline (PTS; a 40 dB threshold shift 
approximates a PTS onset; e.g., Kryter et al., 1966; Miller, 1974; 
Henderson et al., 2008) or a temporary, recoverable shift in hearing 
that returns to baseline (a 6 dB threshold shift approximates a TTS 
onset; e.g., Southall et al., 2019). Based on data from terrestrial 
mammals, a precautionary assumption is that the PTS thresholds, 
expressed in the unweighted peak sound pressure level metric (PK), for 
impulsive sounds (such as impact pile driving pulses) are at least 6 dB 
higher than the TTS thresholds and the weighted PTS cumulative sound 
exposure level thresholds are 15 (impulsive sound) to 20 (non-impulsive 
sounds) dB higher than TTS cumulative sound exposure level thresholds 
(Southall et al., 2019). Given the higher level of sound or longer 
exposure duration necessary to cause PTS as compared with TTS, PTS is 
less likely to occur as a result of these activities, but it is 
possible and a small amount has been proposed for authorization for 
several species.
    TTS is the mildest form of hearing impairment that can occur during 
exposure to sound, with a TTS of 6 dB considered the minimum threshold 
shift clearly larger than any day-to-day or session-to-session 
variation in a subject's normal hearing ability (Schlundt et al., 2000; 
Finneran et al., 2000; Finneran et al., 2002). While experiencing TTS, 
the hearing threshold

[[Page 22714]]

rises, and a sound must be at a higher level in order to be heard. In 
terrestrial and marine mammals, TTS can last from minutes or hours to 
days (in cases of strong TTS). In many cases, hearing sensitivity 
recovers rapidly after exposure to the sound ends. There is data on 
sound levels and durations necessary to elicit mild TTS for marine 
mammals but recovery is complicated to predict and dependent on 
multiple factors.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor 
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis)) 
and six species of pinnipeds (northern elephant seal (Mirounga 
angustirostris), harbor seal, ring seal, spotted seal, bearded seal, 
and California sea lion (Zalophus californianus)) that were exposed to 
a limited number of sound sources (i.e., mostly tones and octave-band 
noise with limited number of exposure to impulsive sources such as 
seismic airguns or impact pile driving) in laboratory settings 
(Southall et al., 2019). There is currently no data available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS or 
PTS in marine mammals or for further discussion of TTS or PTS onset 
thresholds, please see Southall et al. (2019), and NMFS (2018).
    Recent studies with captive odontocete species (bottlenose dolphin, 
harbor porpoise, beluga, and false killer whale) have observed 
increases in hearing threshold levels when individuals received a 
warning sound prior to exposure to a relatively loud sound (Nachtigall 
and Supin, 2013, 2015, Nachtigall et al., 2016 a,b,c, Finneran, 2018, 
Nachtigall et al., 2018). These studies suggest that captive animals 
have a mechanism to reduce hearing sensitivity prior to impending loud 
sounds. Hearing change was observed to be frequency dependent and 
Finneran (2018) suggests hearing attenuation occurs within the cochlea 
or auditory nerve. Based on these observations on captive odontocetes, 
the authors suggest that wild animals may have a mechanism to self-
mitigate the impacts of noise exposure by dampening their hearing 
during prolonged exposures of loud sound, or if conditioned to 
anticipate intense sounds (Finneran, 2018, Nachtigall et al., 2018).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
depending on the degree of interference of marine mammals hearing. For 
example, a marine mammal may be able to readily compensate for a brief, 
relatively small amount of TTS in a non-critical frequency range that 
occurs during a time where ambient noise is lower and there are not as 
many competing sounds present. Alternatively, a larger amount and 
longer duration of TTS sustained during time when communication is 
critical (e.g., for successful mother/calf interactions, consistent 
detection of prey) could have more serious impacts.
Behavioral Effects
    Exposure of marine mammals to sound sources can result in, but is 
not limited to, no response or any of the following observable 
responses: Increased alertness; orientation or attraction to a sound 
source; vocal modifications; cessation of feeding; cessation of social 
interaction; alteration of movement or diving behavior; habitat 
abandonment (temporary or permanent); and, in severe cases, panic, 
flight, stampede, or stranding, potentially resulting in death 
(Southall et al., 2007). A review of marine mammal responses to 
anthropogenic sound was first conducted by Richardson (1995). More 
recent reviews (Nowacek et al., 2007; DeRuiter et al., 2012 and 2013; 
Ellison et al., 2012; Gomez et al., 2016; Southall et al., 2021)) 
address studies conducted since 1995 and focused on observations where 
the received sound level of the exposed marine mammal(s) was known or 
could be estimated. Gomez et al. (2016) conducted a review of the 
literature considering the contextual information of exposure in 
addition to received level and found that higher received levels were 
not always associated with more severe behavioral responses and vice 
versa. Southall et al. (2021) states that results demonstrate that some 
individuals of different species display clear yet varied responses, 
some of which have negative implications, while others appear to 
tolerate high levels, and that responses may not be fully predictable 
with simple acoustic exposure metrics (e.g., received sound level). 
Rather, the authors state that differences among species and 
individuals along with contextual aspects of exposure (e.g., behavioral 
state) appear to affect response probability. Behavioral responses to 
sound are highly variable and context-specific. Many different 
variables can influence an animal's perception of and response to 
(nature and magnitude) an acoustic event. An animal's prior experience 
with a sound or sound source affects whether it is less likely 
(habituation) or more likely (sensitization) to respond to certain 
sounds in the future (animals can also be innately predisposed to 
respond to certain sounds in certain ways) (Southall et al., 2019). 
Related to the sound itself, the perceived nearness of the sound, 
bearing of the sound (approaching vs. retreating), the similarity of a 
sound to biologically relevant sounds in the animal's environment 
(i.e., calls of predators, prey, or conspecifics), and familiarity of 
the sound may affect the way an animal responds to the sound (Southall 
et al., 2007; DeRuiter et al., 2013). Individuals (of different age, 
gender, reproductive status, etc.) among most populations will have 
variable hearing capabilities, and differing behavioral sensitivities 
to sounds that will be affected by prior conditioning, experience, and 
current activities of those individuals. Often, specific acoustic 
features of the sound and contextual variables (i.e., proximity, 
duration, or recurrence of the sound or the current behavior that the 
marine mammal is engaged in or its prior experience), as well as 
entirely separate factors such as the physical presence of a nearby 
vessel, may be more relevant to the animal's response than the received 
level alone.
    Overall, the variability of responses to acoustic stimuli depends 
not only on the species receiving the sound and the sound source, but 
also on the social, behavioral, or environmental contexts of exposure 
(e.g., DeRuiter et al., 2012). For example, Goldbogen et al. (2013) 
demonstrated that individual behavioral state was critically important 
in determining response of blue whales to sonar, noting that some 
individuals engaged in deep (greater than 50 m) feeding behavior had 
greater dive responses than those in shallow feeding or non-feeding 
conditions. Some blue whales in the Goldbogen et al. (2013) study that 
were engaged in shallow feeding behavior demonstrated no clear changes 
in diving or movement even when received levels were high (~160 dB re 
1[micro]Pa) for exposures to 3-4 kHz sonar signals, while deep feeding 
and non-feeding whales showed a clear response at exposures at lower 
received levels of sonar and pseudorandom noise. Southall et al. 2011 
found that blue whales had a different response to sonar exposure 
depending on behavioral state, more pronounced when deep

[[Page 22715]]

feeding/travel modes than when engaged in surface feeding.
    With respect to distance influencing disturbance, DeRuiter et al. 
(2013) examined behavioral responses of Cuvier's beaked whales to MF 
sonar and found that whales responded strongly at low received levels 
(89-127 dB re 1[micro]Pa) by ceasing normal fluking and echolocation, 
swimming rapidly away, and extending both dive duration and subsequent 
non-foraging intervals when the sound source was 3.4-9.5 km away. 
Importantly, this study also showed that whales exposed to a similar 
range of received levels (78-106 dB re 1[micro]Pa) from distant sonar 
exercises (118 km away) did not elicit such responses, suggesting that 
context (in this case, distance) may moderate reactions. Thus, distance 
from the source is an important variable in influencing the type and 
degree of behavioral response and this is variable is independent of 
the effect of received levels (e.g., DeRuiter et al., 2013; Dunlop et 
al., 2017a; Dunlop et al., 2017b; Falcone et al., 2017; Dunlop et al., 
2018; Southall et al., 2019).
    Ellison et al. (2012) outlined an approach to assessing the effects 
of sound on marine mammals that incorporates contextual-based factors. 
The authors recommend considering not just the received level of sound, 
but also the activity the animal is engaged in at the time the sound is 
received, the nature and novelty of the sound (i.e., is this a new 
sound from the animal's perspective), and the distance between the 
sound source and the animal. They submit that this ``exposure 
context,'' as described, greatly influences the type of behavioral 
response exhibited by the animal. Forney et al. (2017) also point out 
that an apparent lack of response (e.g., no displacement or avoidance 
of a sound source) may not necessarily mean there is no cost to the 
individual or population, as some resources or habitats may be of such 
high value that animals may choose to stay, even when experiencing 
stress or hearing loss. Forney et al. (2017) recommend considering both 
the costs of remaining in an area of noise exposure such as TTS, PTS, 
or masking, which could lead to an increased risk of predation or other 
threats or a decreased capability to forage, and the costs of 
displacement, including potential increased risk of vessel strike, 
increased risks of predation or competition for resources, or decreased 
habitat suitable for foraging, resting, or socializing. This sort of 
contextual information is challenging to predict with accuracy for 
ongoing activities that occur over large spatial and temporal expanses. 
However, distance is one contextual factor for which data exists to 
potentially quantitatively inform a take estimate. Other factors are 
often considered qualitatively in the analysis of the likely 
consequences of sound exposure, where supporting information is 
available.
    Friedlaender et al. (2016) provided the first integration of direct 
measures of prey distribution and density variables incorporated into 
across-individual analyses of behavior responses of blue whales to 
sonar, and demonstrated a five-fold increase in the ability to quantify 
variability in blue whale diving behavior. These results illustrate 
that responses evaluated without such measurements for foraging animals 
may be misleading, which again illustrates the context-dependent nature 
of the probability of response.
    The following subsections provide examples of behavioral responses 
that give an idea of the variability in behavioral responses that would 
be expected given the differential sensitivities of marine mammal 
species to sound, contextual factors, and the wide range of potential 
acoustic sources to which a marine mammal may be exposed. Behavioral 
responses that could occur for a given sound exposure should be 
determined from the literature that is available for each species, or 
extrapolated from closely related species when no information exists, 
along with contextual factors.
Avoidance and Displacement
    Avoidance is the displacement of an individual from an area or 
migration path as a result of the presence of a sound or other 
stressors and is one of the most obvious manifestations of disturbance 
in marine mammals (Richardson et al., 1995). For example, gray whales 
or humpback whales are known to change direction--deflecting from 
customary migratory paths--in order to avoid noise from airgun surveys 
(Malme et al., 1984; Dunlop et al., 2018). Avoidance is qualitatively 
different from the flight response, but also differs in the magnitude 
of the response (i.e., directed movement, rate of travel, etc.). 
Avoidance may be short-term, with animals returning to the area once 
the noise has ceased (e.g., Bowles et al., 1994; Goold, 1996; Stone et 
al., 2000; Morton and Symonds, 2002; Gailey et al., 2007; D[auml]hne et 
al., 2013; Russel et al., 2016; Malme et al., 1984). Longer-term 
displacement is possible, however, which may lead to changes in 
abundance or distribution patterns of the affected species in the 
affected region if habituation to the presence of the sound does not 
occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et 
al., 2006; Forney et al., 2017). Avoidance of marine mammals during the 
construction of offshore wind facilities (specifically, impact pile 
driving) has been documented previously noted in the literature, with 
some significant variation in the temporal and spatial degree of 
avoidance effects, and with most studies focused on harbor porpoises as 
one of the most common marine mammals in European waters (e.g., 
Tougaard et al., 2009; D[auml]hne et al., 2013; Thompson et al., 2013; 
Russell et al., 2016; Brandt et al., 2018).
    Available information on impacts to marine mammals from pile 
driving associated with offshore wind is limited to information on 
harbor porpoises and seals, as the vast majority of this research has 
occurred at European offshore wind projects where large whales and 
other odontocete species are uncommon. Harbor porpoises and harbor 
seals are considered to be behaviorally sensitive species (e.g., 
Southall et al., 2007) and the effects of wind farm construction in 
Europe on these species has been well documented. These species have 
received particular attention in European waters due to their abundance 
in the North Sea (Hammond et al., 2002; Nachtsheim et al., 2021). A 
summary of the literature on documented effects of wind farm 
construction on harbor porpoise and harbor seals is described below.
    Brandt et al. (2016) summarized the effects of the construction of 
eight offshore wind projects within the German North Sea (i.e., Alpha 
Ventus, BARD Offshore I, Borkum West II, DanTysk, Global Tech I, 
Meerwind S[uuml]d/Ost, Nordsee Ost, and Riffgat) between 2009 and 2013 
on harbor porpoises, combining PAM data from 2010-2013 and aerial 
surveys from 2009-2013 with data on noise levels associated with pile 
driving. Results of the analysis revealed significant declines in 
porpoise detections during pile driving when compared to 25-48 hours 
before pile driving began, with the magnitude of decline during pile 
driving clearly decreasing with increasing distances to the 
construction site. During the majority of projects, significant 
declines in detections (by at least 20 percent) were found within at 
least 5-10 km of the pile driving site, with declines at up to 20-30 km 
of the pile driving site documented in some cases. Similar results 
demonstrating the long-distance displacement of harbor porpoises (18-25 
km) and harbor seals (up to 40 km) during impact pile driving have also 
been observed during the construction at multiple other European wind 
farms

[[Page 22716]]

(Haleters et al., 2015; Lucke et al., 2012; D[auml]hne et al., 2013; 
Tougaard et al., 2009; Bailey et al., 2010).
    While harbor porpoises and seals tend to move several kilometers 
away from wind farm construction activities, the duration of 
displacement has been documented to be relatively temporary. In two 
studies on impact driving at Horns Rev II in the North Sea near 
Denmark, harbor porpoise returned within 1-2 days following cessation 
of pile driving (Tougaard et al., 2009, Brandt et al., 2011). Similar 
recovery periods have been noted for harbor seals off of England during 
the construction of four wind farms (Carroll et al., 2010; Hamre et 
al., 2011; Hastie et al., 2015; Russell et al., 2016; Brasseur et al., 
2010). For example, although there was no significant displacement 
during construction as a whole, Russell et al. (2016) found that 
displacement did occur during active pile driving at predicted received 
levels between 168 and 178 dB re 1[micro]Pa(p-p); however 
seal distribution returned to the pre-piling condition within two hours 
of cessation of pile driving. In some cases, an increase in harbor 
porpoise activity has been documented inside wind farm areas following 
construction (e.g., Lindeboom et al., 2011). Other studies have noted 
longer term impacts after impact pile driving. Near Dogger Bank in 
Germany, harbor porpoises continued to avoid the area for over two 
years after construction began (Gilles et al. 2009). Approximately ten 
years after construction of the Nysted wind farm, harbor porpoise 
abundance had not recovered to the original levels previously seen, 
although the echolocation activity was noted to have been increasing 
when compared to the previous monitoring period (Teilmann and 
Carstensen, 2012). However, overall, there are no indications for a 
population decline of harbor porpoises in European waters (e.g., Brandt 
et al., 2016). Notably, where significant differences in displacement 
and return rates have been identified for these species, the occurrence 
of secondary project-specific influences such as use of mitigation 
measures (e.g., bubble curtains, acoustic deterrent devices (ADDs)) or 
the manner in which species use the habitat in the project area are 
likely the driving factors of this variation.
    NMFS notes the aforementioned studies from Europe involve pile 
driving much smaller piles than Empire Wind proposes to install and 
therefore we anticipate noise levels from impact pile driving to be 
louder. For this reason, we anticipate that the greater distances of 
displacement observed in harbor porpoise and harbor seals documented in 
Europe are likely to occur off of New York. However, we do not 
anticipate any greater severity of response due to harbor porpoise and 
harbor seal habitat use off of New York or population level 
consequences, similar to European findings. In many cases, harbor 
porpoises and harbor seals are resident to the areas where European 
wind farms have been constructed. However, off of New York, harbor 
porpoises are transient (with higher abundances in winter when impact 
pile driving would not occur) and a very small percentage of the large 
harbor seal population are only seasonally present with no rookeries 
established. In summary, we anticipate that harbor porpoise and harbor 
seals will likely respond to pile driving by moving several kilometers 
away from the source but return to typical habitat use patterns when 
pile driving ceases.
    Some avoidance behavior of other marine mammal species has been 
documented to be dependent on distance from the source. As described 
above, DeRuiter et al. (2013) noted that distance from a sound source 
may moderate marine mammal reactions in their study of Cuvier's beaked 
whales (an acoustically sensitive species), which showed the whales 
swimming rapidly and silently away when a sonar signal was 3.4-9.5 km 
away while showing no such reaction to the same signal when the signal 
was 118 km away even though the received levels were similar. Tyack et 
al. (1983) conducted playback studies of SURTASS low frequency active 
(LFA) sonar in a gray whale migratory corridor off California. Similar 
to North Atlantic right whales, gray whales migrate close to shore 
(approximately +2 kms) and are low frequency hearing specialists. The 
LFA sonar source was placed within the gray whale migratory corridor 
(approximately 2 km offshore) and offshore of most, but not all, 
migrating whales (approximately 4 km offshore). These locations 
influenced received levels and distance to the source. For the inshore 
playbacks, not unexpectedly, the louder the source level of the 
playback (i.e., the louder the received level), whale avoided the 
source at greater distances. Specifically, when the source level was 
170 dB rms and 178 dB rms, whales avoided the inshore source at ranges 
of several hundred meters, similar to avoidance responses reported by 
Malme et al. (1983, 1984). Whales exposed to source levels of 185 dB 
rms demonstrated avoidance levels at ranges of +1 km. Responses to the 
offshore source broadcasting at source levels of 185 and 200 dB, 
avoidance responses were greatly reduced. While there was observed 
deflection from course, in no case did a whale abandon its migratory 
behavior.
    The signal context of the noise exposure has been shown to play an 
important role in avoidance responses. In a 2007-2008 Bahamas study, 
playback sounds of a potential predator--a killer whale--resulted in a 
similar but more pronounced reaction in beaked whales (an acoustically 
sensitive species), which included longer inter-dive intervals and a 
sustained straight-line departure of more than 20 km from the area 
(Boyd et al., 2008; Southall et al., 2009; Tyack et al., 2011). Empire 
Wind does not anticipate, and NMFS is not proposing to authorize take 
of beaked whales and, moreover, the sounds produced by Empire Wind do 
not have signal characteristics similar to predators. Therefore we 
would not expect such extreme reactions to occur. Southall et al. 2011 
found that blue whales had a different response to sonar exposure 
depending on behavioral state, more pronounced when deep feeding/travel 
modes than when engaged in surface feeding.
    One potential consequence of behavioral avoidance is the altered 
energetic expenditure of marine mammals because energy is required to 
move and avoid surface vessels or the sound field associated with 
active sonar (Frid and Dill, 2002). Most animals can avoid that 
energetic cost by swimming away at slow speeds or speeds that minimize 
the cost of transport (Miksis-Olds, 2006), as has been demonstrated in 
Florida manatees (Miksis-Olds, 2006). Those energetic costs increase, 
however, when animals shift from a resting state, which is designed to 
conserve an animal's energy, to an active state that consumes energy 
the animal would have conserved had it not been disturbed. Marine 
mammals that have been disturbed by anthropogenic noise and vessel 
approaches are commonly reported to shift from resting to active 
behavioral states, which would imply that they incur an energy cost.
    Forney et al. (2017) detailed the potential effects of noise on 
marine mammal populations with high site fidelity, including 
displacement and auditory masking, noting that a lack of observed 
response does not imply absence of fitness costs and that apparent 
tolerance of disturbance may have population-level impacts that are 
less obvious and difficult to document. Avoidance of overlap between 
disturbing noise and areas and/or times of particular importance for 
sensitive

[[Page 22717]]

species may be critical to avoiding population-level impacts because 
(particularly for animals with high site fidelity) there may be a 
strong motivation to remain in the area despite negative impacts. 
Forney et al. (2017) stated that, for these animals, remaining in a 
disturbed area may reflect a lack of alternatives rather than a lack of 
effects.
    A flight response is a dramatic change in normal movement to a 
directed and rapid movement away from the perceived location of a sound 
source. The flight response differs from other avoidance responses in 
the intensity of the response (e.g., directed movement, rate of 
travel). Relatively little information on flight responses of marine 
mammals to anthropogenic signals exist, although observations of flight 
responses to the presence of predators have occurred (Connor and 
Heithaus, 1996; Frid and Dill, 2002). The result of a flight response 
could range from brief, temporary exertion and displacement from the 
area where the signal provokes flight to, in extreme cases, beaked 
whale strandings (Cox et al., 2006; D'Amico et al., 2009). However, it 
should be noted that response to a perceived predator does not 
necessarily invoke flight (Ford and Reeves, 2008), and whether 
individuals are solitary or in groups may influence the response. 
Flight responses of marine mammals have been documented in response to 
mobile high intensity active sonar (e.g., Tyack et al., 2011; DeRuiter 
et al., 2013; Wensveen et al., 2019), and more severe responses have 
been documented when sources are moving towards an animal or when they 
are surprised by unpredictable exposures (Watkins 1986; Falcone et al., 
2017). Generally speaking, however, marine mammals would be expected to 
be less likely to respond with a flight response to either stationery 
pile driving (which they can sense is stationery and predictable) or 
significantly lower-level HRG surveys, unless they are within the area 
ensonified above behavioral harassment thresholds at the moment the 
source is turned on (Watkins, 1986; Falcone et al., 2017).
Diving and Foraging
    Changes in dive behavior in response to noise exposure can vary 
widely. They may consist of increased or decreased dive times and 
surface intervals as well as changes in the rates of ascent and descent 
during a dive (e.g., Frankel and Clark, 2000; Costa et al., 2003; Ng 
and Leung, 2003; Nowacek et al.; 2004; Goldbogen et al., 2013a, 2013b). 
Variations in dive behavior may reflect interruptions in biologically 
significant activities (e.g., foraging) or they may be of little 
biological significance. Variations in dive behavior may also expose an 
animal to potentially harmful conditions (e.g., increasing the chance 
of ship-strike) or may serve as an avoidance response that enhances 
survivorship. The impact of a variation in diving resulting from an 
acoustic exposure depends on what the animal is doing at the time of 
the exposure, the type and magnitude of the response, and the context 
within which the response occurs (e.g., the surrounding environmental 
and anthropogenic circumstances).
    Nowacek et al. (2004) reported disruptions of dive behaviors in 
foraging North Atlantic right whales when exposed to an alerting 
stimulus, an action, they noted, that could lead to an increased 
likelihood of ship strike. The alerting stimulus was in the form of an 
18 minute exposure that included three 2-minute signals played three 
times sequentially. This stimulus was designed with the purpose of 
providing signals distinct to background noise that serve as 
localization cues. However, the whales did not respond to playbacks of 
either right whale social sounds or vessel noise, highlighting the 
importance of the sound characteristics in producing a behavioral 
reaction. Although source levels for the proposed pile driving 
activities may exceed the received level of the alerting stimulus 
described by Nowacek et al. (2004), proposed mitigation strategies 
(further described in the Proposed Mitigation section) will reduce the 
severity of response to proposed pile driving activities. Converse to 
the behavior of North Atlantic right whales, Indo-Pacific humpback 
dolphins have been observed to dive for longer periods of time in areas 
where vessels were present and/or approaching (Ng and Leung, 2003). In 
both of these studies, the influence of the sound exposure cannot be 
decoupled from the physical presence of a surface vessel, thus 
complicating interpretations of the relative contribution of each 
stimulus to the response. Indeed, the presence of surface vessels, 
their approach, and speed of approach, seemed to be significant factors 
in the response of the Indo-Pacific humpback dolphins (Ng and Leung, 
2003). Low frequency signals of the Acoustic Thermometry of Ocean 
Climate (ATOC) sound source were not found to affect dive times of 
humpback whales in Hawaiian waters (Frankel and Clark, 2000) or to 
overtly affect elephant seal dives (Costa et al., 2003). They did, 
however, produce subtle effects that varied in direction and degree 
among the individual seals, illustrating the equivocal nature of 
behavioral effects and consequent difficulty in defining and predicting 
them.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the cessation of secondary 
indicators of foraging (e.g., bubble nets or sediment plumes), or 
changes in dive behavior. As for other types of behavioral response, 
the frequency, duration, and temporal pattern of signal presentation, 
as well as differences in species sensitivity, are likely contributing 
factors to differences in response in any given circumstance (e.g., 
Croll et al., 2001; Nowacek et al.; 2004; Madsen et al., 2006a; 
Yazvenko et al., 2007; Southall et al., 2019b). An understanding of the 
energetic requirements of the affected individuals and the relationship 
between prey availability, foraging effort and success, and the life 
history stage of the animal can facilitate the assessment of whether 
foraging disruptions are likely to incur fitness consequences 
(Goldbogen et al., 2013; Farmer et al., 2018; Pirotta et al., 2018; 
Southall et al., 2019; Pirotta et al., 2021).
    Impacts on marine mammal foraging rates from noise exposure have 
been documented, though there is little data regarding the impacts of 
offshore turbine construction specifically. Several broader examples 
follow, and it is reasonable to expect that exposure to noise produced 
during the 5-years the proposed rule would be effective could have 
similar impacts.
    Visual tracking, passive acoustic monitoring, and movement 
recording tags were used to quantify sperm whale behavior prior to, 
during, and following exposure to air gun arrays at received levels in 
the range 140-160 dB at distances of 7-13 km, following a phase-in of 
sound intensity and full array exposures at 1-13 km (Madsen et al., 
2006a; Miller et al., 2009). Sperm whales did not exhibit horizontal 
avoidance behavior at the surface. However, foraging behavior may have 
been affected. The sperm whales exhibited 19 percent less vocal (buzz) 
rate during full exposure relative to post exposure, and the whale that 
was approached most closely had an extended resting period and did not 
resume foraging until the air guns had ceased firing. The remaining 
whales continued to execute foraging dives throughout exposure; 
however, swimming movements during foraging dives were six percent 
lower during exposure than control periods (Miller et al., 2009). 
Miller et al. (2009) noted that

[[Page 22718]]

more data are required to understand whether the differences were due 
to exposure or natural variation in sperm whale behavior.
    Balaenopterid whales exposed to moderate low-frequency signals 
similar to the ATOC sound source demonstrated no variation in foraging 
activity (Croll et al., 2001), whereas five out of six North Atlantic 
right whales exposed to an acoustic alarm interrupted their foraging 
dives (Nowacek et al., 2004). Although the received SPLs were similar 
in the latter two studies, the frequency, duration, and temporal 
pattern of signal presentation were different. These factors, as well 
as differences in species sensitivity, are likely contributing factors 
to the differential response. Though the area ensonified by the HRG 
sources is significantly smaller than from construction, the source 
levels of both the proposed construction and HRG activities exceed the 
source levels of the signals described by Nowacek et al., (2004) and 
Croll et al., (2001), and noise generated by Empire Wind's activities 
at least partially overlap in frequency with the described signals. 
Blue whales exposed to mid-frequency sonar in the Southern California 
Bight were less likely to produce low frequency calls usually 
associated with feeding behavior (Melc[oacute]n et al., 2012). However, 
Melc[oacute]n et al. (2012) were unable to determine if suppression of 
low frequency calls reflected a change in their feeding performance or 
abandonment of foraging behavior and indicated that implications of the 
documented responses are unknown. Further, it is not known whether the 
lower rates of calling actually indicated a reduction in feeding 
behavior or social contact since the study used data from remotely 
deployed, passive acoustic monitoring buoys. Results from the 2010-2011 
field season of a behavioral response study in Southern California 
waters indicated that, in some cases and at low received levels, tagged 
blue whales responded to mid-frequency sonar but that those responses 
were mild and there was a quick return to their baseline activity 
(Southall et al., 2011; Southall et al., 2012b, Southall et al., 
2019b).
    Information on or estimates of the energetic requirements of the 
individuals and the relationship between prey availability, foraging 
effort and success, and the life history stage of the animal will help 
better inform a determination of whether foraging disruptions incur 
fitness consequences. Foraging strategies may impact foraging 
efficiency, such as by reducing foraging effort and increasing success 
in prey detection and capture, in turn promoting fitness and allowing 
individuals to better compensate for foraging disruptions. Surface 
feeding blue whales did not show a change in behavior in response to 
mid-frequency simulated and real sonar sources with received levels 
between 90 and 179 dB re 1 [mu]Pa, but deep feeding and non-feeding 
whales showed temporary reactions including cessation of feeding, 
reduced initiation of deep foraging dives, generalized avoidance 
responses, and changes to dive behavior (DeRuiter et al., 2017; 
Goldbogen et al., 2013b; Sivle et al., 2015). Goldbogen et al. (2013b) 
indicate that disruption of feeding and displacement could impact 
individual fitness and health. However, for this to be true, we would 
have to assume that an individual whale could not compensate for this 
lost feeding opportunity by either immediately feeding at another 
location, by feeding shortly after cessation of acoustic exposure, or 
by feeding at a later time. There is no indication that individual 
fitness and health would be impacted, particularly since unconsumed 
prey would likely still be available in the environment in most cases 
following the cessation of acoustic exposure.
    Similarly, while the rates of foraging lunges decrease in humpback 
whales due to sonar exposure, there was variability in the response 
across individuals, with one animal ceasing to forage completely and 
another animal starting to forage during the exposure (Sivle et al., 
2016). In addition, almost half of the animals that demonstrated 
avoidance were foraging before the exposure but the others were not; 
the animals that avoided while not feeding responded at a slightly 
lower received level and greater distance than those that were feeding 
(Wensveen et al., 2017). These findings indicate the behavioral state 
of the animal and foraging strategies play a role in the type and 
severity of a behavioral response. For example, when the prey field was 
mapped and used as a covariate in examining how behavioral state of 
blue whales is influenced by mid-frequency sound, the response in blue 
whale deep-feeding behavior was even more apparent, reinforcing the 
need for contextual variables to be included when assessing behavioral 
responses (Friedlaender et al., 2016).
Vocalizations and Auditory Masking
    Marine mammals vocalize for different purposes and across multiple 
modes, such as whistling, production of echolocation clicks, calling, 
and singing. Changes in vocalization behavior in response to 
anthropogenic noise can occur for any of these modes and may result 
directly from increased vigilance (also see the Potential Effects of 
Behavioral Disturbance on Marine Mammal Fitness section) or a startle 
response, or from a need to compete with an increase in background 
noise (see Erbe et al., 2016 review on communication masking), the 
latter of which is described more below.
    For example, in the presence of potentially masking signals, 
humpback whales and killer whales have been observed to increase the 
length of their songs (Miller et al., 2000; Fristrup et al., 2003; 
Foote et al., 2004) and blue increased song production (Di Iorio and 
Clark, 2009), while North Atlantic right whales have been observed to 
shift the frequency content of their calls upward while reducing the 
rate of calling in areas of increased anthropogenic noise (Parks et 
al., 2007). In some cases, animals may cease or reduce sound production 
during production of aversive signals (Bowles et al., 1994; Thode et 
al., 2020; Cerchio et al., (2014); McDonald et al., (1995)). Blackwell 
et al. (2015) showed that whales increased calling rates as soon as air 
gun signals were detectable before ultimately decreasing calling rates 
at higher received levels.
    Sound can disrupt behavior through masking, or interfering with, an 
animal's ability to detect, recognize, or discriminate between acoustic 
signals of interest (e.g., those used for intraspecific communication 
and social interactions, prey detection, predator avoidance, or 
navigation) (Richardson et al., 1995; Erbe and Farmer, 2000; Tyack, 
2000; Erbe et al., 2016). Masking occurs when the receipt of a sound is 
interfered with by another coincident sound at similar frequencies and 
at similar or higher intensity, and may occur whether the sound is 
natural (e.g., snapping shrimp, wind, waves, precipitation) or 
anthropogenic (e.g., shipping, sonar, seismic exploration) in origin. 
The ability of a noise source to mask biologically important sounds 
depends on the characteristics of both the noise source and the signal 
of interest (e.g., signal-to-noise ratio, temporal variability, 
direction), in relation to each other and to an animal's hearing 
abilities (e.g., sensitivity, frequency range, critical ratios, 
frequency discrimination, directional discrimination, age, or TTS 
hearing loss), and existing ambient noise and propagation conditions. 
Masking these acoustic signals can disturb the behavior of individual 
animals, groups of animals, or entire populations. Masking can lead to 
behavioral changes including vocal changes (e.g., Lombard

[[Page 22719]]

effect, increasing amplitude, or changing frequency), cessation of 
foraging or lost foraging opportunities, and leaving an area, to both 
signalers and receivers, in an attempt to compensate for noise levels 
(Erbe et al., 2016) or because sounds that would typically have 
triggered a behavior were not detected. In humans, significant masking 
of tonal signals occurs as a result of exposure to noise in a narrow 
band of similar frequencies. As the sound level increases, though, the 
detection of frequencies above those of the masking stimulus decreases 
also. This principle is expected to apply to marine mammals as well 
because of common biomechanical cochlear properties across taxa.
    Therefore, when the coincident (masking) sound is man-made, it may 
be considered harassment when disrupting behavioral patterns. It is 
important to distinguish TTS and PTS, which persist after the sound 
exposure, from masking, which only occurs during the sound exposure. 
Because masking (without resulting in threshold shift) is not 
associated with abnormal physiological function, it is not considered a 
physiological effect, but rather a potential behavioral effect.
    The frequency range of the potentially masking sound is important 
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation 
sounds produced by odontocetes but are more likely to affect detection 
of mysticete communication calls and other potentially important 
natural sounds such as those produced by surf and some prey species. 
The masking of communication signals by anthropogenic noise may be 
considered as a reduction in the communication space of animals (e.g., 
Clark et al., 2009; Matthews et al., 2016) and may result in energetic 
or other costs as animals change their vocalization behavior (e.g., 
Miller et al., 2000; Foote et al., 2004; Parks et al., 2007; Di Iorio 
and Clark, 2009; Holt et al., 2009). Masking can be reduced in 
situations where the signal and noise come from different directions 
(Richardson et al., 1995), through amplitude modulation of the signal, 
or through other compensatory behaviors (Houser and Moore, 2014). 
Masking can be tested directly in captive species (e.g., Erbe, 2008), 
but in wild populations it must be either modeled or inferred from 
evidence of masking compensation. There are few studies addressing 
real-world masking sounds likely to be experienced by marine mammals in 
the wild (e.g., Branstetter et al., 2013; Cholewiak et al., 2018).
    The echolocation calls of toothed whales are subject to masking by 
high-frequency sound. Human data indicate low-frequency sound can mask 
high-frequency sounds (i.e., upward masking). Studies on captive 
odontocetes by Au et al. (1974, 1985, 1993) indicate that some species 
may use various processes to reduce masking effects (e.g., adjustments 
in echolocation call intensity or frequency as a function of background 
noise conditions). There is also evidence that the directional hearing 
abilities of odontocetes are useful in reducing masking at the high-
frequencies these cetaceans use to echolocate, but not at the low-to-
moderate frequencies they use to communicate (Zaitseva et al., 1980). A 
study by Nachtigall and Supin (2008) showed that false killer whales 
adjust their hearing to compensate for ambient sounds and the intensity 
of returning echolocation signals.
    Impacts on signal detection, measured by masked detection 
thresholds, are not the only important factors to address when 
considering the potential effects of masking. As marine mammals use 
sound to recognize conspecifics, prey, predators, or other biologically 
significant sources (Branstetter et al., 2016), it is also important to 
understand the impacts of masked recognition thresholds (often called 
``informational masking''). Branstetter et al. (2016) measured masked 
recognition thresholds for whistle-like sounds of bottlenose dolphins 
and observed that they are approximately 4 dB above detection 
thresholds (energetic masking) for the same signals. Reduced ability to 
recognize a conspecific call or the acoustic signature of a predator 
could have severe negative impacts. Branstetter et al. (2016) observed 
that if ``quality communication'' is set at 90 percent recognition the 
output of communication space models (which are based on 50 percent 
detection) would likely result in a significant decrease in 
communication range.
    As marine mammals use sound to recognize predators (Allen et al., 
2014; Cummings and Thompson, 1971; Cur[eacute] et al., 2015; Fish and 
Vania, 1971), the presence of masking noise may also prevent marine 
mammals from responding to acoustic cues produced by their predators, 
particularly if it occurs in the same frequency band. For example, 
harbor seals that reside in the coastal waters off British Columbia are 
frequently targeted by mammal-eating killer whales. The seals 
acoustically discriminate between the calls of mammal-eating and fish-
eating killer whales (Deecke et al., 2002), a capability that should 
increase survivorship while reducing the energy required to attend to 
all killer whale calls. Similarly, sperm whales (Cur[eacute] et al., 
2016; Isojunno et al., 2016), long-finned pilot whales (Visser et al., 
2016), and humpback whales (Cur[eacute] et al., 2015) changed their 
behavior in response to killer whale vocalization playbacks; these 
findings indicate that some recognition of predator cues could be 
missed if the killer whale vocalizations were masked. The potential 
effects of masked predator acoustic cues depends on the duration of the 
masking noise and the likelihood of a marine mammal encountering a 
predator during the time that detection and recognition of predator 
cues are impeded.
    Redundancy and context can also facilitate detection of weak 
signals. These phenomena may help marine mammals detect weak sounds in 
the presence of natural or manmade noise. Most masking studies in 
marine mammals present the test signal and the masking noise from the 
same direction. The dominant background noise may be highly directional 
if it comes from a particular anthropogenic source such as a ship or 
industrial site. Directional hearing may significantly reduce the 
masking effects of these sounds by improving the effective signal-to-
noise ratio.
    Masking affects both senders and receivers of acoustic signals and, 
at higher levels and longer duration, can potentially have long-term 
chronic effects on marine mammals at the population level as well as at 
the individual level. Low-frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, with most of the increase 
from distant commercial shipping (Hildebrand, 2009; Cholewiak et al., 
2018). All anthropogenic sound sources, but especially chronic and 
lower-frequency signals (e.g., from commercial vessel traffic), 
contribute to elevated ambient sound levels, thus intensifying masking.
    In addition to making it more difficult for animals to perceive and 
recognize acoustic cues in their environment, anthropogenic sound 
presents separate challenges for animals that are vocalizing. When they 
vocalize, animals are aware of environmental conditions that affect the 
``active space'' (or communication space) of their vocalizations, which 
is the maximum area within which their vocalizations can be detected 
before it drops to the level of ambient noise (Brenowitz, 2004; Brumm 
et al., 2004; Lohr et al., 2003).

[[Page 22720]]

Animals are also aware of environmental conditions that affect whether 
listeners can discriminate and recognize their vocalizations from other 
sounds, which is more important than simply detecting that a 
vocalization is occurring (Brenowitz, 1982; Brumm et al., 2004; 
Dooling, 2004; Marten and Marler, 1977; Patricelli et al., 2006). Most 
species that vocalize have evolved with an ability to make adjustments 
to their vocalizations to increase the signal-to-noise ratio, active 
space, and recognizability/distinguishability of their vocalizations in 
the face of temporary changes in background noise (Brumm et al., 2004; 
Patricelli et al., 2006). Vocalizing animals can make adjustments to 
vocalization characteristics such as the frequency structure, 
amplitude, temporal structure, and temporal delivery (repetition rate), 
or ceasing to vocalize.
    Many animals will combine several of these strategies to compensate 
for high levels of background noise. Anthropogenic sounds that reduce 
the signal-to-noise ratio of animal vocalizations, increase the masked 
auditory thresholds of animals listening for such vocalizations, or 
reduce the active space of an animal's vocalizations impair 
communication between animals. Most animals that vocalize have evolved 
strategies to compensate for the effects of short-term or temporary 
increases in background or ambient noise on their songs or calls. 
Although the fitness consequences of these vocal adjustments are not 
directly known in all instances, like most other trade-offs animals 
must make, some of these strategies likely come at a cost (Patricelli 
et al., 2006; Noren et al., 2017; Noren et al., 2020). Shifting songs 
and calls to higher frequencies may also impose energetic costs 
(Lambrechts, 1996).
    Marine mammals are also known to make vocal changes in response to 
anthropogenic noise. In cetaceans, vocalization changes have been 
reported from exposure to anthropogenic noise sources such as sonar, 
vessel noise, and seismic surveying (see the following for examples: 
Gordon et al., 2003; Di Iorio and Clark, 2009; Hatch et al., 2012; Holt 
et al., 20098; Holt et al., 2011; Lesage et al., 1999; McDonald et al., 
2009; Parks et al., 2007, Risch et al., 2012, Rolland et al., 2012), as 
well as changes in the natural acoustic environment (Dunlop et al., 
2014). Vocal changes can be temporary, or can be persistent. For 
example, model simulation suggests that the increase in starting 
frequency for the North Atlantic right whale upcall over the last 50 
years resulted in increased detection ranges between right whales. The 
frequency shift, coupled with an increase in call intensity by 20 dB, 
led to a call detectability range of less than 3 km to over 9 km 
(Tennessen and Parks, 2016). Holt et al. (2009) measured killer whale 
call source levels and background noise levels in the one to 40 kHz 
band and reported that the whales increased their call source levels by 
one dB SPL for every one dB SPL increase in background noise level. 
Similarly, another study on St. Lawrence River belugas reported a 
similar rate of increase in vocalization activity in response to 
passing vessels (Scheifele et al., 2005). Di Iorio and Clark (2009) 
showed that blue whale calling rates vary in association with seismic 
sparker survey activity, with whales calling more on days with surveys 
than on days without surveys. They suggested that the whales called 
more during seismic survey periods as a way to compensate for the 
elevated noise conditions.
    In some cases, these vocal changes may have fitness consequences, 
such as an increase in metabolic rates and oxygen consumption, as 
observed in bottlenose dolphins when increasing their call amplitude 
(Holt et al., 2015). A switch from vocal communication to physical, 
surface-generated sounds such as pectoral fin slapping or breaching was 
observed for humpback whales in the presence of increasing natural 
background noise levels, indicating that adaptations to masking may 
also move beyond vocal modifications (Dunlop et al., 2010).
    While these changes all represent possible tactics by the sound-
producing animal to reduce the impact of masking, the receiving animal 
can also reduce masking by using active listening strategies such as 
orienting to the sound source, moving to a quieter location, or 
reducing self-noise from hydrodynamic flow by remaining still. The 
temporal structure of noise (e.g., amplitude modulation) may also 
provide a considerable release from masking through comodulation 
masking release (a reduction of masking that occurs when broadband 
noise, with a frequency spectrum wider than an animal's auditory filter 
bandwidth at the frequency of interest, is amplitude modulated) 
(Branstetter and Finneran, 2008; Branstetter et al., 2013). Signal type 
(e.g., whistles, burst-pulse, sonar clicks) and spectral 
characteristics (e.g., frequency modulated with harmonics) may further 
influence masked detection thresholds (Branstetter et al., 2016; 
Cunningham et al., 2014).
    Masking is more likely to occur in the presence of broadband, 
relatively continuous noise sources such as vessels. Several studies 
have shown decreases in marine mammal communication space and changes 
in behavior as a result of the presence of vessel noise. For example, 
right whales were observed to shift the frequency content of their 
calls upward while reducing the rate of calling in areas of increased 
anthropogenic noise (Parks et al., 2007) as well as increasing the 
amplitude (intensity) of their calls (Parks, 2009; Parks et al., 2011). 
Clark et al. (2009) observed that right whales' communication space 
decreased by up to 84 percent in the presence of vessels. Cholewiak et 
al. (2018) also observed loss in communication space in Stellwagen 
National Marine Sanctuary for North Atlantic right whales, fin whales, 
and humpback whales with increased ambient noise and shipping noise. 
Although humpback whales off Australia did not change the frequency or 
duration of their vocalizations in the presence of ship noise, their 
source levels were lower than expected based on source level changes to 
wind noise, potentially indicating some signal masking (Dunlop, 2016). 
Multiple delphinid species have also been shown to increase the minimum 
or maximum frequencies of their whistles in the presence of 
anthropogenic noise and reduced communication space (for examples see: 
Holt et al., 20098; Holt et al., 2011; Gervaise et al., 2012; Williams 
et al., 2013; Hermannsen et al., 2014; Papale et al., 2015; Liu et al., 
2017). While masking impacts are not a concern from lower intensity, 
higher frequency HRG surveys, some degree of masking would be expected 
in the vicinity of turbine pile driving and concentrated support vessel 
operation. However, pile driving is an intermittent sound and would not 
be continuous throughout a day.
Habituation and Sensitization
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. It is important to note that 
habituation is appropriately considered as a ``progressive reduction in 
response to stimuli that are perceived as neither aversive nor 
beneficial,'' rather than as, more generally, moderation in response to 
human disturbance having a neutral or positive outcome (Bejder et al., 
2009). The opposite process is sensitization, when an unpleasant 
experience leads to subsequent responses, often in the form of 
avoidance, at a lower level of exposure. Both habituation and 
sensitization require an ongoing learning process. As noted, behavioral

[[Page 22721]]

state may affect the type of response. For example, animals that are 
resting may show greater behavioral change in response to disturbing 
sound levels than animals that are highly motivated to remain in an 
area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 
2003; Southall et al., 2019b). Controlled experiments with captive 
marine mammals have shown pronounced behavioral reactions, including 
avoidance of loud sound sources (e.g., Ridgway et al., 1997; Finneran 
et al., 2003; Houser et al., 2013a,b; Kastelein et al., 2018). Observed 
responses of wild marine mammals to loud impulsive sound sources 
(typically airguns or acoustic harassment devices) have been varied but 
often consist of avoidance behavior or other behavioral changes 
suggesting discomfort (Morton and Symonds, 2002; see also Richardson et 
al., 1995; Nowacek et al., 2007; Tougaard et al., 2009; Brandt et al., 
2011, Brandt et al., 2012, D[auml]hne et al., 2013; Brandt et al., 
2014; Russell et al., 2016; Brandt et al., 2018). Stone (2015a) 
reported data from at-sea observations during 1,196 airgun surveys from 
1994 to 2010. When large arrays of airguns (considered to be 500 in 3 
or more) were firing, lateral displacement, more localized avoidance, 
or other changes in behavior were evident for most odontocetes. 
However, significant responses to large arrays were found only for the 
minke whale and fin whale. Behavioral responses observed included 
changes in swimming or surfacing behavior with indications that 
cetaceans remained near the water surface at these times. Behavioral 
observations of gray whales during an air gun survey monitored whale 
movements and respirations pre-, during-, and post-seismic survey 
(Gailey et al., 2016). Behavioral state and water depth were the best 
`natural' predictors of whale movements and respiration and after 
considering natural variation, none of the response variables were 
significantly associated with survey or vessel sounds. Many delphinids 
approach low-frequency airgun source vessels with no apparent 
discomfort or obvious behavioral change (e.g., Barkaszi et al., 2012), 
indicating the importance of frequency output in relation to the 
species' hearing sensitivity.
Physiological Responses
    An animal's perception of a threat may be sufficient to trigger 
stress responses consisting of some combination of behavioral 
responses, autonomic nervous system responses, neuroendocrine 
responses, or immune responses (e.g., Seyle, 1950; Moberg, 2000). In 
many cases, an animal's first and sometimes most economical (in terms 
of energetic costs) response is behavioral avoidance of the potential 
stressor. Autonomic nervous system responses to stress typically 
involve changes in heart rate, blood pressure, and gastrointestinal 
activity. These responses have a relatively short duration and may or 
may not have a significant long-term effect on an animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha, 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficiently to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker, 2000; 
Romano et al., 2002b) and, more rarely, studied in wild populations 
(e.g., Lusseau and Bejder, 2007; Romano et al., 2002a; Rolland et al., 
2012). For example, Rolland et al. (2012) found that noise reduction 
from reduced ship traffic in the Bay of Fundy was associated with 
decreased stress in North Atlantic right whales.
    These and other studies lead to a reasonable expectation that some 
marine mammals will experience physiological stress responses upon 
exposure to acoustic stressors and that it is possible that some of 
these would be classified as ``distress.'' In addition, any animal 
experiencing TTS would likely also experience stress responses (NRC, 
2003, 2017).
    Respiration naturally varies with different behaviors and 
variations in respiration rate as a function of acoustic exposure can 
be expected to co-occur with other behavioral reactions, such as a 
flight response or an alteration in diving. However, respiration rates 
in and of themselves may be representative of annoyance or an acute 
stress response. Mean exhalation rates of gray whales at rest and while 
diving were found to be unaffected by seismic surveys conducted 
adjacent to the whale feeding grounds (Gailey et al., 2007). Studies 
with captive harbor porpoises show increased respiration rates upon 
introduction of acoustic alarms (Kastelein et al., 2001; Kastelein et 
al., 2006a) and emissions for underwater data transmission (Kastelein 
et al., 2005). However, exposure of the same acoustic alarm to a 
striped dolphin under the same conditions did not elicit a response 
(Kastelein et al., 2006a), again highlighting the importance in 
understanding species differences in the tolerance of underwater noise 
when determining the potential for impacts resulting from anthropogenic 
sound exposure.

Potential Effects of Disturbance on Marine Mammal Fitness

    The different ways that marine mammals respond to sound are 
sometimes indicators of the ultimate effect that exposure to a given 
stimulus will have on the well-being (survival, reproduction, etc.) of 
an animal. There is little quantitative marine mammal data relating the 
exposure of marine mammals from sound to effects on reproduction or 
survival, though data exists for terrestrial species to which we can 
draw comparisons for marine mammals. Several authors have reported that 
disturbance stimuli may cause animals to abandon nesting and foraging 
sites (Sutherland and Crockford, 1993); may cause animals to increase 
their activity levels and suffer premature deaths or reduced 
reproductive success when their energy expenditures exceed their energy 
budgets (Daan et al., 1996; Feare, 1976; Mullner et al., 2004); or may 
cause animals to experience higher predation rates when they adopt 
risk-prone foraging or migratory strategies (Frid

[[Page 22722]]

and Dill, 2002). Each of these studies addressed the consequences of 
animals shifting from one behavioral state (e.g., resting or foraging) 
to another behavioral state (e.g., avoidance or escape behavior) 
because of human disturbance or disturbance stimuli.
    Attention is the cognitive process of selectively concentrating on 
one aspect of an animal's environment while ignoring other things 
(Posner, 1994). Because animals (including humans) have limited 
cognitive resources, there is a limit to how much sensory information 
they can process at any time. The phenomenon called ``attentional 
capture'' occurs when a stimulus (usually a stimulus that an animal is 
not concentrating on or attending to) ``captures'' an animal's 
attention. This shift in attention can occur consciously or 
subconsciously (for example, when an animal hears sounds that it 
associates with the approach of a predator) and the shift in attention 
can be sudden (Dukas, 2002; van Rij, 2007). Once a stimulus has 
captured an animal's attention, the animal can respond by ignoring the 
stimulus, assuming a ``watch and wait'' posture, or treat the stimulus 
as a disturbance and respond accordingly, which includes scanning for 
the source of the stimulus or ``vigilance'' (Cowlishaw et al., 2004).
    Vigilance is an adaptive behavior that helps animals determine the 
presence or absence of predators, assess their distance from 
conspecifics, or to attend cues from prey (Bednekoff and Lima, 1998; 
Treves, 2000). Despite those benefits, however, vigilance has a cost of 
time; when animals focus their attention on specific environmental 
cues, they are not attending to other activities such as foraging or 
resting. These effects have generally not been demonstrated for marine 
mammals, but studies involving fish and terrestrial animals have shown 
that increased vigilance may substantially reduce feeding rates (Saino, 
1994; Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and 
Radford, 2011). Animals will spend more time being vigilant, which may 
translate to less time foraging or resting, when disturbance stimuli 
approach them more directly, remain at closer distances, have a greater 
group size (e.g., multiple surface vessels), or when they co-occur with 
times that an animal perceives increased risk (e.g., when they are 
giving birth or accompanied by a calf).
    The primary mechanism by which increased vigilance and disturbance 
appear to affect the fitness of individual animals is by disrupting an 
animal's time budget and, as a result, reducing the time they might 
spend foraging and resting (which increases an animal's activity rate 
and energy demand while decreasing their caloric intake/energy). In a 
study of northern resident killer whales off Vancouver Island, exposure 
to boat traffic was shown to reduce foraging opportunities and increase 
traveling time (Holt et al., 2021). A simple bioenergetics model was 
applied to show that the reduced foraging opportunities equated to a 
decreased energy intake of 18 percent while the increased traveling 
incurred an increased energy output of 3-4 percent, which suggests that 
a management action based on avoiding interference with foraging might 
be particularly effective.
    On a related note, many animals perform vital functions, such as 
feeding, resting, traveling, and socializing, on a diel cycle (24-hr 
cycle). Behavioral reactions to noise exposure (such as disruption of 
critical life functions, displacement, or avoidance of important 
habitat) are more likely to be significant for fitness if they last 
more than one diel cycle or recur on subsequent days (Southall et al., 
2007). Consequently, a behavioral response lasting less than one day 
and not recurring on subsequent days is not considered particularly 
severe unless it could directly affect reproduction or survival 
(Southall et al., 2007). It is important to note the difference between 
behavioral reactions lasting or recurring over multiple days and 
anthropogenic activities lasting or recurring over multiple days. For 
example, just because certain activities last for multiple days does 
not necessarily mean that individual animals will be either exposed to 
those activity-related stressors (i.e., sonar) for multiple days or 
further exposed in a manner that would result in sustained multi-day 
substantive behavioral responses. However, special attention is 
warranted where longer-duration activities overlay areas in which 
animals are known to congregate for longer durations for biologically 
important behaviors.
    As noted above, there are few studies that directly illustrate the 
impacts of disturbance on marine mammal populations. Lusseau and Bejder 
(2007) present data from three long-term studies illustrating the 
connections between disturbance from whale-watching boats and 
population-level effects in cetaceans. In Shark Bay, Australia, the 
abundance of bottlenose dolphins was compared within adjacent control 
and tourism sites over three consecutive 4.5-year periods of increasing 
tourism levels. Between the second and third time periods, in which 
tourism doubled, dolphin abundance decreased by 15 percent in the 
tourism area and did not change significantly in the control area. In 
Fiordland, New Zealand, two populations (Milford and Doubtful Sounds) 
of bottlenose dolphins with tourism levels that differed by a factor of 
seven were observed and significant increases in traveling time and 
decreases in resting time were documented for both. Consistent short-
term avoidance strategies were observed in response to tour boats until 
a threshold of disturbance was reached (average 68 minutes between 
interactions), after which the response switched to a longer-term 
habitat displacement strategy. For one population, tourism only 
occurred in a part of the home range. However, tourism occurred 
throughout the home range of the Doubtful Sound population and once 
boat traffic increased beyond the 68-minute threshold (resulting in 
abandonment of their home range/preferred habitat), reproductive 
success drastically decreased (increased stillbirths) and abundance 
decreased significantly (from 67 to 56 individuals in a short period).
    In order to understand how the effects of activities may or may not 
impact species and stocks of marine mammals, it is necessary to 
understand not only what the likely disturbances are going to be but 
how those disturbances may affect the reproductive success and 
survivorship of individuals and then how those impacts to individuals 
translate to population-level effects. Following on the earlier work of 
a committee of the U.S. National Research Council (NRC, 2005), New et 
al. (2014), in an effort termed the Potential Consequences of 
Disturbance (PCoD), outline an updated conceptual model of the 
relationships linking disturbance to changes in behavior and 
physiology, health, vital rates, and population dynamics. This 
framework is a four-step process progressing from changes in individual 
behavior and/or physiology, to changes in individual health, then vital 
rates, and finally to population-level effects. In this framework, 
behavioral and physiological changes can have direct (acute) effects on 
vital rates, such as when changes in habitat use or increased stress 
levels raise the probability of mother-calf separation or predation; 
indirect and long-term (chronic) effects on vital rates, such as when 
changes in time/energy budgets or increased disease susceptibility 
affect health, which then affects vital rates; or no effect to vital 
rates (New et al., 2014). Since this general framework was outlined and 
the relevant supporting

[[Page 22723]]

literature compiled, multiple studies developing state-space energetic 
models for species with extensive long-term monitoring (e.g., southern 
elephant seals, North Atlantic right whales, Ziphiidae beaked whales, 
and bottlenose dolphins) have been conducted and can be used to 
effectively forecast longer-term, population-level impacts from 
behavioral changes. While these are very specific models with very 
specific data requirements that cannot yet be applied broadly to 
project-specific risk assessments for the majority of species, they are 
a critical first step towards being able to quantify the likelihood of 
a population level effects. Since New et al. (2014), several 
publications have described models developed to examine the long-term 
effects of environmental or anthropogenic disturbance of foraging on 
various life stages of selected species (e.g., sperm whale, Farmer et 
al. (2018); California sea lion, McHuron et al. (2018); blue whale, 
Pirotta et al. (2018a); humpback whale, Dunlop et al. (2021)). These 
models continue to add to refinement of the approaches to the PCoD 
framework. Such models also help identify what data inputs require 
further investigation. Pirotta et al. (2018b) provides a review of the 
PCoD framework with details on each step of the process and approaches 
to applying real data or simulations to achieve each step.
    Despite its simplicity, there are few complete PCoD models 
available for any marine mammal species due to a lack of data available 
to parameterize many of the steps. To date, no PCoD model has been 
fully parameterized with empirical data (Pirotta et al., 2018a) due to 
the fact they are data intensive and logistically challenging to 
complete. Therefore, most complete PCoD models include simulations, 
theoretical modeling, and expert opinion to move through the steps. For 
example, PCoD models have been developed to evaluate the effect of wind 
farm construction on the North Sea harbor porpoise populations (e.g., 
King et al., 2015; Nabe-Nielsen et al., 2018). These models include a 
mix of empirical data, expert elicitation (King et al., 2015) and 
simulations of animals' movements, energetics, and/or survival (New et 
al., 2014; Nabe-Nielsen et al., 2018).
    PCoD models may also be approached in different manners. Dunlop et 
al. (2021) modeled migrating humpback whale mother-calf pairs in 
response to seismic surveys using both a forwards and backwards 
approach. While a typical forwards approach can determine if a stressor 
would have population-level consequences, Dunlop et al. demonstrated 
that working backwards through a PCoD model can be used to assess the 
``worst case'' scenario for an interaction of a target species and 
stressor. This method may be useful for future management goals when 
appropriate data becomes available to fully support the model. In 
another example, harbor porpoise PCoD model investigating the impact of 
seismic surveys on harbor porpoise included an investigation on 
underlying drivers of vulnerability. Harbor porpoise movement and 
foraging were modeled for baseline periods and then for periods with 
seismic surveys as well; the models demonstrated that temporal (i.e., 
seasonal) variation in individual energetics and their link to costs 
associated with disturbances was key in predicting population impacts 
(Gallagher et al., 2021).
    Behavioral change, such as disturbance manifesting in lost foraging 
time, in response to anthropogenic activities is often assumed to 
predict a biologically significant effect on a population of concern. 
However, as described above, individuals may be able to compensate for 
some types and degrees of shifts in behavior, preserving their health 
and thus their vital rates and population dynamics. For example, New et 
al., (2013) developed a model simulating the complex social, spatial, 
behavioral and motivational interactions of coastal bottlenose dolphins 
in the Moray Firth, Scotland, to assess the biological significance of 
increased rate of behavioral disruptions caused by vessel traffic. 
Despite a modeled scenario in which vessel traffic increased from 70 to 
470 vessels a year (a sixfold increase in vessel traffic) in response 
to the construction of a proposed offshore renewables' facility, the 
dolphins' behavioral time budget, spatial distribution, motivations and 
social structure remain unchanged. Similarly, two bottlenose dolphin 
populations in Australia were also modeled over five years against a 
number of disturbances, (Reed et al., 2020) and results indicated that 
habitat/noise disturbance had little overall impact on population 
abundances in either location, even in the most extreme impact 
scenarios modeled. By integrating different sources of data (e.g., 
controlled exposure data, activity monitoring, telemetry tracking, and 
prey sampling) into a theoretical model to predict effects from sonar 
on a blue whale's daily energy intake, Pirotta et al. (2021) found that 
tagged blue whales' activity budgets, lunging rates, and ranging 
patterns caused variability in their predicted cost of disturbance. 
This method may be useful for future management goals when appropriate 
data becomes available to fully support the model. Harbor porpoise 
movement and foraging were modeled for baseline periods and then for 
periods with seismic surveys as well; the models demonstrated that the 
seasonality of the seismic activity was an important predictor of 
impact (Gallagher et al., 2021).
    Nearly all PCoD studies and experts agree that infrequent exposures 
of a single day or less are unlikely to impact individual fitness, let 
alone lead to population level effects (Booth et al., 2016; Booth et 
al., 2017; Christiansen and Lusseau 2015; Farmer et al., 2018; Wilson 
et al., 2020; Harwood and Booth 2016; King et al., 2015; McHuron et 
al., 2018; NAS 2017; New et al., 2014; Pirotta et al., 2018; Southall 
et al., 2007; Villegas-Amtmann et al., 2015). As described through this 
proposed rule, NMFS expects that any behavioral disturbance that would 
occur due to animals being exposed to construction activity would be of 
a relatively short duration, with behavior returning to a baseline 
state shortly after the acoustic stimuli ceases or the animal moves far 
enough away from the source. Given this, and NMFS' evaluation of the 
available PCoD studies, and the required mitigation discussed later, 
any such behavioral disturbance resulting from Empire Wind's activities 
is not expected to impact individual animals' health or have effects on 
individual animals' survival or reproduction, thus no detrimental 
impacts at the population level are anticipated. Marine mammals may 
temporarily avoid the immediate area but are not expected to 
permanently abandon the area or their migratory or foraging behavior. 
Impacts to breeding, feeding, sheltering, resting, or migration are not 
expected nor are shifts in habitat use, distribution, or foraging 
success.

Vessel Strike

    Vessel collisions with marine mammals, also referred to as vessel 
strikes or ship strikes, can result in death or serious injury of the 
animal. Wounds resulting from ship strike may include massive trauma, 
hemorrhaging, broken bones, or propeller lacerations (Knowlton and 
Kraus, 2001). An animal at the surface could be struck directly by a 
vessel, a surfacing animal could hit the bottom of a vessel, or an 
animal just below the surface could be cut by a vessel's propeller. 
Superficial strikes may not kill or result in the death of the animal. 
Lethal interactions are typically associated with large whales, which 
are occasionally found draped across the

[[Page 22724]]

bulbous bow of large commercial ships upon arrival in port. Although 
smaller cetaceans are more maneuverable in relation to large vessels 
than are large whales, they may also be susceptible to strike. The 
severity of injuries typically depends on the size and speed of the 
vessel (Knowlton and Kraus, 2001; Laist et al., 2001; Vanderlaan and 
Taggart, 2007; Conn and Silber, 2013). Impact forces increase with 
speed, as does the probability of a strike at a given distance (Silber 
et al., 2010; Gende et al., 2011).
    The most vulnerable marine mammals are those that spend extended 
periods of time at the surface in order to restore oxygen levels within 
their tissues after deep dives (e.g., the sperm whale). In addition, 
some baleen whales seem generally unresponsive to vessel sound, making 
them more susceptible to vessel collisions (Nowacek et al., 2004). 
These species are primarily large, slow moving whales. Marine mammal 
responses to vessels may include avoidance and changes in dive pattern 
(NRC, 2003).
    An examination of all known ship strikes from all shipping sources 
(civilian and military) indicates vessel speed is a principal factor in 
whether a vessel strike occurs and, if so, whether it results in 
injury, serious injury, or mortality (Knowlton and Kraus, 2001; Laist 
et al., 2001; Jensen and Silber, 2003; Pace and Silber, 2005; 
Vanderlaan and Taggart, 2007; Conn and Silber 2013). In assessing 
records in which vessel speed was known, Laist et al. (2001) found a 
direct relationship between the occurrence of a whale strike and the 
speed of the vessel involved in the collision. The authors concluded 
that most deaths occurred when a vessel was traveling in excess of 13 
knots.
    Jensen and Silber (2003) detailed 292 records of known or probable 
ship strikes of all large whale species from 1975 to 2002. Of these, 
vessel speed at the time of collision was reported for 58 cases. Of 
these 58 cases, 39 (or 67 percent) resulted in serious injury or death 
(19 of those resulted in serious injury as determined by blood in the 
water, propeller gashes or severed tailstock, and fractured skull, jaw, 
vertebrae, hemorrhaging, massive bruising or other injuries noted 
during necropsy and 20 resulted in death). Operating speeds of vessels 
that struck various species of large whales ranged from 2 to 51 knots. 
The majority (79 percent) of these strikes occurred at speeds of 13 
knots or greater. The average speed that resulted in serious injury or 
death was 18.6 knots. Pace and Silber (2005) found that the probability 
of death or serious injury increased rapidly with increasing vessel 
speed. Specifically, the predicted probability of serious injury or 
death increased from 45 to 75 percent as vessel speed increased from 10 
to 14 knots, and exceeded 90 percent at 17 knots. Higher speeds during 
collisions result in greater force of impact and also appear to 
increase the chance of severe injuries or death. While modeling studies 
have suggested that hydrodynamic forces pulling whales toward the 
vessel hull increase with increasing speed (Clyne, 1999; Knowlton et 
al., 1995), this is inconsistent with Silber et al. (2010), which 
demonstrated that there is no such relationship (i.e., hydrodynamic 
forces are independent of speed).
    In a separate study, Vanderlaan and Taggart (2007) analyzed the 
probability of lethal mortality of large whales at a given speed, 
showing that the greatest rate of change in the probability of a lethal 
injury to a large whale as a function of vessel speed occurs between 
8.6 and 15 knots. The chances of a lethal injury decline from 
approximately 80 percent at 15 knots to approximately 20 percent at 8.6 
knots. At speeds below 11.8 knots, the chances of lethal injury drop 
below 50 percent, while the probability asymptotically increases toward 
100 percent above 15 knots.
    The Jensen and Silber (2003) report notes that the Large Whale Ship 
Strike Database represents a minimum number of collisions, because the 
vast majority probably goes undetected or unreported. In contrast, 
Empire Wind's personnel are likely to detect any strike that does occur 
because of the required personnel training and lookouts, along with the 
inclusion of Protected Species Observers (as described in the Proposed 
Mitigation section), and they are required to report all ship strikes 
involving marine mammals.
    Given the extensive mitigation and monitoring measures (see the 
Proposed Mitigation and Proposed Monitoring and Reporting section) that 
would be required of Empire Wind, NMFS believes that a vessel strike is 
not likely to occur.

Potential Effects to Marine Mammal Habitat

    Empire Wind's proposed activities could potentially affect marine 
mammal habitat through the introduction of impacts to the prey species 
of marine mammals (through noise, oceanographic processes, or reef 
effects), acoustic habitat (sound in the water column), water quality, 
and biologically important habitat for marine mammals. NMFS has 
preliminarily determined that the proposed project would not have 
adverse or long-term impacts on marine mammal habitat that would be 
expected to affect the reproduction or survival of any marine mammals.
Effects on Prey
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, and zooplankton). Marine mammal prey varies by 
species, season, and location and, for some, is not well documented. 
Here, we describe studies regarding the effects of noise on known 
marine mammal prey.
    Fish utilize the soundscape and components of sound in their 
environment to perform important functions such as foraging, predator 
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009). 
The most likely effects on fishes exposed to loud, intermittent, low-
frequency sounds are behavioral responses (i.e., flight or avoidance). 
Short duration, sharp sounds (such as pile driving or air guns) can 
cause overt or subtle changes in fish behavior and local distribution. 
The reaction of fish to acoustic sources depends on the physiological 
state of the fish, past exposures, motivation (e.g., feeding, spawning, 
migration), and other environmental factors. Key impacts to fishes may 
include behavioral responses, hearing damage, barotrauma (pressure-
related injuries), and mortality. While it is clear that the behavioral 
responses of individual prey, such as displacement or other changes in 
distribution, can have direct impacts on the foraging success of marine 
mammals, the effects on marine mammals of individual prey that 
experience hearing damage, barotrauma, or mortality is less clear, 
though obviously population scale impacts that meaningfully reduce the 
amount of prey available could have more serious impacts.
    Fishes, like other vertebrates, have a variety of different sensory 
systems to glean information from ocean around them (Astrup and Mohl, 
1993; Astrup, 1999; Braun and Grande, 2008; Carroll et al., 2017; 
Hawkins and Johnstone, 1978; Ladich and Popper, 2004; Ladich and 
Schulz-Mirbach, 2016; Mann, 2016; Nedwell et al., 2004; Popper et al., 
2003; Popper et al., 2005). Depending on their hearing anatomy and 
peripheral sensory structures, which vary among species, fishes hear 
sounds using pressure and particle motion sensitivity capabilities and 
detect the motion of surrounding water (Fay et al., 2008) (terrestrial 
vertebrates generally only detect pressure). Most marine fishes 
primarily detect particle motion using the inner ear and lateral line 
system, while some fishes possess additional morphological

[[Page 22725]]

adaptations or specializations that can enhance their sensitivity to 
sound pressure, such as a gas-filled swim bladder (Braun and Grande, 
2008; Popper and Fay, 2011).
    Hearing capabilities vary considerably between different fish 
species with data only available for just over 100 species out of the 
34,000 marine and freshwater fish species (Eschmeyer and Fong, 2016). 
In order to better understand acoustic impacts on fishes, fish hearing 
groups are defined by species that possess a similar continuum of 
anatomical features which result in varying degrees of hearing 
sensitivity (Popper and Hastings, 2009a). There are four hearing groups 
defined for all fish species (modified from Popper et al., 2014) within 
this analysis and they include: Fishes without a swim bladder (e.g., 
flatfish, sharks, rays, etc.); fishes with a swim bladder not involved 
in hearing (e.g., salmon, cod, pollock, etc.); fishes with a swim 
bladder involved in hearing (e.g., sardines, anchovy, herring, etc.); 
and fishes with a swim bladder involved in hearing and high-frequency 
hearing (e.g., shad and menhaden). A fifth group was designated for 
fish eggs and larvae. Most marine mammal fish prey species would not be 
likely to perceive or hear mid- or high-frequency HRG equipment used by 
Empire Wind during HRG surveys, but would perceive the noise from pile 
driving.
    In terms of behavioral responses, Juanes et al. (2017) discuss the 
potential for negative impacts from anthropogenic noise on fish, but 
the author's focus was on broader based sounds such as ship and boat 
noise sources. Watwood et al. (2016) also documented no behavioral 
responses by reef fish after exposure to mid-frequency active sonar. 
Doksaeter et al. (2009; 2012) reported no behavioral responses to mid-
frequency sonar (such as naval sonar) by Atlantic herring; 
specifically, no escape reactions (vertically or horizontally) were 
observed in free swimming herring exposed to mid-frequency sonar 
transmissions. Based on these results (Doksaeter et al., 2009; 
Doksaeter et al., 2012; Sivle et al., 2012), Sivle et al. (2014) 
created a model in order to report on the possible population-level 
effects on Atlantic herring from active sonar. The authors concluded 
that the use of sonar poses little risk to populations of herring 
regardless of season, even when the herring populations are aggregated 
and directly exposed to sonar. Finally, Bruintjes et al. (2016) 
commented that fish exposed to any short-term noise within their 
hearing range might initially startle, but would quickly return to 
normal behavior.
    Pile-driving noise during construction is of particular concern as 
the very high sound pressure levels could potentially prevent fish from 
reaching breeding or spawning sites, finding food, and acoustically 
locating mates (Mueller-Blenkle et al., 2010). A playback study in West 
Scotland revealed that there was a significant movement response to the 
pile-driving stimulus in both species at relatively low received sound 
pressure levels (sole: 144-156 dB re 1[mu]Pa Peak; cod: 140-161 dB re 1 
[mu]PaPeak, particle motion between 6.51 x 10-3 and 8.62 x1 0-4 m/s2 
peak). Sole showed a significant increase in swimming speed during the 
playback period compared to before and after playback. Cod exhibited a 
similar reaction, yet results were not significant. Cod showed a 
significant freezing response at onset and cessation of playback. There 
were indications of directional movements away from the sound source in 
both species. The results further showed a high variability in 
behavioral reactions across individuals and a decrease of response with 
multiple exposures. During wind farm construction in Eastern Taiwan 
Strait in 2016, fish chorusing intensity and duration during 
construction were investigated. Two different types of fish chorusing 
were found to repeat over a diurnal pattern. In the 2 days after the 
pile driving, one type of chorusing showed lower intensity and longer 
duration, while the second type exhibited higher intensity and no 
changes in its duration. During the operational phases in 2017 and 
2018, both choruses were longer in duration. Fish choruses have been 
associated with several behavioral functions. Deviation from regular 
fish vocalization patterns might affect fish reproductive success, 
cause migration, augmented predation, or physiological alterations 
(Siddagangaiah et al., 2021).
    Occasional behavioral reactions to activities that produce 
underwater noise sources are unlikely to cause long-term consequences 
for individual fish or populations. The most likely impact to fish from 
impact and vibratory pile driving activities at the project areas would 
be temporary behavioral avoidance of the area. Any behavioral avoidance 
by fish of the disturbed area would still leave significantly large 
areas of fish and marine mammal foraging habitat in the nearby 
vicinity. The duration of fish avoidance of an area after pile driving 
stops is unknown, but a rapid return to normal recruitment, 
distribution and behavior is anticipated. In general, any behavioral 
impacts are expected to be temporary and occur close to the activity 
given the relatively small areas being affected.
    SPLs of sufficient strength have been known to cause fish auditory 
impairment, injury and mortality. Popper et al., 2014 found that fish 
with or without air bladders could experience TTS at 186 dB SELcum. 
Mortality could occur for fish without swim bladders at >216 dB SELcum. 
Those with swim bladders or at the egg or larvae life stage, mortality 
was possible at >203 dB SELcum. Other studies found that 203 dB SELcum 
or above caused a physiological response in other fish species (Casper 
et al., 2012, Halvorsen et al., 2012a, Halvorsen et al., 2012b, Casper 
et al., 2013a; Casper et al., 2013b). However, in most fish species, 
hair cells in the ear continuously regenerate and loss of auditory 
function likely is restored when damaged cells are replaced with new 
cells. Halvorsen et al. (2012a) showed that a TTS of 4-6 dB was 
recoverable within 24 hours for one species. Impacts would be most 
severe when the individual fish is close to the source and when the 
duration of exposure is long. Injury caused by barotrauma can range 
from slight to severe and can cause death, and is most likely for fish 
with swim bladders. Barotrauma injuries have been documented during 
controlled exposure to impact pile driving (Halvorsen et al., 2012b; 
Casper et al., 2013). As described in the Proposed Mitigation section 
below, Empire Wind would utilize a sound attenuation device which would 
reduce potential for injury to marine mammal prey. Other fish that 
experience hearing loss as a result of exposure to impulsive sound 
sources may have a reduced ability to detect relevant sounds such as 
predators, prey, or social vocalizations. However, PTS has not been 
known to occur in fishes and any hearing loss in fish may be as 
temporary as the timeframe required to repair or replace the sensory 
cells that were damaged or destroyed (Popper et al., 2005; Popper et 
al., 2014; Smith et al., 2006). It is not known if damage to auditory 
nerve fibers could occur, and if so, whether fibers would recover 
during this process.
    Required soft-starts would allow prey and marine mammals to move 
away from the source prior to any noise levels that may physically 
injure prey and the use of the noise attenuation devices would reduce 
noise levels to the degree any mortality or injury of prey is also 
minimized. Use of bubble curtains, in addition to reducing impacts to 
marine mammals, for example, is a key mitigation measure in reducing 
injury and mortality of marine mammal prey.

[[Page 22726]]

However, we recognize some mortality, physical injury and hearing 
impairment in marine mammal prey may occur but we anticipate the amount 
of prey impacted in this manner is minimal compared to overall 
availability. Any behavioral responses to pile driving by marine mammal 
prey are expected to be relatively brief. We expect that other impacts 
such as stress or masking would occur in fish that serve as marine 
mammals prey (Popper et al., 2019); however, those impacts would be 
limited to the duration of impact pile driving if prey were to move out 
the area in response to noise, these impacts would be minimized.
    In addition to fish, prey sources such as marine invertebrates 
could potentially be impacted by noise stressors as a result of the 
proposed activities. However, most marine invertebrates' ability to 
sense sounds is limited. Invertebrates appear to be able to detect 
sounds (Pumphrey, 1950; Frings and Frings, 1967) and are most sensitive 
to low-frequency sounds (Packard et al., 1990; Budelmann and 
Williamson, 1994; Lovell et al., 2005; Mooney et al., 2010). Data on 
response of invertebrates such as squid, another marine mammal prey 
species, to anthropogenic sound is more limited (de Soto, 2016; Sole et 
al., 2017b). Data suggest that cephalopods are capable of sensing the 
particle motion of sounds and detect low frequencies up to 1-1.5 kHz, 
depending on the species, and so are likely to detect air gun noise 
(Kaifu et al., 2008; Hu et al., 2009; Mooney et al., 2010; Samson et 
al., 2014). Sole et al. (2017) reported physiological injuries to 
cuttlefish in cages placed at-sea when exposed during a controlled 
exposure experiment to low-frequency sources (315 Hz, 139 to 142 dB re 
1 [mu]Pa2 and 400 Hz, 139 to 141 dB re 1 [mu]Pa2). Fewtrell and 
McCauley (2012) reported squids maintained in cages displayed startle 
responses and behavioral changes when exposed to seismic air gun sonar 
(136-162 re 1 [mu]Pa2[middot]s). Jones et al. (2020) found that when 
squid (Doryteuthis pealeii) were exposed to impulse pile driving noise, 
body pattern changes, inking, jetting, and startle responses were 
observed and nearly all squid exhibited at least one response. However, 
these responses occurred primarily during the first eight impulses and 
diminished quickly, indicating potential rapid, short-term habituation. 
Packard et al. (1990) showed that cephalopods were sensitive to 
particle motion, not sound pressure, and Mooney et al. (2010) 
demonstrated that squid statocysts (specialized sensory organ inside 
the head called a statocyst that may help an animal determine its 
position in space (orientation) and maintain balance) act as an 
accelerometer through which particle motion of the sound field can be 
detected (Budelmann, 1992). Auditory injuries (lesions occurring on the 
statocyst sensory hair cells) have been reported upon controlled 
exposure to low-frequency sounds, suggesting that cephalopods are 
particularly sensitive to low-frequency sound (Andre et al., 2011; Sole 
et al., 2013). Behavioral responses, such as inking and jetting, have 
also been reported upon exposure to low-frequency sound (McCauley et 
al., 2000b; Samson et al., 2014). Squids, like most fish species, are 
likely more sensitive to low frequency sounds, and may not perceive 
mid- and high-frequency sonars.
    With regard to potential impacts on zooplankton, McCauley et al. 
(2017) found that exposure to airgun noise resulted in significant 
depletion for more than half the taxa present and that there were two 
to three times more dead zooplankton after airgun exposure compared 
with controls for all taxa, within 1 km of the airguns. However, the 
authors also stated that in order to have significant impacts on r-
selected species (i.e., those with high growth rates and that produce 
many offspring) such as plankton, the spatial or temporal scale of 
impact must be large in comparison with the ecosystem concerned, and it 
is possible that the findings reflect avoidance by zooplankton rather 
than mortality (McCauley et al., 2017). In addition, the results of 
this study are inconsistent with a large body of research that 
generally finds limited spatial and temporal impacts to zooplankton as 
a result of exposure to airgun noise (e.g., Dalen and Knutsen, 1987; 
Payne, 2004; Stanley et al., 2011). Most prior research on this topic, 
which has focused on relatively small spatial scales, has showed 
minimal effects (e.g., Kostyuchenko, 1973; Booman et al., 1996; 
S[aelig]tre and Ona, 1996; Pearson et al., 1994; Bolle et al., 2012).
    A modeling exercise was conducted as a follow-up to the McCauley et 
al. (2017) study (as recommended by McCauley et al.), in order to 
assess the potential for impacts on ocean ecosystem dynamics and 
zooplankton population dynamics (Richardson et al., 2017). Richardson 
et al. (2017) found that a full-scale airgun survey would impact 
copepod abundance within the survey area, but that effects at a 
regional scale were minimal (2 percent decline in abundance within 150 
km of the survey area and effects not discernible over the full 
region). The authors also found that recovery within the survey area 
would be relatively quick (3 days following survey completion), and 
suggest that the quick recovery was due to the fast growth rates of 
zooplankton, and the dispersal and mixing of zooplankton from both 
inside and outside of the impacted region. The authors also suggest 
that surveys in areas with more dynamic ocean circulation in comparison 
with the study region and/or with deeper waters (i.e., typical offshore 
wind locations) would have less net impact on zooplankton.
    Notably, a recently described study produced results inconsistent 
with those of McCauley et al. (2017). Researchers conducted a field and 
laboratory study to assess if exposure to airgun noise affects 
mortality, predator escape response, or gene expression of the copepod 
Calanus finmarchicus (Fields et al., 2019). Immediate mortality of 
copepods was significantly higher, relative to controls, at distances 
of 5 m or less from the airguns. Mortality one week after the airgun 
blast was significantly higher in the copepods placed 10 m from the 
airgun but was not significantly different from the controls at a 
distance of 20 m from the airgun. The increase in mortality, relative 
to controls, did not exceed 30 percent at any distance from the airgun. 
Moreover, the authors caution that even this higher mortality in the 
immediate vicinity of the airguns may be more pronounced than what 
would be observed in free-swimming animals due to increased flow speed 
of fluid inside bags containing the experimental animals. There were no 
sublethal effects on the escape performance or the sensory threshold 
needed to initiate an escape response at any of the distances from the 
airgun that were tested. Whereas McCauley et al. (2017) reported an SEL 
of 156 dB at a range of 509-658 m, with zooplankton mortality observed 
at that range, Fields et al. (2019) reported an SEL of 186 dB at a 
range of 25 m, with no reported mortality at that distance.
    The presence of large numbers of turbines has been shown to impact 
meso- and sub-meso-scale water column circulation, which can affect the 
density, distribution, and energy content of zooplankton, and thereby 
their availability as marine mammal prey. The presence and operation of 
structures such as WTGs are, in general, likely to result in local and 
broader oceanographic effects in the marine environment, and may 
disrupt marine mammal prey such as dense aggregations and distribution 
of zooplankton through altering the strength of tidal currents and 
associated

[[Page 22727]]

fronts, changes in stratification, primary production, the degree of 
mixing, and stratification in the water column (Chen et al., 2021, 
Johnson et al., 2021, Christiansen et al., 2022, Dorrell et al., 2022). 
However, the scale of impacts is difficult to predict and may vary from 
meters to hundreds of meters for local individual turbine impacts 
(Schultze et al., 2020) to large-scale dipoles of surface elevation 
changes stretching hundreds of kilometers (Christiansen et al., 2022).
    Empire Wind intends to install up to 147 operational turbines over 
the duration of the proposed LOA. As described above, there is 
scientific uncertainty around the scale of oceanographic impacts 
(meters to kilometers) associated with turbine operation. However, the 
project area does not include key foraging grounds for marine mammals 
with planktonic diets (e.g, North Atlantic right whale). Overall, any 
impact to plankton aggregation, and hence availability as marine mammal 
prey, from turbine presence and operation during the effective period 
of the proposed rule is likely to be limited.
    In general, impacts to marine mammal prey species are primarily 
expected to be relatively minor and temporary due to the relatively 
small areas being affected compared to available habitat. Some 
mortality of prey inside the bubble curtain may occur; however, this 
would be very limited. NMFS does not expect HRG acoustic sources to 
impact fish and most sources are likely outside the hearing range of 
the primary prey species in the project area.
    These potential impacts on prey could impact the distribution of 
marine mammals within the project area, potentially necessitating 
additional energy expenditure to find and capture prey, but at the 
temporal and spatial scales anticipated for this activity are not 
expected to impact the reproduction or survival of any individual 
marine mammals. Although studies assessing the impacts of offshore wind 
development on marine mammals are limited, the repopulation of wind 
energy areas by harbor porpoises (Brandt et al., 2016; Lindeboom et 
al., 2011) and harbor seals (Lindeboom et al., 2011; Russell et al., 
2016) following the installation of WTGs are promising. Overall, any 
impacts to marine mammal foraging capabilities due to effects on prey 
aggregation from Empire Wind turbine presence and operation during the 
effective period of the proposed rule, if issued, is likely to be 
limited and nearby habitat that is known to support marine mammal 
foraging would be unaffected by turbine operation.
    Overall, the combined impacts of sound exposure and oceanographic 
impacts on marine mammal habitat resulting from the proposed activities 
would not be expected to have measurable effects on populations of 
marine mammal prey species. Prey species exposed to sound might move 
away from the sound source, experience TTS, experience masking of 
biologically relevant sounds, or show no obvious direct effects.
Acoustic Habitat
    Acoustic habitat is the soundscape, which encompasses all of the 
sound present in a particular location and time, as a whole when 
considered from the perspective of the animals experiencing it. Animals 
produce sound for, or listen for sounds produced by, conspecifics 
(communication during feeding, mating, and other social activities), 
other animals (finding prey or avoiding predators), and the physical 
environment (finding suitable habitats, navigating). Together, sounds 
made by animals and the geophysical environment (e.g., produced by 
earthquakes, lightning, wind, rain, waves) make up the natural 
contributions to the total acoustics of a place. These acoustic 
conditions, termed acoustic habitat, are one attribute of an animal's 
total habitat.
    Soundscapes are also defined by, and acoustic habitat influenced 
by, the total contribution of anthropogenic sound. This may include 
incidental emissions from sources such as vessel traffic or may be 
intentionally introduced to the marine environment for data acquisition 
purposes (as in the use of air gun arrays) or for Navy training and 
testing purposes (as in the use of sonar and explosives and other 
acoustic sources). Anthropogenic noise varies widely in its frequency, 
content, duration, and loudness and these characteristics greatly 
influence the potential habitat-mediated effects to marine mammals 
(please also see the previous discussion on Masking), which may range 
from local effects for brief periods of time to chronic effects over 
large areas and for long durations. Depending on the extent of effects 
to habitat, animals may alter their communications signals (thereby 
potentially expending additional energy) or miss acoustic cues (either 
conspecific or adventitious). Problems arising from a failure to detect 
cues are more likely to occur when noise stimuli are chronic and 
overlap with biologically relevant cues used for communication, 
orientation, and predator/prey detection (Francis and Barber, 2013). 
For more detail on these concepts, see Barber et al., 2009; Pijanowski 
et al., 2011; Francis and Barber, 2013; Lillis et al., 2014.
    The term ``listening area'' refers to the region of ocean over 
which sources of sound can be detected by an animal at the center of 
the space. Loss of communication space concerns the area over which a 
specific animal signal, used to communicate with conspecifics in 
biologically important contexts (e.g., foraging, mating), can be heard, 
in noisier relative to quieter conditions (Clark et al., 2009). Lost 
listening area concerns the more generalized contraction of the range 
over which animals would be able to detect a variety of signals of 
biological importance, including eavesdropping on predators and prey 
(Barber et al., 2009). Such metrics do not, in and of themselves, 
document fitness consequences for the marine animals that live in 
chronically noisy environments. Long-term population-level consequences 
mediated through changes in the ultimate survival and reproductive 
success of individuals are difficult to study, and particularly so 
underwater. However, it is increasingly well documented that aquatic 
species rely on qualities of natural acoustic habitats, with 
researchers quantifying reduced detection of important ecological cues 
(e.g., Francis and Barber, 2013; Slabbekoorn et al., 2010) as well as 
survivorship consequences in several species (e.g., Simpson et al., 
2014; Nedelec et al., 2015).
    Sound produced from construction activities in the Empire Wind 
project area may be widely dispersed or concentrated in small areas for 
varying periods. However, anthropogenic noise attributed to 
construction activities in the project area would not be interminable. 
There would be breaks between noise-generating activities on active 
pile driving days. Similarly, there would likely be periods of days or 
even weeks without construction-related underwater noise.
    Although this proposed rulemaking primarily covers the noise 
produced from construction activities relevant to the Empire Wind 
offshore wind facility, operational noise was a consideration in NMFS' 
analysis of the project, as all turbines would become operational 
during the effective period of the proposed rule, if issued. Empire 
Wind anticipates that WTGs in EW 1 would become operational late in Q2 
or early Q3 in 2026 while those in EW 2 would become operational in Q4 
of 2027; the rule, if issued, would be effective until January 2029. 
Once operational, offshore wind turbines are known to produce 
continuous, non-impulsive underwater noise, primarily below 1

[[Page 22728]]

kHz (Tougaard et al., 2020; St[ouml]ber and Thomsen, 2021).
    In both newer, quieter, direct-drive systems (such as what has been 
proposed for Empire Wind) and older generation, geared turbine designs, 
recent scientific studies indicate that operational noise from turbines 
is on the order of 110 to 125 dB re 1 [mu]Pa root-mean-square sound 
pressure level (SPLrms) at an approximate distance of 50 m 
(Tougaard et al., 2020). Recent measurements of operational sound 
generated from wind turbines (direct drive, 6 MW, jacket piles) at 
Block Island wind farm (BIWF) indicate average broadband levels of 119 
dB at 50 m from the turbine, with levels varying with wind speed (HDR, 
2019). Interestingly, measurements from BIWF turbines showed 
operational sound had less tonal components compared to European 
measurements of turbines with gear boxes.
    Tougaard et al. (2020) further stated that the operational noise 
produced by WTGs is static in nature and lower than noise produced by 
passing ships. This is a noise source in this region to which marine 
mammals are likely already habituated. Furthermore, operational noise 
levels are likely lower than those ambient levels already present in 
active shipping lanes, such that operational noise would likely only be 
detected in very close proximity to the WTG (Thomsen et al., 2006; 
Tougaard et al., 2020). Similarly, recent measurements from a wind farm 
(3 MW turbines) in China found at above 300 Hz, turbines produced sound 
that was similar to background levels (Zhang et al., 2021). Other 
studies by Jansen and de Jong (2016) and Tougaard et al. (2009) 
determined that, while marine mammals would be able to detect 
operational noise from offshore wind farms (again, based on older 2 MW 
models) for several kilometers, they expected no significant impacts on 
individual survival, population viability, marine mammal distribution, 
or the behavior of the animals considered in their study (harbor 
porpoises and harbor seals).
    More recently, St[ouml]ber and Thomsen (2021) used monitoring data 
and modeling to estimate noise generated by more recently developed, 
larger (10 MW) direct-drive WTGs. Their findings, similar to Tougaard 
et al. (2020), demonstrate that there is a trend that operational noise 
increases with turbine size. Their study predicts broadband source 
levels could exceed 170 dB SPLrms for a 10 MW WTG; however, 
those noise levels were generated based on geared turbines; newer 
turbines operate with direct drive technology. The shift from using 
gear boxes to direct drive technology is expected to reduce the levels 
by 10 dB. The findings in the St[ouml]ber and Thomsen (2021) study have 
not been experimentally validated, though the modeling (using largely 
geared turbines) performed by Tougaard et al. (2020) yields similar 
results for a hypothetical 10 MW WTG. Overall, noise from operating 
turbines would raise ambient noise levels in the immediate vicinity of 
the turbines; however, the spatial extent of increased noise levels 
would be limited. NMFS proposes to require Empire Wind to measure 
operational noise levels.
Water Quality
    Temporary and localized reduction in water quality will occur as a 
result of in-water construction activities. Most of this effect will 
occur during pile driving and installation of the cables, including 
auxiliary work such as dredging and scour placement. These activities 
will disturb bottom sediments and may cause a temporary increase in 
suspended sediment in the project area. Currents should quickly 
dissipate any raised total suspended sediment (TSS) levels, and levels 
should return to background levels once the project activities in that 
area cease. No direct impacts on marine mammals is anticipated due to 
increased TSS and turbidity; however, turbidity within the water column 
has the potential to reduce the level of oxygen in the water and 
irritate the gills of prey fish species in the proposed project area. 
However, turbidity plumes associated with the project would be 
temporary and localized, and fish in the proposed project area would be 
able to move away from and avoid the areas where plumes may occur. 
Therefore, it is expected that the impacts on prey fish species from 
turbidity, and therefore on marine mammals, would be minimal and 
temporary.
    Equipment used by Empire Wind within the project area, including 
ships and other marine vessels, potentially aircrafts, and other 
equipment, are also potential sources of by-products (e.g., 
hydrocarbons, particulate matter, heavy metals). All equipment is 
properly maintained in accordance with applicable legal requirements. 
All such operating equipment meets Federal water quality standards, 
where applicable. Given these requirements, impacts to water quality 
are expected to be minimal.
Reef Effects
    The presence of monopile foundations, scour protection, and cable 
protection will result in a conversion of the existing sandy bottom 
habitat to a hard bottom habitat with areas of vertical structural 
relief. This could potentially alter the existing habitat by creating 
an ``artificial reef effect'' that results in colonization by 
assemblages of both sessile and mobile animals within the new hard-
bottom habitat (Wilhelmsson et al., 2006; Reubens et al., 2013; 
Bergstr[ouml]m et al., 2014; Coates et al., 2014). This colonization by 
marine species, especially hard-substrate preferring species, can 
result in changes to the diversity, composition, and/or biomass of the 
area thereby impacting the trophic composition of the site (Wilhelmsson 
et al., 2010, Krone et al., 2013; Bergstr[ouml]m et al., 2014, Hooper 
et al., 2017; Raoux et al., 2017; Harrison and Rousseau, 2020; Taormina 
et al., 2020; Buyse et al., 2022a; ter Hofstede et al., 2022).
    Artificial structures can create increased habitat heterogeneity 
important for species diversity and density (Langhamer, 2012). The WTG 
and OSS foundations will extend through the water column, which may 
serve to increase settlement of meroplankton or planktonic larvae on 
the structures in both the pelagic and benthic zones (Boehlert and 
Gill, 2010). Fish and invertebrate species are also likely to aggregate 
around the foundations and scour protection which could provide 
increased prey availability and structural habitat (Boehlert and Gill, 
2010; Bonar et al., 2015). Further, instances of species previously 
unknown, rare, or nonindigenous to an area have been documented at 
artificial structures, changing the composition of the food web and 
possibly the attractability of the area to new or existing predators 
(Adams et al., 2014; de Mesel, 2015; Bishop et al., 2017; Hooper et 
al., 2017; Raoux et al., 2017; van Hal et al., 2017; Degraer et al., 
2020; Fernandez-Betelu et al., 2022). Notably, there are examples of 
these sites becoming dominated by marine mammal prey species, such as 
filter-feeding species and suspension-feeding crustaceans (Andersson 
and [Ouml]hman, 2010; Slavik et al., 2019; Hutchison et al., 2020; Pezy 
et al., 2020; Mavraki et al., 2022).
    Numerous studies have documented significantly higher fish 
concentrations including species like cod and pouting (Trisopterus 
luscus), flounder (Platichthys flesus), eelpout (Zoarces viviparus), 
and eel (Anguilla anguilla) near in-water structures than in 
surrounding soft bottom habitat (Langhamer and Wilhelmsson, 2009; 
Bergstr[ouml]m et al., 2013; Reubens et al., 2013). In the German Bight 
portion of the North Sea, fish were most densely

[[Page 22729]]

congregated near the anchorages of jacket foundations, and the 
structures extending through the water column were thought to make it 
more likely that juvenile or larval fish encounter and settle on them 
(RI-CRMC, 2010; Krone et al., 2013). In addition, fish can take 
advantage of the shelter provided by these structures while also being 
exposed to stronger currents created by the structures, which generate 
increased feeding opportunities and decreased potential for predation 
(Wilhelmsson et al., 2006). The presence of the foundations and 
resulting fish aggregations around the foundations is expected to be a 
long-term habitat impact, but the increase in prey availability could 
potentially be beneficial for some marine mammals.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
proposed for authorization through the regulations, which will inform 
both NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) 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 (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as noise 
from impact and vibratory pile driving and HRG surveys could result in 
behavioral disturbance of marine mammals that qualifies as take. 
Impacts such as masking and TTS can contribute to the disruption of 
behavioral patterns and are accounted for within those requested takes. 
There is also some potential for auditory injury (Level A harassment) 
of fin whales and minke whales due to the increased likelihood that 
they would be present during foundation installation than other 
mysticetes. North Atlantic right whales, sei whales, and humpback 
whales occur in very low densities in the project area during 
foundation installation activities. For mid-frequency, high-frequency, 
and phocid hearing groups, when the associated PTS zone sizes are 
considered (e.g., Table 13 to Table 20), the potential for PTS from the 
noise produced by the project is negligible. Hence, Empire Wind did not 
request, and NMFS is not proposing to authorize Level A harassment of 
these hearing groups. While NMFS is proposing to authorize Level A 
harassment and Level B harassment, the proposed mitigation and 
monitoring measures are expected to minimize the amount and severity of 
such taking to the extent practicable (see Proposed Mitigation).
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized incidental to Empire Wind's 
specified activities. With or without mitigation, neither pile driving 
nor HRG surveys have the potential to directly cause marine mammal 
mortality or serious injury. While, in general, mortality and serious 
injury of marine mammals could occur from vessel strikes, the 
mitigation and monitoring measures contained within this proposed rule 
would avoid vessel strikes. No other activities have the potential to 
result in mortality or serious injury.
    For acoustic impacts, we estimate take by considering: (1) acoustic 
thresholds above which the best available science indicates marine 
mammals will be behaviorally harassed or incur some degree of permanent 
hearing impairment; (2) the area or volume of water that will be 
ensonified above these levels in a day; (3) the density or occurrence 
of marine mammals within these ensonified areas; and, (4) the number of 
days of activities. We note that while these factors can contribute to 
a basic calculation to provide an initial prediction of potential 
takes, additional information that can qualitatively inform take 
estimates is also sometimes available (e.g., previous monitoring 
results or average group size). Below, we describe the factors 
considered here in more detail and present the proposed take estimates.
    In this case, as described below, there are multiple methods 
available to address density or occurrence and, for each species and 
activity, the largest value resulting from the three take estimation 
methods described below (i.e., density-based, PSO-based, or mean group 
size) was carried forward as the amount of requested take, by Level B 
harassment. The amount of requested take, by Level A harassment, 
reflects the density-based exposure estimates and, for some species and 
activities, consideration of other data such as group size and the 
effectiveness of mitigation measures to avoid or minimize the potential 
for injury.
    Below, we describe the acoustic thresholds NMFS uses, discuss the 
marine mammal density and occurrence information used, and then 
describe the modeling and methodologies applied to estimate take for 
each of Empire Wind's proposed construction activities. NMFS has 
carefully considered all information and analysis presented by Empire 
Wind as well as all other applicable information and, based on the best 
available science, concurs that Empire Wind's estimates of the types 
and amounts of take for each species and stock are reasonable, and is 
what NMFS is proposing to authorize. NMFS notes the take estimates 
described herein for foundation installation can be considered 
conservative as the estimates do not reflect the implementation of 
clearance and shutdown zones for any marine mammal species or stock.

Marine Mammal Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment). A summary of all NMFS' thresholds can be found at (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance).
Level B Harassment
    Though significantly driven by received level, the onset of 
behavioral disturbance from anthropogenic noise exposure is also 
informed to varying degrees by other factors related to the source or 
exposure context (e.g., frequency, predictability, duty cycle, duration 
of the exposure, signal-to-noise ratio, distance to the source, ambient 
noise, and the receiving animal's hearing, motivation, experience, 
demography, behavior at time of exposure, life stage, depth) and can be 
difficult to predict (e.g., Southall et al., 2007, 2021; Ellison et 
al., 2012). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS generally predicts that marine 
mammals are likely to be behaviorally harassed in a manner considered 
to be Level B harassment when exposed to underwater anthropogenic noise 
above the received root-mean-square sound pressure levels (RMS SPL) of 
120 dB for continuous (e.g., vibratory pile-driving, drilling) and 
above the received RMS SPL 160 dB for non-explosive intermittent (e.g., 
impact

[[Page 22730]]

pile driving, scientific sonar) sources (Table 6). Generally speaking, 
Level B harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by TTS as, in most 
cases, the likelihood of TTS occurs at distances from the source less 
than those at which behavioral harassment is likely. TTS of a 
sufficient degree can manifest as behavioral harassment, as reduced 
hearing sensitivity and the potential reduced opportunities to detect 
important signals (conspecific communication, predators, prey) may 
result in changes in behavioral patterns that would not otherwise 
occur.

       Table 6--Underwater Level B Harassment Acoustic Thresholds
                              [NMFS, 2005]
------------------------------------------------------------------------
                                            Level B harassment threshold
                Source type                           (RMS SPL)
------------------------------------------------------------------------
Continuous................................  120 dB re 1 [micro]Pa.
Non-explosive impulsive or intermittent...  160 dB re 1 [micro]Pa.
------------------------------------------------------------------------

    Empire Wind's construction activities include the use of continuous 
(e.g., vibratory pile driving), and intermittent (e.g., impact pile 
driving, HRG acoustic sources) sources, and, therefore, the 120 and 160 
dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A Harassment
    NMFS' Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (Version 2.0; Technical Guidance) (NMFS, 
2018) identifies dual criteria to assess auditory injury (Level A 
harassment) to five different marine mammal groups (based on hearing 
sensitivity) as a result of exposure to noise from two different types 
of sources (impulsive or non-impulsive). As dual metrics, NMFS 
considers onset of PTS (Level A harassment) to have occurred when 
either one of the two metrics is exceeded (i.e., metric resulting in 
the largest isopleth). Empire Wind's proposed activities include the 
use of both impulsive and non-impulsive sources.
    These thresholds are provided in Table 7 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                                Table 7--Onset of Permanent Threshold Shift (PTS)
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lp,0-pk,flat: 219   Cell 2: LE,p,LF,24h: 199 dB.
                                          dB; LE,p,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lp,0-pk,flat: 230   Cell 4: LE,p,MF,24h: 198 dB.
                                          dB; LE,p,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lp,0-pk,flat: 202   Cell 6: LE,p,HF,24h: 173 dB.
                                          dB; LE,p,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lp,0-pk.flat: 218   Cell 8: LE,p,PW,24h: 201 dB.
                                          dB; LE,p,PW,24h: 185 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
  onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
  associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (L0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,) has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to be
  more reflective of International Organization for Standardization standards (ISO, 2017). The subscript
  ``flat'' is being included to indicate peak sound pressure are flat weighted or unweighted within the
  generalized hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative
  sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF,
  and HF cetaceans, and PW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted
  cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure
  levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the
  conditions under which these thresholds will be exceeded.

    Below, we describe, in detail, the assumptions and methodologies 
used to estimate take, in consideration of acoustic thresholds and 
appropriate marine mammals density and occurrence information, for WTG 
and OSS foundation installation, cable landfall construction, marina 
activities, and HRG surveys. Resulting distances to thresholds, 
densities used, activity-specific exposure estimates (as relevant to 
the analysis), and activity-specific take estimates can be found in 
each activity subsection below. At the end of this section, we present 
the total annual and 5-year estimates that Empire Wind requested, and 
NMFS proposes to authorize, from all activities combined.

Acoustic and Exposure Modeling

    As described above, predominant underwater noise associated with 
the construction of EW 1 and EW 2 results from installing monopile and 
jacket foundations using an impact hammer. Empire Wind employed JASCO 
to conduct acoustic and animal movement exposure modeling to better 
understand sound fields produced during these activities and to 
estimate exposures (K[uuml]sel et al., 2022). The basic modeling 
approach is to characterize the sounds produced by the source, 
determine how the sounds propagate within the surrounding water column, 
and then estimate species-specific exposure probability by considering 
the range- and depth-dependent sound fields in relation to animal 
movement in simulated representative construction scenarios. Animal 
movement modeling was not conducted to estimate take for cable landfall 
construction, marina activities, and HRG surveys due to either their 
short duration or limited harassment zones.
    JASCO's Pile Driving Source Model (PDSM), a physical model of pile 
vibration and near-field sound radiation (MacGillivray 2014), was used 
in conjunction with the GRLWEAP 2010 wave equation model (GRLWEAP, Pile 
Dynamics 2010) to predict source levels associated with impact pile 
driving activities (WTG and OSS foundation installation and casing pipe 
installation). The PDSM physical model computes the underwater 
vibration and sound radiation of a pile by solving the theoretical 
equations of motion for axial and radial vibrations of a cylindrical

[[Page 22731]]

shell. This model is used to estimate the energy distribution per 
frequency (source spectrum) at a close distance from the source (10 m). 
Piles are modeled as a vertical installation using a finite-difference 
structural model of pile vibration based on thin-shell theory. To model 
the sound emissions from the piles, the force of the pile driving 
hammers also had to be modeled. The force at the top of each monopile 
and jacket foundation pile was computed using the GRLWEAP 2010 wave 
equation model (GRLWEAP; Pile Dynamics, 2010), which includes a large 
database of simulated hammers. The forcing functions from GRLWEAP were 
used as inputs to the finite difference model to compute the resulting 
pile vibrations. The sound radiating from the pile itself was simulated 
using a vertical array of discrete point sources. These models account 
for several parameters that describe the operation--pile type, 
material, size, and length--the pile driving equipment, and approximate 
pile penetration depth. The model assumed direct contact between the 
representative hammers, helmets, and piles (i.e., no cushioning 
material).
    Empire Wind modeled three WTG monopile scenarios: 9.6-m typical; 
9.6-m difficult-to-drive; and 11-m typical. For each scenario, Empire 
Wind assumed various hammer energy schedules, including the hammer 
energies and number of strikes predicted at various penetration depths 
during the pile driving process and different soil conditions. Typical 
monopile foundation locations are those where the standard hammer 
energy would be sufficient to complete installation of the foundation 
to the target penetration depth. Difficult-to-drive foundation 
locations would require higher hammer energies and/or additional hammer 
strikes to complete foundation installation to the target penetration 
depth. Difficult-to-drive scenarios would only utilize 9.6-m piles as 
the larger 11-m piles could not be driven to target penetration depth 
in the soil conditions associated with difficult-to-drive turbine 
positions. Empire Wind estimates that a maximum of 17 total foundations 
may be difficult-to-drive (including as many as 7 difficult-to-drive 
foundations for EW 1 and as many as 10 difficult-to-drive foundations 
for EW 2). The actual number of difficult-to-drive piles will be 
informed by additional analysis of geotechnical data and other studies 
that will occur prior to construction but would not be greater than 17 
foundations.
    The amount of sound generated during pile driving varies with the 
energy required to drive piles to a desired depth and depends on the 
sediment resistance encountered. Sediment types with greater resistance 
require hammers that deliver higher energy strikes and/or an increased 
number of strikes relative to installations in softer sediment. Maximum 
sound levels usually occur during the last stage of impact pile driving 
where the greatest resistance is encountered (Betke, 2008). Empire Wind 
developed hammer energy schedules typical and difficult-to-drive 9.6-m 
piles and for three different seabed penetration depths for the 11-m 
diameter piles to represent the various soil conditions that may be 
encountered in the Lease Area (i.e., normal soil conditions (identified 
as ``T1''), harder soil conditions (identified as ``R3''), and outlier 
softer soil conditions (identified as ``U3''). The maximum penetration 
depths for typical and difficult-to-drive 9.6-m piles (38 m (125 ft)); 
typical 11-m piles (55 m (180 ft)) and pin piles (56 m (184 ft) at OSS 
1) were all carried forward as part of the modeling analysis.
    One OSS foundation scenario was modeled; however, this scenario was 
modeled at two locations (representing locations in EW 1 and EW 2) 
resulting in two hammer schedules. Empire Wind anticipates the 
different locations will require different hammer schedules depending 
on site-specific soil conditions.
    Key modeling assumptions for the WTG monopiles and OSS foundation 
pin piles are listed in Table 8 (additional modeling details and input 
parameters can be found in K[uuml]sel et al. (2022)). Hammer energy 
schedules for WTG monopiles (9.6 m and 11 m) and OSS foundation pin 
piles are provided in Table 9, Table 10, and Table 11 respectively.

                           Table 8--Key Piling Assumptions Used In the Source Modeling
----------------------------------------------------------------------------------------------------------------
                                 Modeled maximum                                      Seabed
        Foundation type           impact hammer     Pile length      Pile wall      penetration      Number of
                                   energy (kJ)          (m)       thickness (mm)        (m)        piles per day
----------------------------------------------------------------------------------------------------------------
9.6 m Monopile................   \4\ 2,300/5,500            78.5          73-101              38             1-2
11 m Monopile R3 \1\..........             2,000            75.3             8.5              35             1-2
11 m Monopile T1 \2\..........             2,500            84.1             8.5              40             1-2
11 m Monopile U3 \3\..........             1,300            97.5              85              55             1-2
Jacket (2.5 m pin pile).......             3,200           57-66              50           47-56             2-3
----------------------------------------------------------------------------------------------------------------
\1\ R3 = harder soil conditions.
\2\ T1 = normal soil conditions.
\3\ U3 = softer soil conditions.
\4\ Typical 2.300; difficult to drive 5,500.


               Table 9--Hammer Energy Schedules for Monopiles Under the Two Pile Driving Scenarios
                                    [9.6-m Diameter Pile; IHC S-5500 hammer]
----------------------------------------------------------------------------------------------------------------
    ``Typical'' pile driving scenario (9.6-m diameter pile)       ``Difficult-to-drive'' pile driving scenario
---------------------------------------------------------------               (9.6-m diameter pile)
                                                               -------------------------------------------------
                                                     Pile                                              Pile
      Energy level (kJ)         Strike count     penetration      Energy level     Strike count     penetration
                                                  depth (m)           (kJ)                           depth (m)
----------------------------------------------------------------------------------------------------------------
Initial sink depth...........               0               2   Initial sink                   0               2
                                                                 depth.
450..........................           1,607              12   450.............           1,607              12

[[Page 22732]]

 
800..........................             731               5   800.............             731               5
1,400........................             690               4   1,400...........             690               4
1,700........................           1,050               6   1,700...........           1,050               6
2,300........................           1,419               9   2,300...........           1,087               4
5,500........................               0               0   5,500...........           2,000               5
                              ---------------------------------                  -------------------------------
    Total....................           5,497              38      Total........           7,615              38
----------------------------------------------------------------------------------------------------------------
Strike rate (strikes/min)....                 30                Strike rate                     30
                                                                 (strikes/min).
----------------------------------------------------------------------------------------------------------------


                         Table 10--Hammer Energy Schedule and Number of Strikes per Monopiles Under Three Pile Driving Scenarios
                                                         [11 m Diameter pile; IHC S-5500 hammer]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             R3-harder soil conditions       T1-normal soil conditions       U3-softer soil conditions
                                                         -----------------------------------------------------------------------------------------------
                    Energy level (kJ)                                       Penetration                     Penetration                     Penetration
                                                           Strike count        depth       Strike count        depth       Strike count        depth
--------------------------------------------------------------------------------------------------------------------------------------------------------
Initial Sink Depth......................................  ..............               1  ..............               3  ..............               5
450.....................................................  ..............  ..............  ..............  ..............             622               6
500.....................................................            1168              14            1339              14  ..............  ..............
750.....................................................             433               3             857               6            2781              20
1000....................................................  ..............  ..............             632               4            1913              12
1100....................................................             265               2  ..............  ..............  ..............  ..............
1300....................................................  ..............  ..............  ..............  ..............            2019              12
1500....................................................  ..............  ..............            1109               7  ..............  ..............
2000....................................................            2159              15             326               2  ..............  ..............
2500....................................................  ..............  ..............             656               4  ..............  ..............
                                                         -----------------------------------------------------------------------------------------------
    Totals..............................................            4025              35            4919              40            7335              55
--------------------------------------------------------------------------------------------------------------------------------------------------------


  Table 11--Hammer Energy Schedules for Pin Piles Supporting the Jacket Foundation Located at OSS 1 and OSS 2,
                                            With an IHC S-4000 Hammer
----------------------------------------------------------------------------------------------------------------
                        OSS 1 location                                           OSS 2 location
----------------------------------------------------------------------------------------------------------------
                                                     Pile                                              Pile
       Energy level (kJ)         Strike count     penetration     Energy level     Strike count     penetration
                                                   depth (m)          (kJ)                           depth (m)
----------------------------------------------------------------------------------------------------------------
Initial sink depth............               0               8  Initial sink                   0               5
                                                                 depth.
500...........................           1,799              30  500.............           1,206              22
750...........................           1,469              12  750.............           1,153               9
2,000.........................             577               4  1,100...........             790               7
3,200.........................             495               2  3,200...........             562               4
                               --------------------------------                  -------------------------------
    Total.....................           4,340              56  Total...........           3,711              47
----------------------------------------------------------------------------------------------------------------
Strike rate (strikes/min).....                30                Strike rate                     30
                                                                 (strikes/min).
----------------------------------------------------------------------------------------------------------------

    Sounds produced by installation of the 9.6- and 11-m monopiles were 
modeled at nine representative locations as shown in Figure 2 in 
K[uuml]sel et al. (2022). Sound fields from pin piles were modeled at 
the two planned jacket foundation locations, OSS 1 and OSS 2. Modeling 
locations are shown in Figure 8 in K[uuml]sel et al. (2022). The 
modeling locations were selected as they represent the range of soil 
conditions and water depths in the lease area. The monopiles were 
assumed to be vertical and driven to a maximum expected penetration 
depth of 38 m (125 ft) for 9.6-m piles and 55 m (180 ft) for 11-m 
piles. Jacket pin piles were assumed to be vertical and driven to a 
maximum expected penetration depth of 56 m (184 ft).
    Empire Wind would employ a noise attenuation system during all 
impact pile driving of monopile and jacket foundations. Noise 
attenuation systems, such as bubble curtains, are sometimes used to 
decrease the sound levels radiated from a source. Hence,

[[Page 22733]]

hypothetical broadband attenuation levels of 0 dB, 6 dB, 10 dB, 15 dB, 
and 20 dB were incorporated into the foundation source models to gauge 
effects on the ranges to thresholds given these levels of attenuation. 
Although five attenuation levels were evaluated, Empire Wind and NMFS 
anticipate that the noise attenuation system ultimately chosen will be 
capable of reliably reducing source levels by 10 dB; therefore, 
modeling results assuming 10-dB attenuation are carried forward in this 
analysis for monopile and jacket foundation installation. See the 
Proposed Mitigation section for more information regarding the 
justification for the 10-dB assumption.
    To estimate sound propagation, JASCO's used the FWRAM (K[uuml]sel 
et al., 2022, Appendix E.4) propagation model for foundation 
installation to combine the outputs of the source model with spatial 
and temporal environmental factors (e.g., location, oceanographic 
conditions, and seabed type) to get time-domain representations of the 
sound signals in the environment and estimate sound field levels. FWRAM 
is based on the wide-angle parabolic equation (PE) algorithm (Collins 
1993). Because the foundation pile is represented as a linear array and 
FWRAM employs the array starter method to accurately model sound 
propagation from a spatially distributed source (MacGillivray and 
Chapman, 2012), using FWRAM ensures accurate characterization of 
vertical directivity effects in the near-field zone (1 km). Due to 
seasonal changes in the water column, sound propagation is likely to 
differ at different times of the year. The speed of sound in seawater 
depends on the temperature T (degree celsius), salinity S (parts per 
thousand (ppt)), and depth D (m) and can be described using sound speed 
profiles. Oftentimes, a homogeneous or mixed layer of constant velocity 
is present in the first few meters. It corresponds to the mixing of 
surface water through surface agitation. There can also be other 
features, such as a surface channel, which corresponds to sound 
velocity increasing from the surface down. This channel is often due to 
a shallow isothermal layer appearing in winter conditions, but can also 
be caused by water that is very cold at the surface. In a negative 
sound gradient, the sound speed decreases with depth, which results in 
sound refracting downwards which may result in increased bottom losses 
with distance from the source. In a positive sound gradient, as is 
predominantly present in the winter season, sound speed increases with 
depth and the sound is, therefore, refracted upwards, which can aid in 
long distance sound propagation. To capture this variability, acoustic 
modeling was conducted using an average sound speed profile for a 
``summer'' period including the months of May through November, and a 
``winter'' period including December through April. FWRAM computes 
pressure waveforms via Fourier synthesis of the modeled acoustic 
transfer function in closely spaced frequency bands. Examples of 
decidecade spectral levels for each foundation pile type, hammer 
energy, and modeled location, using average summer sound speed profile 
are provided in K[uuml]sel et al. (2022).
    To estimate the probability of exposure of animals to sound above 
NMFS' harassment thresholds during foundation installation, JASCO's 
Animal Simulation Model Including Noise Exposure (JASMINE) was used to 
integrate the sound fields generated from the source and propagation 
models described above with species-typical behavioral parameters 
(e.g., dive patterns). Sound exposure models such as JASMINE use 
simulated animals (animats) to sample the predicted 3-D sound fields 
with movement rules derived from animal observations. Animats that 
exceed NMFS' acoustic thresholds are identified and the range for the 
exceedances determined. The output of the simulation is the exposure 
history for each animat within the simulation. An individual animat's 
sound exposure levels are summed over a specific duration, (24 hrs), to 
determine its total received acoustic energy (SEL) and maximum received 
PK and SPL. These received levels are then compared to the threshold 
criteria within each analysis period. The combined history of all 
animats gives a probability density function of exposure during the 
project. The number of animals expected to exceed the regulatory 
thresholds is determined by scaling the number of predicted animat 
exposures by the species-specific density of animals in the area. By 
programming animats to behave like marine species that may be present 
near the Empire Wind Lease Area, the sound fields are sampled in a 
manner similar to that expected for real animals. The parameters used 
for forecasting realistic behaviors (e.g., diving, foraging, and 
surface times) were determined and interpreted from marine species 
studies (e.g., tagging studies) where available, or reasonably 
extrapolated from related species (K[uuml]sel et al., 2022).
    As described in Section 2.6 of JASCO's acoustic modeling report for 
Empire Wind (K[uuml]sel et al., 2022), for modeled animals that have 
received enough acoustic energy to exceed a given harassment threshold, 
the exposure range for each animal is defined as the closest point of 
approach (CPA) to the source made by that animal while it moved 
throughout the modeled sound field, accumulating received acoustic 
energy. The CPA for each of the species-specific animats during a 
simulation is recorded and then the CPA distance that accounts for 95 
percent of the animats that exceed an acoustic impact threshold is 
determined. The ER95 (95 percent exposure radial 
distance) is the horizontal distance that includes 95 percent of the 
CPAs of animats exceeding a given impact threshold. The 
ER95 ranges are species-specific rather than 
categorized only by any functional hearing group, which allows for the 
incorporation of more species-specific biological parameters (e.g., 
dive durations, swim speeds, etc.) for assessing the impact ranges into 
the model. Furthermore, because these ER95 ranges 
are species-specific, they can be used to develop mitigation monitoring 
or shutdown zones.
    Empire Wind also calculated acoustic ranges which represent the 
distance to a harassment threshold based on sound propagation through 
the environment (i.e., independent of any receiver). As described 
above, applying animal movement and behavior within the modeled noise 
fields allows for a more realistic indication of the distances at which 
PTS acoustic thresholds are reached that considers the accumulation of 
sound over different durations. Acoustic ranges 
(R95) to the Level A harassment SELcum metric 
thresholds are considered overly conservative as the accumulation of 
acoustic energy does not account for animal movement and behavior and 
therefore assumes that animals are essentially stationary at that 
distance for the entire duration of the pile installation, a scenario 
that does not reflect realistic animal behavior. The acoustic ranges to 
the SELcum Level A harassment thresholds for WTG and OSS 
foundation installation can be found in Tables 16-18 in Empire Wind's 
application but will not be discussed further in this analysis. Because 
NMFS Level B harassment threshold is an instantaneous exposure, 
acoustic ranges are more relevant to the analysis and are used to 
derive mitigation and monitoring measures. Acoustic ranges to the Level 
B harassment threshold for each activity are provided in the activity-
specific subsections below. The differences between exposure ranges and 
acoustic ranges for Level B

[[Page 22734]]

harassment are minimal given it is an instantaneous method.
    For vibratory pile driving of cofferdams, Empire Wind estimated 
source levels and frequency spectra assuming an 1,800 kilonewton (kN) 
vibratory force. Modeling was accomplished using adjusted one-third-
octave band vibratory pile driving source levels cited for similar 
vibratory pile driving activities conducted during cofferdam 
installation for the Block Island Wind Farm (Tetra Tech, 2012; Schultz-
von Glahn et al., 2006). The assumed sound source level for vibratory 
pile driving corresponded to 195 dB SEL re 1 [micro]Pa. The frequency 
distribution of the vibratory pile driving sound source is displayed in 
Figure 5 in K[uuml]sel et al. (2022). The anticipated duration is 1 
hour of active pile driving per day.
    Underwater sound propagation modeling for cofferdam installation 
was completed using dBSea, a powerful software for the prediction of 
underwater noise in a variety of environments. The 3D model is built by 
importing bathymetry data and placing noise sources in the environment. 
Each source can consist of equipment chosen from either the standard or 
user defined databases. Noise mitigation methods may also be included. 
The user has control over the seabed and water properties including 
sound speed profile (SSP), temperature, salinity, and current.
    The dBSeaPE solver makes use of the parabolic equation method, a 
versatile and robust method of marching the sound field out in range 
from the sound source. This method is one of the most widely used in 
the underwater acoustics community and offers excellent performance in 
terms of speed and accuracy in a range of challenging scenarios. For 
high frequencies, the dBSeaRay ray tracing solver is used, which forms 
a solution by tracing rays from the source to the receiver. Many rays 
leave the source covering a range of angles, and the sound level at 
each point in the receiving field is calculated by coherently summing 
the components from each ray. This is currently the only 
computationally efficient method at high frequencies. The underwater 
acoustic modeling analysis used a split solver, with dBSeaPE evaluating 
the 12.5 Hz to 800 Hz and dBSeaRay addressing 1,000 Hz to 20,000 Hz.
    The acoustic modeling for impact hammering the casing pipe and goal 
posts and vibratory pile driving and removal associated with Onshore 
Substation C marina activities relied on NMFS' Multi-Species 
Calculator, available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance, 
which applies formulaic equations to predict distances to thresholds. 
Information on assumptions into the Multi-Species Calculator are 
provided in the activity specific sections below.

Marine Mammal Density and Occurrence

    In this section we provide the information about marine mammal 
presence, density, or group dynamics that will inform the take 
calculations for all activities. Empire Wind applied the Duke 
University Marine Geospatial Ecology Laboratory 2022 marine mammal 
habitat-based density models (https://seamap.env.duke.edu/models/Duke/EC/) to estimate take from WTG and OSS foundation installation, cable 
landfall construction, and site characterization surveys (please see 
each activity subsection for these densities). For foundation 
installation, the width of the perimeter around the activity area used 
to select density data from the Duke models was based on the largest 
exposure range (typically the Level B harassment range) applicable to 
that activity and then rounded up to the nearest 5-km increment, (which 
reflects the spatial resolution of the Roberts and Halpin (2022) 
density models). All information provided by Empire Wind since 
submission of their adequate and complete application is contained 
within the final updated density and take addendum that they submitted 
to NMFS on January 25, 2023. The Updated Density and Take Estimation 
Memo is available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-empire-offshore-wind-llc-construction-empire-wind-project-ew1?check_logged_in=1.
    The mean density for each month was determined by calculating the 
unweighted mean of all 5 x 5 km grid cells partially or fully within 
the analysis polygon (Roberts and Halpin, 2022). Densities were 
computed each month for an entire year to coincide with possible 
planned activities. In cases where monthly densities were unavailable 
(i.e., long and short-finned pilot whales), annual mean densities were 
used instead. Additionally, Roberts and Halpin (2022) provide density 
for pilot whales as a guild that includes both species and, since it is 
very difficult to differentiate species at sea, take numbers for pilot 
whales are requested at the guild level. To obtain density estimates 
for long-finned and short-finned pilot whales to estimate exposures 
from foundation installation, the guild density from Roberts and Halpin 
(2022) was scaled by the relative stock sizes based on the best 
available abundance estimate from NOAA Fisheries SARs (Hayes et al., 
2021).
    The equation below shows an example of how abundance scaling is 
applied to compute density for short-finned pilot whales.

Dshort-finned = Dboth x Ncoastal/(Nshort-finned + Nlong-finned)

where:

D represents density and N represents abundance.

    Similarly, densities are provided for seals as a guild consisting 
primarily of harbor and gray seals (Robert and Halpin 2022). Gray and 
harbor seal densities were scaled by relative NOAA Fisheries SARs 
(Hayes et al., 2021) abundance to estimate exposures from foundation 
installation.
    For some species and activities, observational data from Protected 
Species Observers (PSOs) aboard HRG and geotechnical survey vessels 
indicate that the density-based exposure estimates may be insufficient 
to account for the number of individuals of a species that may be 
encountered during the planned activities. A review of Empire Wind's 
PSO sightings data ranging from 2018-2021 for the Project Area 
indicated that exposure estimates based on the exposure modeling 
methodology for some species were likely underestimates for humpback 
whales, fin whales, and pilot whales. These findings are described in 
greater detail below.
    For other less-common species, the predicted densities from Roberts 
and Halpin (2022) are very low and the resulting density-based exposure 
estimate is less than a single animal or a typical group size for the 
species. In such cases, the mean group size was considered as an 
alternative to the density-based or PSO data-based take estimates to 
account for potential impacts on a group during an activity. Mean group 
sizes for each species were calculated from recent aerial and/or 
vessel-based surveys, as shown in Table 12. Group size data were also 
used to estimate take from marina activities given there is no density 
data available for the area given its inshore location. Additional 
detail regarding the density and occurrence as well as the assumptions 
and methodology used to estimate take for specific activities is 
included in the activity-specific subsections below.

[[Page 22735]]



               Table 12--Average Marine Mammal Group Sizes
------------------------------------------------------------------------
                                     Average group
       Marine mammal species             size        Information source
------------------------------------------------------------------------
North Atlantic right whale........             1-2  Roberts and Halpin
                                                     2022.
Atlantic spotted dolphin..........              45  Kenney & Vigness-
                                                     Raposa (2010).
Atlantic white-sided dolphin......              52  Jefferson et al.
                                                     (2015).
Bottlenose dolphin................              15  Jefferson et al.
                                                     (2015).
Common dolphin....................              30  Reeves et al.
                                                     (2002).
Risso's dolphin...................             100  Jefferson et al.
                                                     (2015).
Sperm whale.......................               1  Barkaszi et al.
                                                     2019.
------------------------------------------------------------------------

WTG and OSS Foundation Installation

    Here we describe the results from the methodologies outlined above. 
We present exposure ranges to Level A harassment and Level B harassment 
thresholds, acoustic ranges to PTS peak and Level B harassment 
thresholds, densities, exposure estimates and take estimates from 
Empire Wind's WTG and OSS foundation installation following the 
aforementioned assumptions (e.g., construction and hammer schedules).
    Table 13 through Table 20 provide exposure ranges for the 9.5-m 
monopile (typical and difficult-to-drive), 11-m monopile, and OSS 
foundation pin piles, respectively, assuming 10 dB attenuation for 
summer and winter. Table 21 provides relevant acoustic ranges (PTS peak 
and Level B harassment). Of note, in some cases (e.g., 9.6 m difficult-
to-drive piles), distances to PTS peak thresholds exceed SELcum 
thresholds. However, those distances are small (less than 1 km) and 
only applicable to harbor porpoise. Please see tables 34-37 in 
K[uuml]sel et al. (2022) for more peak threshold modeling results.

Table 13--Maximum Exposure Ranges (ER95%) to Level A Harassment PTS (SELCUM) and Level B Harassment Thresholds From Impact Pile Driving of 9.6-m Diameter ``Typical'' and ``Difficult-to-Drive''
                                                                  Monopile Foundations (Summer), Assuming 10 dB Attenuation \b\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               ``Typical'' (in km)                                             ``Difficult-to-drive'' (in km)
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                                                               One pile per day                  Two piles per day                   One pile per day                  Two piles per day
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                       Species                             Level A                            Level A                            Level A                            Level A
                                                       harassment (SEL;      Level B     harassment (dB re      Level B     harassment (dB re      Level B     harassment (dB re      Level B
                                                           dB re 1       harassment (dB          1          harassment (dB          1          harassment (dB          1          harassment (dB
                                                      [mu]Pa2[middot]s)   re 1 [mu]Pa)   [mu]Pa2[middot]s)   re 1 [mu]Pa)   [mu]Pa2[middot]s)   re 1 [mu]Pa)   [mu]Pa2[middot]s)   re 1 [mu]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
    Fin Whale.......................................              0.86             3.18              0.94             3.09              1.35             4.74              1.84             4.51
    Minke Whale \a\.................................              0.22             3.13              0.54             3.02              0.89             4.46              0.90             4.45
    Humpback Whale \a\..............................              0.24             3.15              0.33             3.01              0.74             4.47              0.69             4.53
    North Atlantic Right Whale \a\..................              0.33             2.89              0.47             2.87              1.09             4.33              1.13             4.30
    Sei Whale \a\...................................              0.43             3.09              0.54             3.07              1.04             4.47              1.21             4.52
MF:
    Atlantic White-sided Dolphin....................                 0             2.98                 0             2.94                 0             4.24                 0             4.30
    Atlantic Spotted dolphin........................                 0                0                 0                0                 0                0                 0                0
    Common Dolphin..................................                 0             3.07                 0             2.92                 0             4.48                 0             4.42
    Bottlenose Dolphin..............................                 0             2.46                 0             2.41                 0             3.77                 0             3.83
    Risso's Dolphin.................................                 0             3.07                 0             2.93                 0             4.73                 0             4.41
    Long-finned Pilot Whale.........................                 0                0                 0                0                 0                0                 0                0
    Short-Finned Pilot Whale........................                 0                0                 0                0                 0                0                 0                0
    Sperm Whale.....................................                 0             3.25                 0             2.96                 0             4.59                 0             4.47
HF:
    Harbor Porpoise.................................                 0             3.07                 0             3.05                 0             4.52                 0             4.37
PW:
    Gray Seal.......................................                 0             3.33             <0.01             3.26             <0.01             4.91             <0.01             4.87
    Harbor Seal.....................................                 0             3.02                 0             2.97                 0             4.68                 0             4.38
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in Tables I-19, I-20, I-23, and I-24 in K[uuml]sel et al. (2022) (Appendix I).


[[Page 22736]]


Table 14--Maximum Exposure Ranges (ER95%) to Level A Harassment PTS (SELCUM) and Level B Harassment Thresholds From Impact Pile Driving of 9.6-m Diameter ``Typical'' and ``Difficult-to-Drive''
                                                                  Monopile Foundations (Winter), Assuming 10 dB Attenuation \c\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               ``Typical'' (in km)                                             ``Difficult-to-drive'' (in km)
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                                                               One pile per day                  Two piles per day                   One pile per day                  Two piles per day
                                                     -------------------------------------------------------------------------------------------------------------------------------------------
                       Species                             Level A                            Level A                            Level A                            Level A
                                                       harassment (SEL;      Level B     harassment (dB re      Level B     harassment (dB re      Level B     harassment (dB re      Level B
                                                           dB re 1       harassment (dB          1          harassment (dB          1          harassment (dB          1          harassment (dB
                                                      [mu]Pa2[middot]s)   re 1 [mu]Pa)   [mu]Pa2[middot]s)   re 1 [mu]Pa)   [mu]Pa2[middot]s)   re 1 [mu]Pa)   [mu]Pa2[middot]s)   re 1 [mu]Pa)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LF:
    Fin Whale.......................................              0.88             3.40              1.01             3.46              1.80             5.24              1.95             4.87
    Minke Whale \a\.................................              0.26             3.31              0.48             3.29              0.89             4.88              1.05             4.66
    Humpback Whale \a\..............................              0.24             3.38              0.36             3.31              0.74             5.10              0.83             5.07
    North Atlantic Right Whale \a\..................              0.43             3.04              0.47             3.11              1.13             4.73              1.19             4.62
    Sei Whale \a\...................................              0.43             3.28              0.58             3.43              1.24             4.95              1.29             4.85
MF:
    Atlantic White-sided Dolphin....................                 0             3.30                 0             3.19                 0             4.73                 0             4.72
    Atlantic Spotted dolphin........................                 0                0                 0                0                 0                0                 0                0
    Common Dolphin..................................                 0             3.28                 0             3.08                 0             4.89                 0             4.73
    Bottlenose Dolphin..............................                 0             2.73                 0             2.77                 0             4.23                 0             4.12
    Risso's Dolphin.................................                 0             3.39                 0             3.32                 0             5.14                 0             4.92
    Long-finned Pilot Whale.........................                 0                0                 0                0                 0                0                 0                0
    Short-Finned Pilot Whale........................                 0                0                 0                0                 0                0                 0                0
    Sperm Whale.....................................                 0             3.40                 0             3.19                 0             4.96                 0             4.92
HF:
    Harbor Porpoise.................................                 0             3.15                 0             3.22                 0             5.04                 0             4.75
PW:
    Gray Seal.......................................                 0             3.54             <0.01             3.50             <0.01         \b\ 5.35             <0.01             5.19
    Harbor Seal.....................................                 0             3.28                 0             3.29                 0             4.93                 0             4.71
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ These values represent the maximum Level B.
\c\ The values here were found in Tables I-21, I-22, I-25, and I-26 in K[uuml]sel et al. (2022) (Appendix I).


  Table 15--Exposure Ranges (ER95%) to Level A Harassment (PTS (SELCUM)) and Level B Harassment Thresholds From
 Impact Pile Driving 11-m Diameter Monopile Foundations (Summer) In Normal (T1) Soil Conditions, Assuming 10 dB
                                                 Attenuation \b\
----------------------------------------------------------------------------------------------------------------
                                                             Normal (T1) soil conditions (in km)
                                           ---------------------------------------------------------------------
                                                     One pile per day                  Two piles per day
                                           ---------------------------------------------------------------------
                  Species                        Level A                            Level A
                                            harassment (dB re      Level B     harassment (dB re      Level B
                                                    1          harassment (dB          1          harassment (dB
                                            [mu]Pa2[middot]s)   re 1 [mu]Pa)   [mu]Pa2[middot]s)   re 1 [mu]Pa)
----------------------------------------------------------------------------------------------------------------
LF:
    Fin Whale.............................              0.87             3.32              0.83             3.16
    Minke Whale \a\.......................              0.17             3.10              0.35             2.98
    Humpback Whale \a\....................              0.25             3.01              0.16             3.10
    North Atlantic Right Whale \a\........              0.20             3.09              0.44             2.93
    Sei Whale \a\.........................              0.44             3.19              0.27             3.26
MF:
    Atlantic White-sided Dolphin..........                 0             2.97                 0             2.98
    Atlantic Spotted dolphin..............                 0                0                 0                0
    Common Dolphin........................                 0             3.08                 0             2.94
    Bottlenose Dolphin....................                 0             2.60                 0             2.62
    Risso's Dolphin.......................                 0             3.21                 0             3.11
    Long-finned Pilot Whale...............                 0                0                 0                0
    Short-Finned Pilot Whale..............                 0                0                 0                0
    Sperm Whale...........................                 0             3.40                 0             3.19
HF:
    Harbor Porpoise.......................                 0             3.06                 0             3.04
PW:
    Gray Seal.............................                 0             3.39                 0             3.40
Harbor Seal...............................                 0             3.25                 0             3.09
----------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds
  in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\The values here were found in Tables I-31 and I-32 in K[uuml]sel et al. (2022) (Appendix I).


[[Page 22737]]


  Table 16--Exposure Ranges (ER95%) to Level A Harassment (PTS (SELCUM)) and Level B Harassment Thresholds From
 Impact Pile Driving of 11-m Diameter Monopile Foundations (Winter) In Normal (T1) Soil Conditions, Assuming 10
                                               dB Attenuation \b\
----------------------------------------------------------------------------------------------------------------
                                                          Normal (T1) soil conditions (in km)
                                     ---------------------------------------------------------------------------
                                                One pile per day                      Two piles per day
                                     ---------------------------------------------------------------------------
               Species                                          Level B
                                       Level A harassment     harassment     Level A harassment       Level B
                                            (dB re 1         Behavior (dB         (dB re 1        harassment (dB
                                      [micro]Pa2[middot]s)       re 1       [micro]Pa2[middot]s)       re 1
                                                              [micro]Pa)                            [micro]Pa)
----------------------------------------------------------------------------------------------------------------
LF:
    Fin Whale.......................               0.87               3.56               0.82               3.53
    Minke Whale \a\.................               0.27               3.29               0.35               3.31
    Humpback Whale \a\..............               0.25               3.24               0.16               3.40
    North Atlantic Right Whale \a\..               0.20               3.17               0.44               3.28
    Sei Whale \a\...................               0.44               3.33               0.41               3.53
MF:
    Atlantic White-sided Dolphin....                  0               3.28                  0               3.31
    Atlantic Spotted dolphin........                  0                  0                  0                  0
    Common Dolphin..................                  0               3.26                  0               3.16
    Bottlenose Dolphin..............                  0               2.73                  0               2.93
    Risso's Dolphin.................                  0               3.48                  0               3.44
    Long-finned Pilot Whale.........                  0                  0                  0                  0
    Short-Finned Pilot Whale........                  0                  0                  0                  0
    Sperm Whale.....................                  0               3.48                  0               3.35
HF:
    Harbor Porpoise.................                  0               3.41                  0               3.35
PW:
    Gray Seal.......................                  0               3.66                  0               3.66
    Harbor Seal.....................                  0               3.36                  0               3.36
----------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds
  in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in Tables I-33 and I-34 in K[uuml]sel et al. (2022) (Appendix I).


   Table 17--Exposure Ranges (ER95%) to PTS (SELCUM) and Level B Harassment Thresholds From Impact Pile Driving of 11-m WTG Monopile Foundations (Summer) In Soft (R3) and Softer (U3) Soil Conditions, Assuming 10 dB Attenuation \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Soft (R3) soil conditions (in km)                                                        Softer (U3) soil conditions (in km)
                                                         ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Two piles per day                                                                         Two piles per day
                                                                         ----------------------------------------------------------------------------                ------------------------------------------------------------------------
                         Species                           One pile per                             Level B                               Level B      One pile per                             Level B                             Level B
                                                                day        Level A harassment   harassment (dB   Level A harassment   harassment (dB        day        Level A harassment   harassment (dB   Level A harassment   harassment
                                                                                (dB re 1             re 1             (dB re 1             re 1                             (dB re 1             re 1             (dB re 1         (dB re 1
                                                                          [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)    [micro]Pa)                    [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)  [micro]Pa)
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------
LF:
    Fin Whale...........................................            0.87               3.02               0.43               2.89               0.90            2.65               0.58               2.48
    Minke Whale \a\.....................................            0.16               2.78               0.26               2.82               0.02            2.32               0.16               2.27
    Humpback Whale \a\..................................            0.14               2.68               0.15               2.79              <0.01            2.26               0.11               2.31
    North Atlantic Right Whale \a\......................            0.20               2.72               0.37               2.67               0.37            2.21               0.28               2.20
    Sei Whale \a\.......................................            0.31               2.96               0.27               2.91               0.13            2.33               0.23               2.47
MF:
    Atlantic White-sided Dolphin........................               0               2.75                  0               2.73                  0            2.24                  0               2.23
    Atlantic Spotted dolphin............................               0                  0                  0                  0                  0               0                  0                  0
    Common Dolphin......................................               0               2.86                  0               2.76                  0            2.38                  0               2.41
    Bottlenose Dolphin..................................               0               2.29                  0               2.32                  0            1.92                  0               1.95
    Risso's Dolphin.....................................               0               2.86                  0               2.79                  0            2.41                  0               2.40
    Long-finned Pilot Whale.............................               0                  0                  0                  0                  0               0                  0                  0
    Short-Finned Pilot Whale............................               0                  0                  0                  0                  0               0                  0                  0
    Sperm Whale.........................................               0               2.77                  0               2.86                  0            2.36                  0               2.26
HF:
    Harbor Porpoise.....................................               0               2.76                  0               2.73                  0            2.19                  0               2.28
PW:
    Gray Seal...........................................               0               2.87                  0               3.01                  0            2.60              <0.01               2.58
    Harbor Seal.........................................               0               2.91                  0               2.75                  0            2.50                  0               2.36
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values for U3 were found in Tables I-27 and I-28 in K[uuml]sel et al. (2022) (Appendix I). The values for R3 were found in Tables I-35 and I-36 in K[uuml]sel et al. (2022) (Appendix I).


[[Page 22738]]


   Table 18--Exposure Ranges (ER95%) to PTS (SELCUM) and Level B Harassment Thresholds From Impact Pile Driving of 11-m WTG Monopile Foundations (Winter) In Soft (R3) and Softer (U3) Soil Conditions, Assuming 10 dB Attenuation \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Soft (R3) soil conditions (in km)                                                        Softer (U3) soil conditions (in km)
                                                         ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Two piles per day                                                                         Two piles per day
                                                                         ----------------------------------------------------------------------------                ------------------------------------------------------------------------
                         Species                           One pile per                             Level B                               Level B      One pile per                             Level B                             Level B
                                                                day        Level A harassment   harassment (dB   Level A harassment   harassment (dB        day        Level A harassment   harassment (dB   Level A harassment   harassment
                                                                                (dB re 1             re 1             (dB re 1             re 1                             (dB re 1             re 1             (dB re 1         (dB re 1
                                                                          [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)    [micro]Pa)                    [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)  [micro]Pa)
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------
LF:
    Fin Whale...........................................            0.87               3.17               0.48               3.14               0.89            2.71               0.82               2.54
    Minke Whale \a\.....................................            0.19               3.12               0.28               3.02               0.20            2.50               0.23               2.59
    Humpback Whale \a\..................................            0.14               3.04               0.19               2.96              <0.01            2.46               0.11               2.54
    North Atlantic Right Whale \a\......................            0.20               2.93               0.37               2.89               0.49            2.37               0.32               2.38
    Sei Whale \a\.......................................            0.46               3.09               0.27               3.11               0.13            2.60               0.28               2.56
MF:
    Atlantic White-sided Dolphin........................               0               2.90                  0               2.98                  0            2.43                  0               2.40
    Atlantic Spotted dolphin............................               0                  0                  0                  0                  0               0                  0                  0
    Common Dolphin......................................               0               3.08                  0               3.08                  0            2.50                  0               2.53
    Bottlenose Dolphin..................................               0               2.63                  0               2.41                  0            2.07                  0               2.11
    Risso's Dolphin.....................................               0               3.04                  0               3.08                  0            2.63                  0               2.53
    Long-finned Pilot Whale.............................               0                  0                  0                  0                  0               0                  0                  0
    Short-Finned Pilot Whale............................               0                  0                  0                  0                  0               0                  0                  0
    Sperm Whale.........................................               0               3.10                  0               3.04                  0            2.60                  0               2.38
HF:
    Harbor Porpoise.....................................               0               3.07                  0               3.09                  0            2.53                  0               2.51
PW:
    Gray Seal...........................................               0               3.25                  0               3.25                  0            2.70              <0.01               2.67
    Harbor Seal.........................................               0               3.09                  0               3.03                  0            2.58                  0               2.54
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values for U3 were found in Tables I-29 and I-30 in K[uuml]sel et al. (2022) (Appendix I). The values for R3 were found in Tables I-37 and I-38 in K[uuml]sel et al. (2022) (Appendix I).

    As shown in the tables above, modeling results indicated that 
exposure ranges associated with the 9.6-m diameter typical monopile 
scenario were predominantly greater than for the 11-m diameter monopile 
scenarios. While larger diameter monopiles can be associated with 
greater resulting sound fields than smaller diameter piles, in this 
case, the 11-m diameter monopile scenarios resulted in smaller modeled 
acoustic ranges than the 9.6-m diameter monopile scenarios likely 
because the 11-m monopile would only be installed in softer sediments 
which would require less hammer energy and/or number of hammer strikes 
for installation than the 9.6-m diameter pile in harder sediments. 
Hence, the 9.6-m diameter monopile scenario was carried forward to the 
exposure analysis to be conservative, for all ``typical'' monopiles.

              Table 19--Exposure Ranges (ER95%) to Level A Harassment (PTS (SELCUM)) and Level B Harassment Thresholds From Impact Pile Driving of 2.5-m Diameter OSS Foundations (Summer), Assuming 10 dB Attenuation \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           OSS 1 foundation (in km)                                                                  OSS 2 foundation (in km)
                                                         ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                    Three pin piles per day                                                                   Three pin piles per day
                                                                         ----------------------------------------------------------------------------                ------------------------------------------------------------------------
                         Species                           Two pin piles                            Level B                               Level B      Two pin piles                            Level B                             Level B
                                                              per day      Level A harassment   harassment (dB   Level A harassment   harassment (dB      per day      Level A harassment   harassment (dB   Level A harassment   harassment
                                                                                (dB re 1             re 1             (dB re 1             re 1                             (dB re 1             re 1             (dB re 1         (dB re 1
                                                                          [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)    [micro]Pa)                    [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)  [micro]Pa)
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------
LF:
    Fin Whale...........................................               0               1.04                  0               1.10                  0            1.10                  0               0.99
    Minke Whale \a\.....................................               0               1.00                  0               0.99                  0            1.01                  0               1.01
    Humpback Whale \a\..................................               0               1.02                  0               1.02                  0            0.94                  0               0.93
    North Atlantic Right Whale \a\......................               0               0.85                  0               0.89                  0            1.06                  0               1.01
    Sei Whale \a\.......................................           <0.01               1.08              <0.01               1.04                  0            0.94                  0               0.91
MF
    Atlantic White-sided Dolphin........................               0               0.98                  0               0.98                  0            0.82                  0               0.84
    Atlantic Spotted dolphin............................               0                  0                  0                  0                  0               0                  0                  0
    Common Dolphin......................................               0               1.03                  0               1.03                  0            0.96                  0               0.96
    Bottlenose Dolphin..................................               0               0.82                  0               0.81                  0            0.72                  0               0.74
    Risso's Dolphin.....................................               0               1.08                  0               1.05                  0            0.87                  0               0.86

[[Page 22739]]

 
    Long-finned Pilot Whale.............................               0                  0                  0                  0                  0               0                  0                  0
    Short-Finned Pilot Whale............................               0                  0                  0                  0                  0               0                  0                  0
    Sperm Whale.........................................               0               0.88                  0               0.95                  0            1.03                  0               1.02
HF:
    Harbor Porpoise.....................................               0               0.95                  0               1.02                  0            0.94                  0               0.92
PW:
    Gray Seal...........................................               0               1.15                  0               1.14                  0            0.78                  0               0.77
    Harbor Seal.........................................               0               1.12                  0               0.99                  0            1.05                  0               1.04
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in Tables I-39, I-40, I-43, and I-44 in K[uuml]sel et al. (2022) (Appendix I).


              Table 20--Exposure Ranges (ER95%) to Level A Harassment (PTS (SELCUM)) and Level B Harassment Thresholds From Impact Pile Driving of 2.5-m Diameter OSS Foundations (Winter), Assuming 10 dB Attenuation \b\
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           OSS 1 foundation (in km)                                                                  OSS 2 foundation (in km)
                                                         ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                    Three pin piles per day                                                                   Three pin piles per day
                                                                         ----------------------------------------------------------------------------                ------------------------------------------------------------------------
                         Species                           Two pin piles                            Level B                               Level B      Two pin piles                            Level B                             Level B
                                                              per day      Level A harassment   harassment (dB   Level A harassment   harassment (dB      per day      Level A harassment   harassment (dB   Level A harassment   harassment
                                                                                (dB re 1             re 1             (dB re 1             re 1                             (dB re 1             re 1             (dB re 1         (dB re 1
                                                                          [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)    [micro]Pa)                    [micro]Pa2[middot]s)    [micro]Pa)    [micro]Pa2[middot]s)  [micro]Pa)
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ----------------------------------
LF:
    Fin Whale...........................................               0               1.08               0.18               1.04                  0            1.10                  0               0.99
    Minke Whale \a\.....................................               0               1.01                  0               1.01                  0            1.06                  0               1.03
    Humpback Whale \a\..................................               0               1.02                  0               1.02                  0            0.94                  0               0.92
    North Atlantic Right Whale \a\......................               0               0.79                  0               0.88                  0            1.06                  0               1.04
    Sei Whale \a\.......................................               0               1.08              <0.01               1.05                  0            0.94                  0               0.90
MF:
    Atlantic White-sided Dolphin........................               0               0.93                  0               0.96                  0            0.86                  0               0.86
    Atlantic Spotted dolphin............................               0                  0                  0                  0                  0               0                  0                  0
    Common Dolphin......................................               0               0.96                  0               0.86                  0            0.96                  0               0.96
    Bottlenose Dolphin..................................               0               0.85                  0               0.84                  0            0.80                  0               0.74
    Risso's Dolphin.....................................               0               0.92                  0               0.89                  0            0.87                  0               0.86
    Long-finned Pilot Whale.............................               0                  0                  0                  0                  0               0                  0                  0
    Short-Finned Pilot Whale............................               0                  0                  0                  0                  0               0                  0                  0
    Sperm Whale.........................................               0               0.91                  0               0.89                  0            1.03                  0               1.02
HF:
    Harbor Porpoise.....................................               0               0.95                  0               0.95                  0            0.94                  0               0.92
PW:
    Gray Seal...........................................               0               1.08                  0               1.10                  0            0.78                  0               0.77
    Harbor Seal.........................................               0               1.08                  0               0.95                  0            1.04                  0               1.04
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Species was considered as ``migrating'' in the analysis.
\b\ The values here were found in Tables I-41, I-42, I-45, and I-46 in K[uuml]sel et al. (2022) (Appendix I).


    Table 21--Maximum Acoustic Ranges (R95%) to Level A Harassment (PTS (Peak)) and Level B Harassment Thresholds (160 dB SPL) for 9.6-m WTG Monopile
         (Typical and Difficult To Drive Scenarios), 11-m WTG Monopile, and 2.5-m OSS Pin Piles (Summer and Winter), Assuming 10-dB Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Level A harassment Pk (in km)   Level B harassment 160 dB SPL
                                                                                Marine   --------------------------------             (in km)
              Foundation type                 Modeled maximum impact hammer     mammal                                   -------------------------------
                                                       energy (kJ)              group      R95% (summer)   R95% (winter)   R95% (summer)   R95% (winter)
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
WTG--9.6-m monopile........................  2,300 kJ (5,500 kJ)...........          LF:     -\b\ (-\b\)     -\b\ (-\b\)  3.51 \g\ (5.05  3.77 \g\ (5.49
                                                                                                                                    \j\)            \j\)
                                                                                     MF:     -\b\ (-\b\)     -\b\ (-\b\)
                                                                                     HF:  0.10 \c\ (0.15  0.11 \c\ (0.17
                                                                                                    \d\)            \d\)

[[Page 22740]]

 
                                                                                     PW:     -\b\ (-\b\)     -\b\ (-\b\)
WTG--11-m monopiles........................  2,500 kJ......................          LF:            -\b\            -\b\        \h\ 3.64        \h\ 3.92
                                                                                     MF:            -\b\            -\b\
                                                                                     HF:        \e\ 0.11        0.12 \e\
                                                                                     PW:            -\b\            -\b\
OSS--2.5-m pin pile \a\....................  3,200 kJ......................          LF:            -\b\            -\b\        \i\ 1.19        \i\ 1.17
                                                                                     MF:            -\b\            -\b\
                                                                                     HF:        \f\ 0.01        \f\ 0.01
                                                                                     PW:            -\b\            -\b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ Assumes a 2dB post-piling shift.
\b\ A dash (-) indicates that the threshold was not exceeded.
\c\ Found in Table H-11 in K[uuml]sel et al. (2022) (Appendix H).
\d\ Found in Table H-47 in K[uuml]sel et al. (2022) (Appendix H).
\e\ Found in Table H-31 in K[uuml]sel et al. (2022) (Appendix H).
\f\ Found in Table H-51 in K[uuml]sel et al. (2022) (Appendix H).
\g\ Found in Table H-343 in K[uuml]sel et al. (2022) (Appendix H).
\h\ Found in Table H-439 in K[uuml]sel et al. (2022) (Appendix H).
\i\ Found in Table H-495 in K[uuml]sel et al. (2022) (Appendix H).
\j\ Found in Table H-479 in K[uuml]sel et al. (2022) (Appendix H).

    Exposure estimates were calculated for marine mammals based on 
proposed construction schedules and resulting density calculations. As 
described above, Empire Wind applied densities within grid cells within 
the lease area and extending 10 km beyond the lease area. The resulting 
monthly densities used are provided in Table 22.

                        Table 22--Mean Monthly Marine Mammal Density Estimates Within a 10 km Buffer Around OCS-A 0512 Lease Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Monthly                                                    Annual mean
                                  densities  -----------------------------------------------------------------------------------------------------------
            Species               (animals/
                                  100 km\2\)    Jan      Feb      Mar      Apr      May      Jun      Jul      Aug      Sep      Oct      Nov      Dec
                                     \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale......................        0.172    0.139    0.113    0.137    0.174    0.171    0.157      0.1    0.055     0.04    0.038     0.13    0.119
Minke whale....................        0.071     0.06    0.072    0.936    1.485    0.803    0.198    0.107    0.066    0.111    0.026    0.059    0.333
Humpback whale.................        0.091    0.061    0.076    0.119    0.133    0.113     0.03    0.022    0.054    0.101     0.13    0.113    0.087
North Atlantic right whale.....          0.1    0.116    0.115    0.088    0.025    0.006    0.003    0.003    0.004    0.008    0.016     0.05    0.045
Sei whale......................        0.029    0.016    0.033    0.071    0.055    0.011    0.002    0.002    0.005    0.013    0.037    0.049    0.027
Atlantic white-sided dolphin...        0.642    0.399    0.356    0.846    1.373    1.237    0.117    0.049    0.279    0.892    0.863     0.99     0.67
Atlantic spotted dolphin.......        0.001        0    0.001    0.003     0.01    0.019    0.033    0.072    0.177     0.26    0.133    0.013     0.06
Short-beaked common dolphin....        5.664    1.852    1.246    2.457    3.474    2.835    1.566    1.917    1.623    3.495    7.244    9.177    3.546
Bottlenose dolphin.............        0.851    0.247    0.205    0.629    2.005    3.232    3.534    2.953    2.552    2.898    2.772     2.52    2.033
Risso's dolphin................        0.042    0.005    0.003    0.021    0.034    0.014    0.014    0.007    0.008     0.01    0.056    0.186    0.033
Long-finned pilot whale........        0.028    0.028    0.028    0.028    0.028    0.028    0.028    0.028    0.028    0.028    0.028    0.028    0.028
Short-finned pilot whale.......        0.021    0.021    0.021    0.021    0.021    0.021    0.021    0.021    0.021    0.021    0.021    0.021    0.021
Sperm whale....................        0.007    0.002    0.002    0.004    0.005    0.011    0.011    0.015    0.003        0    0.008    0.005    0.006
Harbor porpoise................        5.469     5.73    5.916    7.066    2.421    0.347    0.435    0.215     0.13    0.144    0.342    3.757    2.664
Gray seals.....................        4.762    4.505    3.689    4.337    5.968    1.093    0.071    0.049    0.104    0.684    1.625    4.407    2.608
Harbor seals...................       10.698   10.121    8.289    9.745    13.40    2.456     0.16     0.11    0.233    1.537    3.651    9.902    5.859
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Density estimates are from habitat-based density modeling of the entire Atlantic Exclusive Economic Zone (Roberts and Halpin, 2022).

    Construction schedules (piles per day and number of days of pile 
driving per month) are an input into exposure calculations. However, 
they are difficult to predict because of factors like first year 
weather and installation variation related to drivability. Because it 
is hard to anticipate the installation schedule, a conservative 
approach was used to generate potential installation schedules for 
animal exposure calculation. Empire Wind assumed that a maximum of 24 
monopiles could be installed per month, with a maximum of 96 WTG 
monopiles and two OSS foundations installed in the first year and the 
remaining 51 WTG monopile foundations installed in year 2. In Year 1, 
Empire Wind assumed that 24 monopiles would be installed in the four 
highest density months for each species during the May to December 
period and the two OSSs would be installed in the highest and second 
highest density months. Empire Wind also assumed that all 17 difficult-
to-drive piles would be installed in the first year but the 
distribution would be spread relatively evenly among the four highest 
months (i.e., four piles per month except the highest density month 
which assumed 5 difficult-to-drive piles for a total of 17 piles). In 
the second year, 24 monopiles would be installed in the two highest 
density months and the remaining 3 monopiles would be installed in the 
third highest density month. This approach is reflected in Table 23. 
Thus, each species was presumed to be exposed to the

[[Page 22741]]

maximum amount of pile driving based on their monthly densities.

                                   Table 23--Most Conservative Construction Schedule for Estimating Level B Harassment
                                                    [One monopile per day/two pin piles per day] \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Year 1                                              Year 2
                                                 -------------------------------------------------------------------------------------------------------
                 Foundation type                                    Monthly density                                     Monthly density
                                                 -------------------------------------------------------------------------------------------------------
                                                    Highest       Second       Third        Fourth      Highest       Second       Third        Fourth
--------------------------------------------------------------------------------------------------------------------------------------------------------
WTG monopile--typical...........................           19           20           20           20           24           24            3            0
WTG monopile--difficult.........................            5            4            4            4            0            0            0            0
OSS 1 pin pile..................................            0            6            0            0            0            0            0            0
OSS 2 pin pile..................................            6            0            0            0            0            0            0            0
Total # of piles................................           30           30           24           24           24           24            3            0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Maximum number of piles to be driven per month for each foundation type in each of the four highest density months for each species during May To
  December Period.

    As described above, Empire Wind conducted exposure modeling to 
estimate potential exposures by Level A harassment and Level B 
harassment incidental to installation of WTG and OSS foundations. 
Tables 24 and 25 show calculated exposures for 2025 and 2026 
respectively based on the methodologies and assumptions described 
above.

 Table 24--Calculated Exposures by Level A Harassment and Level B Harassment Resulting From Monopile and OSS Foundation Installation Impact Pile Driving
                                                                        [Year 1]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Calculated take           Calculated    Requested take  Requested take
                                                                         --------------------------------      take      -------------------------------
                                                                                Level A harassment       ----------------
               Hearing group                           Species           --------------------------------     Level B
                                                                                                            harassment        Level A         Level B
                                                                                LE              LpK      ----------------   harassment      harassment
                                                                                                               Lp\a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
LF........................................  Fin \b\.....................            1.15               0            8.78               1         \c\ 133
                                            Minke.......................            3.72               0           65.05               4              65
                                            Humpback....................            0.36           <0.01            8.12               0          \c\ 60
                                            North Atlantic Right Whale              0.01               0            2.36               0          \f\ 11
                                             \b\.
                                            Sei \b\.....................            0.27           <0.01            2.78               0               3
MF........................................  Atlantic white-sided dolphin               0               0          116.00               0         \f\ 416
                                            Atlantic spotted dolphin....               0               0               0               0          \d\ 45
                                            Short-beaked common dolphin.               0               0          902.19               0       \d\ 3,600
                                            Bottlenose dolphin..........               0               0          226.02               0       \d\ 1,800
                                            Risso's dolphin.............               0               0            5.96               0         \d\ 100
                                            Pilot whales................               0               0               0               0         \c\ 161
                                            Sperm whale \b\.............               0               0            0.56               0           \d\ 3
HF........................................  Harbor porpoise.............               0            0.09          133.77               0             134
PW........................................  Gray seal...................            0.17               0          162.46               0             162
                                            Harbor seal.................               0               0          356.44               0             356
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ NOAA Fisheries (2005).
\b\ Listed as Endangered under the ESA.
\c\ Requested take adjusted based on PSO sighting data from 2018-2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a,b; Geoquip
  Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021); 0.5 humpback whales per day, 1.11 fin
  whales per day, 1.34 pilot whales per day.
\d\ Requested take adjusted based on 1 group size per year as follows: 3 sperm whales (Barkaszi et al., 2019), 45 Atlantic spotted dolphins (Kenney and
  Vigness-Raposa, 2010), and 100 Risso's dolphins (Jefferson et al., 2015).
\e\ Requested take adjusted by 1 group size per day as follows: 30 short-beaked common dolphins (Reeves et al., 2002), 15 bottlenose dolphins (Jefferson
  et al., 2015).
\f\ Requested take adjusted by 1 group size per month of 52 Atlantic white-sided dolphins (Jefferson et al., 2015) and 1 (monthly density < 0.01) or 2
  (monthly density > 0.01) of North Atlantic right whales (Roberts and Halpin, 2022).


[[Page 22742]]


      Table 25--Calculated Exposures by Level A and Level B Harassment Resulting From Monopile and OSS Foundation Installation Impact Pile Driving
                                                                        [Year 2]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Calculated take           Calculated    Requested take  Requested take
                                                                         --------------------------------      take      -------------------------------
                                                                                Level A harassment       ----------------
               Hearing group                           Species           --------------------------------     Level B
                                                                                                            harassment        Level A         Level B
                                                                                LE              LpK      ----------------   harassment      harassment
                                                                                                              Lp \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
LF........................................  Fin \b\.....................            0.52               0            4.00               1          \c\ 57
                                            Minke.......................            2.18               0           47.73               2              48
                                            Humpback....................            0.14               0            3.82               0          \c\ 26
                                            North Atlantic Right Whale              0.05               0            1.57           \g\ 0          \f\ 11
                                             \b\.
                                            Sei \b\.....................            0.16               0            1.66               0               2
MF........................................  Atlantic white-sided dolphin               0               0           59.23               0         \f\ 416
                                            Atlantic spotted dolphin....               0               0               0               0          \d\ 45
                                            Short-beaked common dolphin.               0               0          560.75               0       \e\ 1,530
                                            Bottlenose dolphin..........               0               0          110.28               0         \e\ 765
                                            Risso's dolphin.............               0               0            4.09               0         \d\ 100
                                            pilot whales................               0               0               0               0          \c\ 68
                                            Sperm whale \b\.............               0               0            0.29               0           \d\ 3
HF........................................  Harbor porpoise.............               0               0           98.43               0              98
PW........................................  Gray seal...................               0               0          111.95               0             112
                                            Harbor seal.................               0               0          229.89               0             230
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.
\a\ NOAA Fisheries (2005).
\b\ Listed as Endangered under the ESA.
\c\ Requested take adjusted based on PSO sighting data from 2018-2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a,b; Geoquip
  Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021); 0.5 humpback whales per day, 1.11 fin
  whales per day, 1.34 pilot whales per day.
\d\ Requested take adjusted based on 1 group size per year as follows: 3 sperm whales (Barkaszi et al., 2019), 45 Atlantic spotted dolphins (Kenney and
  Vigness-Raposa, 2010), and 100 Risso's dolphins (Jefferson et al., 2015).
\e\ Requested take adjusted by 1 group size per day as follows: 30 short-beaked common dolphins (Reeves et al., 2002), 15 bottlenose dolphins (Jefferson
  et al., 2015).
\f\ Requested take adjusted by 1 group size per month of 52 Atlantic white-sided dolphins (Jefferson et al., 2015) and 1 (when monthly density < 0.01)
  or 2 (when monthly density > 0.01) of North Atlantic right whales (Roberts and Halpin, 2022).
\g\ Enhanced mitigation measures for NARWs would avoid take by Level A harassment.

    A review of Empire Wind's PSO sightings data ranging from 2018-2021 
for the Project Area indicated that exposure estimates based on the 
exposure modeling methodology above were likely an underestimate for 
humpback whales, fin whales, and pilot whales (A.I.S. 2019; Alpine 
Ocean Seismic Survey 2018; Gardline 2021a,b; Geoquip Marine 2021; 
Marine Ventures International 2021; RPS 2021; Smultea Environmental 
Sciences 2019, 2020, 2021). PSO sightings data were analyzed to 
determine the average number of each species sighted per day during 
high-resolution geophysical (HRG) surveys in the Project Area. Results 
indicated that the highest average sightings-per-day rate among PSO 
reports from 2018-2021 was 0.5 humpback whales (Smultea Environmental 
Sciences 2019), 1.11 fin whales (Alpine Ocean Seismic Survey 2018), and 
1.34 pilot whales (Geoquip Marine 2021) sighted per day. These highest 
daily averages per day were then multiplied by the maximum potential 
number of days of pile driving associated with wind turbine and 
offshore substation foundation installation for these species. In the 
event that one monopile or one pin pile is installed per day, up to 120 
days of pile driving (i.e., 96 days of monopile installation and 24 
days of pin pile installation) could occur in 2025 and up to 51 days of 
pile driving (i.e., 51 days of monopile installation) could occur in 
2026.
    At a rate of 0.5 humpback whales per day, 120 days of pile driving 
in 2025 resulted in an estimated 60 takes by level B harassment in that 
year, and 51 days of pile driving in 2026 resulted in an estimated 25.5 
(rounded to 26) takes by level B harassment in that year. Since these 
alternate estimates of take by Level B harassment for humpback whales 
are higher than numbers calculated based on the exposure analysis 
method described above. To be conservative, Empire Wind requested, and 
NMFS is proposing to authorize, take by Level B harassment of 60 
humpback whales in 2025 and 26 whales in 2026 based on this alternate 
take calculation method.
    At a rate of 1.11 fin whales per day, 120 days of pile driving in 
2025 resulted in an estimated 133 takes by level B harassment in that 
year, and 51 days of pile driving in 2026 resulted in an estimated 56.6 
(rounded to 57) takes by level B harassment in that year. Since these 
alternate estimates of take by Level B harassment for fin whales are 
higher than numbers calculated based on the exposure analysis method 
described above, Empire Wind has requested, and NMFS is proposing to 
authorize, take by Level B harassment for fin whales (133 in 2025; 57 
in 2026) based on this alternate take calculation method.
    At a rate of 1.34 pilot whales per day, 120 days of pile driving in 
2025 resulted in an estimated 160.7 (rounded to 161) takes by level B 
harassment in that year, and 51 days of pile driving in 2026 resulted 
in an estimated 68 takes by level B harassment in that year. Since 
these alternate estimates of take by Level B harassment for pilot 
whales are higher than numbers calculated based on the exposure 
analysis method. Empire Wind has requested take by Level B harassment 
for pilot whales based on this alternate take calculation method. NMFS 
concurs with this assessment and is proposing to authorize the same 
number of takes by Level B harassment for 2025 (161) and 2026 (68).

[[Page 22743]]

    For certain species for which the exposure modeling methodology 
described previously above may result in potential underestimates of 
take and Empire Wind's PSO sightings data were relatively low, 
adjustments to the take request were made based on the best available 
information on marine mammal group sizes to ensure conservatism. For 
species considered rare but still have the potential for occurrence in 
the Project Area, requested take by Level B harassment was adjusted to 
one group size per year. NMFS concurs with this assessment and is 
proposing to authorize take by Level B harassment of 3 sperm whales per 
year in 2025 and 2026 (Barkaszi et al. 2019); 45 Atlantic spotted 
dolphins per year in 2025 and 2026 (Kenney and Vigness-Raposa 2010); 
and 100 Risso's dolphins per year in 2025 and 2026 (100 individuals; 
Jefferson et al. 2015).
    For species considered relatively common in the Project Area, 
requested take by Level B harassment was adjusted to one group size per 
month. These include Atlantic white-sided dolphins (52 individuals, 
Jefferson et al. 2015) and North Atlantic right whales. The group size 
determination for North Atlantic right whales was derived based on 
consultation with NOAA Fisheries. A group size of 1 animal was used for 
months with mean monthly densities less than 0.01, while a group size 
of 2 animals, reflective of the potential for a mother and calf, was 
used for months with mean monthly densities greater than 0.01 based on 
the Roberts and Halpin 2022 predictive densities. For the months when 
pile driving activities may occur (May through December), those 
criteria result in a group size of 1 animal for the months of June 
through October and 2 animals for the months of May, November, and 
December. This group size determination is intended to account for the 
potential presence of mother-calf pairs. Therefore, Empire Wind 
requested and NMFS is proposing to authorize 11 takes of North Atlantic 
right whale by Level B harassment per year in 2025 and 2026 and 416 
takes of Atlantic white-sided dolphin by Level B harassment per year in 
2025 and 2026.
    For species considered common in the Project Area, requested takes 
by Level B harassment was adjusted to one group size per day. These 
include short-beaked common dolphins (30 individuals, Reeves et al. 
2002), and bottlenose dolphins (15 individuals, Jefferson et al. 2015). 
Empire Wind has requested, and NMFS is proposing to authorize, 3,600 
and 1,530 takes of short-beaked common dolphins by Level B harassment 
per year in 2025 and 2026. Empire Wind has also requested, and NMFS is 
proposing to authorize, 1,800 and 765 takes of bottlenose dolphins by 
Level B harassment per year in 2025 and 2026 respectively.
Cable Landfall Construction
    As described in the Description of the Specified Activities section 
above, Empire Wind is considering two options to facilitate the 
transition of the offshore export cable to the onshore cable: (1) a 
cofferdam or (2) a casing pipe with goal posts. The general 
methodologies used to estimate take of marine mammals incidental to 
cable landfall construction activities is described above. Here we 
present details regarding those methodologies specific to these 
activities followed by the take NMFS proposes to authorize incidental 
to cable landfall construction.
    Cofferdam Vibratory Driving--As many as two temporary cofferdams 
may be installed for EW 1 and as many as three temporary cofferdams may 
be installed for EW 2. Empire Wind assumed a source level of 195 dB SEL 
and 195 dB rms at 10 m (Schultz-von Glahn et al. 2006). As described 
above, propagation modeling was conducted using dBSea. Resulting 
distances to NMFS harassment isopleths for cofferdam installation are 
provided in Table 26 (note that very shallow water depths (3-4 m) at 
the cofferdam pile driving site is responsible for the limited acoustic 
propagation of vibratory driving noise.

 Table 26--Distances (Meters) to the Level A and Level B Harassment Threshold Isopleths for Cofferdam Vibratory Pile Driving and Estimated Area of Level
                                                                    B Harassment Zone
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          PTS onset by hearing group (m)                    Behavioral      Area within
                                                         ----------------------------------------------------------------   harassment       estimated
                        Location                                                                                         ----------------     Level B
                                                          LF (199 LE, 24  MF (198 LE, 24  HF (173 LE, 24  PW (201 LE, 24   ALL (120 SPL     harassment
                                                                hr)             hr)             hr)             hr)            RMS)        zone (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
EW 1....................................................             122               0              44              62           1,985           2.679
EW 2....................................................              13               0              12              11           1,535           1.672
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.

    To estimate take, Empire Wind averaged the maximum monthly 
densities by season as reported by Roberts and Halpin (2002): spring 
(March through May), summer (June through August), fall (September 
through November), and winter (December through February). To be 
conservative, the maximum average seasonal density for each species was 
then carried forward in the take calculations.
    Empire Wind considered the ensonified areas and density estimates 
to calculate potential exposures (Table 27). However, for some species, 
group size data demonstrate that the density-based exposure 
calculations underestimate the potential for take. Hence, the amount of 
requested take varies from exposure estimates (Table 27). Given the 
noise from cofferdam installation would not extend beyond the 20-m 
isobath, where the coastal stock predominates, it is expected that only 
the coastal stock of bottlenose dolphins is likely to be taken by this 
activity. As the density models do not account for group size and the 
resulting calculated exposures were very small, the predicted take was 
increased to account for the exposure of one average-sized group per 
day each of bottlenose and common dolphins.
    Due to the presence of several seal haul outs, Empire Wind 
determined the Roberts and Halpin (2022) density data likely 
underestimated potential seal occurrence; therefore, 10 Level B 
harassment seal takes per day were estimated, based on pinniped 
observations in New York City between 2011 and 2017 (Woo and Biolsi, 
2018). For pinnipeds, because the seasonality of and habitat use by 
gray seals roughly overlaps with harbor seals, and the density data as 
presented by Roberts and Halpin (2022) do not differentiate between 
pinniped species, the estimated takes were split evenly between harbor 
and gray seals (Table 27). Note that any

[[Page 22744]]

species in Table 27 where the calculated take was less than 0.5 
animals, the proposed take was reduced to zero.

 Table 27--Average Marine Mammal Densities, Exposure Estimates and Amount of Proposed Take (in Parentheses), by
                          Level B Harassment, From Cofferdam Vibratory Pile Driving \f\
----------------------------------------------------------------------------------------------------------------
                                      EW 1 cofferdams (2024)        EW 2 cofferdams (2024-2025)
                                 --------------------------------             totals
                                                                 --------------------------------
                                      Average       Calculated        Average                     Total proposed
             Species                 seasonal     take (proposed     seasonal       Calculated     take by Level
                                    density \a\   take) by Level    density \a\   take (proposed   B harassment
                                     (No./100      B harassment      (No/.100     take) by Level
                                      km\2\)                          km\2\)       B harassment
----------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale......           0.073       0.020 (0)           0.073       0.020 (0)               0
Humpback Whale..................           0.099       0.030 (0)           0.099       0.030 (0)               0
Fin Whale.......................           0.097       0.030 (0)           0.097       0.030 (0)               0
Sei Whale.......................           0.030       0.010 (0)           0.030       0.010 (0)               0
Sperm Whale.....................           0.006       0.000 (0)           0.006       0.000 (0)  ..............
Minke Whale.....................           0.526       0.170 (0)           0.526       0.160 (0)               0
Bottlenose dolphin (Western N.A.           6.299     2.030 (180)           6.299     1.900 (270)             450
 Northern Migratory Coastal
 Stock) \b\.....................
Atlantic Spotted Dolphin........           0.058       0.020 (0)           0.058       0.020 (0)               0
Short-beaked common dolphin \c\.           2.837     0.910 (360)           2.837     0.850 (540)             900
Atlantic White-sided Dolphin....           0.469       0.150 (0)           0.469       0.140 (0)               0
Risso's dolphin.................           0.034       0.010 (0)           0.034       0.010 (0)               0
Pilot whales spp. \d\...........           0.019       0.010 (0)           0.019       0.010 (0)               0
Harbor porpoise.................           3.177       1.020 (1)           3.177       0.960 (1)               2
Harbor seal \e\.................          13.673      2.200 (60)          13.673      2.060 (90)             150
Gray seal \e\...................          13.673      2.200 (60)          13.673      2.060 (90)             150
----------------------------------------------------------------------------------------------------------------
\a\ Cetacean density values from Duke University (Roberts and Halpin, 2022).
\b\ Bottlenose dolphin density values from Duke University (Roberts and Halpin, 2022) reported as ``bottlenose''
  and not identified to stock. Given the noise from cofferdam installation would not extend beyond the 20 m
  isobath, where the coastal stock predominates, it is expected that all estimated takes by Level B harassment
  of bottlenose dolphins from cofferdam installation will accrue to the coastal stock. As Roberts and Halpin
  does not account for group size, the requested and proposed take was adjusted to account for one group size,
  15 individuals (Jefferson et al., 2015) per day (18 days) of bottlenose.
\c\ As Roberts et al. does not account for group size, the estimated take was adjusted to account for one group
  size, 30 individuals (Reeves et al., 2002) per day of each common dolphins.
\d\ Pilot whale density values from Duke University (Roberts and Halpin, 2022) reported as ``Globicephala spp.''
  and not species-specific.
\e\ Pinniped density values from Duke University (Roberts and Halpin, 2022) are reported as ``seals'' and are
  not species-specific, therefore, 50 percent of expected takes by Level B harassment are expected to accrue to
  harbor seals and 50 percent to gray seals. Due to the presence of several seal haul outs in the area,
  requested and proposed level B harassment seal takes were calculated by estimating 10 individuals per day (9
  days) (Woo and Biolsi, 2018), divided evenly between harbor seals and gray seals.
\f\ Data not available for harp seals for which take was requested and is being proposed.

    Casing Pipe and Goal Post Impact Pile Driving--Empire Wind 
estimated distances to NMFS thresholds using the optional User 
Spreadsheet tool. The casing pipe may be installed using a pneumatic 
hammer, hence the number of strikes considered is high. The goal posts 
would be installed with a traditional impact hammer. Parameters input 
into the user spreadsheet for casing pipe and goal post installation 
and removal are provided in Table 28.

  Table 28--Estimated Source Levels (at 10 m) and Installation Rates for Casing Pipe and Goal Post Installation
----------------------------------------------------------------------------------------------------------------
                                                                  #strikes per                     Transmission
           Structure                 dB SEL          dB rms           pile        Piles per day        loss
----------------------------------------------------------------------------------------------------------------
Casing pipe....................             166             182          43,200               1  15 log.
Goal Posts.....................             174             184           2,000               2
----------------------------------------------------------------------------------------------------------------

    Using NMFS' Multi-Species Calculator Tool and the assumptions 
provided above, Empire Wind calculated distances to PTS and Level B 
harassment thresholds from casing pipe and goal post installation. The 
resulting distances to NMFS thresholds are provided in Table 29.

[[Page 22745]]



    Table 29--Distances (Meters) to the Level A and Level B Harassment Threshold Isopleth Distances for Casing Pipe and Goal Post Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              PTS onset by hearing group (m)
                                                 ----------------------------------------------------------------------------------------   Behavioral
                    Scenario                               LF                    MF                    HF                    PW           harassment SPL
                                                 ----------------------------------------------------------------------------------------       (m)
                                                     peak       SEL        peak       SEL        peak       SEL        peak       SEL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pile............................................        219        183        230        185        202        155        218        185             160
42'' casing pipe................................        0.3      904.5        0.1       32.2        4.6    1,077.4        0.4        484             293
12-inch steel goal post.........................          0      632.1          0       22.5        7.4      752.9          0      338.3           398.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: LF = low-frequency cetaceans; MF = mid-frequency cetaceans; HF = high-frequency cetaceans; PW = pinnipeds in water.

    As described above, either cofferdams or goal post and casing pipe 
installation may occur as part of cable landfall activities, but not 
both. For goal post installation, two hours per goal post (two piles), 
for 3 goal posts (6 piles) per HDD, for a total of 18 piles and 36 
total hours of pile driving are anticipated. For cofferdams, there is 1 
hour per day for 6 days (installation and removal) per cofferdam for a 
total of 18 hours pile driving anticipated. While modeled distances to 
the Level A harassment threshold for goal post pile driving were larger 
than for cofferdam vibratory driving based on the SELcum 
metric, it should be noted that modeled distances based on the 
SELcum metric are based on the assumption that an individual 
animal remains at that distance for the entire duration of pile driving 
in order to incur PTS. This is not considered realistic as marine 
mammals are highly mobile. As modeled distances to the Level B 
harassment threshold and zones of influence for Level B harassment were 
orders of magnitude larger for cofferdam vibratory driving compared to 
goal post pile driving (compare Table 26 to Table 29), the amount of 
take resulting from cofferdam vibratory driving activities were 
determined to be greater than that of the alternative goal post and 
casing pipe scenario. Therefore, to be conservative the cofferdam 
scenario was carried forward for the analysis of potential takes by 
harassment from cable landfall activities. As such, goal post pile 
driving is not analyzed further in this application.
    Since the acoustic impact of the marina work was minimal and 
densities are not available for the specific inshore region where the 
activity will occur, potential take by harassment for marine mammals 
could not be calculated. Instead, to be conservative, 10 takes by Level 
B harassment of seals per day were estimated (Woo and Biolsi 2018), 
which were split evenly between harbor and gray seals.
    Estimates of take are computed according to the following formula 
as provided by NOAA Fisheries (Personal Communication, November 24, 
2015):

Estimated Take = D x ZOI x (d)

Where:

D = average highest species density (number per km2)
ZOI = maximum ensonified area to MMPA threshold for impulsive noise 
(160 dB RMS 90 percent re 1 [mu]Pa)
d = number of days

    The area ensonified to the Level B harassment threshold, as well as 
the projected duration of cofferdam installation and removal at each 
respective vibratory pile driving location, was then used to produce 
the results of take calculations provided in Table 27. It is expected 
to take three days to install and three days to remove each cofferdam. 
Therefore six days of vibratory pile driving/removal at each location 
were included. It should be noted that calculations do not take into 
account whether a single animal is harassed multiple times or whether 
each exposure is a different animal. Therefore, the numbers in Table 28 
are the maximum number of animals that may be exposed to sound above 
relevant thresholds during vibratory pile driving (i.e., Empire Wind 
assumes that each exposure event is a different animal).
    For cofferdam exposure estimates, the Robert and Halpin (2022) 
densities were overlaid on the modeled Level B harassment zones to 
estimate exposures. The maximum monthly densities as reported by 
Roberts and Halpin (2022) were averaged by season over the duration of 
cofferdam installation/removal (spring (March through May), summer 
(June through August), fall (September through November), and winter 
(December through February)). To be conservative, the maximum average 
seasonal density for each species was then carried forward in the take 
calculations. Bottlenose dolphin density values from Duke University 
(Roberts and Halpin, 2022) are reported as ``bottlenose'' and not 
identified to stock. Given the noise from cofferdam installation would 
not extend beyond the 20-m isobath, where the coastal stock 
predominates, it is expected that all estimated takes by Level B 
harassment of bottlenose dolphins harassment from cofferdam 
installation will accrue to the coastal stock. As the density models do 
not account for group size, the estimated take was adjusted to account 
for one group size per day of each of bottlenose (group size of 15) and 
common dolphins (group size of 30) as shown in Table 27.
Marina Activities
    Pile driving at the onshore substation C constitutes a small amount 
of work. Empire Wind assumed source levels during pile driving sheet 
piles at onshore substation C would be similar to that during 
installation of the cofferdams for cable landfall construction. Since 
densities are not available for the specific inshore region where the 
activity will occur, potential take by harassment for marine mammals 
using density could not be calculated. Instead, to be conservative, 10 
takes by Level B harassment of seals per day (49 days) were estimated 
based on pinniped observations in New York City between 2011 and 2017 
(Woo and Biolsi, 2018), which were split evenly between harbor and gray 
seals (Table 31). Similarly, the requested and proposed take of 
bottlenose dolphins was adjusted to account for one group size, 15 
individuals (Jefferson et al., 2015) per day for 49 days.

[[Page 22746]]



  Table 30--Distances (Meters) to the Level A and Level B Harassment Threshold Isopleth Distances for Vibratory
                                 Driving at Onshore Substation C Location Marina
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset by hearing group                      Behavioral
                                 ----------------------------------------------------------------    response
            Location                                                                             ---------------
                                    LF (199 LE,     MF (199 LE,     HF (199 LE,     PHOCID (199    All (120 SPL
                                       24hr)           24hr)           24hr)         LE, 24hr)         RMS)
----------------------------------------------------------------------------------------------------------------
Marina Bulkhead Work (Sheetpile             43.2             3.8            63.8            26.2           1,000
 installation)..................
Marina Berthing Pile Removal....            43.5             3.9            64.3            26.5           1,600
----------------------------------------------------------------------------------------------------------------


Table 31--Average Marine Mammal Densities Used in Exposure Estimates and
   Estimates of Potential Takes by Level B Harassment From Marina Pile
                                 Driving
------------------------------------------------------------------------
                                                Marina work (2024)
                                         -------------------------------
                                              Average
                 Species                     seasonal      Proposed take
                                            density \a\     by level B
                                             (No./100       harassment
                                              km\2\)
------------------------------------------------------------------------
Bottlenose dolphin (Western N.A.                   6.299             735
 Northern Migratory Coastal Stock) \b\..
Harbor seal \c\.........................          13.673             245
Gray seal \c\...........................          13.673             245
------------------------------------------------------------------------
\a\ Cetacean density values from Duke University (Roberts and Halpin,
  2022).
\b\ Bottlenose dolphin density values from Duke University (Roberts and
  Halpin, 2022) reported as ``bottlenose'' and not identified to stock.
  Given the noise from cofferdam installation would not extend beyond
  the 20 m isobath, where the coastal stock predominates, it is expected
  that all estimated takes by Level B harassment of bottlenose dolphins
  from cofferdam installation will accrue to the coastal stock. As
  Roberts and Halpin (2022) does not account for group size, the
  requested take was adjusted to account for one group size, 15
  individuals (Jefferson et al., 2015) per day of bottlenose.
\c\ Pinniped density values from Duke University (Roberts and Halpin,
  2022) are reported as ``seals'' and are not species-specific,
  therefore, 50 percent of expected takes by Level B harassment are
  expected to accrue to harbor seals and 50 percent to gray seals.

HRG Survey Activities

    Empire Wind's proposed HRG survey activity includes the use of non-
impulsive sources (i.e., CHIRP SBPs) that have the potential to harass 
marine mammals. Of the list of equipment proposed in Table 2 (see 
Detailed Description of Specified Activities), USBL, MBES, SSS, and the 
Innomar SBP were removed from further analysis due to either the 
extremely low likelihood of the equipment resulting in marine mammal 
harassment (i.e., USBL, MBES, select SSS) or due to negligible 
calculated isopleth distances corresponding to the Level B harassment 
threshold (<2 m) (i.e., select SSS and Innomar SBP). No boomers or 
sparkers would be used.
    Authorized takes would be by Level B harassment only in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated, even absent mitigation, nor proposed to be authorized. 
Therefore, the potential for Level A harassment is not evaluated 
further in this document. Empire Wind did not request, and NMFS is not 
proposing to authorize, take by Level A harassment incidental to HRG 
surveys. No serious injury or mortality is anticipated to result from 
HRG survey activities.
    Specific to HRG surveys, in order to better consider the narrower 
and directional beams of the sources, NMFS has developed a tool for 
determining the sound pressure level (SPLrms) at the 160 dB isopleth 
for the purposes of estimating the extent of Level B harassment 
isopleths associated with HRG survey equipment (NMFS, 2020). This 
methodology incorporates frequency-dependent absorption and some 
directionality to refine estimated ensonified zones. Empire Wind used 
NMFS' methodology with additional modifications to incorporate a 
seawater absorption formula and account for energy emitted outside of 
the primary beam of the source. For sources that operate with different 
beam widths, the maximum beam width was used, and the lowest frequency 
of the source was used when calculating the frequency-dependent 
absorption coefficient.
    The isopleth distances corresponding to the Level B harassment 
threshold for each type of HRG equipment with the potential to result 
in harassment of marine mammals were calculated per NOAA Fisheries' 
Interim Recommendation for Sound Source Level and Propagation Analysis 
for High Resolution Geophysical Sources. The distances to the 160 dB 
RMS re 1 [mu]Pa isopleth for Level B harassment are presented in Table 
31. Please refer to Section 6.3.2 of the LOA application for a full 
description of the methodology and formulas used to calculate distances 
to the Level B harassment threshold.

  Table 31--Isopleth Distances Corresponding to the Level B Harassment
                       Threshold for HRG Equipment
------------------------------------------------------------------------
                                                              Lateral
                                           Source level    distance (m)
          HRG survey equipment            (SLRMS) (dB re    to Level B
                                             1[mu]Pa)       harassment
                                                             threshold
------------------------------------------------------------------------
Edgetech DW106..........................             194           50.00

[[Page 22747]]

 
Edgetech 424............................             180            8.75
Teledyne Benthos Chirp III--TTV 170.....             219           50.05
------------------------------------------------------------------------

    The survey activities that have the potential to result in Level B 
harassment (160 dBRMS90 percent re 1 [micro]Pa) include the 
noise produced by EdgeTech DW106, EdgeTech 424, or Teledyne Benthos 
Chirp III (see Table 31), of which the Teledyne Benthos Chirp III 
results in the greatest calculated distance to the Level B harassment 
criteria at 50.05 m (164 ft). Therefore, to be conservative, Empire 
Wind has applied the estimated distance of 50.05 m (164 ft) to the 160 
dBRMS90 percent re 1 [mu]Pa Level B harassment criteria as 
the basis for determining potential take from all HRG sources.
    The basis for the take estimate is the number of marine mammals 
that would be exposed to sound levels in excess of the Level B 
harassment threshold (160 dB). Typically, this is determined by 
estimating an ensonified area for the activity, by calculating the area 
associated with the isopleth distance corresponding to the Level B 
harassment threshold. This area is then multiplied by marine mammal 
density estimates in the project area and then corrected for seasonal 
use by marine mammals, seasonal duration of Project-specific noise-
generating activities, and estimated duration of individual activities 
when the maximum noise-generating activities are intermittent or 
occasional.
    The estimated distance of the daily vessel track line was 
determined using the estimated average speed of the vessel and the 24-
hour operational period within each of the corresponding survey 
segments. All noise-producing survey equipment is assumed to be 
operated concurrently. Using the distance of 50.05 m (164 ft) to the 
160 dBRMS90 percent re 1 [mu]Pa Level B harassment isopleth 
(Table 31), the estimated daily vessel track of approximately 177.792 
km (110.475 mi) for 24-hour operations, inclusive of an additional 
circular area to account for radial distance at the start and end of a 
24-hour cycle, estimates of the total area ensonified to the Level B 
harassment threshold per day of HRG surveys were calculated (Table 32).

  Table 32--Estimated Number of Survey Days, Estimated Survey Distance per Day, and Estimated Daily Ensonified
                                  Area for HRG Surveys, From 2024 Through 2029
----------------------------------------------------------------------------------------------------------------
                                                                                                    Calculated
                                                                     Number of       Estimated         daily
                         Survey segment                            active survey   distance per   ensonfied area
                                                                    vessel days      day (km)         (km\2\)
----------------------------------------------------------------------------------------------------------------
2024 Survey Effort..............................................              41         177.792          17.805
2025 Survey Effort..............................................             191
2026 Survey Effort..............................................             150
2027 Survey Effort..............................................             100
2028-January 2029 Survey Effort.................................             100
----------------------------------------------------------------------------------------------------------------

    As described in the LOA application, density data were mapped 
within the boundary of the Project Area (Figure 1 in the LOA 
application) using geographic information systems; these data were 
updated based on the revised data from Roberts and Halpin (2022) (Table 
33). Maximum monthly densities as reported by Roberts and Halpin (2022) 
were averaged by season over the survey duration (for winter (December 
through February)), spring (March through May), summer (June through 
August), and fall (September through November)) for the entire HRG 
Project Area. To be conservative, the maximum average seasonal density 
within the HRG survey schedule, for each species, was then carried 
forward in the take calculations (Table 33).

                 Table 33--Marine Mammal Densities Used in Exposure Estimates and Estimated Takes by Level B Harassment From HRG Surveys
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Average                                                                       HRG survey
                                             seasonal       HRG survey      HRG survey      HRG survey      HRG survey     2028-January        Total
                 Species                    density \a\       2024--          2025--          2026--          2027--          2029--      requested take
                                             (No./100       calculated      calculated      calculated      calculated      calculated         (No.)
                                              km\2\)        take (No.)      take (No.)      take (No.)      take (No.)      take (No.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale..............           0.073           0.532           2.480           1.948           1.298           0.605               7
Humpback................................           0.099           0.722           3.363           2.641           1.761           1.192              11
Fin.....................................           0.097           0.707           3.295           2.588           1.725           1.227              11
Sei.....................................           0.030           0.219           1.019           0.800           0.534           0.320               4
Sperm...................................           0.006           0.044           0.204           0.160           0.107           0.071               0
Minke...................................           0.526           3.836          17.870          14.034           9.356           3.468              54
Pilot whales spp. \d\...................           0.019           0.139           0.645           0.507           0.338           0.338         \b\ 780
Bottlenose dolphin (Western N.A.                   6.299          45.937         213.997         168.060         112.040          66.932       \c\ 8,730
 Northern Migratory Coastal Stock) \b\..

[[Page 22748]]

 
Atlantic White-sided Dolphin \d\........           0.469           3.420          15.933          12.513           8.342           6.297           1,008
Short-beaked common dolphin \c\.........           2.837          20.689          96.382          75.693          50.462          31.501          17,460
Atlantic Spotted Dolphin \e\............           0.058           0.423           1.970           1.547           1.032           0.338             225
Risso's dolphin.........................           0.035           0.255           1.189           0.934           0.623           0.249             500
Harbor porpoise.........................           3.177          23.169         107.933          84.764          56.509          28.762             330
Harbor seal \f\.........................          13.673          48.859         232.258         182.401         121.601          85.102             708
Gray seal \f\...........................          13.673          48.859         232.258         182.401         121.601          85.102             708
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Cetacean density values from Duke University (Roberts and Halpin, 2022).
\b\ Requested take adjusted based on PSO sighting data from 2018-2021 (A.I.S., 2019; Alpine Ocean Seismic Survey, 2018; Gardline, 2021a, b; Geoquip
  Marine, 2021; Marine Ventures International, 2021; RPS, 2021; Smultea Environmental Sciences, 2019, 2020, 2021).
\c\ Bottlenose dolphin density values from Duke University (Roberts and Halpin, 2022) reported as ``bottlenose dolphin'' and not identified to stock.
  HRG survey activities were not differentiated by region relative to the 20-m isopleth and therefore bottlenose takes are not identified to stock. As
  Roberts and Halpin does not account for group size, the estimated take was adjusted to account for one group size, 15 individuals (Jefferson et al.,
  2015) per day of bottlenose dolphins and 30 individuals (Reeves et al., 2002), per day of common dolphins.
\d\ As Roberts and Halpin does not account for group size, the estimated take was adjusted to account for one group size, 52 individuals (Jefferson et
  al., 2015) per month of Atlantic white-sided dolphins.
\e\ As Roberts and Halpin does not account for group size, the estimated take was adjusted to account for one group size, 100 individuals (Jefferson et
  al., 2015), per year of Risso's dolphins and 45 individuals (Kenney and Vigness-Raposa, 2010) per year of Atlantic spotted dolphins.
\f\ Pinniped density values from Duke University (Roberts and Halpin, 2022) reported as ``seals,'' so take allocated by 50 percent accrued to harbor
  seals and 50 percent accrued to gray seals.

    The calculated exposure estimates based on the exposure modeling 
methodology described above were compared with the best available 
information on marine mammal group sizes, and with Empire Wind's PSO 
sightings data ranging from 2018-2021 for the Project Area, to ensure 
requested take numbers associated with HRG survey activities were 
conservative and based on best available information. As a result of 
this comparison, it was determined that the calculated number of 
potential takes by Level B harassment based on the exposure modeling 
methodology above may be underestimates for some species and therefore 
warranted adjustment to ensure conservatism in requested take numbers. 
Despite the relatively small modeled Level B harassment zone (50 m) for 
HRG survey activities, it was determined that adjustments to the 
requested numbers of take by Level B harassment for some dolphin 
species was warranted in some cases to be conservative, based on the 
expectation that dolphins may approach or bow ride near the survey 
vessel. No adjustments were made to take requests for large whale 
species as a result of HRG survey activities due to the relatively 
small Level B harassment zone (50 m) and the low likelihood that large 
whales would be encountered within such a short distance of the vessel 
except in rare circumstances.
    For certain species for which the density-based methodology 
described above may result in potential underestimates of take and 
Empire Wind's PSO sightings data were relatively low, adjustments to 
the exposure estimates were made based on the best available 
information on marine mammal group sizes to ensure conservatism. For 
species considered common in the Project Area, requested takes by Level 
B harassment was adjusted to one group size per day of HRG surveys; 
these include bottlenose dolphins (15 individuals; Jefferson et al., 
2015) and common dolphins (30 individuals; Reeves et al., 2002) (note 
that these adjustments to take estimates were made previously and are 
included in the LOA application). For species considered relatively 
common in the Project Area, requested takes by Level B harassment were 
adjusted to one group size per month of HRG surveys; these include 
Atlantic white-sided dolphins (52 individuals; Jefferson et al., 2015). 
For species considered rare but that still have the potential for 
occurrence in the Project Area, requested takes by Level B harassment 
were adjusted to one group size per year of HRG surveys; these include 
Atlantic spotted dolphin (45 individuals; Kenney & Vigness-Raposa, 
2010) and Risso's dolphin (100 individuals; Jefferson et al., 2015). 
The requested take for pilot whales was adjusted based on PSO data by 
multiplying the maximum reported daily density (1.34 individuals; 
Geoquip Marine, 2021) by the annual days of operation.
Total Proposed Take Across All Activities
    Level A harassment and Level B harassment proposed take numbers for 
the combined activities of impact pile driving (assuming 10-dB of sound 
attenuation) during the impact installation of monopile and OSS 
foundations, cable landfall and marina activities and removal and HRG 
surveys are shown in Table 34. NMFS also presents the 5-year total 
amount of take for each species in Table 35. The mitigation and 
monitoring measures provided in the Proposed Mitigation and Proposed 
Monitoring and Reporting sections are activity-specific and are 
designed to minimize acoustic exposures to marine mammal species.
    The take numbers NMFS proposes for authorization (Table 34) are 
considered conservative (i.e., somewhat higher than is most likely to 
occur) for the following key reasons:
     Proposed take numbers assume that up to one WTG monopile 
foundation and two pin piles for OSS foundations would be installed per 
day, by impact pile driving, to estimate the maximum potential for both 
Level A and Level B harassment. However, Empire Wind may install more 
than one monopile and more than two pin piles per day, completing the 
project more quickly. These proposed numbers also assumed that all 
foundations would be installed during the highest density months.
     The maximum number of sheet piles (n=300) for all 
temporary cofferdams (n=5) would be installed;
     The casing pipe and the maximum number of piles (n=18) 
necessary for all goal posts (n=3) would be installed;
     Proposed take numbers for the vibratory pile driving 
associated with temporary cofferdams assume the maximum number of sheet 
piles (n=300) would be installed;
     Proposed Level A harassment takes do not fully account for 
the likelihood that marine mammals would avoid a stimulus when possible 
before the individual accumulates enough acoustic

[[Page 22749]]

energy to potentially cause auditory injury, or the effectiveness of 
the proposed monitoring and mitigation measures (with exception of 
North Atlantic right whales, given the extensive mitigation measures 
proposed for this species).
    Table 34 below depicts the proposed annual take for authorization 
over the length of the proposed authorization, given that specific 
activities are expected to occur within specific years. Empire Wind 
plans that all construction activities related to permanent structures 
(i.e., monopile foundations and OSS foundations installation, 
cofferdams) would occur within the first two years of the project 
(2024-2025). HRG surveys are expected to occur, with varying effort, 
across all 5-years of the proposed rulemaking's effective duration. In 
addition to HRG surveys occurring during parts of Year 1 (2024) and 
Year 2 (2025), the entire durations of Year 3 (2026), Year 4 (2027), 
and Year 5 (2028-2029) are only expected to consist of HRG surveys as 
all construction-specific activities are expected to be completed by 
the start of Year 3. NMFS notes that while HRG surveys are expected to 
occur across all five years (2024-2029) of the effective period of the 
rulemaking (a total of 582 days across all 5 years), survey effort will 
vary. All activities are expected to be completed by 2029, equating to 
the five years of activities, as described in this preamble.
    Table 34 shows the estimated take of each species for each year 
based on the planned distribution of activities. Tables 35 and 36 show 
the total take over five years and the maximum take proposed for 
authorization in any one year, respectively.

           Table 34--Proposed Level A Harassment and Level B Harassment Takes for All Activities Proposed To Be Conducted During the Construction of Empire Wind Project Over 5 Years
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Year 1                  Year 2                  Year 3                  Year 4                  Year 5
                                                                 NMFS    -----------------------------------------------------------------------------------------------------------------------
                    Marine mammal species                        stock      Level A     Level B     Level A     Level B     Level A     Level B     Level A     Level B     Level A     Level B
                                                               abundance  harassment  harassment  harassment  harassment  harassment  harassment  harassment  harassment  harassment  harassment
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Mysticetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fin Whale *.................................................       6,802          0           1           1         136           1          60           0           2           0           2
Humpback Whale..............................................       1,396          0           1           0          63           0          29           0           2           0           2
Minke Whale.................................................      21,968          0           4           4          83           0          62           2           9           0           3
North Atlantic Right Whale *................................         338          0           1           0          13           0          13           0           1           0           1
Sei Whale *.................................................       6,292          0           0           0           4           0           3           0           1           0           1
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Odontocetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic Spotted Dolphin....................................      39,921          0          45           0          90           0          90           0           1           0           1
Atlantic White-sided Dolphin................................      93,233          0          71           0         747           0         676           0         178           0         173
Bottlenose Dolphin \a\
  Western North Atlantic, Offshore..........................      62,851          0           0           0       1,800           0         765           0           0           0           0
  Western North Atlantic, Coastal...........................       6,639          0       1,185           0         270           0           0           0           0           0           0
  Western North Atlantic, Offshore and Coastal..............  ..........          0         615           0       2,865           0       2,250           0       1,500           0       1,500
Common Dolphin..............................................     172,974          0       2,130           0       9,870           0       6,030           0       3,000           0       3,000
Harbor Porpoise.............................................      95,543          0          25           0         243           0         183           0          57           0          57
Pilot Whales \b\............................................      68,139          0          55           0         417           0         269           0          25           0          25
Risso's Dolphin.............................................      35,215          0         100           0         200           0         200           0          25           0          25
Sperm Whale *...............................................       1,180          0           0           0           3           0           3           0           0           0           0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Phocid (pinnipeds)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Gray Seal \c\...............................................      27,300          0         445           0         484           0         294           0         122           0         122
Harbor Seal \c\.............................................      61,336          0         445           0         678           0         412           0         122           0         122
Harp Seal \d\...............................................       7.6 M          0           4           0           4           0           4           0           4           0           4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Bottlenose dolphin density values from Duke University (Roberts and Halpin 2022) reported as ``bottlenose dolphin'' and not identified to stock. Given the noise from cofferdam installation
  would not extend beyond the 20-meter isobath, where the coastal stock predominates, all estimated takes by Level B harassment of bottlenose dolphins from cofferdam installation were
  attributed to the coastal stock. Takes from impact pile driving were attributed to each stock (coastal and offshore) according to delineation along the 20-meter isobath during the animat
  modeling process. Takes from HRG survey activities were not differentiated.
\b\ Pilot whale density values from Duke University (Roberts and Halpin 2022) reported as ``Globicephala spp.'' and not species-specific.
\c\ Pinniped density values from Duke University (Roberts and Halpin 2022) reported as ``seals'' and not species-specific, so take allocated by 50% accrued to harbor seals and 50% accrued to
  gray seals for cable landfall construction, marina construction, and HRG surveys. Scaling based on abundance was used for WTG and OSS foundation installation.
\d\ Harp seal occurrence is anticipated to be rare. Anecdotal stranding data indicate only a few harp seals are sighted within the vicinity of the Project each year. Therefore, 4 harp seal
  Level B takes have been requested per year of the Project.


 Table 35--Total 5-Year Proposed Takes of Marine Mammals (by Level A Harassment and Level B Harassment) for All
               Activities Proposed To Be Conducted During the Construction of Empire Wind Project
----------------------------------------------------------------------------------------------------------------
                                                                                   5-Year totals
                                                                 -----------------------------------------------
                                                                                                    5-year sum
              Marine mammal species                 NMFS stock                                       (Level A
                                                     abundance    Proposed Level  Proposed Level   harassment +
                                                                   A  harassment   B  harassment      Level B
                                                                                                    harassment)
----------------------------------------------------------------------------------------------------------------
                                                   Mysticetes
----------------------------------------------------------------------------------------------------------------
Fin Whale *.....................................           6,802               2             201             203
Humpback Whale..................................           1,396               0              97              97
Minke Whale.....................................          21,968               6             167             173

[[Page 22750]]

 
North Atlantic Right Whale *....................             336               0              29              29
Sei Whale *.....................................           6,292               0               9               9
----------------------------------------------------------------------------------------------------------------
                                                   Odontocetes
----------------------------------------------------------------------------------------------------------------
Atlantic Spotted Dolphin........................          39,921               0             227             227
Atlantic White-sided Dolphin....................          93,221               0           1,840           1,840
Bottlenose Dolphin (WNA Offshore)...............          62,851               0           2,565           2,563
Bottlenose Dolphin (Northern Migratory Coastal).           6,639               0           1,455           1,455
Bottlenose Dolphin (WNA Offshore and Northern             69,490               0           8,730           8,730
 Migratory Coastal).............................
Common Dolphin..................................         172,974               0          24,030          24,030
Harbor Porpoise.................................          95,543               0             565             565
Pilot Whales....................................          68,139               0             552             552
Risso's Dolphin.................................          35,215               0             700             700
Sperm Whale *...................................           4,349               0               6               6
----------------------------------------------------------------------------------------------------------------
                                               Phocid (pinnipeds)
----------------------------------------------------------------------------------------------------------------
Gray Seal.......................................          27,300               0           1,467           1,467
Harbor Seal.....................................          61,336               0           1,779           1,779
Harp Seal \a\...................................             UNK               0              20              20
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Harp seal occurrence is anticipated to be rare. Anecdotal stranding data indicate only a few harp seals are
  sighted within the vicinity of the Project each year. Therefore, 4 harp seal Level B harassment takes have
  been requested per year of the Project.

    To inform both the negligible impact analysis and the small numbers 
determination, NMFS assesses the greatest amount of proposed take of 
marine mammals that could occur within any given year (which in the 
case of this rule is based on the predicted Year 1 for all species). In 
this calculation, the maximum estimated number of Level A harassment 
takes in any one year is summed with the maximum estimated number of 
Level B harassment takes in any one year for each species to yield the 
highest number of estimated take that could occur in any year (Table 
36). Table 36 also depicts the amount of take proposed relative to each 
stock assuming that each individual is taken only once, which 
specifically informs the small numbers determination.

 Table 36--Maximum Number of Proposed Takes (Level A Harassment and Level B Harassment) That Could Occur in Any
    One Year of the Project Relative to Stock Population Size Assuming Each Take Is of a Different Individual
----------------------------------------------------------------------------------------------------------------
                                                          Maximum annual take proposed for authorization
                                                 ---------------------------------------------------------------
                                                                                                   Total percent
                                    NMFS stock                                                      stock taken
      Marine mammal species          abundance     Maximum Level   Maximum Level      Maximum        based on
                                                   A harassment    B harassment     annual take       maximum
                                                                                        \a\         annual take
                                                                                                        \b\
----------------------------------------------------------------------------------------------------------------
                                                   Mysticetes
----------------------------------------------------------------------------------------------------------------
Fin Whale *.....................           6,802               1             136             137            2.01
Humpback Whale..................           1,396               0              63              63            4.51
Minke Whale.....................          21,968               4              83              87            0.40
North Atlantic Right Whale *....             336               0              13              13            3.87
Sei Whale *.....................           6,292               0               4               4            0.06
----------------------------------------------------------------------------------------------------------------
                                                   Odontocetes
----------------------------------------------------------------------------------------------------------------
Atlantic Spotted Dolphin........          39,921               0              90              90            0.23
Atlantic White-sided Dolphin....          93,221               0             747             747            0.80
Bottlenose Dolphin (WNA                   62,851               0           1,800           1,800            2.86
 Offshore)......................
Bottlenose Dolphin (Northern               6,639               0           1,185           1,185           17.84
 Migratory Coastal).............
Bottlenose Dolphin (WNA Offshore          69,490               0           2,865           2,865            4.12
 and Northern Migratory Coastal)
 \e\............................
Common Dolphin..................         172,974               0           9,870           9,870            5.71

[[Page 22751]]

 
Harbor Porpoise.................          95,543               0             243             243            0.25
Pilot Whale spp.................          68,139               0              58              58            0.09
Risso's Dolphin.................          35,215               0             200             200            0.57
Sperm Whale *...................           4,349               0               3               3            0.07
----------------------------------------------------------------------------------------------------------------
                                               Phocid (pinnipeds)
----------------------------------------------------------------------------------------------------------------
Gray Seal.......................          27,300               0             484             484            1.78
Harbor Seal.....................          61,336               0             678             678            1.10
Harp Seal.......................             UNK               0               4               4             UNK
----------------------------------------------------------------------------------------------------------------
* Denotes species listed under the Endangered Species Act.
\a\ Calculations of the maximum annual take are based on the maximum requested Level A harassment take in any
  one year + the total requested Level B harassment take in any one year.
\b\ Calculations of percentage of stock taken are based on the maximum requested Level A harassment take in any
  one year + the total requested Level B harassment take in any one year and then compared against the best
  available abundance estimate. For this proposed action, the best available abundance estimates are derived
  from the NMFS Stock Assessment Reports (Hayes et al., 2022).
\c\ Bottlenose dolphin density values from Duke University (Roberts and Halpin, 2022) reported as ``bottlenose
  dolphin'' and not identified to stock. Given the noise from cofferdam installation would not extend beyond the
  20-meter isobath, where the coastal stock predominates, all estimated takes by Level B harassment of
  bottlenose dolphins from cofferdam installation were attributed to the coastal stock. Takes from impact pile
  driving were attributed to each stock (coastal and offshore) according to delineation along the 20-meter
  isobath during the animat modeling process. Takes from HRG survey activities were not differentiated.

Proposed Mitigation
    In order to promulgate a rulemaking under section 101(a)(5)(A) of 
the MMPA, NMFS must set forth the permissible methods of taking 
pursuant to the activity, and other means of effecting the least 
practicable impact on the species or stock and its habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stock for 
taking for certain subsistence uses (latter not applicable for this 
action). NMFS' regulations require applicants for incidental take 
authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting the activity or other means of effecting the least 
practicable adverse impact upon the affected species or stocks and 
their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with in-water construction 
activities (e.g., soft-start, establishing shutdown zones). Additional 
measures have also been incorporated to account for the fact that the 
proposed construction activities would occur offshore. Modeling was 
performed to estimate harassment zones, which were used to inform 
mitigation measures for pile driving activities to minimize Level A 
harassment and Level B harassment to the extent practicable, while 
providing estimates of the areas within which Level B harassment might 
occur.
    Generally speaking, the mitigation measures considered and proposed 
here fall into three categories: temporal (seasonal and daily) work 
restrictions, real-time measures (shutdown, clearance, and vessel 
strike avoidance), and noise attenuation/reduction measures. Seasonal 
work restrictions are designed to avoid or minimize operations when 
marine mammals are concentrated or engaged in behaviors that make them 
more susceptible, or make impacts more likely) in order to reduce both 
the number and severity of potential takes, and are effective in 
reducing both chronic (longer-term) and acute effects. Real-time 
measures, such as implementation of shutdown and pre-clearance zones 
and vessel strike avoidance measures, are intended to reduce the 
probability or severity of harassment by taking steps in real time once 
a higher-risk scenario is identified (e.g., once animals are detected 
within an impact zone). Noise attenuation measures, such as bubble 
curtains, are intended to reduce the noise at the source, which reduces 
both acute impacts, as well as the contribution to aggregate and 
cumulative noise that may result in longer term chronic impacts.
    Below, we describe training, coordination, and vessel strike 
avoidance measures that apply to all activity types, and then in the 
following

[[Page 22752]]

subsections we describe the measures that apply specifically to 
monopile foundation and OSS foundation installation, cable landfall and 
marina activities, and HRG surveys.
Training and Coordination
    Empire Wind would be required to ensure that a copy of any issued 
LOA must be in the possession of its designees, all vessel operators, 
visual protected species observers (PSOs), passive acoustic monitoring 
(PAM) operator, pile driver operators, and any other relevant designees 
operating under the authority of the issued IHA.
    Empire Wind would also be required to instruct all project 
personnel regarding the authority of the marine mammal monitoring 
team(s) (i.e., PSOs and PAM operators). For example, the HRG acoustic 
equipment operator, pile driving personnel, etc., would be required to 
immediately comply with any call for a delay or shutdown by the Lead 
PSO. Any disagreement between the Lead PSO and the project personnel 
would only be discussed after delay or shutdown has occurred. Prior to 
initiation of pile driving or survey work (depending on activity), all 
crew members will undergo environmental training, a component of which 
will focus on the procedures for sighting and protection of marine 
mammals. All relevant personnel and the marine mammal monitoring team 
would be required to participate in joint, onboard briefings that would 
be led by Empire Wind project personnel and the Lead PSO prior to the 
beginning of project activities. This would serve to ensure that all 
relevant responsibilities, communication procedures, marine mammal 
monitoring and mitigation protocols, reporting protocols, safety, 
operational procedures, and ITA requirements are clearly understood by 
all involved parties. The briefing would be repeated whenever new 
relevant personnel (e.g., new PSOs, acoustic source operators, relevant 
crew) join the operation before work commences.
    Empire Wind would ensure that any visual observations of an ESA-
listed marine mammal are communicated to PSOs and vessel captains 
during the concurrent use of multiple project-associated vessels (of 
any size; e.g., construction surveys, crew/supply transfers, etc.). Any 
large whale sighted by a PSO or acoustically detected by a PAM operator 
as if it were a North Atlantic right whale, unless a PSO or PAM 
operator confirms it is another species of whale. If an individual from 
a species for which authorization has not been granted, or a species 
for which authorization has been granted but the authorized take number 
has been met, is observed entering or within the relevant Level B 
harassment zone for each specified activity, pile driving and HRG 
acoustic sources would be required to shut down immediately, unless 
shutdown would result in imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals or be delayed if the activity has not 
commenced. Impact and vibratory pile driving and initiation of HRG 
acoustic sources must not commence or resume until the animal(s) has 
been confirmed to have left the relevant clearance zone or the 
observation time has elapsed with no further sightings. Any marine 
mammals observed within a clearance or shutdown zone must be allowed to 
remain in the area (i.e., must leave of their own volition) prior to 
commencing pile driving activities or HRG surveys.
    Before and when conducting any in-water construction activities and 
vessel operations, Empire Wind personnel would be required to use all 
available sources of information on North Atlantic right whale presence 
in or near the project area including daily monitoring of the Right 
Whale Sightings Advisory System, and monitoring of Coast Guard VHF 
Channel 16 throughout the day to receive notification of any sightings 
and/or information associated with any Slow Zones (i.e., Dynamic 
Management Areas (DMAs) and/or acoustically-triggered slow zones) to 
provide situational awareness for both vessel operators and PSOs.
    More information on vessel crew training requirements can be found 
in the Vessel Strike Avoidance Measures section below.
North Atlantic Right Whale Awareness Monitoring
    Empire Wind must use available sources of information on North 
Atlantic right whale presence, including daily monitoring of the Right 
Whale Sightings Advisory System, WhaleAlert app, monitoring of Coast 
Guard VHF Channel 16 throughout each day to receive notifications of 
any sightings, and information associated with any regulatory 
management actions (e.g., establishment of a zone identifying the need 
to reduce vessel speeds). Maintaining daily awareness and coordination 
affords increased protection of North Atlantic right whales by 
understanding North Atlantic right whale presence in the area through 
ongoing visual and passive acoustic monitoring efforts and 
opportunities (outside of Empire Wind's efforts), and allows for 
planning of construction activities, when practicable, to minimize 
potential impacts on North Atlantic right whales.
Protected Species Observers and PAM Operator Training
    Empire Wind would employ NMFS-approved PSOs and PAM operators. PSOs 
would be required during all foundation installations, cable landfall 
and marina pile driving activities, and HRG surveys. PAM operators 
would be required during foundation installation. The PSO field team 
and PAM team would have a lead member (designated as the ``Lead PSO'' 
or ``PAM Lead'') who would have prior experience observing or detecting 
mysticetes, odontocetes and pinnipeds in the Northwestern Atlantic 
Ocean on other offshore projects requiring PSOs. Any remaining PSOs and 
PAM operators must have previous experience observing marine mammals 
during projects and must have the ability to work with all required and 
relevant software and equipment. New and/or inexperienced PSOs would be 
paired with an experienced PSO to ensure that the quality of marine 
mammal observations and data recording is kept consistent.
    All PSOs and PAM operators would be required to complete a training 
program described under which will be provided to NOAA Fisheries for 
review and approval prior to the start of surveys. Confirmation of the 
training and understanding of the requirements will be documented on a 
training course log sheet. Signing the log sheet will certify that PSOs 
and PAM operators understand and will comply with the necessary 
mitigation and monitoring requirements.
    More information on PSO and PAM operator requirements during each 
activity can be found in the Proposed Monitoring and Reporting section.
Vessel Strike Avoidance Measures
    This proposed rule contains numerous vessel strike avoidance 
measures. Empire Wind will be required to comply with these measures, 
except under circumstances when doing so would create an imminent and 
serious threat to a person or vessel, or to the extent that a vessel is 
unable to maneuver and, because of the inability to maneuver, the 
vessel cannot comply (e.g., due to towing, etc.). As part of vessel 
strike avoidance, the training program described above will be 
implemented. This training must occur prior to the start of 
construction activities. The training will include protected species 
identification training prior to the start of in-water

[[Page 22753]]

construction activities. This training will cover information about 
marine mammals and other protected species known to occur or which have 
the potential to occur in the project area. It will include training on 
making observations in both good weather conditions (i.e., clear 
visibility, low wind, and low sea state) and bad weather conditions 
(i.e., fog, high winds and high sea states, in glare). Training will 
not only include identification skills, but will also include 
information and resources available regarding applicable Federal laws 
and regulations for protected species.
    Empire Wind will abide by the following vessel strike avoidance 
measures:
     All Empire Wind vessels must comply with existing NMFS 
vessel speed restrictions, as applicable, for North Atlantic right 
whales;
     All vessel operators and crews must maintain a vigilant 
watch for all marine mammals and slow down, stop their vessel, or alter 
course (as appropriate) to avoid striking any marine mammal;
     During any vessel transits within or to/from the Empire 
Wind project area, such as for crew transfers, an observer must be 
stationed at the best vantage point of the vessel(s) to ensure that the 
vessel(s) are maintaining the appropriate separation distance from 
marine mammals. Visual observers may be PSO or crew members, but crew 
members responsible for these duties must be provided sufficient 
training by Empire Wind to distinguish marine mammals from other types 
of animals or objects and must be able to identify a marine mammal as a 
North Atlantic right whale, other whale (defined in this context as 
sperm whales or baleen whales other than North Atlantic right whales), 
or other marine mammal. Crew members serving as visual observers must 
not have duties other than observing for marine mammals while the 
vessel is operating over 10 knots (kts);
     Year-round and when a vessel is in transit, all vessel 
operators will continuously monitor U.S. Coast Guard VHF Channel 16 
over which North Atlantic right whale sightings are broadcasted;
     At the onset of transiting and at least once every four 
hours, vessel operators and/or trained crew members will monitor 
WhaleAlert and the Right Whale Sighting Advisory System (RWSAS) for the 
presence of North Atlantic right whales. Any notification of a whale in 
the project area from these systems or observations of any large whale 
by any Empire Wind staff or contractors, including vessel crew, must be 
communicated immediately to PSOs, PAM operator, and all vessel captains 
to increase situational awareness. Conversely, any large whale 
observation or detection via a sighting network (e.g., Mysticetus) by 
PSOs or PAM operators will be conveyed to vessel operators and crew.
     All vessels, regardless of size, would operate at 10 knots 
(18.5 km/hr) or less in any SMA, DMA or visually triggered Slow Zone;
     Between November 1st and April 30th, all vessels, 
regardless of size, would operate port to port at 10 knots or less, 
specifically from ports in New Jersey, New York, Maryland, Delaware, 
and Virginia to the lease area;
     All vessels, regardless of size, would immediately reduce 
speed to 10 knots or less when a North Atlantic right whale is sighted, 
at any distance, by an observer or anyone else on the vessel.
     All vessels, regardless of size, would immediately reduce 
speed to 10 knots or less when any large whale, mother/calf pairs, or 
large assemblages of non-delphinid cetaceans are observed near (within 
500 m) an underway vessel.
     All vessels must maintain a minimum separation distance of 
500 m (1,640 ft) from North Atlantic right whales. If a whale is 
observed but cannot be confirmed as a species other than a North 
Atlantic right whale, the vessel operator must assume that it is a 
North Atlantic right whale and take appropriate action. If underway, 
vessels must steer a course away from any sighted North Atlantic right 
whale at 10 knots (18.5 km/hr) or less until the 500 m minimum 
separation distance has been established. If a North Atlantic right 
whale is sighted in a vessel's path, or within 100 m (330 ft) of an 
underway vessel, the underway vessel must reduce speed and shift the 
engine to neutral. Engines will not be engaged until the North Atlantic 
right whale has moved outside of the vessel's path and beyond 500 m. If 
stationary, the vessel must not engage engines until the North Atlantic 
right whale has moved beyond 500 m;
     All vessels must maintain a separation distance of 100 m 
or greater from any sighted whales. If sighted, the vessel underway 
must reduce speed and shift the engine to neutral, and must not engage 
the engines until the whale has moved outside of the vessel's path and 
beyond 100 m. If a vessel is stationary, the vessel will not engage 
engines until the whale has moved out of the vessel's path and beyond 
100 m;
     All vessels must maintain a separation distance of 50 m 
(164 ft) or greater from any sighted small cetaceans and pinnipeds. Any 
vessel underway remain parallel to a sighted small cetacean or 
pinnipeds 's course whenever possible, and avoid excessive speed or 
abrupt changes in direction. Vessels may not adjust course and speed 
until the small cetaceans have moved beyond 50 m and/or the abeam of 
the underway vessel;
     All vessels underway must not divert or alter course in 
order to approach any whale, small cetacean, or pinniped. Any vessel 
underway must avoid excessive speed or abrupt changes in direction to 
avoid injury to the sighted cetacean or pinniped;
     For in-water construction heavy machinery activities other 
than impact or vibratory pile driving, if a marine mammal is on a path 
towards or comes within 10 m of equipment, Empire Wind must cease 
operations until the marine mammal has moved more than 10 m on a path 
away from the activity to avoid direct interaction with equipment;
     All underway vessels (e.g., transiting, surveying) must 
have a dedicated visual observer on duty at all times to monitor for 
marine mammals within a 180 degree direction of the forward path of the 
vessel (90 degree port to 90 degree starboard). Visual observers must 
be equipped with alternative monitoring technology for periods of low 
visibility (e.g., darkness, rain, fog, etc.). The dedicated visual 
observer must receive prior training on protected species detection and 
identification, vessel strike minimization procedures, how and when to 
communicate with the vessel captain, and reporting requirements in this 
proposed action. Visual observers may be third-party observers (i.e., 
NMFS-approved PSOs) or crew members and must not have any other duties 
other than observing for marine mammals. Observer training related to 
these vessel strike avoidance measures must be conducted for all vessel 
operators and crew prior to the start of in-water construction 
activities to distinguish marine mammals from other phenomena and 
broadly to identify a marine mammal as a North Atlantic right whale, 
other whale (defined in this context as sperm whales or baleen whales 
other than North Atlantic right whales), or other marine mammal. 
Confirmation of the observers' training and understanding of the ITA 
requirements must be documented on a training course log sheet and 
reported to NMFS.

[[Page 22754]]

Monopile Foundation and OSS Foundation Installation
    For monopile and OSS foundation installation, NMFS is proposing to 
include the following mitigation requirements, which are described in 
detail below: seasonal and daily restrictions; the use of noise 
abatement systems; the use of PSOs and PAM operators; the 
implementation of clearance and shutdown zones, and the use of soft-
start.
Seasonal and Daily Restrictions
    No foundation impact pile driving activities would occur January 1 
through April 30. In addition, pile driving will not occur from 
December 1 through December 31, unless unanticipated delays due to 
weather or technical issues arise that necessitate extending pile 
driving into December in which case Empire Wind notify NMFS and BOEM in 
writing by September 1 that circumstances are expected to necessitate 
pile driving in December. Based on the best available information 
(Roberts and Halpin, 2022), the highest densities of North Atlantic 
right whales in the project area are expected during the months of 
January through April. NMFS is requiring this seasonal work restriction 
to minimize the potential for North Atlantic right whales to be exposed 
to noise incidental to impact pile driving of monopiles, which is 
expected to greatly reduce the number of takes of North Atlantic right 
whales.
    No more than two monopiles or three pin piles would be installed 
per day. Monopiles would be no larger than 11-m in diameter and pin 
piles would be no larger than 2.5-m in diameter. During all pile 
installation, the minimum amount of hammer energy necessary to 
effectively and safely install and maintain the integrity of the piles 
must be used. Hammer energies must not exceed 5,500 kJ for monopile 
installation and 3,200 kJ for pin pile installation.
    Impact pile driving will commence only during daylight hours no 
earlier than 1 hour after (civil) sunrise. Impact pile driving will not 
be initiated later than 1.5 hours before (civil) sunset. The exception 
to this would be if Empire Wind submits, and NMFS approves, an 
Alternative Monitoring Plan as part of the Pile Driving and Marine 
Mammal Monitoring Plan that reliably demonstrates the efficacy of their 
night time devices. Generally, pile driving may continue after dark 
when the installation of the same pile began during daylight (1.5 hours 
before (civil) sunset), when clearance zones were fully visible for at 
least 30 minutes and must proceed for human safety or installation 
feasibility reasons. Impact pile driving will not be initiated in times 
of low visibility when the visual clearance zones cannot be visually 
monitored, as determined by the lead Protected Species Observer (PSO) 
on duty.
Noise Attenuation Systems
    Empire Wind would employ noise attenuation systems (NAS), during 
all impact pile driving of monopiles and pin piles to reduce the sound 
pressure levels that are transmitted through the water in an effort to 
reduce ranges to acoustic thresholds and minimize any acoustic impacts 
resulting from impact pile driving. Empire Wind would be required to 
employ a big double bubble curtain or may use a single bubble curtain 
paired with another noise abatement device. In either case, the NAS 
used would be required to attenuate pile driving noise such that 
measured ranges to isopleth distances corresponding to relevant marine 
mammal harassment thresholds are consistent with those modeled based on 
10 dB attenuation, determined via sound field verification.
    Noise attenuation systems, such as bubble curtains, are used to 
decrease the sound levels radiated from a source. Bubbles create a 
local impedance change that acts as a barrier to sound transmission. 
The size of the bubbles determines their effective frequency band, with 
larger bubbles needed for lower frequencies. There are a variety of 
bubble curtain systems, confined or unconfined bubbles, and some with 
encapsulated bubbles or panels. Attenuation levels also vary by type of 
system, frequency band, and location. Small bubble curtains have been 
measured to reduce sound levels but effective attenuation is highly 
dependent on depth of water, current, and configuration and operation 
of the curtain (Austin et al., 2016; Koschinski and L[uuml]demann, 
2013). Bubble curtains vary in terms of the sizes of the bubbles and 
those with larger bubbles tend to perform a bit better and more 
reliably, particularly when deployed with two separate rings (Bellmann, 
2014; Koschinski and L[uuml]demann, 2013; Nehls et al., 2016). 
Encapsulated bubble systems (e.g., Hydro Sound Dampers (HSDs)), can be 
effective within their targeted frequency ranges (e.g., 100-800 Hz), 
and when used in conjunction with a bubble curtain appear to create the 
greatest attenuation. The literature presents a wide array of observed 
attenuation results for bubble curtains. The variability in attenuation 
levels is the result of variation in design, as well as differences in 
site conditions and difficulty in properly installing and operating in-
water attenuation devices.
    If a bubble curtain is used (single or double), Empire Wind would 
be required to maintain the following operational parameters: The 
bubble curtain(s) must distribute air bubbles using a target air flow 
rate of at least 0.5 m\3\/(min*m), and must distribute bubbles around 
100 percent of the piling perimeter for the full depth of the water 
column. The lowest bubble ring must be in contact with the seafloor for 
the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact; no parts of the 
ring or other objects should prevent full seafloor contact. Empire Wind 
must require that construction contractors train personnel in the 
proper balancing of airflow to the bubble ring, and must require that 
construction contractors submit an inspection/performance report for 
approval by Empire Wind within 72 hours following the performance test. 
Corrections to the attenuation device to meet the performance standards 
must occur prior to impact driving of monopiles. If Empire Wind uses a 
noise mitigation device in addition to a bubble curtain, similar 
quality control measures would be required.
    The literature presents a wide array of observed attenuation 
results for bubble curtains. The variability in attenuation levels is 
the result of variation in design, as well as differences in site 
conditions and difficulty in properly installing and operating in-water 
attenuation devices. D[auml]hne et al. (2017) found that single bubble 
curtains that reduce sound levels by 7 to 10 dB reduced the overall 
sound level by approximately 12 dB when combined as a double bubble 
curtain for 6-m steel monopiles in the North Sea. During installation 
of monopiles (~8 m) for more than 150 WTGs in comparable water depths 
(> 25 m) and conditions in Europe indicate that attenuation of 10 dB is 
readily achieved (Bellmann, 2019; Bellmann et al., 2020) using single 
bubble curtains for noise attenuation. Designed to gather additional 
data regarding the efficacy of bubble curtains, the Coastal Virginia 
Offshore Wind (CVOW) pilot project systematically measured noise 
resulting from the impact driven installation of two 7.8-m monopiles, 
one installation using a double bubble curtain and the other 
installation using no noise abatement system (CVOW, unpublished data). 
Although many factors contributed to variability in received levels 
throughout the installation of the piles (e.g. hammer energy, technical 
challenges during operation of the

[[Page 22755]]

double bubble curtain), reduction in broadband SEL using the double 
bubble curtain (comparing measurements derived from the mitigated and 
the unmitigated monopiles) ranged from approximately 9-15 dB. Again, 
NMFS would require Empire Wind to apply a double bubble curtain, or a 
single bubble curtain coupled with an additional noise mitigation 
device, to ensure sound generated from the project does not exceed that 
modeled (assuming 10-dB reduction) at given ranges to harassment 
isopleths, and to minimize noise levels to the lowest level 
practicable. Double BBCs are successfully and widely applied across 
European wind development efforts, and are known to reduce noise levels 
more than single BBC alone (e.g., Bellman et al., 2020). Empire Wind 
anticipates, and NMFS agrees, that the use of a noise abatement system 
would likely produce field measurements of the isopleth distances to 
the Level A harassment and Level B harassment thresholds that accord 
with those modeled assuming 10-dB of attenuation for impact pile 
driving of monopiles (refer back to the Estimated Take, Proposed 
Mitigation, and Proposed Monitoring and Reporting sections).
Use of PSOs and PAM Operators
    As described above, Empire Wind would be required to use PSOs and 
PAM operators during all foundation installation activities. At 
minimum, four PSOs would be actively observing marine mammals before, 
during, and after pile driving. At least two PSOs would be stationed on 
the pile driving vessel. Concurrently, at least one PAM operator would 
be actively monitoring for marine mammals before, during, and after 
pile driving. At least one active PSO on each platform must have a 
minimum of 90 days at-sea experience working in those roles in offshore 
environments with no more than eighteen months elapsed since the 
conclusion of the at-sea experience. Concurrently, at least one 
acoustic PSO (i.e., passive acoustic monitoring (PAM) operator) must be 
actively monitoring for marine mammals before, during and after impact 
pile driving with PAM. More details on PSO and PAM operator 
requirements can be found in the Proposed Monitoring and Reporting 
section.
    Furthermore, all crew and personnel working on the Empire Wind 
Project would be required to maintain situational awareness of marine 
mammal presence (discussed above) and would be required to report any 
sightings to the PSOs.
Clearance and Shutdown Zones
    NMFS is proposing to require the establishment of both clearance 
and shutdown zones during all impact pile driving of monopile and pin 
pile, which would be monitored by visual PSOs and PAM operators before, 
during and after pile driving. PSOs must visually monitor clearance 
zones for marine mammals for a minimum of 60 minutes prior to 
commencing pile driving. At least one PAM operator must review data 
from at least 24 hours prior to pile driving and actively monitor 
hydrophones for 60 minutes prior to pile driving. Prior to initiating 
soft-start procedures, all clearance zones must be confirmed to be free 
of marine mammals for 30 minutes immediately prior to starting a soft-
start of pile driving.
    The purpose of ``clearance'' of a particular zone is to prevent or 
minimize potential instances of auditory injury and more severe 
behavioral disturbances by delaying the commencement of impact pile 
driving if marine mammals are near the activity. Prior to the start of 
impact pile driving activities, Empire Wind would ensure the area is 
clear of marine mammals, per the clearance zones in Table 37, to 
minimize the potential for and degree of harassment. Once pile driving 
activity begins, any marine mammal entering the shutdown zone would 
trigger pile driving to cease (unless shutdown is not practicable due 
to imminent risk of injury or loss of life to an individual or risk of 
damage to a vessel that creates risk of injury or loss of life for 
individuals).
    In addition to the clearance and shutdown zones that would be 
monitored both visually and acoustically, NMFS is proposing to 
establish a minimum visibility zone to ensure both visual and acoustic 
methods are used in tandem to detect marine mammals resulting in 
maximum detection capability. The minimum visibility zone would extend 
from the location of the pile being driven out to 1.2 km. This value 
corresponds to just greater than the modeled maximum 
ER95 percent distances to the Level A harassment isopleth 
for North Atlantic right whales assuming two difficult-to-drive 
monopiles are driven in a day, rounded up to the nearest hundred. This 
distance also corresponds to approximately the Level B harassment 
isopleth for OSS foundation installation. The entire minimum visibility 
zone must be visible (i.e., not obscured by dark, rain, fog, etc.) for 
a full 30 minutes immediately prior to commencing impact pile driving. 
For North Atlantic right whales, there is an additional requirement 
that the clearance zone may only be declared clear if no confirmed 
North Atlantic right whale acoustic detections (in addition to visual) 
have occurred during the 60-minute monitoring period. Any large whale 
sighted by a PSO or acoustically detected by a PAM operator that cannot 
be identified as a non-North Atlantic right whale must be treated as if 
it were a North Atlantic right whale.

           Table 37--WTG and OSS Clearance and Shutdown Zones
                                [Impact]
------------------------------------------------------------------------
                                                 Impact pile
                                   -------------------------------------
              Species                                      Shutdown zone
                                     Clearance zone \1\         \1\
------------------------------------------------------------------------
North Atlantic right whale--PAM...  5,000...............           1,500
North Atlantic right whale--visual  Any distance........           1,500
 detection.
All other Mysticetes and sperm      2 km................           1,500
 whales.
Harbor porpoise...................  400.................             400
Dolphins and Pilot Whales.........  200.................             200
Seals.............................  200.................             200
------------------------------------------------------------------------
\1\ The minimum visibility zone, an area in which marine mammals must be
  able to be visually detected, extends 1.2 km.

    Proposed clearance and shutdown zones have been developed in 
consideration of modeled distances to relevant PTS thresholds with 
respect to minimizing the potential for take by Level A harassment. All 
proposed

[[Page 22756]]

clearance and shutdown zones for large whales are larger than the 
largest modeled exposure range (ER95 percent) distances to 
thresholds corresponding to Level A harassment (SEL and peak). Recall 
that Empire Wind is seeking to avoid any pile driving during winter 
(December 1-December 31) and will only do so in cases of unanticipated 
delays due to weather or technical problems. The purpose of a shutdown 
is to prevent a specific acute impact, such as auditory injury or 
severe behavioral disturbance of sensitive species, by halting the 
activity. If a marine mammal is observed entering or within the 
respective shutdown zone (Table 37) after impact pile driving has 
begun, the PSO will request a temporary cessation of impact pile 
driving. If feasible, Empire Wind will stop pile driving immediately. 
In situations when shutdown is called for but Empire Wind determines 
shutdown is not practicable due to imminent risk of injury or loss of 
life to an individual or pile instability, reduced hammer energy must 
be implemented when the lead engineer determines it is practicable. 
Specifically, pile refusal or pile instability could result in not 
being able to shut down pile driving immediately. Pile refusal occurs 
when the pile driving sensors indicate the pile is approaching refusal, 
and a shut-down would lead to a stuck pile. Pile instability occurs 
when the pile is unstable and unable to stay standing if the piling 
vessel were to ``let go.'' During these periods of instability, the 
lead engineer may determine a shutdown is not feasible because the 
shutdown combined with impending weather conditions may require the 
piling vessel to ``let go'', which then poses an imminent risk of 
injury or loss of life to an individual or risk of damage to a vessel 
that creates risk for individuals. In these situations, Empire Wind 
must reduce hammer energy to the lowest level practicable.
    The lead engineer must evaluate the following to determine if a 
shutdown is safe and practicable:
    a. Use of site-specific soil data and real-time hammer log 
information to judge whether a stoppage would risk causing piling 
refusal at re-start of piling;
    b. Confirmation that pile penetration is deep enough to secure pile 
stability in the interim situation, taking into account weather 
statistics for the relevant season and the current weather forecast; 
and
    c. Determination by the lead engineer on duty will be made for each 
pile as the installation progresses and not for the site as a whole.
    If it is determined that shutdown is not feasible, the reason must 
be documented and reported (see Proposed Monitoring and Reporting 
section).
    Subsequent restart of the equipment can be initiated if the animal 
has been observed exiting its respective shutdown zone within 30 
minutes of the shutdown, or, after an additional time period has 
elapsed with no further sighting (i.e., 15 minutes for small 
odontocetes and 30 minutes for all other species).
    For impact pile driving, Empire Wind will implement a 60-minute 
pre-start clearance period of the Clearance zones prior to the 
initiation of soft-start (described below)) to ensure no marine mammals 
are in the vicinity of the pile. During this period the Clearance zones 
will be monitored by both PSOs and passive acoustic monitoring (PAM). 
Pile driving will not be initiated if any marine mammal is observed 
within its respective Clearance zone. If a marine mammal is observed 
within a Clearance zone during the pre-start clearance period, impact 
pile driving would be delayed and may not begin until the animal(s) has 
been observed exiting its respective zone, or, until an additional time 
period has elapsed with no further sightings (i.e., 15 minutes for 
small odontocetes and pinnipeds and 30 minutes for all other species). 
In addition, impact pile driving will be delayed upon a confirmed PAM 
detection of a North Atlantic right whale, if the PAM detection is 
confirmed to have been located within the 5 km North Atlantic right 
whale PAM Clearance zone. Any large whale sighted by a PSO within 1,000 
m of the pile that cannot be identified to species must be treated as 
if it were a North Atlantic right whale.
    Impact pile driving will not be initiated if the clearance zones 
cannot be adequately monitored (i.e., if they are obscured by fog, 
inclement weather, poor lighting conditions) for a 30 minute period 
prior to the commencement of soft-start, as determined by the Lead PSO. 
If light is insufficient, the lead PSO will call for a delay until the 
Clearance zone is visible in all directions. If a soft-start has been 
initiated before the onset of inclement weather, pile driving 
activities may continue through these periods if deemed necessary to 
ensure human safety and/or the integrity of the Project. PAM operators 
would review data from at least 24 hours prior to pile driving and 
actively monitor hydrophones for 60 minutes immediately prior to pile 
driving. odontocetes and 30 minutes for all other marine mammal 
species).

Soft-Start

    The use of a soft-start procedure is believed to provide additional 
protection to marine mammals by warning them, or providing them with a 
chance to leave the area prior to the hammer operating at full 
capacity. Soft-start typically involves initiating hammer operation at 
a reduced energy level (relative to full operating capacity) followed 
by a waiting period. Empire Wind must utilize a soft-start protocol for 
impact pile driving of monopiles by performing 4-6 strikes per minute 
at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 
minutes. NMFS notes that it is difficult to specify a reduction in 
energy for any given hammer because of variation across drivers. For 
impact hammers, the actual number of strikes at reduced energy will 
vary because operating the hammer at less than full power results in 
``bouncing'' of the hammer as it strikes the pile, resulting in 
multiple ``strikes''; however, as mentioned previously, Empire Wind 
will target less than 20 percent of the total hammer energy for the 
initial hammer strikes during soft-start. Soft-start will be required 
at the beginning of each day's monopile installation, and at any time 
following a cessation of impact pile driving of 30 minutes or longer. 
If a marine mammal is detected within or about to enter the applicable 
clearance zones prior to the beginning of soft-start procedures, impact 
pile driving would be delayed until the animal has been visually 
observed exiting the clearance zone or until a specific time period has 
elapsed with no further sightings (i.e., 15 minutes for small 
odontocetes and 30 minutes for all other species).

Cable Landfall and Marina Activities

    For sheet pile or casing pipe installation and removal, NMFS is 
proposing to include the following mitigation requirements, which are 
described in detail below: daily restrictions; the use of PSOs; the 
implementation of clearance and shutdown zones; and the use of soft-
start if a pneumatic impact hammer is used. Given the short duration of 
work, relatively small harassment zones if a pneumatic hammer is used, 
and lower noise levels during vibratory driving, NMFS is not proposing 
to require PAM or noise abatement system use during these activities.
Seasonal and Daily Restrictions
    Empire Wind has proposed to install and remove the sheet piles or 
casing pipe and goal posts within 2025. NMFS is not requiring any 
seasonal work

[[Page 22757]]

restrictions for landfall construction in this proposed rule due to the 
relatively short duration of work (i.e., low associated impacts). 
Empire Wind would be required, however, to conduct vibratory pile 
driving associated with sheet pile installation and pneumatic hammering 
of casing pipes during daylight hours only.
Use of PSOs
    Prior to the start of vibratory pile driving or impact/pneumatic 
hammering activities, at least two PSOs located at the best vantage 
points would monitor the clearance zone for 30 minutes, continue 
monitoring during pile driving or pneumatic hammering, and for 30 
minutes following cessation of either activity. The clearance zones 
must be fully visible for at least 30 minutes and must be confirmed to 
be clear of marine mammals for at least 30 minutes immediately prior to 
initiation of either activity.
Clearance and Shutdown Zones
    Empire Wind would establish clearance and shutdown zones for 
vibratory pile driving activities associated with sheet pile 
installation and impact/pneumatic hammering for casing pipe 
installation (Table 38). PSOs would monitor the clearance zone for 30 
minutes before the start of cable landfall activities, during pile 
driving associated with cable landfall, and for 30 minutes after pile 
driving of cable landfall. If a marine mammal is observed entering or 
is observed within the respective zones, activities will not commence 
until the animal has exited the zone or a specific amount of time has 
elapsed since the last sighting (i.e., 30 minutes for large whales and 
15 minutes for dolphins, porpoises, and pinnipeds). If a marine mammal 
is observed entering or within the respective shutdown zone after 
vibratory pile driving or pneumatic hammering has begun, the PSO will 
call for a temporary cessation of the activity. Pile driving or 
hammering must not be restarted until either the marine mammal(s) has 
voluntarily left the specific clearance zones and has been visually 
confirmed beyond that clearance zone or when specific time periods have 
elapsed with no further sightings or acoustic detections have occurred 
(i.e., 15 minutes for small odontocetes and 30 minutes for all other 
marine mammal species). Because a vibratory hammer can grip a pile 
without operating, pile instability should not be a concern and no 
caveat for re-starting pile driving due to pile instability is 
proposed.

 Table 38--Clearance and Shutdown Zones for Sheet Pile Vibratory Driving
           and Impact/Pneumatic Hammering for Casing Pipes (m)
------------------------------------------------------------------------
                                          Clearance zone   Shutdown zone
         Hearing group (species)                (m)             (m)
------------------------------------------------------------------------
Low-Frequency (North Atlantic right                1,600           1,600
 whale, all other mysticetes)...........
High-Frequency (harbor porpoise)........             100             100
Mid-Frequency (dolphins and pilot                     50              50
 whales)................................
Phocid Pinniped (seals).................              50              50
------------------------------------------------------------------------

HRG Surveys
    For HRG surveys, NMFS is proposing to include the following 
mitigation requirements, which are described in detail below, for all 
HRG survey activities employing SBPs: the use of PSOs; the 
implementation of clearance, shutdown, and vessel separation zones; and 
ramp-up of survey equipment.
    There are no mitigation measures prescribed for sound sources 
operating at frequencies greater than 180 kHz, as these would be 
expected to fall outside of marine mammal hearing ranges and not result 
in harassment; however, all HRG survey vessels would be subject to the 
aforementioned vessel strike avoidance measures described earlier in 
this section. Furthermore, due to the frequency range and 
characteristics of some of the sound sources, shutdown, clearance, and 
ramp-up procedures are not proposed to be conducted during HRG surveys 
utilizing only non-impulsive sources (e.g., Ultra-Short BaseLine (USBL) 
and other parametric sub-bottom profilers), with exception to usage of 
SBPs and other non-parametric sub-bottom profilers. PAM would not be 
required during HRG surveys. While NMFS agrees that PAM can be an 
important tool for augmenting detection capabilities in certain 
circumstances, its utility in further reducing impacts during HRG 
survey activities is limited. We have provided a thorough description 
of our reasoning for not requiring PAM during HRG surveys in several 
Federal Register notices (e.g., 87 FR 40796, July 8, 2022; 87 FR 52913, 
August 3, 2022; 87 FR 51356, August 22, 2022).
Seasonal and Daily Restrictions
    Given the potential impacts to marine mammals from exposure to HRG 
survey noise sources are relatively minor (e.g., limited to Level B 
harassment) and that the distances to the Level B harassment isopleth 
is very small (maximum distance is 50.05 m), NMFS is not proposing to 
implement any seasonal or time-of-day restrictions for HRG surveys.
    Although no temporal restrictions are proposed, NMFS would require 
Empire Wind to deactivate SBPs that result in take during periods where 
no data are being collected, except as determined necessary for 
testing. Any unnecessary use of the acoustic source would be avoided.
Use of PSOs
    Prior to the start of HRG surveys, all personnel with 
responsibilities for marine mammal monitoring would participate in 
joint, onboard briefings that would be led by both the vessel operator 
and the Lead PSO.These briefings would be repeated whenever new 
relevant personnel (e.g., new PSOs, acoustic source operators, relevant 
crew) join the survey operation before work begins.
    During all HRG survey activities using SBPs, at least one PSO would 
be required to monitor during daylight hours and at least two would be 
required to monitor during nighttime hours, per vessel. PSOs would 
begin visually monitoring 30 minutes prior to the initiation of the 
specified acoustic source (i.e., ramp-up, if applicable), during the 
HRG activities, and through 30 minutes after the use of the specified 
acoustic source has ceased. PSOs would be required to monitor the 
appropriate clearance and shutdown zones. These zones would be based 
around the radial distance from the acoustic source and not from the 
vessel.

[[Page 22758]]

Ramp-Up
    At the start or restart of the use of SBPs, a ramp-up procedure 
would be required unless the equipment operates on a binary on/off 
switch. A ramp-up procedure, involving a gradual increase in source 
level output, is required at all times as part of the activation of the 
acoustic source when technically feasible. Operators would ramp up 
sources to half power for 5 minutes and then proceed to full power. 
Prior to a ramp-up procedure starting, the operator would have to 
notify the Lead PSO of the planned start of the ramp-up. This 
notification time would not be less than 60 minutes prior to the 
planned ramp-up activities as all relevant PSOs would need the 
appropriate 30 minute period to monitor prior to the initiation of 
ramp-up. The ramp-up procedure will not be initiated during periods of 
inclement conditions if the clearance zones cannot be adequately 
monitored by the PSOs using the appropriate visual technology (e.g., 
reticulated binoculars, night vision equipment) for a 30-minute period. 
Prior to ramp-up beginning, the operator must receive confirmation from 
the PSO that the clearance zone is clear of any marine mammals. All 
ramp-ups would be scheduled to minimize the overall time spent with the 
source being activated. The ramp-up procedure must be used at the 
beginning of HRG survey activities or after more than a 30-minute break 
in survey activities using the specified HRG equipment to provide 
additional protection to marine mammals in or near the survey area by 
allowing them to vacate the area prior to operation of survey equipment 
at full power.
    Empire Wind would not initiate ramp-up until the clearance process 
has been completed (see Clearance and Shutdown Zones section below). 
Ramp-up activities would be delayed if a marine mammal(s) enters its 
respective clearance zone. Ramp-up would only be reinitiated if the 
animal(s) has been observed exiting its respective shutdown zone or 
until additional time has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species).
Clearance and Shutdown Zones
    Empire Wind would be required to implement a 30-minute clearance 
period of the clearance zones (Table 39) immediately prior to the 
commencing of the survey, or when there is more than a 30-minute break 
in survey activities and PSOs have not been actively monitoring. The 
clearance zones would be monitored by PSOs, using the appropriate 
visual technology. If a marine mammal is observed within a clearance 
zone during the clearance period, ramp-up (described below) may not 
begin until the animal(s) has been observed voluntarily exiting its 
respective clearance zone or until an additional time period has 
elapsed with no further sighting (i.e., 15 minutes for small 
odontocetes and seals, and 30 minutes for all other species). In any 
case when the clearance process has begun in conditions with good 
visibility, including via the use of night vision equipment (IR/thermal 
camera), and the Lead PSO has determined that the clearance zones are 
clear of marine mammals, survey operations would be allowed to commence 
(i.e., no delay is required) despite periods of inclement weather and/
or loss of daylight.
    Once the survey has commenced, Empire Wind would be required to 
shut down SBPs if a marine mammal enters a respective shutdown zone 
(Table 39). In cases when the shutdown zones become obscured for brief 
periods due to inclement weather, survey operations would be allowed to 
continue (i.e., no shutdown is required) so long as no marine mammals 
have been detected. The use SBPs will not be allowed to commence or 
resume until the animal(s) has been confirmed to have left the shutdown 
zone or until a full 15 minutes (for small odontocetes and seals) or 30 
minutes (for all other marine mammals) have elapsed with no further 
sighting. Any large whale sighted by a PSO within 1,000 m of the SBPs 
that cannot be identified as a non-North Atlantic right whale would be 
treated as if it were a North Atlantic right whale.
    The shutdown requirement would be waived for small delphinids of 
the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. Specifically, if a delphinid from the specified genera is 
visually detected approaching the vessel (i.e., to bow-ride) or towed 
equipment, shutdown would not be required. Furthermore, if there is 
uncertainty regarding identification of a marine mammal species (i.e., 
whether the observed marine mammal(s) belongs to one of the delphinid 
genera for which shutdown is waived), the PSOs would use their best 
professional judgment in making the decision to call for a shutdown. 
Shutdown would be required if a delphinid that belongs to a genus other 
than those specified is detected in the shutdown zone.
    If a SBP is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, it would be allowed to 
be activated again without ramp-up only if (1) PSOs have maintained 
constant observation, and (2) no additional detections of any marine 
mammal occurred within the respective shutdown zones. If a SBP was shut 
down for a period longer than 30 minutes, then all clearance and ramp-
up procedures would be required, as previously described.

  Table 39--Harassment Threshold Ranges and Mitigation Zones During HRG
                                 Surveys
------------------------------------------------------------------------
                                          Clearance zone   Shutdown zone
                 Species                        (m)             (m)
------------------------------------------------------------------------
North Atlantic right whale..............             500             500
All other ESA-listed marine mammals                  500             100
 (e.g., fin, sei, sperm whale)..........
All other marine mammal species \1\.....             100             100
------------------------------------------------------------------------
\1\ With the exception of seals and delphinid(s) from the genera
  Delphinus, Lagenorhynchus, Stenella or Tursiops, as described below.

Fishery Monitoring Surveys
Training
    All crew undertaking the fishery monitoring survey activities would 
be required to receive protected species identification training prior 
to activities occurring. Marine mammal monitoring must occur prior to, 
during, and after haul-back and gear must not be deployed if a marine 
mammal is observed in the area. Trawl operations must only start after 
15 minutes of no marine mammal sightings within 1 nm of the sampling 
station.
Gear-Specific Best Management Practices (BMPs)
    Empire Wind would be required to undertake BMPs to reduce risks to 
marine mammals during trawl surveys. These include:

[[Page 22759]]

     All captains and crew conducting trawl surveys will be 
trained in marine mammal detection and identification;
     Survey vessels will adhere to all vessel mitigation 
measures (see Proposed Mitigation section);
     Marine mammal monitoring will be conducted by the captain 
and/or a member of the scientific crew before (15 minutes prior to 
within 1 nm), during, and after haul back;
     Trawl operations will commence as soon as possible once 
the vessel arrives on station;
     If a marine mammal (other than dolphins and porpoises) is 
sighted within 1 nm of the planned location in the 15 minutes before 
gear deployment, Empire Wind will delay setting the trawl until marine 
mammals have not been resighted for 15 minutes or Empire Wind may move 
the vessel away from the marine mammal to a different section of the 
sampling area. If, after moving on, marine mammals are still visible 
from the vessel, Empire Wind may decide to move again or to skip the 
station;
     Gear will not be deployed if marine mammals are observed 
within the area and if a marine mammal is deemed to be at risk of 
interaction, all gear will be immediately removed;
     Empire Wind will maintain visual monitoring effort during 
the entire period of time that trawl gear is in the water (i.e., 
throughout gear deployment, fishing, and retrieval). If marine mammals 
are sighted before the gear is fully removed from the water, Empire 
Wind will take the most appropriate action to avoid marine mammal 
interaction;
     Limit tow time to 20 minutes and monitoring for marine 
mammals throughout gear deployment, fishing, and retrieval;
     Empire Wind will open the codend of the net close to the 
deck/sorting area to avoid damage to animals that may be caught in 
gear;
     Trawl nets will be fully cleaned and repaired (if damaged) 
before setting again; and
     Any lost gear associated with the fishery surveys must be 
reported to the NOAA Greater Atlantic Regional Fisheries Office 
Protected Resources Division within 48 hours
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures would provide the 
means of affecting the least practicable impact on the affected species 
or stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to promulgate a rulemaking for an activity, section 
101(a)(5)(A) of the MMPA states that NMFS must set forth requirements 
pertaining to the monitoring and reporting of such taking. The MMPA 
implementing regulations at 50 CFR 216.104 (a)(13) indicate that 
requests for authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area. Effective reporting is critical 
both to compliance as well as ensuring that the most value is obtained 
from the required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and/or
     Mitigation and monitoring effectiveness.
    Separately, monitoring is also regularly used to support mitigation 
implementation, which is referred to as mitigation monitoring, and 
monitoring plans typically include measures that both support 
mitigation implementation and increase our understanding of the impacts 
of the activity on marine mammals.
    During Empire Wind's construction activities, visual monitoring by 
NMFS-approved PSOs would be conducted before, during, and after impact 
pile driving, vibratory pile driving, and HRG surveys. PAM would also 
be conducted during all impact pile driving. Observations and acoustic 
detections by PSOs would be used to support the activity-specific 
mitigation measures described above. Also, to increase understanding of 
the impacts of the activity on marine mammals, observers would record 
all incidents of marine mammal occurrence at any distance from the 
piling locations and during active HRG acoustic sources, and monitors 
would document all behaviors and behavioral changes, in concert with 
distance from an acoustic source. The required monitoring is described 
below, beginning with PSO measures that are applicable to all 
activities or monitoring, followed by activity-specific monitoring 
requirements.
Protected Species Observer Requirements
    Empire Wind would be required to collect marine mammal sighting and 
behavioral response data during pile driving and HRG surveys using 
NMFS-approved visual and acoustic PSOs (see Proposed Mitigation 
section). All observers must be trained in marine mammal identification 
and behaviors, and are required to have no other construction-related 
tasks while conducting monitoring. PSOs would monitor all clearance and 
shutdown zones prior to, during, and following impact pile driving, 
vibratory pile driving, and during HRG surveys using SBPs (with 
monitoring durations specified further below). Any PSO would have the 
authority to call for a delay or shutdown of survey activities. PSOs 
will also monitor the Level B harassment zones and will document any 
marine mammals observed within these zones, to the extent practicable 
(noting that some zones are too large to fully observe). Observers 
would be located at the best practicable vantage points on the pile 
driving vessel. Full details regarding all marine mammal monitoring 
must be included in relevant Plans (e.g., Pile Driving and Marine 
Mammal Monitoring Plan) that, under this proposed rule, Empire Wind 
would be required to submit to NMFS for approval at least 180 days in 
advance of the commencement of any construction activities.
    The following measures apply to all visual monitoring efforts:

[[Page 22760]]

    1. Monitoring must be conducted by NMFS-approved, trained PSOs who 
would be placed at the primary location relevant to the activity (i.e., 
pile driving vessel, HRG survey vessel) and located in positions that 
allow for the best vantage point to monitor for marine mammals and 
implement the relevant clearance and shutdown procedures, when 
determined to be applicable;
    2. PSO must be independent third-party observers and must have no 
tasks other than to conduct observational effort, collect data, and 
communicate with and instruct the relevant vessel crew with regard to 
the presence of protected species and mitigation requirements;
    3. During all observation periods related to pile driving (impact 
and vibratory), and HRG surveys, PSOs would be located at the best 
vantage point(s) in order to ensure 360[deg] visual coverage of the 
entire clearance and shutdown zones around the source and as much of 
the Level B harassment zone as possible, while still maintaining a safe 
work environment;
    4. PSOs may not exceed 4 consecutive watch hours, must have a 
minimum 2-hour break between watches, and may not exceed a combined 
watch schedule of more than 12 hours in a single 24-hour period;
    5. PSOs would be required to use appropriate equipment (specified 
below) to monitor for marine mammals. During periods of low visibility 
(e.g., darkness, rain, fog, poor weather conditions, etc.), PSOs would 
be required to use alternative technologies (i.e., infrared or thermal 
cameras) to monitor the shutdown and clearance zones.
    6. PSOs must have the following minimum qualifications:
    a. Visual acuity in both eyes (corrected is permissible) sufficient 
for discernment of moving targets at the water's surface with the 
ability to estimate the target size and distance. The use of binoculars 
is permitted and may be necessary to correctly identify the target(s);
    b. Ability to conduct field observations and collect data according 
to the assigned protocols;
    c. Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    d. Writing skills sufficient to document observations, including 
but not limited to: the number and species of marine mammals observed, 
the dates and times of when in-water construction activities were 
conducted, the dates and time when in-water construction activities 
were suspended to avoid potential incidental injury of marine mammals 
from construction noise within a defined shutdown zone, and marine 
mammal behavior.
    e. Ability to communicate orally, by radio, or in-person, with 
project personnel to provide real-time information on marine mammals 
observed in the area, as necessary.
    f. PSOs must successfully complete relevant training, including 
completion of all required coursework and passing a written and/or oral 
examination developed for the training;
    g. PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to: Secondary education and/or experience comparable 
to PSO duties; Previous work experience conducting academic, 
commercial, or government sponsored marine mammal surveys; or previous 
work experience as a PSO; the PSO should demonstrate good standing and 
consistently good performance of PSO duties.
    7. One observer on each platform will be designated as lead 
observer or monitoring coordinator (``Lead PSO''). This Lead PSO would 
be required to have a minimum of 90 days of at-sea experience working 
in this role in an offshore environment, and would be required to have 
no more than eighteen months elapsed since the conclusion of their last 
at-sea experience;
    8. All PSOs must be approved by NMFS. Empire Wind would be required 
to submit resumes of the initial set of PSOs necessary to commence the 
project to NMFS OPR for approval at least 60 days prior to the first 
day of in-water construction activities requiring PSOs. Resumes would 
need to include the dates of training and any prior NMFS approval, as 
well as the dates and description of their last PSO experience, and 
must be accompanied by information documenting their successful 
completion of an acceptable training course. NMFS would allow three 
weeks to approve PSOs from the time that the necessary information is 
received by NMFS, after which any PSOs that meet the minimum 
requirements would automatically be considered approved.
    Some activities planned to be undertaken by Empire Wind may require 
the use of Passive Acoustic Monitoring (PAM) systems, which would 
necessitate the employment of at least one acoustic PSO (aka PAM 
operator) on duty at any given time. PAM operators would be required to 
meet several of the specified requirements described above for PSOs. 
Furthermore, PAM operators would be required to complete a specialized 
training for operating PAM systems and must demonstrate familiarity 
with the PAM system on which they would be working.
    PSOs would be able to act as both acoustic and visual observers for 
the project if the individual(s) demonstrates that they have had the 
required level and appropriate training and experience to perform each 
task. However, a single individual would not be allowed to concurrently 
act in both roles or exceed work hours specified in #4 above.
    Empire Wind's personnel and PSOs would also be required to use 
available sources of information on North Atlantic right whale presence 
to aid in monitoring efforts. This includes:
    1. Daily monitoring of the Right Whale Sightings Advisory System;
    2. Consulting of the WhaleAlert app; and,
    3. Monitoring of the Coast Guard's VHF Channel 16 throughout the 
day to receive notifications of any sightings and information 
associated with any Dynamic Management Areas, to plan construction 
activities and vessel routes, if practicable, to minimize the potential 
for co-occurrence with North Atlantic right whales.
    Additionally, whenever multiple project-associated vessels (of any 
size; e.g., construction survey, crew transfer) are operating 
concurrently, any visual observations of ESA-listed marine mammals must 
be communicated to PSOs and vessel captains associated with other 
vessels to increase situational awareness.
    The following are proposed monitoring and reporting measures that 
NMFS would require specific to each construction activity:

Monopile and OSS Foundation Installation

    Empire Wind would be required to implement the following monitoring 
procedures during all impact pile driving of monopile and OSS 
foundations.
    During all observations associated with impact pile driving, PSOs 
would use high magnification (25x) binoculars, standard handheld (7x) 
binoculars, and the naked eye to search continuously for

[[Page 22761]]

marine mammals. At least one PSO on the foundation pile driving vessel 
and secondary dedicated-PSO vessel must be equipped with Big Eye 
binoculars (e.g., 25 x 150; 2.7 view angle; individual ocular focus; 
height control) of appropriate quality. These would be pedestal-mounted 
on the deck at the best vantage point that provides optimal sea surface 
observation and PSO safety.
    Empire Wind would be required to have a minimum of four PSOs 
actively observing marine mammals before, during, and after (specific 
times described below) the installation of foundation piles 
(monopiles). At least two PSOs must be actively observing on the pile 
driving vessel. Concurrently, at least one acoustic PSO (i.e., passive 
acoustic monitoring (PAM) operator) must be actively monitoring for 
marine mammals before, during and after impact pile driving.
    As described in the Proposed Mitigation section, if the minimum 
visibility zone cannot be visually monitored at all times, pile driving 
operations may not commence or, if active, must shutdown, unless Empire 
Wind determines shutdown is not practicable due to imminent risk of 
injury or loss of life to an individual, or risk of damage to a vessel 
that creates risk of injury or loss of life for individuals.
    To supplement visual observation efforts, Empire Wind would utilize 
at least one PAM operator before, during, and after pile installation. 
PAM monitoring must occur for at least 24 hours immediately prior to 
foundation installation pile driving. The PAM operator would assist the 
PSOs in ensuring full coverage of the clearance and shutdown zones. All 
on-duty visual PSOs would remain in contact with the on-duty PAM 
operator, who would monitor the PAM systems for acoustic detections of 
marine mammals in the area. In some cases, the PAM operator and 
workstation may be located onshore or they may be located on a vessel. 
In either situation, PAM operators would maintain constant and clear 
communication with visual PSOs on duty regarding detections of marine 
mammals that are approaching or within the applicable zones related to 
impact pile driving. Empire Wind would utilize PAM to acoustically 
monitor the clearance and shutdown zones (and beyond for situational 
awareness), and would record all detections of marine mammals and 
estimated distance, when possible, to the activity (noting whether they 
are in the Level A harassment or Level B harassment zones). To 
effectively utilize PAM, Empire Wind would implement the following 
protocols:
     PAM operators would be stationed on at least one of the 
dedicated monitoring vessels in addition to the PSOs, or located 
remotely/onshore.
     PAM operators would have completed specialized training 
for operating PAM systems prior to the start of monitoring activities, 
including identification of species-specific mysticete vocalizations 
(e.g., North Atlantic right whales).
     The PAM operator(s) on-duty would monitor the PAM systems 
for acoustic detections of marine mammals that are vocalizing in the 
area.
     Any detections would be conveyed to the PSO team and any 
PSO sightings would be conveyed to the PAM operator for awareness 
purposes, and to identify if mitigation is to be triggered.
     For real-time PAM systems, at least one PAM operator would 
be designated to monitor each system by viewing data or data products 
that are streamed in real-time or near real-time to a computer 
workstation and monitor located on a project vessel or onshore.
     The PAM operator would inform the Lead PSO on duty of 
marine mammal detections approaching or within applicable ranges of 
interest to the pile driving activity via the data collection software 
system (i.e., Mysticetus or similar system), who would be responsible 
for requesting that the designated crewmember implement the necessary 
mitigation procedures (i.e., delay or shutdown).
     Acoustic monitoring during nighttime and low visibility 
conditions during the day would complement visual monitoring (e.g., 
PSOs and thermal cameras) and would cover an area of at least the Level 
B harassment zone around each foundation.
    All PSOs and PAM operators would be required to begin monitoring 60 
minutes prior to any impact pile driving, during, and after for 30 
minutes. However, PAM operators must review acoustic data from the 
previous 24 hours as well. As described in the Proposed Mitigation 
section, impact pile driving of monopiles would only commence when the 
1.2 km minimum visibility zone can be visually monitored and the 
clearance zones are clear of marine mammals for at least 30 minutes, as 
determined by the Lead PSO, immediately prior to the initiation of 
impact pile driving.
    For North Atlantic right whales, any visual (regardless of 
distance) or acoustic detection would trigger a delay to the 
commencement of pile driving. In the event that a large whale is 
sighted or acoustically detected that cannot be confirmed as a non-
North Atlantic right whale species, it must be treated as if it were a 
North Atlantic right whale. Following a shutdown, monopile installation 
may not recommence until the minimum visibility zone is fully visible 
and the clearance zone is clear of marine mammals for 30 minutes and no 
marine mammals have been detected acoustically within the PAM clearance 
zone for 30 minutes.
    Empire Wind must prepare and submit a Pile Driving and Marine 
Mammal Monitoring Plan to NMFS for review and approval at least 180 
days before the start of any pile driving. The plans must include final 
pile driving project design (e.g., number and type of piles, hammer 
type, noise attenuation systems, anticipated start date, etc.) and all 
information related to PAM PSO monitoring protocols for pile-driving 
and visual PSO protocols for all activities.
    When pile driving is not occurring, Empire Wind would ensure that 
visual PSOs conduct, as rotation schedules allow, observations for 
comparison of sighting rates and behavior during and in absence of pile 
driving. As described above, PAM data must be collected for 24-hours 
immediately prior to commencement of daily pile driving. Non-pile 
driving PSO monitoring data must be reflected in the monthly, annual, 
and final PSO monitoring reports.
    As described previously, Empire Wind would be required to utilize a 
PAM system to supplement visual monitoring for all monopile 
installations. PAM operators may be on watch for a maximum of four 
consecutive hours followed by a break of at least two hours between 
watches. Again, PSOs can act as PAM operators or visual PSOs (but not 
simultaneously) as long as they demonstrate that their training and 
experience are sufficient to perform each task.
    The PAM system must be monitored by a minimum of one PAM operator 
beginning at least 60 minutes prior to soft-start of impact pile 
driving of monopiles, at all times during monopile installation, and 30 
minutes post-completion of both activities. PAM operators must 
immediately communicate all detections of marine mammals at any 
distance (i.e., not limited to the Level B harassment zones) to visual 
PSOs, including any determination regarding species identification, 
distance, and bearing and the degree of confidence in the 
determination.
    PAM systems may be used for real-time mitigation monitoring. The 
requirement for real-time detection and

[[Page 22762]]

localization limits the types of PAM technologies that can be used to 
those systems that are either cabled, satellite, or radio-linked. It is 
most likely that Empire Wind would deploy autonomous or moored-remote 
PAM devices, including sonobuoy arrays or similar retrievable buoy 
systems. The system chosen will dictate the design and protocols of the 
PAM operations. Empire Wind is not considering seafloor cabled PAM 
systems, in part due to high installation and maintenance costs, 
environmental issues related to cable laying, and the associated 
permitting complexities. For a review of the PAM systems Empire Wind is 
considering, please see Appendix 4 of the Protected Species Mitigation 
and Monitoring Plan included in Empire Wind's ITA application.
    Empire Wind plans to deploy PAM arrays specific to mitigation and 
monitoring of marine mammals outside of the shutdown zone to optimize 
the PAM system's capabilities to monitor for the presence of animals 
potentially entering these zones. The exact configuration and number of 
PAM devices would depend on the size of the zone(s) being monitored, 
the amount of noise expected in the area, and the characteristics of 
the signals being monitored. More closely spaced hydrophones would 
allow for more directionality and, perhaps, range to the vocalizing 
marine mammals; however, this approach would add additional costs and 
greater levels of complexity to the project. Mysticetes, which would 
produce relatively loud and lower-frequency vocalizations, may be able 
to be heard with fewer hydrophones spaced at greater distances. 
However, detecting smaller cetaceans (such as mid-frequency delphinids; 
odontocetes) may necessitate that more hydrophones be spaced closer 
together given the shorter propagation range of the shorter, mid-
frequency acoustic signals (e.g., whistles and echolocation clicks). As 
there are no ``perfect fit'' single optimal array configurations, these 
set-ups would need to be considered on a case-by-case basis.
    A Passive Acoustic Monitoring (PAM) Plan must be submitted to NMFS 
for review and approval at least 180 days prior to the planned start of 
monopile installations. PAM should follow standardized measurement, 
processing methods, reporting metrics, and metadata standards for 
offshore wind (Van Parijs et al., 2021). The plan must describe all 
proposed PAM equipment, procedures, and protocols.

Cable Landfall and Onshore Substation C Marina Activities

    Empire Wind would be required to implement the following procedures 
during all impact and vibratory pile driving activities associated with 
cable landfall construction and marina activities.
    Empire Wind would be required to have a minimum of two PSOs on 
active duty during all pile driving associated with installation and 
removal. These PSOs would always be located at the best vantage 
point(s) on the pile driving platform or secondary platform in the 
immediate vicinity of the primary platform, in order to ensure that 
appropriate visual coverage is available of the entire clearance and 
shutdown zones and as much of the Level B harassment zone as possible. 
NMFS would not require the use of PAM for these activities.
    PSOs would monitor for marine mammals 30 minutes before pile 
driving begins, throughout pile driving, and for 30 minutes after all 
pile driving activities have ceased. Pile driving may only commence 
when the clearance zones are determined to be clear of marine mammals, 
as determined by the Lead PSO, for at least 30 minutes immediately 
prior to initiation of impact or vibratory pile driving.
    If a marine mammal is observed entering or within the respective 
shutdown zone after pile driving has begun, the PSO must call for a 
temporary shutdown of pile driving. Empire Wind must immediately cease 
pile driving if a PSO calls for shutdown, unless shutdown is not 
practicable due to imminent risk of injury or loss of life to an 
individual or pile refusal or instability. In this situation, Empire 
Wind must reduce hammer energy to the lowest level practicable and the 
reason(s) for not shutting down must be documented and reported to 
NMFS. Pile driving must not restart until either the marine mammal(s) 
has voluntarily left the specific clearance zones and has been visually 
or acoustically confirmed beyond that clearance zone, or, when specific 
time periods have elapsed with no further sightings or acoustic 
detections have occurred. The specific time periods are 15 minutes for 
small odontocetes and pinnipeds and 30 minutes for all other marine 
mammal species. In cases where these criteria are not met, pile driving 
may restart only if necessary to maintain pile stability at which time 
Empire Wind must use the lowest hammer energy practicable to maintain 
stability.

HRG Surveys

    Per vessel, Empire Wind would be required to have at least one PSO 
on active duty during HRG surveys that are conducted during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset) and at least two PSOs during HRG surveys that are 
conducted during nighttime hours.
    All PSOs would begin monitoring 30 minutes prior to the activation 
of SBPs; throughout use of these acoustic sources, and for 30 minutes 
after the use of the acoustic sources has ceased.
    Given that multiple HRG vessels may be operating concurrently, any 
observations of marine mammals would be required to be communicated to 
PSOs on all nearby survey vessels.
    SBPs would only commence when visual clearance zones are fully 
visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of 
marine mammals, as determined by the Lead PSO, for at least 30 minutes 
immediately prior to initiation of survey activities utilizing the 
specified acoustic sources. In any case when the clearance process has 
begun in conditions with good visibility, including via the use of 
night vision equipment (IR/thermal camera), and the Lead PSO has 
determined that the clearance zones are clear of marine mammals, survey 
operations would be allowed to commence (i.e., no delay is required) 
despite periods of inclement weather and/or loss of daylight.
    During daylight hours when survey equipment is not operating, 
Empire Wind would ensure that visual PSOs conduct, as rotation 
schedules allow, observations for comparison of sighting rates and 
behavior with and without use of the specified acoustic sources. Off-
effort PSO monitoring must be reflected in the monthly PSO monitoring 
reports.
    Once the survey has commenced, Empire Wind must shut down SBPs if a 
marine mammal enters a respective shutdown zone, except in cases when 
the shutdown zones become obscured for brief periods due to inclement 
weather, survey operations would be allowed to continue (i.e., no 
shutdown is required) so long as no marine mammals have been detected. 
The shutdown requirement does not apply to small delphinids of the 
following genera: Delphinus, Stenella, Lagenorhynchus, and Tursiops. If 
there is uncertainty regarding the identification of a marine mammal 
species (i.e., whether the observed marine mammal belongs to one of the 
delphinid genera for which shutdown is waived), the PSOs must use their 
best professional judgment in making the

[[Page 22763]]

decision to call for a shutdown. Shutdown is required if a delphinid 
that belongs to a genus other than those specified here is detected in 
the shutdown zone.
    If a SBP is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, it would be allowed to 
be activated again without ramp-up only if PSOs have maintained 
constant observation and no additional detections of any marine mammal 
occurred within the respective shutdown zones.
Sound Field Verification (SFV)
    During the installation of the first three monopile foundations and 
all piles associated with installation of the first OSS foundation, 
Empire Wind must empirically determine source levels, the ranges to the 
isopleths corresponding to the Level A harassment and Level B 
harassment thresholds and transmission loss coefficient(s). Empire Wind 
may also estimate ranges to the Level A harassment and Level B 
harassment isopleths by extrapolating from in situ measurements 
conducted at several distances from the piles monitored. Empire Wind 
must perform sound field measurements at four distances from the pile 
being driven, including, but not limited to, 750 m and the modeled 
Level B harassment zones to verify the accuracy of those modeled zones. 
The recordings will be continuous throughout the duration of all impact 
hammering of each pile monitored. The measurement systems will have a 
sensitivity appropriate for the expected sound levels from pile driving 
received at the nominal ranges throughout the installation of the pile. 
The frequency range of the system will cover the range of at least 20 
Hz to 20 kHz. The system will be designed to have omnidirectional 
sensitivity and will be designed so that the predicted broadband 
received level of all impact pile-driving strikes exceed the system 
noise floor by at least 10 dB. The dynamic range of the system will be 
sufficient such that at each location, pile driving signals are not 
clipped and are not masked by noise floor.
    If acoustic field measurements collected during installation of 
foundation piles indicate ranges to the isopleths corresponding to 
Level A harassment and Level B harassment thresholds are greater than 
the ranges predicted by modeling (assuming 10 dB attenuation), Empire 
Wind must implement additional noise mitigation measures prior to 
installing the next monopile. Initial additional measures may include 
improving the efficacy of the implemented noise mitigation technology 
(e.g., BBC, DBBC) and/or modifying the piling schedule to reduce the 
sound source. Each sequential modification would be evaluated 
empirically by acoustic field measurements.
    In the event that field measurements indicate ranges to isopleths 
corresponding to Level A harassment and Level B harassment thresholds 
are greater than the ranges predicted by modeling (assuming 10 dB 
attenuation), NMFS may expand the relevant harassment, clearance, and 
shutdown zones and associated monitoring protocols. If harassment zones 
are expanded beyond an additional 1,500 m, additional PSOs would be 
deployed on additional platforms with each observer responsible for 
maintaining watch in no more than 180 degrees and of an area with a 
radius no greater than 1,500 m.
    If acoustic measurements indicate that ranges to isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds are less than the ranges predicted by modeling (assuming 10 
dB attenuation), Empire Wind may request a modification of the 
clearance and shutdown zones for impact pile driving of monopiles and 
jacket foundation piles. For NMFS to consider a modification request, 
Empire Wind would have had to conduct SFV on three or more monopiles to 
verify that zone sizes are consistently smaller than those predicted by 
modeling (assuming 10 dB attenuation) and subsequent piles would be 
installed within and under similar conditions (e.g., monitoring data 
collected during installation of a typical pile can not be used to 
adjust difficult-to-drive pile ranges). In addition, if a subsequent 
monopile installation location is selected that was not represented by 
previous three locations (i.e., substrate composition, water depth), 
SFV would be required. 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.
    Empire Wind will submit a SFV Plan to NOAA Fisheries for review and 
approval at least 180 days prior to planned start of pile driving. In 
addition to identify how foundation installation noise levels will be 
monitored, the SFV plan must also include how operational noise would 
be monitored. Empire Wind would be required to estimate source levels 
based on measurements in the near and far-field at a minimum of three 
locations from each foundation monitored. These data must be used to 
also identify estimated transmission loss rates. Operational parameters 
(e.g., direct drive/gearbox information, turbine rotation rate) as well 
as sea state conditions and information on nearby anthropogenic 
activities (e.g., vessels transiting or operating in the area) must be 
reported.
Reporting
    Prior to initiation of project activities, Empire Wind would 
provide a report to NMFS (at [email protected] [email protected]">and[email protected]) documenting that all required 
training for Empire Wind personnel (i.e., vessel crews, vessel 
captains, PSOs, and PAM operators) has been completed and provide the 
date that each in-water construction activity considered in this 
proposed rule (i.e., foundation installation, cable landfall 
construction, marina activities, and HRG surveys) would occur.
    NMFS would require standardized and frequent reporting from Empire 
Wind during the life of the proposed regulations and LOA. All data 
collected relating to the Empire Wind project would be recorded using 
industry-standard software installed on field laptops and/or tablets. 
Empire Wind would be required to submit weekly, monthly and annual 
reports as described below. For all monitoring efforts and marine 
mammal sightings, the following information would be collected and 
reported related to the activity being conducted:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
     Water conditions (e.g., sea state, tide state, water 
depth);
     All marine mammal sightings, regardless of distance from 
the construction activity;
     Species (or lowest possible taxonomic level possible);
     Pace of the animal(s);
     Estimated number of animals (minimum/maximum/high/low/
best);
     Estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.);
     Description (i.e., as many distinguishing features as 
possible of each individual seen, including length, shape, color, 
pattern, scars or markings, shape and size of dorsal fin, shape of 
head, and blow characteristics);

[[Page 22764]]

     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling) and observed 
changes in behavior, including an assessment of behavioral responses 
thought to have resulted from the specific activity;
     Animal's closest distance and bearing from the pile being 
driven or specified HRG equipment and estimated time entered and spent 
within the Level A harassment and/or Level B harassment zones;
     Construction activity at time of sighting (e.g., vibratory 
installation/removal, impact pile driving,, HRG survey), use of any 
noise attenuation device(s), and specific phase of activity (e.g., 
ramp-up of HRG equipment, HRG acoustic source on/off, soft-start for 
pile driving, active pile driving, etc.);
     Marine mammal occurrence in Level A harassment or Level B 
harassment zones;
     Description of any mitigation-related action implemented, 
or mitigation-related actions called for but not implemented, in 
response to the sighting (e.g., delay, shutdown, etc.) and time and 
location of the action; and
     Other human activity in the area.
    For all real-time acoustic detections of marine mammals, the 
following must be recorded and included in weekly, monthly, annual, and 
final reports:
    1. Location of hydrophone (latitude & longitude; in Decimal 
Degrees) and site name;
    2. Bottom depth and depth of recording unit (in meters);
    3. Recorder (model & manufacturer) and platform type (i.e., bottom-
mounted, electric glider, etc.), and instrument ID of the hydrophone 
and recording platform (if applicable);
    4. Time zone for sound files and recorded date/times in data and 
metadata (in relation to UTC. i.e., EST time zone is UTC-5);
    5. Duration of recordings (start/end dates and times; in ISO 8601 
format, yyyy-mm-ddTHH:MM:SS.sssZ);
    6. Deployment/retrieval dates and times (in ISO 8601 format);
    7. Recording schedule (must be continuous);
    8. Hydrophone and recorder sensitivity (in dB re. 1[mu]Pa);
    9. Calibration curve for each recorder;
    10. Bandwidth/sampling rate (in Hz);
    11. Sample bit-rate of recordings; and
    12. Detection range of equipment for relevant frequency bands (in 
meters).
    For each detection the following information must be noted:
    13. Species identification (if possible);
    14. Call type and number of calls (if known);
    15. Temporal aspects of vocalization (date, time, duration, etc., 
date times in ISO 8601 format);
    16. Confidence of detection (detected, or possibly detected);
    17. Comparison with any concurrent visual sightings;
    18. Location and/or directionality of call (if determined) relative 
to acoustic;
    19. Location of recorder and construction activities at time of 
call;
    20. Name and version of detection or sound analysis software used, 
with protocol reference;
    21. Minimum and maximum frequencies viewed/monitored/used in 
detection (in Hz); and
    22. Name of PAM operator(s) on duty.
    Weekly Report--During foundation installation activities, Empire 
Wind would be required to compile and submit weekly marine mammals and 
pile driving activity reports to NMFS ([email protected] and 
[email protected]) that document the daily start and 
stop of all pile driving activities, the start and stop of associated 
observation periods by PSOs, details on the deployment of PSOs, a 
record of all detections of marine mammals (acoustic and visual), any 
mitigation actions (or if mitigation actions could not be taken, 
provide reasons why), and details on the noise abatement system(s) 
(e.g., bubble rate). Weekly reports would be due on Wednesday for the 
previous week (Sunday-Saturday). The weekly report would also identify 
which turbines become operational and when (a map must be provided). 
Once all foundation pile installation is complete, weekly reports would 
no longer be required.
    Monthly Report--Empire Wind would be required to compile and submit 
monthly reports to NMFS ([email protected] and 
[email protected]) that include a summary of all 
information in the weekly reports, including project activities carried 
out in the previous month, vessel transits (number, type of vessel, and 
route), number of piles installed, all detections of marine mammals, 
and any mitigative actions taken. Monthly reports would be due on the 
15th of the month for the previous month. The monthly report would also 
identify which turbines become operational and when (a map must be 
provided). Once foundation pile installation is complete, monthly 
reports would no longer be required.
    Annual Report--Empire Wind would be required to submit an annual 
PSO PAM report to NMFS (at [email protected] and 
[email protected]) no later than 90 days following the 
end of a given calendar year describing, in detail, all of the 
information required in the monitoring section above. A final annual 
report would be prepared and submitted within 30 calendar days 
following receipt of any NMFS comments on the draft report. If no 
comments were received from NMFS within 60 calendar days of NMFS' 
receipt of the draft report, the report would be considered final.
    Final Report--Empire Wind must submit its draft final report(s) to 
NMFS ([email protected] and [email protected]) on 
all visual and acoustic monitoring conducted under the LOA within 90 
calendar days of the completion of activities occurring under the LOA. 
A final report must be prepared and submitted within 30 calendar days 
following receipt of any NMFS comments on the draft report. If no 
comments are received from NMFS within 60 calendar days of NMFS' 
receipt of the draft report, the report shall be considered final. 
Information contained within this report is described at the beginning 
of this section.
    Situational Reporting--Specific situations encountered during the 
development of the Empire Wind project would require immediate 
reporting. These situations and the relevant procedures include:
     If a North Atlantic right whale is detected via Empire 
Wind's PAM, the date, time, and location (i.e., latitude and longitude 
of recorder) of the detection, as well as the recording platform that 
had the detection, must be reported to [email protected] as soon 
as feasible, no longer than 24 hours after the detection. Full 
detection data and metadata must be submitted monthly on the 15th of 
every month for the previous month via the web form on the NMFS North 
Atlantic right whale Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates).
     If a North Atlantic right whale is observed at any time by 
PSOs or Empire Wind personnel, Empire Wind must immediately report 
sighting information to the NMFS North Atlantic Right Whale Sighting 
Advisory System (866-755-6622), to the U.S. Coast Guard via channel 16, 
and through the WhaleAlert app (http://www.whalealert/org/) as soon as 
feasible but no longer than 24 hours after the sighting. Information 
reported must include, at a minimum: time of sighting, location, and 
number of North Atlantic right whales observed.

[[Page 22765]]

     If a large whale is detected during vessel transit, the 
following information must be recorded and reported:
    a. Time, date, and location;
    b. The vessel's activity, heading, and speed;
    c. Sea state, water depth, and visibility;
    d. Marine mammal identification to the best of the observer's 
ability (e.g., North Atlantic right whale, whale, dolphin, seal);
    e. Initial distance and bearing to marine mammal from vessel and 
closest point of approach; and
    f. Any avoidance measures taken in response to the marine mammal 
sighting.
     If a sighting of a stranded, entangled, injured, or dead 
marine mammal occurs, the sighting would be reported to NMFS OPR, the 
NMFS Greater Atlantic Stranding Coordinator for the New England/Mid-
Atlantic area (866-755-6622 or the Dolphin and Whale 911 app) and the 
U.S. Coast Guard within 24 hours. If the injury or death was caused by 
a project activity, Empire Wind must immediately cease all activities 
until NMFS OPR is able to review the circumstances of the incident and 
determine what, if any, additional measures are appropriate to ensure 
compliance with the terms of the LOA. NMFS may impose additional 
measures to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. Empire Wind may not resume their activities 
until notified by NMFS. The report must include the following 
information:
    a. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    d. Observed behaviors of the animal(s), if alive;
    e. If available, photographs or video footage of the animal(s); and
    f. General circumstances under which the animal was discovered.
     In the event of a vessel strike of a marine mammal by any 
vessel associated with the Empire Wind project, Empire Wind shall 
immediately report the strike incident to the NMFS OPR and the GARFO 
within and no later than 24 hours. Empire Wind must immediately cease 
all on-water activities until NMFS OPR is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
LOA. NMFS may impose additional measures to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Empire Wind may not 
resume their activities until notified by NMFS. The report must include 
the following information:
    a. Time, date, and location (latitude/longitude) of the incident;
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Vessel's speed leading up to and during the incident;
    d. Vessel's course/heading and what operations were being conducted 
(if applicable);
    e. Status of all sound sources in use;
    f. Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    g. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    h. Estimated size and length of animal that was struck;
    i. Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    j. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    k. Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    l. To the extent practicable, photographs or video footage of the 
animal(s).

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Empire Wind's Wind's construction activities would contain an adaptive 
management component. The monitoring and reporting requirements in this 
rule are designed to provide NMFS with information that helps us better 
understand the impacts of the activities on marine mammals and informs 
our consideration of whether any changes to mitigation or monitoring 
are appropriate. The use of adaptive management allows NMFS to consider 
new information from different sources to determine (with input from 
Empire Wind regarding practicability) on an annual or biennial basis if 
mitigation or monitoring measures should be modified (including 
additions or deletions). Mitigation measures could be modified if new 
data suggests that such modifications would have a reasonable 
likelihood of reducing adverse effects to marine mammals and if the 
measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOA. During the course of the rule, Empire Wind (and other 
LOA-holders conducting offshore wind development activities) would be 
required to participate in one or more adaptive management meetings 
convened by NMFS and/or BOEM, in which the above information would be 
summarized and discussed in the context of potential changes to the 
mitigation or monitoring measures.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, and Level A harassment or Level 
B harassment, we consider other factors, such as the likely nature of 
any behavioral responses (e.g., intensity, duration), the context of 
any such responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).

[[Page 22766]]

    In the Estimated Take of Marine Mammals section, we identified the 
subset of potential effects that would be expected to qualify as takes 
under the MMPA, and then identified the maximum number of takes by 
Level A harassment and Level B harassment that we estimate are likely 
to occur based on the methods described. The impact that any given take 
would have is dependent on many case-specific factors that need to be 
considered in the negligible impact analysis (e.g., the context of 
behavioral exposures such as duration or intensity of a disturbance, 
the health of impacted animals, the status of a species that incurs 
fitness-level impacts to individuals, etc.). In this proposed rule, we 
evaluate the likely impacts of the enumerated harassment takes that are 
proposed for authorization in the context of the specific circumstances 
surrounding these predicted takes. We also collectively evaluate this 
information, as well as other more taxa-specific information and 
mitigation measure effectiveness, in group-specific discussions that 
support our negligible impact conclusions for each stock. As described 
above, no serious injury or mortality is expected or proposed for 
authorization for any species or stock.
    The Description of the Specified Activities section describes the 
specified activities proposed by Empire Wind that may result in take of 
marine mammals and an estimated schedule for conducting those 
activities. Empire Wind has provided a realistic construction schedule 
although we recognize schedules may shift for a variety of reasons 
(e.g., weather or supply delays). However, the total amount of take 
would not exceed the 5 year totals and maximum annual total in any 
given year indicated in Tables 34 and 35, respectively.
    We base our analysis and negligible impact determination (NID) on 
the maximum number of takes that have the potential to occur and are 
proposed to be authorized annually and across the 5-year LOA, if 
issued, and extensive qualitative consideration of other contextual 
factors that influence the degree of impact of the takes on the 
affected individuals and the number and context of the individuals 
affected. As stated before, the number of takes, both maximum annual 
and 5-year total, alone are only a part of the analysis.
    To avoid repetition, we provide some general analysis in this 
Negligible Impact Analysis and Determination section that applies to 
all the species listed in Table 24 given that some of the anticipated 
effects of Empire Wind's construction activities on marine mammals are 
expected to be relatively similar in nature. Then, we subdivide into 
more detailed discussions for mysticetes, odontocetes, and pinnipeds 
which have broad life history traits that support an overarching 
discussion of some factors considered within the analysis for those 
groups (e.g., habitat-use patterns, high-level differences in feeding 
strategies).
    Last, we provide a negligible impact determination for each species 
or stock, providing species or stock-specific information or analysis, 
where appropriate, for example, for North Atlantic right whales given 
their population status. Organizing our analysis by grouping species or 
stocks that share common traits or that would respond similarly to 
effects of Empire Wind's proposed activities, and then providing 
species- or stock-specific information allows us to avoid duplication 
while ensuring that we have analyzed the effects of the specified 
activities on each affected species or stock. It is important to note 
that in the group or species sections, we base our negligible impact 
analysis on the maximum annual take that is predicted under the 5-year 
rule; however, the majority of the impacts are associated with monopile 
foundation and OSS foundation installation, which would occur largely 
within the first two years. The estimated take in the other years is 
expected to be notably less, which is reflected in the total take that 
would be allowable under the rule (see Tables 34, 35, and 36).
    As described previously, no serious injury or mortality is 
anticipated or proposed for authorization in this rule. The amount of 
harassment Empire Wind has requested, and NMFS is proposing to 
authorize, is based on exposure models that consider the outputs of 
acoustic source and propagation models. Several conservative parameters 
and assumptions are ingrained into these models, such as assuming 
forcing functions that consider direct contact with piles (i.e., no 
cushion allowances) and application of the highest monthly sound speed 
profile to all months within a given season. The exposure model results 
do not reflect any mitigation measures or avoidance response. The 
amount of take requested and proposed to be authorized also reflects 
careful consideration of other data (e.g., PSO and group size data) 
and, for Level A harassment potential of some large whales, the 
consideration of mitigation measures. For all species, the amount of 
take proposed to be authorized represents the maximum amount of Level A 
harassment and Level B harassment that is likely to occur.
Behavioral Disturbance
    In general, NMFS anticipates that impacts on an individual that has 
been harassed are likely to be more intense when exposed to higher 
received levels and for a longer duration (though this is in no way a 
strictly linear relationship for behavioral effects across species, 
individuals, or circumstances) and less severe impacts result when 
exposed to lower received levels and for a brief duration. However, 
there is also growing evidence of the importance of contextual factors 
such as distance from a source in predicting marine mammal behavioral 
response to sound--i.e., sounds of a similar level emanating from a 
more distant source have been shown to be less likely to evoke a 
response of equal magnitude (e.g., DeRuiter, 2012; Falcone et al., 
2017). As described in the Potential Effects to Marine Mammals and 
their Habitat section, the intensity and duration of any impact 
resulting from exposure to Empire Wind's activities is dependent upon a 
number of contextual factors including, but not limited to, sound 
source frequencies, whether the sound source is moving towards the 
animal, hearing ranges of marine mammals, behavioral state at time of 
exposure, status of individual exposed (e.g., reproductive status, age 
class, health) and an individual's experience with similar sound 
sources. Ellison et al. (2012) and Moore and Barlow (2013), among 
others, emphasize the importance of context (e.g., behavioral state of 
the animals, distance from the sound source) in evaluating behavioral 
responses of marine mammals to acoustic sources. Harassment of marine 
mammals may result in behavioral modifications (e.g., avoidance, 
temporary cessation of foraging or communicating, changes in 
respiration or group dynamics, masking) or may result in auditory 
impacts such as hearing loss. In addition, some of the lower level 
physiological stress responses (e.g., orientation or startle response, 
change in respiration, change in heart rate) discussed previously would 
likely co-occur with the behavioral modifications, although these 
physiological responses are more difficult to detect and fewer data 
exist relating these responses to specific received levels of sound. 
Takes by Level B harassment, then, may have a stress-related 
physiological component as well; however, we would not expect Empire 
Wind's activities to produce conditions of long-term and continuous 
exposure to noise leading to long-term physiological stress responses 
in marine

[[Page 22767]]

mammals that could affect reproduction or survival.
    In the range of behavioral effects that might be expected to be 
part of a response that qualifies as an instance of Level B harassment 
by behavioral disturbance (which by nature of the way it is modeled/
counted, occurs within one day), the less severe end might include 
exposure to comparatively lower levels of a sound, at a greater 
distance from the animal, for a few or several minutes. A less severe 
exposure of this nature could result in a behavioral response such as 
avoiding an area that an animal would otherwise have chosen to move 
through or feed in for some amount of time, or breaking off one or a 
few feeding bouts. More severe effects could occur if an animal gets 
close enough to the source to receive a comparatively higher level, is 
exposed continuously to one source for a longer time, or is exposed 
intermittently to different sources throughout a day. Such effects 
might result in an animal having a more severe flight response, and 
leaving a larger area for a day or more or potentially losing feeding 
opportunities for a day. However, such severe behavioral effects are 
expected to occur infrequently.
    Many species perform vital functions, such as feeding, resting, 
traveling, and socializing on a diel cycle (24-hour cycle). Behavioral 
reactions to noise exposure, when taking place in a biologically 
important context, such as disruption of critical life functions, 
displacement, or avoidance of important habitat, are more likely to be 
significant if they last more than one day or recur on subsequent days 
(Southall et al., 2007) due to diel and lunar patterns in diving and 
foraging behaviors observed in many cetaceans (Baird et al., 2008, 
Barlow et al., 2020, Henderson et al., 2016, Schorr et al., 2014). It 
is important to note the water depth in the Empire Wind project area is 
shallow (5 to 44 m) and deep diving species, such as sperm whales, are 
not expected to be engaging in deep foraging dives when exposed to 
noise above NMFS harassment thresholds during the specified activities. 
Therefore, we do not anticipate impacts to deep foraging behavior to be 
impacted by the specified activities.
    It is also important to identify that the estimated number of takes 
does not necessarily equate to the number of individual animals Empire 
Wind expects to harass (which is lower), but rather to the instances of 
take (i.e., exposures above the Level B harassment thresholds) that may 
occur. These instances may represent either brief exposures or seconds 
to minutes for HRG surveys) or, in some cases, longer durations of 
exposure within a day (e.g., pile driving). Some individuals of a 
species may experience recurring instances of take over multiple days 
throughout the year, while some members of a species or stock may 
experience one exposure as they move through an area, which means that 
the number of individuals taken is smaller than the total estimated 
takes. In short, for species that are more likely to be migrating 
through the area and/or for which only a comparatively smaller number 
of takes are predicted (e.g., some of the mysticetes), it is more 
likely that each take represents a different individual, whereas for 
non-migrating species with larger amounts of predicted take, we expect 
that the total anticipated takes represent exposures of a smaller 
number of individuals of which some would be taken across multiple 
days.
    For the Empire Wind project, impact pile driving of foundation 
piles is most likely to result in a higher magnitude and severity of 
behavioral disturbance than other activities (i.e., impact driving of 
casing pipe, vibratory pile driving, and HRG surveys). Foundation 
installation impact pile driving has higher source levels and longer 
duration than any nearshore pile driving activities. HRG survey 
equipment also produces much higher frequencies than pile driving, 
resulting in minimal sound propagation. While foundation installation 
impact pile driving is anticipated to be most impactful for these 
reasons, impacts are minimized through implementation of mitigation 
measures, including soft-start, use of a sound attenuation system, and 
the implementation of clearance that would facilitate a delay of pile 
driving if marine mammals were observed approaching or within areas 
that could be ensonified above sound levels that could result in Level 
B harassment. Given sufficient notice through the use of soft-start, 
marine mammals are expected to move away from a sound source that is 
annoying prior to becoming exposed to very loud noise levels. The 
requirement to couple visual monitoring and PAM during all clearance 
periods would increase the overall capability to detect marine mammals 
than one method alone. Occasional, milder behavioral reactions are 
unlikely to cause long-term consequences for individual animals or 
populations, and even if some smaller subset of the takes are in the 
form of a longer (several hours or a day) and more severe response, if 
they are not expected to be repeated over numerous or sequential days, 
impacts to individual fitness are not anticipated. Nearly all studies 
and experts agree that infrequent exposures of a single day or less are 
unlikely to impact an individual's overall energy budget (Farmer et 
al., 2018; Harris et al., 2017; King et al., 2015; NAS 2017; New et 
al., 2014; Southall et al., 2007; Villegas-Amtmann et al., 2015).
Temporary Threshold Shift (TTS)
    TTS is one form of Level B harassment that marine mammals may incur 
through exposure to Empire Wind's activities and, as described earlier, 
the proposed takes by Level B harassment may represent takes in the 
form of behavioral disturbance, TTS, or both. As discussed in the 
Potential Effects to Marine Mammals and their Habitat section, in 
general, TTS can last from a few minutes to days, be of varying degree, 
and occur across different frequency bandwidths, all of which determine 
the severity of the impacts on the affected individual, which can range 
from minor to more severe. Impact and vibratory pile driving generate 
sounds in the lower frequency ranges (with most of the energy below 1-2 
kHz, but with a small amount energy ranging up to 20 kHz); therefore, 
in general and all else being equal, we would anticipate the potential 
for TTS is higher in low-frequency cetaceans (i.e., mysticetes) than 
other marine mammal hearing groups and would be more likely to occur in 
frequency bands in which they communicate. However, we would not expect 
the TTS to span the entire communication or hearing range of any 
species given the frequencies produced by pile driving do not span 
entire hearing ranges for any particular species. Additionally, though 
the frequency range of TTS that marine mammals might sustain would 
overlap with some of the frequency ranges of their vocalizations, the 
frequency range of TTS from Empire Wind's pile driving activities would 
not typically span the entire frequency range of one vocalization type, 
much less span all types of vocalizations or other critical auditory 
cues for any given species. However, the mitigation measures proposed 
by Empire Wind and proposed by NMFS, further reduce the potential for 
TTS in mysticetes.
    Generally, both the degree of TTS and the duration of TTS would be 
greater if the marine mammal is exposed to a higher level of energy 
(which would occur when the peak dB level is higher or the duration is 
longer). The threshold for the onset of TTS was discussed previously 
(refer back to Table 4). However, source level alone is not a

[[Page 22768]]

predictor of TTS. An animal would have to approach closer to the source 
or remain in the vicinity of the sound source appreciably longer to 
increase the received SEL, which would be difficult considering the 
proposed mitigation and the nominal speed of the receiving animal 
relative to the stationary sources such as impact pile driving. The 
recovery time of TTS is also of importance when considering the 
potential impacts from TTS. In TTS laboratory studies (as discussed in 
the Potential Effects to Marine Mammals and their Habitat section), 
some using exposures of almost an hour in duration or up to 217 SEL, 
almost all individuals recovered within 1 day (or less, often in 
minutes) and we note that while the pile driving activities last for 
hours a day, it is unlikely that most marine mammals would stay in the 
close vicinity of the source long enough to incur more severe TTS. 
Overall, given the small number of times that any individual might 
incur TTS, the low degree of TTS and the short anticipated duration, 
and the unlikely scenario that any TTS overlapped the entirety of a 
critical hearing range, it is unlikely that TTS of the nature expected 
to result from Empire Wind's activities would result in behavioral 
changes or other impacts that would impact any individual's (of any 
hearing sensitivity) reproduction or survival.
Permanent Threshold Shift (PTS)
    Empire Wind has requested, and NMFS proposed to authorize, a very 
small amount of take by PTS to some marine mammal individuals. The 
numbers of proposed annual takes by Level A harassment are relatively 
low for all marine mammal stocks and species: fin whale (2 takes), and 
minke whale (6). The only activities incidental to which we anticipate 
PTS may occur is from exposure to impact pile driving, which produce 
sounds that are both impulsive and primarily concentrated in the lower 
frequency ranges (below 1 kHz) (David, 2006; Krumpel et al., 2021).
    There are no PTS data on cetaceans and only one instance of PTS 
being induced in an older harbor seals (Reichmuth et al., 2019); 
however, available TTS data (of mid-frequency hearing specialists 
exposed to mid- or high-frequency sounds (Southall et al., 2007; NMFS 
2018; Southall et al., 2019)) suggest that most threshold shifts occur 
in the frequency range of the source up to one octave higher than the 
source. We would anticipate a similar result for PTS. Further, no more 
than a small degree of PTS is expected to be associated with any of the 
incurred Level A harassment, given it is unlikely that animals would 
stay in the close vicinity of a source for a duration long enough to 
produce more than a small degree of PTS.
    PTS would consist of minor degradation of hearing capabilities 
occurring predominantly at frequencies one-half to one octave above the 
frequency of the energy produced by pile driving (i.e., the low-
frequency region below 2 kHz) (Cody and Johnstone, 1981; McFadden, 
1986; Finneran, 2015), not severe hearing impairment. If hearing 
impairment occurs from either impact pile driving, it is most likely 
that the affected animal would lose a few decibels in its hearing 
sensitivity, which in most cases is not likely to meaningfully affect 
its ability to forage and communicate with conspecifics. However, given 
sufficient notice through use of soft-start prior to implementation of 
full hammer energy during impact pile driving, marine mammals are 
expected to move away from a sound source that is annoying prior to it 
resulting in severe PTS.
Auditory Masking or Communication Impairment
    The ultimate potential impacts of masking on an individual are 
similar to those discussed for TTS (e.g., decreased ability to 
communicate, forage effectively, or detect predators), but an important 
difference is that masking only occurs during the time of the signal, 
versus TTS, which continues beyond the duration of the signal. Also, 
though, masking can result from the sum of exposure to multiple 
signals, none of which might individually cause TTS. Fundamentally, 
masking is referred to as a chronic effect because one of the key 
potential harmful components of masking is its duration--the fact that 
an animal would have reduced ability to hear or interpret critical cues 
becomes much more likely to cause a problem the longer it is occurring. 
Also inherent in the concept of masking is the fact that the potential 
for the effect is only present during the times that the animal and the 
source are in close enough proximity for the effect to occur (and 
further, this time period would need to coincide with a time that the 
animal was utilizing sounds at the masked frequency). As our analysis 
has indicated, for this project we expect that impact pile driving 
foundations have the greatest potential to mask marine mammal signals, 
and this pile driving may occur for several, albeit intermittent, hours 
per day, for multiple days per year. Masking is fundamentally more of a 
concern at lower frequencies (which are pile driving dominant 
frequencies), because low frequency signals propagate significantly 
further than higher frequencies and because they are more likely to 
overlap both the narrower low frequency calls of mysticetes, as well as 
many non-communication cues related to fish and invertebrate prey, and 
geologic sounds that inform navigation. However, the area in which 
masking would occur for all marine mammal species and stocks (e.g., 
predominantly in the vicinity of the foundation pile being driven) is 
small relative to the extent of habitat used by each species and stock. 
In summary, the nature of Empire Wind's activities, paired with habitat 
use patterns by marine mammals, does not support the likelihood that 
the level of masking that could occur would have the potential to 
affect reproductive success or survival.
Impacts on Habitat and Prey
    Construction activities may result in fish and invertebrate 
mortality or injury very close to the source, and all activities 
(including HRG surveys) may cause some fish to leave the area of 
disturbance. It is anticipated that any mortality or injury would be 
limited to a very small subset of available prey and the implementation 
of mitigation measures such as the use of a noise attenuation system 
during impact pile driving would further limit the degree of impact. 
Behavioral changes in prey in response to construction activities could 
temporarily impact marine mammals' foraging opportunities in a limited 
portion of the foraging range but, because of the relatively small area 
of the habitat that may be affected at any given time (e.g., around a 
pile being driven), the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Cable presence and operation are not anticipated to impact marine 
mammal habitat as these would be buried, and any electromagnetic fields 
emanating from the cables are not anticipated to result in consequences 
that would impact marine mammals prey to the extent they would be 
unavailable for consumption.
    The presence and operation of wind turbines within the lease area 
could have longer-term impacts on marine mammal habitat, as the project 
would result in the persistence of the structures within marine mammal 
habitat for more than 30 years. The presence and operation of an 
extensive number of structures such as wind turbines are, in general, 
likely to result in local and broader oceanographic effects in the 
marine environment, and

[[Page 22769]]

may disrupt dense aggregations and distribution of marine mammal 
zooplankton prey through altering the strength of tidal currents and 
associated fronts, changes in stratification, primary production, the 
degree of mixing, and stratification in the water column (Chen et al., 
2021, Johnson et al., 2021, Christiansen et al., 2022, Dorrell et al., 
2022). However, the scale of impacts is difficult to predict and may 
vary from hundreds of meters for local individual turbine impacts 
(Schultze et al., 2020) to large-scale dipoles of surface elevation 
changes stretching hundreds of kilometers (Christiansen et al., 2022).
    As discussed in the Potential Effects to Marine Mammals and Their 
Habitat section, the Empire Wind offshore project would consist of no 
more than 147 wind turbine generators in New York coastal waters. While 
there are likely to be local oceanographic impacts from the presence 
and operation of the Empire Wind offshore project, meaningful 
oceanographic impacts relative to stratification and mixing that would 
significantly affect marine mammal habitat and prey over large areas in 
key foraging habitats are not anticipated. Although this area supports 
aggregations of zooplankton (baleen whale prey) that could be impacted 
if long-term oceanographic changes occurred, prey densities are 
typically significantly less in the Empire Wind project area than in 
known baleen whale foraging habitats to the east and north (e.g., south 
of Nantucket and Martha's Vineyard, Great South Channel). For these 
reasons, if oceanographic features are affected by wind farm operation 
during the course of the proposed rule (approximately end of Year 1 
through Year 5), the impact on marine mammal habitat and their prey is 
likely to be comparatively minor.
Mitigation To Reduce Impacts on All Species
    This proposed rulemaking includes a variety of mitigation measures 
designed to minimize impacts on all marine mammals, with a focus on 
North Atlantic right whales (the latter is described in more detail 
below). For impact pile driving of foundation piles, eight overarching 
mitigation measures are proposed, which are intended to reduce both the 
number and intensity of marine mammal takes: (1) seasonal/time of day 
work restrictions; (2) use of multiple PSOs to visually observe for 
marine mammals (with any detection within designated zones triggering 
delay or shutdown); (3) use of PAM to acoustically detect marine 
mammals, with a focus on detecting baleen whales (with any detection 
within designated zones triggering delay or shutdown); (4) 
implementation of clearance zones; (5) implementation of shutdown 
zones; (6) use of soft-start; (7) use of noise attenuation technology; 
(8) maintaining situational awareness of marine mammal presence through 
the requirement that any marine mammal sighting(s) by Empire Wind 
project personnel must be reported to PSOs; and (9) sound field 
verification monitoring
    When monopile foundation installation does occur, Empire Wind is 
committed to reducing the noise levels generated by impact pile driving 
to the lowest levels practicable and ensuring that they do not exceed a 
noise footprint above that which was modeled, assuming a 10-dB 
attenuation. Use of a soft-start would allow animals to move away from 
(i.e., avoid) the sound source prior to applying higher hammer energy 
levels needed to install the pile (Empire Wind would not use a hammer 
energy greater than necessary to install piles). Clearance zone and 
shutdown zone implementation, required when marine mammals are within 
given distances associated with certain impact thresholds, would reduce 
the magnitude and severity of marine mammal take.
    Empire Wind proposed, and NMFS would require, use a noise 
attenuation device (likely a double bubble curtain) during all 
foundation pile driving to ensure sound generated from the project does 
not exceed that modeled (assuming 10-dB reduction) distances to 
harassment isopleths and to minimize noise levels to the lowest level 
practicable. Double bubble curtains are successfully and widely applied 
across European wind development efforts, and are known to reduce noise 
levels more than a single bubble curtain alone (e.g., see Bellman et 
al., 2020).
Mysticetes
    Five mysticete species (comprising five stocks) of cetaceans (North 
Atlantic right whale, humpback whale, fin whale, sei whale, and minke 
whale) are proposed to be taken by harassment. These species, to 
varying extents, utilize coastal New York, including the project area, 
for the purposes of migration and foraging.
    Behavioral data on mysticete reactions to pile driving noise is 
scant. Kraus et al. (2019) predicted that the three main impacts of 
offshore wind farms on marine mammals would consist of displacement, 
behavioral disruptions, and stress. Broadly, we can look to studies 
that have focused on other noise sources such as seismic surveys and 
military training exercises, which suggest that exposure to loud 
signals can result in avoidance of the sound source (or displacement if 
the activity continues for a longer duration in a place where 
individuals would otherwise have been staying, which is less likely for 
mysticetes in this area), disruption of foraging activities (if they 
are occurring in the area), local masking around the source, associated 
stress responses, and impacts to prey, as well as TTS or PTS in some 
cases.
    Mysticetes encountered in the Empire Wind project area are expected 
to be migrating through and/or foraging within the project area; the 
extent to which an animal engages in these behaviors in the area is 
species-specific and varies seasonally. Given that extensive feeding 
BIAs for the North Atlantic right whale, humpback whale, fin whale, sei 
whale, and minke whale exist to the east and north of the project area 
(LaBrecque et al., 2015; Van Parijs et al, 2015), many mysticetes are 
expected to predominantly be migrating through the project area towards 
or from these feeding habitats. While we have acknowledged above that 
mortality, hearing impairment, or displacement of mysticete prey 
species may result locally from impact pile driving or, given the very 
short duration of and broad availability of prey species in the area 
and the availability of alternative suitable foraging habitat for the 
mysticete species most likely to be affected, any impacts on mysticete 
foraging would be expected to be minor. Whales temporarily displaced 
from the proposed project area would be expected to have sufficient 
remaining feeding habitat available to them, and would not be prevented 
from feeding in other areas within the biologically important feeding 
habitats. In addition, any displacement of whales or interruption of 
foraging bouts would be expected to be temporary in nature.
    The potential for repeated exposures is dependent upon the 
residency time of whales, with migratory animals unlikely to be exposed 
on repeated occasions and animals remaining in the area to be more 
likely exposed repeatedly. Where relatively low amounts of species-
specific proposed Level B harassment are predicted (compared to the 
abundance of each mysticete species or stock, such as is indicated in 
Table 36) and movement patterns suggest that individuals would not 
necessarily linger in a particular area for multiple days, each 
predicted take likely represents an exposure of a different individual; 
the behavioral impacts would, therefore, be expected to occur within a 
single day within a year--an amount that would not be expected to 
impact reproduction or survival. Alternatively, species with

[[Page 22770]]

longer residence time in the project area may be subject to repeated 
exposures across multiple days. In general, for this project, the 
duration of exposures would not be continuous throughout any given day 
and pile driving would not occur on all consecutive days within a given 
year, due to weather delays or any number of logistical constraints 
Empire Wind has identified. Species-specific analysis regarding 
potential for repeated exposures and impacts is provided below. 
Overall, we do not expect impacts to whales within project area 
habitat, including fin whales foraging in the fin whale feeding BIA 
north of the project area, to affect the fitness of any large whales.
    Fin and minke whales are the only mysticete species for which PTS 
is anticipated and proposed to be authorized. As described previously, 
PTS for mysticetes from impact pile driving may overlap frequencies 
used for communication, navigation, or detecting prey. However, given 
the nature and duration of the activity, the mitigation measures, and 
likely avoidance behavior, any PTS is expected to be of a small degree, 
would be limited to frequencies where pile driving noise is 
concentrated (i.e., only a small subset of their expected hearing 
range) and would not be expected to impact reproductive success or 
survival.
North Atlantic Right whales
    North Atlantic right whales are listed as endangered under the ESA 
and, as described in the Effects to Marine Mammals and Their Habitat 
section, are threatened by a low population abundance, higher than 
average mortality rates, and lower than average reproductive rates. 
Recent studies have reported individuals showing high stress levels 
(e.g., Corkeron et al., 2017) and poor health, which has further 
implications on reproductive success and calf survival (Christiansen et 
al., 2020; Stewart et al., 2021; Stewart et al., 2022). Given this, the 
status of the North Atlantic right whale population is of heightened 
concern and, therefore, merits additional analysis and consideration. 
NMFS proposes to authorize a maximum of 13 takes of North Atlantic 
right whales, by Level B harassment only, in any given year, with no 
more than 29 takes incidental to all construction activities over the 
5-year period of effectiveness of this proposed rule.
    As described above, the project area represents part of an 
important migratory area for right whales. Quintana-Rizzo et al. (2021) 
noted that southern New England, northeast of the project area, may be 
a stopover site for migrating right whales moving to or from 
southeastern calving grounds. The right whales observed during the 
study period were primarily concentrated in the northeastern and 
southeastern sections of the MA WEA during the summer (June-August) and 
winter (December-February). Right whale distribution did shift to the 
west into the RI/MA WEA in the spring (March-May). Overall, the Empire 
Wind project area contains habitat less frequently utilized by North 
Atlantic right whales than the more northerly Southern New England 
region.
    In general, North Atlantic right whales in the project area are 
expected to be engaging in migratory behavior. Given the species' 
migratory behavior in the project area, we anticipate individual whales 
would be typically migrating through the area during most months when 
foundation installation would occur (given the seasonal restrictions on 
foundation installation from January through April, rather than 
lingering for extended periods of time). Other work that involves 
either much smaller harassment zones (e.g., HRG surveys) or is limited 
in amount (cable landfall construction) may also occur during periods 
when North Atlantic right whales are using the habitat for migration. 
Therefore, it is likely that many of the takes would occur to separate 
individual whales, each exposed on no more than one day. It is 
important to note the activities occurring from December through May 
that may impact North Atlantic right whale would be primarily HRG 
surveys and cable landfall construction, neither of which would result 
in very high received levels. Across all years, while it is possible an 
animal could have been exposed during a previous year, the low amount 
of take proposed to be authorized during the 5-year period of the 
proposed rule makes this scenario possible but unlikely. However, if an 
individual were to be exposed during a subsequent year, the impact of 
that exposure is likely independent of the previous exposure given the 
duration between exposures.
    North Atlantic right whales are presently experiencing an ongoing 
UME (beginning in June 2017). Preliminary findings support human 
interactions, specifically vessel strikes and entanglements, as the 
cause of death for the majority of North Atlantic right whales. Given 
the current status of the North Atlantic right whale, the loss of even 
one individual could significantly impact the population. No mortality, 
serious injury, or injury of North Atlantic right whales as a result of 
the project is expected or proposed to be authorized. Any disturbance 
to North Atlantic right whales due to Empire Wind's activities is 
expected to result in temporary avoidance of the immediate area of 
construction. As no injury, serious injury, or mortality is expected or 
authorized, and Level B harassment of North Atlantic right whales will 
be reduced to the level of least practicable adverse impact through use 
of mitigation measures, the authorized number of takes of North 
Atlantic right whales would not exacerbate or compound the effects of 
the ongoing UME in any way.
    As described in the general Mysticete section above, impact pile 
driving of foundation piles is likely to result in the highest amount 
of annual take and is of greatest concern given loud source levels. 
This activity would likely be limited to two years, during times when 
North Atlantic right whales are not present in high numbers and are 
likely to be primarily migrating to more northern foraging grounds. The 
potential types, severity, and magnitude of impacts are also 
anticipated to mirror that described in the general mysticete section 
above, including avoidance (the most likely outcome), changes in 
foraging or vocalization behavior, masking, a small amount of TTS, and 
temporary physiological impacts (e.g., change in respiration, change in 
heart rate). Importantly, the effects of the activities proposed by 
Empire Wind are expected to be sufficiently low-level and localized to 
specific areas as to not meaningfully impact important behaviors such 
as migratory behavior of North Atlantic right whales. As described 
above, no more than 13 takes would occur in any given year with no more 
than 29 takes occurring across the 5 years the proposed rule would be 
effective. If this number of exposures results in temporary behavioral 
reactions, such as slight displacement (but not abandonment) of 
migratory habitat or temporary cessation of feeding, it is unlikely to 
result in energetic consequences that could affect reproduction or 
survival of any individuals. Overall, NMFS expects that any harassment 
of North Atlantic right whales incidental to the specified activities 
would not result in changes to their migration patterns or foraging 
behavior as only temporary avoidance of an area during construction is 
expected to occur. As described previously, right whales migrating 
through and/or foraging in these areas are not expected to remain in 
this habitat for extensive durations, relative to habitats to the north 
such as Nantucket and Martha's Vineyard or the Great South Channel

[[Page 22771]]

(known core foraging habitats) (Quintana-Rizzo et al., 2021), and that 
any temporarily displaced animals would be able to return to or 
continue to travel through and forage in these areas once activities 
have ceased.
    Although acoustic masking may occur, based on the acoustic 
characteristics of noise associated with pile driving (e.g., frequency 
spectra, short duration of exposure) and construction surveys (e.g., 
intermittent signals), NMFS expects masking effects to be minimal 
(e.g., impact or vibratory pile driving) to none (e.g., HRG surveys). 
In addition, masking would likely only occur during the period of time 
that a North Atlantic right whale is in the relatively close vicinity 
of pile driving, which is expected to be intermittent within a day, and 
confined to the months in which North Atlantic right whales are at 
lower densities and primarily moving through the area, anticipated 
mitigation effectiveness, and likely avoidance behaviors. TTS is 
another potential form of Level B harassment that could result in brief 
periods of slightly reduced hearing sensitivity affecting behavioral 
patterns by making it more difficult to hear or interpret acoustic cues 
within the frequency range (and slightly above) of sound produced 
during impact pile driving; however, any TTS would likely be of low 
amount, be limited to frequencies where most construction noise is 
centered (below 2 kHz). NMFS expects that right whale hearing 
sensitivity would return to pre-exposure levels shortly after migrating 
through the area or moving away from the sound source.
    As described in the Potential Effects to Marine Mammals and Their 
Habitat section, the distance of the receiver to the source influences 
the severity of response with greater distances typically eliciting 
less severe responses. Additionally, NMFS recognizes North Atlantic 
right whales migrating could be pregnant females (in the fall) and cows 
with older calves (in spring) and that these animals may slightly alter 
their migration course in response to any foundation pile driving; 
however, as described in the Potential Effects to Marine Mammals and 
Their Habitat section, we anticipate that course diversion would be of 
small magnitude. Hence, while some avoidance of the pile driving 
activities may occur, we anticipate any avoidance behavior of migratory 
right whales would be similar to that of gray whales (Tyack and Clark, 
1983), on the order of hundreds of meters up to 1 to 2 km. This 
diversion from a migratory path otherwise uninterrupted by Empire Wind 
activities is not expected to result in meaningful energetic costs that 
would impact annual rates of recruitment of survival. NMFS expects that 
North Atlantic right whales would be able to avoid areas during periods 
of active noise production while not being forced out of this portion 
of their habitat.
    North Atlantic right whale presence in the Empire Wind project area 
is year-round; however, abundance during summer months is lower 
compared to the winter months with spring and fall serving as 
``shoulder seasons'' wherein abundance waxes (fall) or wanes (spring). 
Given this year-round habitat usage, in recognition that where and when 
whales may actually occur during project activities is unknown as it 
depends on the annual migratory behaviors, Empire Wind has proposed and 
NMFS is proposing to require a suite of mitigation measures designed to 
reduce impacts to North Atlantic right whales to the maximum extent 
practicable. These mitigation measures (e.g., seasonal/daily work 
restrictions, vessel separation distances, reduced vessel speed) would 
not only avoid the likelihood of ship strikes but also would minimize 
the severity of behavioral disruptions by minimizing impacts (e.g., 
through sound reduction using attenuation systems and reduced temporal 
overlap of project activities and North Atlantic right whales). This 
would further ensure that the number of takes by Level B harassment 
that are estimated to occur are not expected to affect reproductive 
success or survivorship via detrimental impacts to energy intake or 
cow/calf interactions during migratory transit. However, even in 
consideration of recent habitat-use and distribution shifts, Empire 
Wind would still be installing monopiles when the presence of North 
Atlantic right whales is expected to be lower.
    As described in the Description of Marine Mammals in the Area of 
Specified Activities section, Empire Wind would be constructed within 
the North Atlantic right whale migratory corridor BIA, which represent 
areas and months within which a substantial portion of a species or 
population is known to migrate. The Empire Wind lease area is 
relatively small compared with the migratory BIA area (approximately 
321 km\2\ versus the size of the full North Atlantic right whale 
migratory BIA, 269,448 km\2\). Because of this, overall North Atlantic 
right whale migration is not expected to be impacted by the proposed 
activities. There are no known North Atlantic right whale mating or 
calving areas within the project area. Prey species are mobile (e.g., 
calanoid copepods can initiate rapid and directed escape responses) and 
are broadly distributed throughout the project area (noting again that 
North Atlantic right whale prey is not particularly concentrated in the 
project area relative to nearby habitats). Therefore, any impacts to 
prey that may occur are also unlikely to impact marine mammals.
    The most significant measure to minimize impacts to individual 
North Atlantic right whales during monopile installations is the 
seasonal moratorium on impact pile driving of monopiles from January 1 
through April 30 when North Atlantic right whale abundance in the 
project area is expected to be highest. NMFS also expects this measure 
to greatly reduce the potential for mother-calf pairs to be exposed to 
impact pile driving noise above the Level B harassment threshold during 
their annual spring migration through the project area from calving 
grounds to primary foraging grounds (e.g., Cape Cod Bay). Further, NMFS 
expects that exposures to North Atlantic right whales would be reduced 
due to the additional proposed mitigation measures that would ensure 
that any exposures above the Level B harassment threshold would result 
in only short-term effects to individuals exposed. Impact pile driving 
may only begin in the absence of North Atlantic right whales (based on 
visual and passive acoustic monitoring). If impact pile driving has 
commenced, NMFS anticipates North Atlantic right whales would avoid the 
area, utilizing nearby waters to carry on pre-exposure behaviors. 
However, impact pile driving must be shut down if a North Atlantic 
right whale is sighted at any distance unless a shutdown is not 
feasible due to risk of injury or loss of life. Shutdown may occur 
anywhere if right whales are seen within or beyond the Level B 
harassment zone, further minimizing the duration and intensity of 
exposure. NMFS anticipates that if North Atlantic right whales go 
undetected and they are exposed to impact pile driving noise, it is 
unlikely a North Atlantic right whale would approach the impact pile 
driving locations to the degree that they would purposely expose 
themselves to very high noise levels. These measures are designed to 
avoid PTS and also reduce the severity of Level B harassment, including 
the potential for TTS. While some TTS could occur, given the proposed 
mitigation measures (e.g., delay pile driving upon a sighting or 
acoustic detection and shutting down upon a sighting or acoustic 
detection), the potential for TTS to occur is low.
    The proposed clearance and shutdown measures are most effective 
when detection efficiency is maximized,

[[Page 22772]]

as the measures are triggered by a sighting or acoustic detection. To 
maximize detection efficiency, Empire Wind proposed, and NMFS is 
proposing to require, the combination of PAM and visual observers (as 
well as communication protocols with other Empire Wind vessels, and 
other heightened awareness efforts such as daily monitoring of North 
Atlantic right whale sighting databases) such that as a North Atlantic 
right whale approaches the source (and thereby could be exposed to 
higher noise energy levels), PSO detection efficacy would increase, the 
whale would be detected, and a delay to commencing pile driving or 
shutdown (if feasible) would occur. In addition, the implementation of 
a soft-start would provide an opportunity for whales to move away from 
the source if they are undetected, reducing received levels. Further, 
Empire Wind will not install two monopile foundations or OSS 
foundations simultaneously. North Atlantic right whales would, 
therefore, not be exposed to concurrent impact pile driving on any 
given day and the area ensonified at any given time would be limited.
    The temporary cofferdam Level B harassment zones are relatively 
small (1,985 m for EW 1 and 1,535 m for EW 2), the cofferdams would be 
installed within Narragansett Bay over a short timeframe (56 hours 
total; 28 hours for installation and 28 hours for removal). Therefore, 
it is unlikely that any North Atlantic right whales would be exposed to 
vibratory installation noises. Finally, for HRG surveys, the maximum 
distance to the Level B harassment isopleth is 50.05 m. The estimated 
take, by Level B harassment only, associated with HRG surveys is to 
account for any North Atlantic right whale sightings PSOs may miss when 
HRG acoustic sources are active. However, because of the short maximum 
distance to the Level B harassment isopleth (50.05 m), the requirement 
that vessels maintain a distance of 500 m from any North Atlantic right 
whales, the fact whales are unlikely to remain in close proximity to an 
HRG survey vessel for any length of time, and that the acoustic source 
would be shutdown if a North Atlantic right whale is observed within 
500 m of the source, any exposure to noise levels above the harassment 
threshold (if any) would be very brief. To further minimize exposures, 
ramp-up of sub-bottom profilers must be delayed during the clearance 
period if PSOs detect a North Atlantic right whale (or any other ESA-
listed species) within 500 m of the acoustic source. With 
implementation of the proposed mitigation requirements, take by Level A 
harassment is unlikely and, therefore, not proposed for authorization. 
Potential impacts associated with Level B harassment would include low-
level, temporary behavioral modifications, most likely in the form of 
avoidance behavior. Given the high level of precautions taken to 
minimize both the amount and intensity of Level B harassment on North 
Atlantic right whales, it is unlikely that the anticipated low-level 
exposures would lead to reduced reproductive success or survival.
    North Atlantic right whales are listed as endangered under the ESA 
with a declining population primarily due to vessel strike and 
entanglement. Again, NMFS is proposing to authorize no more than 13 
instances of take, by Level B harassment only, within a given year with 
no more than 29 instances of take could occur over the 5-year effective 
period of the proposed rule, with the likely scenario that each 
instance of exposure occurs to a different individual (a small portion 
of the stock), and any individual North Atlantic right whale is likely 
to be disturbed at a low level. The magnitude and severity of 
harassment are not expected to result in impacts on the reproduction or 
survival of any individuals, let alone have impacts on annual rates of 
recruitment or survival of this stock. No mortality, serious injury, or 
Level A harassment is anticipated or proposed to be authorized. For 
these reasons, we have preliminarily determined, in consideration of 
all of the effects of the Empire Wind's activities combined, that the 
proposed authorized take would have a negligible impact on the North 
Atlantic stock of North Atlantic right whales.
Humpback Whales
    Humpback whales potentially impacted by Empire Wind's activities do 
not belong to a DPS that is listed as threatened or endangered under 
the ESA. However, humpback whales along the Atlantic Coast have been 
experiencing an active UME as elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida since 
January 2016. Of the cases examined, approximately half had evidence of 
human interaction (ship strike or entanglement). The UME does not yet 
provide cause for concern regarding population-level impacts, and take 
from ship strike and entanglement is not proposed to be authorized. 
Despite the UME, the relevant population of humpback whales (the West 
Indies breeding population, or DPS of which the Gulf of Maine stock is 
a part) remains stable at approximately 12,000 individuals.
    Empire Wind has requested, and NMFS has proposed to authorize, a 
limited amount of humpback whale harassment by Level B harassment. No 
mortality or serious injury is anticipated or proposed for 
authorization. Among the activities analyzed, impact pile driving is 
likely to result in the highest amount of annual take of humpback 
whales (0 takes by Level A harassment and 63 takes by Level B 
harassment) and is of greatest concern, given the associated loud 
source levels. A recent study examining humpback whale occurrence in 
the New York Bight area has shown that humpback whales exhibit extended 
occupancy (mean 37.6 days) in the Bight area and were likely to return 
from one year to the next (mean 31.3 percent). Whales were also seen at 
a variety of other sites in the New York Bight within the same year, 
suggesting that they may occupy this broader area throughout the 
feeding season. The majority of whales were seen during summer (July-
September, 62.5 percent), followed by autumn (October-December, 23.5 
percent) and spring (April-June, 13.9 percent) (Brown et al. 2022). 
These data suggest that the 0 and 63 maximum annual instances of 
predicted take by Level A harassment and Level B harassment, 
respectively, could consist of individuals exposed to noise levels 
above the harassment thresholds once during migration through the 
project area and/or individuals exposed on multiple days if they are 
utilizing the area as foraging habitat. Since the Lease Area (321 
km\2\) comprises only a minor portion of the New York Bight area 
(43,388 km\2\), repeated takes of the same individuals would be 
unlikely given the availability of favorable foraging habitat across 
the Bight.
    For all the reasons described in the Mysticete section above, we 
anticipate any potential TTS would be of short duration and 
concentrated at half or one octave above the frequency band of pile 
driving noise (most sound is below 2 kHz) which does not include the 
full predicted hearing range of baleen whales. If TTS is incurred, 
hearing sensitivity would likely return to pre-exposure levels shortly 
after exposure ends. Any masking or physiological responses would also 
be of low magnitude and severity for reasons described above.
    Altogether, the low magnitude and severity of harassment effects is 
not expected to result in impacts on the reproduction or survival of 
any individuals, let alone have impacts on

[[Page 22773]]

annual rates of recruitment or survival of this stock. No mortality or 
serious injury is anticipated or proposed to be authorized. For these 
reasons, we have preliminarily determined, in consideration of all of 
the effects of Empire Wind's activities combined, that the proposed 
authorized take would have a negligible impact on the Gulf of Maine 
stock of humpback whales.
Fin Whales
    The western North Atlantic stock of fin whales is listed as 
endangered under the ESA. The 5-year total amount of take, by Level A 
harassment and Level B harassment, of fin whales (n=2 and n=200, 
respectively) that NMFS proposes to authorize is low relative to the 
stock abundance. Any Level B harassment is expected to be in the form 
of behavioral disturbance, primarily resulting in avoidance of the 
project area where pile driving is occurring, and some low-level TTS 
and masking that may limit the detection of acoustic cues for 
relatively brief periods of time. Any potential PTS would be minor 
(limited to a few dB) and any TTS would be of short duration and 
concentrated at half or one octave above the frequency band of pile 
driving noise (most sound is below 2 kHz) which does not include the 
full predicted hearing range of fin whales. No serious injury or 
mortality is anticipated or proposed for authorization. As described 
previously, the project area is located 140 km southwest of a fin whale 
feeding BIA that is active from March to October. Impacts from any of 
the proposed activities to feeding activities, if any, would be minor. 
In addition, monopile installations have seasonal work restrictions, 
such that the temporal overlap between these project activities and the 
active BIA timeframe would exclude the months of March or April. There 
is no spatial overlap of the project area and the feeding BIA.
    Because of the relatively low magnitude and severity of take 
proposed for authorization, the fact that no serious injury or 
mortality is anticipated, the temporary nature of the disturbance, and 
the availability of similar habitat and resources in the surrounding 
area, NMFS has preliminarily determined that the impacts of Empire 
Wind's activities on fin whales and the food sources that they utilize 
are not expected to cause significant impacts on the reproduction or 
survival of any individuals, let alone have impacts on annual rates of 
recruitment or survival of this stock.
Sei Whales
    The Nova Scotia stock of sei whales is listed under the ESA. There 
are no known areas of specific biological importance in or around the 
project area, nor are there any UMEs. The actual abundance of this 
stock is likely significantly greater than what is reflected in each 
SAR because, as noted in the SARs, the most recent population estimate 
is primarily based on surveys conducted in U.S. waters and the stock's 
range extends well beyond the U.S. Exclusive Economic Zone (EEZ).
    The 5-year total amount of take, by Level B harassment, proposed 
for authorization proposed for sei whales (8) is low. NMFS is not 
proposing to authorize take by Level A harassment. Similar to other 
mysticetes, we would anticipate the number of takes to represent 
individuals taken only once or, in rare cases two or three times, as 
most whales in the project area would be migrating. To a small degree, 
sei whales may forage in the project area, although the currently 
identified foraging habitats (BIAs) are 280 km northeast of the area in 
which Empire Wind's activities would occur (LaBrecque et al., 2015). 
With respect to the severity of those individual takes by behavioral 
Level B harassment, we would anticipate impacts to be limited to low-
level, temporary behavioral responses with avoidance and potential 
masking impacts in the vicinity of the turbine installation to be the 
most likely type of response. Any potential TTS would be of short 
duration and concentrated at half or one octave above the frequency 
band of pile driving noise (most sound is below 2 kHz) which does not 
include the full predicted hearing range of sei whales. Any avoidance 
of the project area due to Empire Wind's activities would be expected 
to be temporary.
    Overall, the take by harassment proposed for authorization is of a 
low magnitude and severity and is not expected to result in impacts on 
the reproduction or survival of any individuals, let alone have impacts 
on annual rates of recruitment or survival of this stock. No mortality 
or serious injury is anticipated or proposed to be authorized. For 
these reasons, we have preliminarily determined, in consideration of 
all of the effects of the Empire Wind's activities combined, that the 
proposed authorized take would have a negligible impact on the Nova 
Scotia sei whale stock.
Minke Whales
    The Canadian East Coast stock of minke whales is not listed under 
the ESA. There are no known areas of specific biological importance in 
or around the project area. Beginning in January 2017, elevated minke 
whale strandings have occurred along the Atlantic coast from Maine 
through South Carolina, with highest numbers in Massachusetts, Maine, 
and New York. This event does not provide cause for concern regarding 
population level impacts, as the likely population abundance is greater 
than 21,000 whales. No mortality or serious injury of this stock is 
anticipated or proposed for authorization.
    The 5-year total amount of take, by Level A harassment and Level B 
harassment proposed for authorization for minke whales (n=6 and n=161, 
respectively) is relatively low. We anticipate the impacts of this 
harassment to follow those described in the general Mysticete section 
above. In summary, Level B harassment would be temporary, with primary 
impacts being temporary displacement of the project area but not 
abandonment of any migratory or foraging behavior. Overall, the low 
magnitude and severity of harassment effects is not expected to result 
in impacts on the reproduction or survival of any individuals, let 
alone have impacts on annual rates of recruitment or survival of this 
stock. No mortality or serious injury is anticipated or proposed to be 
authorized. Any potential PTS would be minor (limited to a few dB) and 
any TTS would be of short duration and concentrated at half or one 
octave above the frequency band of pile driving noise (most sound is 
below 2 kHz) which does not include the full predicted hearing range of 
minke whales. For these reasons, we have preliminarily determined, in 
consideration of all of the effects of the Empire Wind's activities 
combined, that the proposed authorized take would have a negligible 
impact on the Canadian East Coast stock of minke whales.
Odontocetes
    In this section, we include information here that applies to all of 
the odontocete species and stocks addressed below, which are further 
divided into the following subsections: Sperm whales, Dolphins and 
small whales; and Harbor porpoises. These sub-sections include more 
specific information, as well as conclusions for each stock 
represented.
    All of the takes of odontocetes proposed for authorization 
incidental to Empire Wind's specified activities are by Level B 
harassment incidental to pile driving and HRG surveys. No Level A 
harassment, or serious injury or

[[Page 22774]]

mortality, are anticipated or proposed. We anticipate that, given 
ranges of individuals (i.e., that some individuals remain within a 
small area for some period of time), and non-migratory nature of some 
odontocetes in general (especially as compared to mysticetes), these 
takes are more likely to represent multiple exposures of a smaller 
number of individuals than is the case for mysticetes, though some 
takes may also represent one-time exposures to an individual.
    Pile driving, particularly impact pile driving foundation piles, is 
likely to disturb odontocetes to the greatest extent, compared to HRG 
surveys and cable landfall and marina activities. While we do expect 
animals to avoid the area during pile driving, their habitat range is 
extensive compared to the area ensonified during pile driving.
    As described earlier, Level B harassment may include direct 
disruptions in behavioral patterns (e.g., avoidance, changes in 
vocalizations (from masking) or foraging), as well as those associated 
with stress responses or TTS. Odontocetes are highly mobile species 
and, similar to mysticetes, NMFS expects any avoidance behavior to be 
limited to the area near the pile being driven. While masking could 
occur during pile driving, it would only occur in the vicinity of and 
during the duration of the pile driving, and would not generally occur 
in a frequency range that overlaps most odontocete communication or 
echolocation signals. The mitigation measures (e.g., use of sound 
attenuation systems, implementation of clearance and shutdown zones) 
would also minimize received levels such that the severity of any 
behavioral response would be expected to be less than exposure to 
unmitigated noise exposure.
    Any masking or TTS effects are anticipated to be of low-severity. 
First, the frequency range of pile driving, the most impactful activity 
conducted by Empire Wind in terms of response severity, falls within a 
portion of the frequency range of most odontocete vocalizations. 
However, odontocete vocalizations span a much wider range than the low 
frequency construction activities proposed by Empire Wind. Further, as 
described above, recent studies suggest odontocetes have a mechanism to 
self-mitigate (i.e., reduce hearing sensitivity) the impacts of noise 
exposure, which could potentially reduce TTS impacts. Any masking or 
TTS is anticipated to be limited and would typically only interfere 
with communication within a portion of an odontocete's range and as 
discussed earlier, the effects would only be expected to be of a short 
duration and, for TTS, a relatively small degree. Furthermore, 
odontocete echolocation occurs predominantly at frequencies 
significantly higher than low frequency construction activities; 
therefore, there is little likelihood that threshold shift would 
interfere with feeding behaviors. For HRG surveys, the sources operate 
at higher frequencies than pile driving. However, sounds from these 
sources attenuate very quickly in the water column, as described above; 
therefore, any potential for TTS and masking is very limited. Further, 
odontocetes (e.g., common dolphins, spotted dolphins, bottlenose 
dolphins) have demonstrated an affinity to bow-ride actively surveying 
HRG surveys; therefore, the severity of any harassment, if it does 
occur, is anticipated to be minimal based on the lack of avoidance 
previously demonstrated by these species.
    The waters off the coast of New York are used by several odontocete 
species; however, none (except the sperm whale) are listed under the 
ESA and there are no known habitats of particular importance. In 
general, odontocete habitat ranges are far-reaching along the Atlantic 
coast of the U.S., and the waters off of New York, including the 
project area, do not contain any particularly unique odontocete habitat 
features.
Sperm Whales
    The Western North Atlantic stock of sperm whales spans the East 
Coast out into oceanic waters well beyond the U.S. EEZ. Although listed 
as endangered, the primary threat faced by the sperm whale (i.e., 
commercial whaling) has been eliminated and, further, sperm whales in 
the western North Atlantic were little affected by modern whaling 
(Taylor et al., 2008). Current potential threats to the species 
globally include vessel strikes, entanglement in fishing gear, 
anthropogenic noise, exposure to contaminants, climate change, and 
marine debris. There is no currently reported trend for the stock and, 
although the species is listed as endangered under the ESA, there are 
no specific issues with the status of the stock that cause particular 
concern (e.g., no UMEs). There are no known areas of biological 
importance (e.g., critical habitat or BIAs) in or near the project 
area.
    No mortality, serious injury or Level A harassment is anticipated 
or proposed to be authorized for this species. Impacts would be limited 
to Level B harassment and would occur to only a very small number of 
individuals (maximum of 3 in any given year and 6 across all 5 years) 
incidental to pile driving and HRG surveys. Sperm whales are not common 
within the project area due to the shallow waters, and it is not 
expected that any noise levels would reach habitat in which sperm 
whales are common, including deep-water foraging habitat. If sperm 
whales do happen to be present in the project area during any 
activities related to the Empire Wind project, they would likely be 
only transient visitors and not engaging in any significant behaviors. 
This very low magnitude and severity of effects is not expected to 
result in impacts on the reproduction or survival of individuals, much 
less impact annual rates of recruitment or survival. For these reasons, 
we have determined, in consideration of all of the effects of the 
Empire Wind's activities combined, that the take proposed to be 
authorized would have a negligible impact on sperm whales.
Dolphins and Small Whales (Including Delphinids, Pilot Whales, and 
Harbor Porpoises)
    There are no specific issues with the status of odontocete stocks 
that cause particular concern (e.g., no recent UMEs). No mortality or 
serious injury is expected or proposed to be authorized for these 
stocks. Only Level B harassment is anticipated or proposed for 
authorization for any dolphin, small whale or harbor porpoise.
    The maximum amount of take, by Level B harassment, proposed for 
authorization within any one year for all odontocetes cetacean stocks 
ranges from 1 to 9,870 instances. As described above for odontocetes 
broadly, we anticipate that a fair number of these instances of take in 
a day represent multiple exposures of a smaller number of individuals, 
meaning the actual number of individuals taken is lower. Although some 
amount of repeated exposure to some individuals is likely given the 
duration of activity proposed by Empire Wind, the number of takes, and 
the likely movement patterns of the affected species, the intensity of 
any Level B harassment combined with the availability of alternate 
nearby foraging habitat suggests that the likely impacts would not 
impact the reproduction or survival of any individuals.
    Overall, the populations of all dolphins and small whale species 
and stocks for which we propose to authorize take are stable (no 
declining population trends), not facing existing UMEs, and the 
relatively low magnitude and severity of effects is not expected to 
result in impacts on the reproduction or survival of any individuals, 
much less

[[Page 22775]]

affect annual rates of recruitment or survival. For these reasons, we 
have determined, in consideration of all of the effects of the Empire 
Wind's activities combined, that the take proposed to be authorized 
would have a negligible impact on all dolphin and small whale species 
and stocks considered in this analysis.
Harbor Porpoises
    The Gulf of Maine/Bay of Fundy stock of harbor porpoises is found 
predominantly in northern U.S. coastal waters (less than 150 m depth) 
and up into Canada's Bay of Fundy. Although the population trend is not 
known, there are no UMEs or other factors that cause particular concern 
for this stock. No mortality or non-auditory injury are anticipated or 
authorized for this stock. NMFS proposes to authorize a maximum of 243 
takes by Level B harassment only for any given year; no takes by Level 
A harassment are anticipated for this species.
    Regarding the severity of takes by behavioral Level B harassment, 
because harbor porpoises are particularly sensitive to noise, it is 
likely that a fair number of the responses could be of a moderate 
nature, particularly to pile driving. In response to pile driving, 
harbor porpoises are likely to avoid the area during construction, as 
previously demonstrated in Tougaard et al. (2009) in Denmark, in Dahne 
et al. (2013) in Germany, and in Vallejo et al. (2017) in the United 
Kingdom, although a study by Graham et al. (2019) may indicate that the 
avoidance distance could decrease over time. However, pile driving is 
scheduled to occur off the coast of New York and, given alternative 
foraging areas, any avoidance of the area by individuals is not likely 
to impact the reproduction or survival of any individuals.
    PTS is not anticipated or proposed for authorization. With respect 
to TTS, the effects on an individual are likely relatively low given 
the frequency bands of pile driving (most energy below 2 kHz) compared 
to harbor porpoise hearing (150 Hz to 160 kHz peaking around 40 kHz). 
Specifically, TTS is unlikely to impact hearing ability in their more 
sensitive hearing ranges, or the frequencies in which they communicate 
and echolocate.
    In summary, the amount of take proposed to be authorized across all 
5 years is 565 by Level B harassment. While harbor porpoises are likely 
to avoid the area during any construction activity discussed herein, as 
demonstrated during European wind farm construction, the time of year 
in which work would occur is when harbor porpoises are not in high 
abundance, and any work that does occur would not result in the 
species' abandonment of the waters off of New York. The low-moderate 
magnitude and severity of harassment effects is not expected to result 
in impacts on the reproduction or survival of any individuals, let 
alone have impacts on annual rates of recruitment or survival of this 
stock. No mortality or serious injury is anticipated or proposed to be 
authorized. For these reasons, we have preliminarily determined, in 
consideration of all of the effects of Empire Wind's activities 
combined, that the proposed authorized take would have a negligible 
impact on the Gulf of Maine/Bay of Fundy stock of harbor porpoises.
Phocids (Harbor Seals, Gray Seals, and Harp Seals)
    The harbor seal, gray seal, and harp seal are not listed under the 
ESA. Empire Wind requested, and NMFS proposes to authorize that no more 
than 678 harbor seals, 484 gray seals, and 4 harp seals by Level B 
harassment within any one year. Level A harassment is neither 
anticipated nor proposed for authorization. Harbor and gray seals occur 
in New York waters most often in winter, when impact pile driving would 
not occur. Harp seals are anticipated to be rare but could still occur 
in the project area. Seals are also more likely to be close to shore 
(e.g., closer to the edge of the area ensonified above NMFS' harassment 
threshold), such that exposure to impact pile driving would be expected 
to be at comparatively lower levels. The majority of takes of these 
species is from monopile installations, vibratory pile driving 
associated with temporary cofferdam installation and removal, and HRG 
surveys. As described in the Potential Effects to Marine Mammals and 
Their Habitat section, construction of wind farms in Europe resulted in 
pinnipeds temporarily avoiding construction areas but returning within 
short time frames after construction was complete (Carroll et al., 
2010; Hamre et al., 2011; Hastie et al., 2015; Russell et al., 2016; 
Brasseur et al., 2010). Effects on pinnipeds that are taken by Level B 
harassment in the project area would likely be limited to reactions 
such as increased swimming speeds, increased surfacing time, or 
decreased foraging (if such activity were occurring). Most likely, 
individuals would simply move away from the sound source and be 
temporarily displaced from those areas (see Lucke et al., 2006; Edren 
et al., 2010; Skeate et al., 2012; Russell et al., 2016). Given the low 
anticipated magnitude of impacts from any given exposure (e.g., 
temporary avoidance), even repeated Level B harassment across a few 
days of some small subset of individuals, which could occur, is 
unlikely to result in impacts on the reproduction or survival of any 
individuals. Moreover, pinnipeds would benefit from the mitigation 
measures described in the Proposed Mitigation section.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and occurred across Maine, New Hampshire, 
and Massachusetts until 2020. Based on tests conducted so far, the main 
pathogen found in the seals belonging to that UME was phocine distemper 
virus, although additional testing to identify other factors that may 
be involved in this UME are underway. Currently, the only active UME is 
occurring in Maine with some harbor and gray seals testing positive for 
highly pathogenic avian influenza (HPAI) H5N1. Although elevated 
strandings continue, neither UME (alone or in combination) provide 
cause for concern regarding population-level impacts to any of these 
stocks. For harbor seals, the population abundance is over 61,000 and 
annual M/SI (339) is well below PBR (1,729) (Hayes et al., 2020). The 
population abundance for gray seals in the United States is over 
27,000, with an estimated overall abundance, including seals in Canada, 
of approximately 450,000. In addition, the abundance of gray seals is 
likely increasing in the U.S. Atlantic, as well as in Canada (Hayes et 
al., 2020). For harp seals (no recent UME), the total U.S. fishery-
related mortality and serious injury for this stock is very low 
relative to the stock size and can be considered insignificant and 
approaching zero mortality and serious injury rate (Hayes et al., 
2022). The harp seal stock abundance appears to have stabilized (Hayes 
et al., 2022).
    Overall, impacts from the Level B harassment take proposed for 
authorization incidental to Empire Wind's specified activities would be 
of relatively low magnitude and a low severity. These effects are not 
expected to result in impacts on the reproduction or survival of any 
individuals, let alone have impacts on annual rates of recruitment or 
survival of this stock. In consideration of all of the effects of 
Empire Wind's activities combined, we have preliminarily determined 
that the authorized take will have a negligible impact on harbor seals 
and gray seals.

[[Page 22776]]

Preliminary Negligible Impact Determination
    No mortality or serious injury is anticipated to occur or proposed 
to be authorized. As described in the preliminary analysis above, the 
impacts resulting from Empire Wind's activities cannot be reasonably 
expected to, and are not reasonably likely to, adversely affect any of 
the species or stocks for which take is proposed for authorization 
through effects on annual rates of recruitment or survival. Based on 
the analysis contained herein of the likely effects of the specified 
activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed mitigation and 
monitoring measures, NMFS preliminarily finds that the marine mammal 
take from all of Empire Wind's specified activities combined will have 
a negligible impact on all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is less than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take (by Level A harassment 
and Level B harassment) of 17 species of marine mammal (with 18 managed 
stocks). The maximum number of takes possible within any one year and 
proposed for authorization relative to the best available population 
abundance is less than one-third for all species and stocks potentially 
impacted (i.e., less than 1 percent for 11 stocks and less than 5 
percent for the remaining except for the common dolphin (5.71 percent) 
and the bottlenose dolphin northern migratory coastal (17.84 percent) 
as shown in Table 36.
    Based on the analysis contained herein of the proposed activities 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the promulgation of 
rulemakings, NMFS consults internally whenever we propose to authorize 
take for endangered or threatened species, in this case with the NMFS 
Greater Atlantic Regional Field Office (GARFO).
    NMFS is proposing to authorize the take of four marine mammal 
species which are listed under the ESA: the North Atlantic right, sei, 
fin, and sperm whale. The Permit and Conservation Division will request 
initiation of Section 7 consultation with GARFO for the issuance of 
this proposed rulemaking. NMFS will conclude the Endangered Species Act 
consultation prior to reaching a determination regarding the proposed 
issuance of the authorization. The proposed regulations and any 
subsequent LOA(s) would be conditioned such that, in addition to 
measures included in those documents, Empire Wind would also be 
required to abide by the reasonable and prudent measures and terms and 
conditions of a Biological Opinion and Incidental Take Statement, 
issued by NMFS, pursuant to Section 7 of the Endangered Species Act.

Proposed Promulgation

    As a result of these preliminary determinations, NMFS proposes to 
promulgate a LOA to Empire Wind authorizing take, by Level A and B 
harassment, incidental to construction activities associated with the 
Empire Wind project offshore of New York for a 5-year period from 
January 22, 2024 through January 21, 2029, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

Request for Additional Information and Public Comments

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning Empire Wind's request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare the final rule and make final determinations on 
whether to issue the requested authorization. This proposed rule and 
referenced documents provide all environmental information relating to 
our proposed action for public review.
    Recognizing, as a general matter, that this action is one of many 
current and future wind energy actions, we invite comment on the 
relative merits of the IHA, single-action rule/LOA, and programmatic 
multi-action rule/LOA approaches, including potential marine mammal 
take impacts resulting from this and other related wind energy actions 
and possible benefits resulting from regulatory certainty and 
efficiency.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Empire Wind is the sole entity that would be subject to the 
requirements in these proposed regulations, and Empire Wind is not a 
small governmental jurisdiction, small organization, or small business, 
as defined by the RFA. Under the RFA, governmental jurisdictions are 
considered to be small if they are governments of cities, counties, 
towns, townships, villages, school districts, or special districts, 
with a population of less than 50,000. Because of this certification, a 
regulatory flexibility analysis is not required and none has been 
prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that

[[Page 22777]]

collection of information displays a currently valid OMB control 
number. These requirements have been approved by OMB under control 
number 0648-0151 and include applications for regulations, subsequent 
LOA, and reports. Send comments regarding any aspect of this data 
collection, including suggestions for reducing the burden, to NMFS.
    The Coastal Zone Management Act (CZMA) requires Federal actions 
within and outside the coastal zone that have reasonably foreseeable 
effects on any coastal use or natural resource of the coastal zone be 
consistent with the enforceable policies of a state's federally 
approved coastal management program. 16 U.S.C. 1456(c). Additionally, 
regulations implementing the CZMA require non-Federal applicants for 
Federal licenses or permits to submit a consistency certification to 
the state that declares that the proposed activity complies with the 
enforceable policies of the state's approved management program and 
will be conducted in a manner consistent with such program. As 
required, on June 24, 2021, Empire Wind submitted a Federal consistency 
certification to New York and voluntarily submitted a Federal 
consistency certification to New Jersey for approval of the 
Construction and Operations Plan (COP) by BOEM and the issuance of an 
Individual Permit by United States Army Corps of Engineers, under 
section 10 and 14 of the Rivers and Harbors Act and Section 404 of the 
Clean Water Act (15 CFR part 930, subpart E). New York began its review 
of the proposed activity pursuant to 15 CFR part 930, subpart D on 
November 18, 2022. NMFS has determined that Empire Wind's application 
for an authorization to allow the incidental, but not intentional, take 
of small numbers of marine mammals on the outer continental shelf is an 
unlisted activity and, thus, is not, at this time, subject to Federal 
consistency requirements in the absence of the receipt and prior 
approval of an unlisted activity review request from the state by the 
Director of NOAA's Office for Coastal Management.

List of Subjects in 50 CFR Part 217

    Administrative practice and procedure, Endangered and threatened 
species, Fish, Fisheries, Marine mammals, Penalties, Reporting and 
recordkeeping requirements, Wildlife.

    Dated: April 4, 2023.
Kelly Denit,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For reasons set forth in the preamble, NMFS proposes to amend 50 
CFR part 217 as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

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

    Authority:  16 U.S.C. 1361 et seq.

0
2. Add subpart CC, consisting of Sec. Sec.  217.280 through 217.289, to 
read as follows:
Subpart CC--Taking Marine Mammals Incidental to the Empire Wind 
Project, Offshore New York
Sec.
217.280 Specified activity and specified geographical region.
217.281 Effective dates.
217.282 Permissible methods of taking.
217.283 Prohibitions.
217.284 Mitigation requirements.
217.285 Requirements for monitoring and reporting.
217.286 Letter of Authorization.
217.287 Modifications of Letter of Authorization.
217.288--217.289 [Reserved]

Subpart CC--Taking Marine Mammals Incidental to the Empire Wind 
Project, Offshore New York


Sec.  217.280  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the taking of marine 
mammals that occurs incidental to activities associated with 
construction of the Empire Wind Project by Empire Offshore Wind, LLC 
(Empire Wind) and those persons it authorizes or funds to conduct 
activities on its behalf in the area outlined in paragraph (b) of this 
section.
    (b) The taking of marine mammals by Empire Wind may be authorized 
in a Letter of Authorization (LOA) only if it occurs in the Bureau of 
Ocean Energy Management (BOEM) lease area Outer Continental Shelf 
(OCS)-A-0512 Commercial Lease of Submerged Lands for Renewable Energy 
Development, along export cable routes, and at sea-to-shore transition 
points at South Brooklyn Marine Terminal, in Brooklyn, New York (EW1) 
and Long Island, NY (EW2) and at the Village of Island Park, NY (EW2).
    (c) The taking of marine mammals by Empire Wind is only authorized 
if it occurs incidental to the following activities associated with the 
Empire Wind Project: installation of up to 147 wind turbine generators 
(WTG) and 2 offshore substation (OSS) foundations by impact pile 
driving; impact and vibratory pile driving associated with cable 
landfall construction and marina activities; and high-resolution 
geophysical (HRG) site characterization surveys.


Sec.  217.281  Effective dates.

    Regulations in this subpart are effective from January 22, 2024, 
through January 21, 2029.


Sec.  217.282  Permissible methods of taking.

    Under an LOA issued pursuant to Sec. Sec.  216.106 and 217.286, 
Empire Wind, and those persons it authorizes or funds to conduct 
activities on its behalf, may incidentally, but not intentionally, take 
marine mammals within the area described in Sec.  217.280(b) in the 
following ways, provided Empire Wind is in complete compliance with all 
terms, conditions, and requirements of the regulations in this subpart 
and the appropriate LOA:
    (a) By Level B harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving (WTG and OSS foundation 
installation), impact and vibratory pile driving during cable landfall 
construction and marina activities, and HRG site characterization 
surveys;
    (b) By Level A harassment associated with the acoustic disturbance 
of marine mammals by impact pile driving WTG and OSS foundations;
    (c) Take by mortality (death) or serious injury of any marine 
mammal species is not authorized; and
    (d) The incidental take of marine mammals by the activities listed 
in paragraphs (a) and (b) of this section is limited to the following 
species:

                        Table 1 to Paragraph (d)
------------------------------------------------------------------------
      Marine mammal species         Scientific name          Stock
------------------------------------------------------------------------
Fin whale.......................  Balaenoptera        Western North
                                   physalus.           Atlantic.
Sei whale.......................  Balaenoptera        Nova Scotia.
                                   borealis.
Minke whale.....................  Balaenoptera        Canadian East
                                   acutorostrata.      Stock.
North Atlantic right whale......  Eubalaena           Western North
                                   glacialis.          Atlantic.

[[Page 22778]]

 
Humpback whale..................  Megaptera           Gulf of Maine.
                                   novaeangliae.
Sperm whale.....................  Physeter            North Atlantic.
                                   macrocephalus.
Atlantic spotted dolphin........  Stenella frontalis  Western North
                                                       Atlantic.
Atlantic white-sided dolphin....  Lagenorhynchus      Western North
                                   acutus.             Atlantic.
Bottlenose dolphin..............  Tursiops truncatus  Western North
                                                       Atlantic
                                                       Offshore.
Common dolphin..................  Delphinus delphis.  Western North
                                                       Atlantic.
Harbor porpoise.................  Phocoena phocoena.  Gulf of Maine/Bay
                                                       of Fundy.
Long-finned pilot whale.........  Globicephala melas  Western North
                                                       Atlantic.
Short-finned pilot whale........  Globicephala        Western North
                                   macrorhynchus.      Atlantic.
Risso's dolphin.................  Grampus griseus...  Western North
                                                       Atlantic.
Gray seal.......................  Halichoerus grypus  Western North
                                                       Atlantic.
Harbor seal.....................  Phoca vitulina....  Western North
                                                       Atlantic.
Harp seal.......................  Pagophilus          Western North
                                   groenlandicus.      Atlantic.
------------------------------------------------------------------------

Sec.  217.283  Prohibitions.

    Except for the takings described in Sec.  217.282 and authorized by 
an LOA issued under Sec.  217.286 or Sec.  217.287, it is unlawful for 
any person to do any of the following in connection with the activities 
described in this subpart:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec. Sec.  217.286 
and 217.287 of this subpart;
    (b) Take any marine mammal not specified in Sec.  217.282(c);
    (c) Take any marine mammal specified in the LOA in any manner other 
than as specified in the LOA; or
    (d) Take any marine mammal, as specified in Sec.  217.282(c), after 
NMFS determines such taking results in more than a negligible impact on 
the species or stocks of such marine mammals.


Sec.  217.284  Mitigation requirements.

    When conducting the activities identified in Sec. Sec.  217.280(a) 
and 217.282, Empire Wind must implement the mitigation measures 
contained in this section and any LOA issued under Sec.  217.286 or 
Sec.  217.287. These mitigation measures include, but are not limited 
to:
    (a) General conditions. The following measures apply to the Empire 
Wind Project:
    (1) A copy of any issued LOA must be in the possession of Empire 
Wind and its designees, all vessel operators, visual protected species 
observers (PSOs), passive acoustic monitoring (PAM) operators, pile 
driver operators, and any other relevant designees operating under the 
authority of the issued LOA;
    (2) Empire Wind must conduct briefings between construction 
supervisors, construction crews, and the PSO and PAM team prior to the 
start of all construction activities, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
marine mammal monitoring and reporting protocols, and operational 
procedures. An informal guide must be included with the Marine Mammal 
Monitoring Plan to aid personnel in identifying species if they are 
observed in the vicinity of the project area;
    (3) Empire Wind must instruct all vessel personnel regarding the 
authority of the PSO(s). Any disagreement between the Lead PSO and the 
vessel operator would only be discussed after shutdown has occurred;
    (4) Empire Wind must ensure that any visual observations of an ESA-
listed marine mammal are communicated to PSOs and vessel captains 
during the concurrent use of multiple project-associated vessels (of 
any size; e.g., construction surveys, crew/supply transfers, etc.);
    (5) If an individual from a species for which authorization has not 
been granted, or a species for which authorization has been granted but 
the authorized take number has been met, is observed entering or within 
the relevant Level B harassment zone for each specified activity, pile 
driving and HRG acoustic sources must be shut down immediately, unless 
shutdown would result in imminent risk of injury or loss of life to an 
individual or risk of damage to a vessel that creates risk of injury or 
loss of life for individuals or be delayed if the activity has not 
commenced. Impact and vibratory pile driving and initiation of HRG 
acoustic sources must not commence or resume until the animal(s) has 
been confirmed to have left the relevant clearance zone or the 
observation time has elapsed with no further sightings.
    (6) Prior to and when conducting any in-water construction 
activities and vessel operations, Empire Wind personnel (e.g., vessel 
operators, PSOs) must use available sources of information on North 
Atlantic right whale presence in or near the project area including 
daily monitoring of the Right Whale Sightings Advisory System, and 
monitoring of Coast Guard VHF Channel 16 throughout the day to receive 
notification of any sightings and/or information associated with any 
Slow Zones (i.e., Dynamic Management Areas (DMAs) and/or acoustically-
triggered slow zones) to provide situational awareness for both vessel 
operators and PSOs; and
    (7) Any marine mammals observed within a clearance or shutdown zone 
must be allowed to remain in the area (i.e., must leave of their own 
volition) prior to commencing pile driving activities or HRG surveys;
    (8) Empire Wind must treat any large whale sighted by a PSO or 
acoustically detected by a PAM operator as if it were a North Atlantic 
right whale, unless a PSO or a PAM operator confirms it is another type 
of whale; and
    (9) For in-water construction heavy machinery activities other than 
impact or vibratory pile driving, if a marine mammal is on a path 
towards or comes within 10 m of equipment, Empire Wind must cease 
operations until the marine mammal has moved more than 10 m on a path 
away from the activity to avoid direct interaction with equipment.
    (b) Vessel strike avoidance measures. The following measures apply 
to all vessels associated with the Empire Wind Project:
    (1) Prior to the start of construction activities, all vessel 
operators and crew must receive a protected species identification 
training that covers, at a minimum:
    (i) Identification of marine mammals and other protected species 
known to occur or which have the potential to occur in the Empire Wind 
project area;
    (ii) Training on making observations in both good weather 
conditions (i.e., clear visibility, low winds, low sea states) and bad 
weather conditions (i.e., fog, high winds, high sea states, with 
glare);
    (iii) Training on information and resources available to the 
project

[[Page 22779]]

personnel regarding the applicability of Federal laws and regulations 
for protected species;
    (iv) Observer training related to these vessel strike avoidance 
measures must be conducted for all vessel operators and crew prior to 
the start of in-water construction activities; and
    (v) Confirmation of marine mammal observer training must be 
documented on a training course log sheet and reported to NMFS.
    (2) All vessel operators and crews, regardless of their vessel's 
size, must maintain a vigilant watch for all marine mammals and slow 
down, stop their vessel, or alter course, as appropriate, to avoid 
striking any marine mammal;
    (3) All vessels must have a visual observer on board who is 
responsible for monitoring the vessel strike avoidance zone for marine 
mammals. Visual observers may be PSO or crew members, but crew members 
responsible for these duties must be provided sufficient training by 
Empire Wind to distinguish marine mammals from other types of animals 
or objects and must be able to identify a marine mammal as a North 
Atlantic right whale, other whale (defined in this context as sperm 
whales or baleen whales other than North Atlantic right whales), or 
other marine mammal. Crew members serving as visual observers must not 
have duties other than observing for marine mammals while the vessel is 
operating over 10 knots (kts);
    (4) Year-round and when a vessel is in transit, all vessel 
operators must continuously monitor U.S. Coast Guard VHF Channel 16, 
over which North Atlantic right whale sightings are broadcasted. At the 
onset of transiting and at least once every four hours, vessel 
operators and/or trained crew members must monitor the project's 
Situational Awareness System, WhaleAlert, and the Right Whale Sighting 
Advisory System (RWSAS) for the presence of North Atlantic right whales 
Any observations of any large whale by any Empire Wind staff or 
contractors, including vessel crew, must be communicated immediately to 
PSOs, PAM operator, and all vessel captains to increase situational 
awareness. Conversely, any large whale observation or detection via a 
sighting network (e.g., Mysticetus) by PSOs or PAM operators must be 
conveyed to vessel operators and crew;
    (5) Any observations of any large whale by any Empire Wind staff or 
contractor, including vessel crew, must be communicated immediately to 
PSOs and all vessel captains to increase situational awareness. Any 
large whale observation or detections via a sighting network (e.g., 
Mysticetus) by PSOs or PAM operators will be conveyed to vessel 
operators and crew;
    (6) All vessels must comply with existing NMFS vessel speed 
regulations in 50 CFR 224.105, as applicable, for North Atlantic right 
whales;
    (7) All vessels must transit active Slow Zones, Dynamic Management 
Areas (DMAs), and Seasonal Management Areas (SMAs) at 10 kts or less;
    (8) Between November 1st and April 30th, all vessels traveling to 
and from ports in New Jersey, New York, Maryland, Delaware, and 
Virginia must transit at 10 kts or less;
    (9) All vessels, regardless of size, must immediately reduce speed 
to 10 kts or less when any large whale, mother/calf pairs, or large 
assemblages of non-delphinid cetaceans are observed (within 500 m) of 
an underway vessel;
    (10) All vessels, regardless of size, must immediately reduce speed 
to 10 kts or less when a North Atlantic right whale is sighted, at any 
distance, by anyone on the vessel;
    (11) All underway vessels (e.g., transiting, surveying) operating 
at any speed must have a dedicated visual observer on duty at all times 
to monitor for marine mammals within a 180[deg] direction of the 
forward path of the vessel (90[deg] port to 90[deg] starboard) located 
at the best vantage point for ensuring vessels are maintaining 
appropriate separation distances from marine mammals. Visual observers 
must be equipped with alternative monitoring technology for periods of 
low visibility (e.g., darkness, rain, fog, etc.). The dedicated visual 
observer must receive prior training on protected species detection and 
identification, vessel strike minimization procedures, how and when to 
communicate with the vessel captain, and reporting requirements. Visual 
observers may be third-party observers (i.e., NMFS-approved PSOs) or 
crew members. Observer training related to these vessel strike 
avoidance measures must be conducted for all vessel operators and crew 
prior to the start of vessel use;
    (12) All vessels must maintain a minimum separation distance of 500 
m from North Atlantic right whales. If underway, all vessels must steer 
a course away from any sighted North Atlantic right whale at 10 kts or 
less such that the 500-m minimum separation distance requirement is not 
violated. If a North Atlantic right whale is sighted within 500 m of an 
underway vessel, that vessel must shift the engine to neutral. Engines 
must not be engaged until the whale has moved outside of the vessel's 
path and beyond 500 m. If a whale is observed but cannot be confirmed 
as a species other than a North Atlantic right whale, the vessel 
operator must assume that it is a North Atlantic right whale.
    (13) All vessels must maintain a minimum separation distance of 100 
m from sperm whales and baleen whales other than North Atlantic right 
whales. If one of these species is sighted within 100 m of an underway 
vessel, that vessel must shift the engine to neutral. Engines must not 
be engaged until the whale has moved outside of the vessel's path and 
beyond 100 m;
    (14) All vessels must maintain a minimum separation distance of 50 
m from all delphinoid cetaceans and pinnipeds, with an exception made 
for those that approach the vessel (e.g., bow-riding dolphins). If a 
delphinid cetacean or pinniped is sighted within 50 m of an underway 
vessel, that vessel must shift the engine to neutral, with an exception 
made for those that approach the vessel (e.g., bow-riding dolphins). 
Engines must not be engaged until the animal(s) has moved outside of 
the vessel's path and beyond 50 m;
    (15) When a marine mammal(s) is sighted while a vessel is underway, 
the vessel must take action as necessary to avoid violating the 
relevant separation distances (e.g., attempt to remain parallel to the 
animal's course, avoid excessive speed or abrupt changes in direction 
until the animal has left the area). If a marine mammal(s) is sighted 
within the relevant separation distance, the vessel must shift the 
engine to neutral and not engage the engine(s) until the animal(s) 
outside and on a path away from the separation area. This does not 
apply to any vessel towing gear or any situation where respecting the 
relevant separation distance would be unsafe (i.e., any situation where 
the vessel is navigationally constrained);
    (16) All vessels underway must not divert or alter course to 
approach any marine mammal. Any vessel underway must avoid speed over 
10 kts or abrupt changes in course direction until the animal is out of 
an on a path away from the separation distances; and
    (17) If a vessel is traveling at greater than 10 kts, in addition 
to the required dedicated visual observer, Empire Wind must monitor the 
transit corridor in real-time with PAM prior to and during transits. If 
a North Atlantic right whale is detected via visual observation or PAM 
within or approaching the transit corridor, all crew transfer vessels 
must travel at 10 kts or less for 12 hours following the detection. 
Each subsequent detection triggers an additional 12-hour period at 10 
kts or

[[Page 22780]]

less. A slowdown in the transit corridor expires when there has been no 
further visual or acoustic detection of North Atlantic right whales in 
the transit corridor for 12 hours;
    (18) Empire Wind must submit a North Atlantic right whale vessel 
strike avoidance plan 90 days prior to commencement of vessel use. The 
plan will, at minimum, describe how PAM, in combination with visual 
observations, will be conducted to ensure the transit corridor is clear 
of right whales. The plan will also provide details on the vessel-based 
observer protocols on transiting vessels.
    (c) WTG and OSS foundation installation. The following requirements 
apply to pile driving activities associated with the installation of 
WTG and OSS foundations:
    (1) Foundation impact pile driving activities may not occur January 
1 through April 30;
    (2) Pile driving may not occur from December 1 through December 31, 
unless unanticipated delays due to weather or technical issues arise 
that necessitate extending pile driving into December. If impact pile 
driving must occur in December, Empire Wind must notify NOAA Fisheries 
in writing by September 1 that circumstances are expected to 
necessitate pile driving in December;
    (3) Monopiles must be no larger than 11 m in diameter. Pin piles 
must be no larger than 2.5 m in diameter. During all monopile and pin 
pile installation, the minimum amount of hammer energy necessary to 
effectively and safely install and maintain the integrity of the piles 
must be used. Hammer energies must not exceed 5,500 kJ for monopile 
installation and 3,200 kJ for pin pile installation. No more than two 
monopile foundations or three pin piles for jacket foundations may be 
installed per day;
    (4) Empire Wind must not initiate pile driving earlier than 1 hour 
after civil sunrise or later than 1.5 hours prior to civil sunset, 
unless Empire Wind submits, and NMFS approves, an Alternative 
Monitoring Plan as part of the Pile Driving and Marine Mammal 
Monitoring Plan that reliably demonstrates the efficacy of their night 
vision devices;
    (5) Empire Wind must deploy dual noise attenuation systems that are 
capable of achieving, at a minimum, 10-dB of sound attenuation, during 
all impact pile driving of monopile and pin piles:
    (i) A single bubble curtain must not be used unless paired with 
another noise attenuation device;
    (ii) A big double bubble curtain may be used without being paired 
with another noise attenuation device;
    (iii) The bubble curtain(s) must distribute air bubbles using an 
air flow rate of at least 0.5 m\3\/(min*m). The bubble curtain(s) must 
surround 100 percent of the piling perimeter throughout the full depth 
of the water column. In the unforeseen event of a single compressor 
malfunction, the offshore personnel operating the bubble curtain(s) 
must make appropriate adjustments to the air supply and operating 
pressure such that the maximum possible sound attenuation performance 
of the bubble curtain(s) is achieved;
    (iv) The lowest bubble ring must be in contact with the seafloor 
for the full circumference of the ring, and the weights attached to the 
bottom ring must ensure 100-percent seafloor contact;
    (v) No parts of the ring or other objects may prevent full seafloor 
contact; and
    (vi) Construction contractors must train personnel in the proper 
balancing of airflow to the ring. Construction contractors must submit 
an inspection/performance report for approval by Empire Wind within 72 
hours following the performance test. Empire Wind must then submit that 
report to NMFS; and
    (vii) Corrections to the bubble ring(s) to meet the performance 
standards in this paragraph (c)(5) must occur prior to impact pile 
driving of monopiles and pin piles. If Empire Wind uses a noise 
mitigation device in addition to the bubble curtain, Empire Wind must 
maintain similar quality control measures as described in this 
paragraph (c)(2);
    (6) Empire Wind must have a minimum of two PSOs actively observing 
marine mammals before, during, and after the installation of all 
foundation piles (i.e., pin piles and monopiles). Concurrently, at 
least one PAM operator must be actively monitoring for marine mammals 
before, during and after impact pile driving with PAM;
    (7) All visual PSOs and PAM operators used for the Empire Wind 
project must meet the requirements and qualifications described in 
Sec.  217.285(a) through (e), as applicable to the specified activity;
    (8) Empire Wind must establish and implement clearance and shutdown 
zones (all distances to the perimeter are the radii from the center of 
the pile being driven) as described in the LOA for all monopile and pin 
pile installation;
    (9) Empire Wind must use visual PSOs and PAM operators to monitor 
the area around each foundation pile before, during and after pile 
driving. PSOs must visually monitor clearance zones for marine mammals 
for a minimum of 60 minutes prior to commencing pile driving. At least 
one PAM operator must review data from at least 24 hours prior to pile 
driving and actively monitor hydrophones for 60 minutes prior to pile 
driving. Prior to initiating soft-start procedures, all clearance zones 
must be confirmed to be free of marine mammals for 30 minutes 
immediately prior to starting a soft-start of pile driving;
    (10) PSOs must be able to visually clear (i.e., confirm no marine 
mammals are present) an area that extends around the pile being driven. 
The entire minimum visibility zone must be visible (i.e., not obscured 
by dark, rain, fog, etc.) for a full 60 minutes immediately prior to 
commencing impact pile driving (minimum visibility zone size dependent 
on season);
    (11) If a marine mammal is observed acoustically detected within 
the relevant clearance zone prior to the initiation of impact pile 
driving activities, pile driving must be delayed and must not begin 
until either the marine mammal(s) has voluntarily left the specific 
clearance zones and have been visually or acoustically confirmed beyond 
that clearance zone, or, when specific time periods have elapsed with 
no further sightings or acoustic detections. The specific time periods 
are 15 minutes for small odontocetes and pinnipeds and 30 minutes for 
all other marine mammal species;
    (12) The clearance zone may only be declared clear if no confirmed 
North Atlantic right whale acoustic detections (in addition to visual) 
have occurred within the PAM clearance zone during the 60-minute 
monitoring period. Any large whale sighting by a PSO or detected by a 
PAM operator that cannot be identified as a non-North Atlantic right 
whale must be treated as if it were a North Atlantic right whale;
    (13) If a marine mammal is observed entering or within the 
respective shutdown zone, as defined in the LOA, after impact pile 
driving has begun, the PSO must call for a temporary shutdown of impact 
pile driving;
    (14) Empire Wind must immediately cease pile driving if a PSO calls 
for shutdown, unless shutdown is not practicable due to imminent risk 
of injury or loss of life to an individual or pile refusal or 
instability. In this situation, Empire Wind must reduce hammer energy 
to the lowest level practicable and the reason(s) for not

[[Page 22781]]

shutting down must be documented and reported to NMFS;
    (15) Pile driving must not restart until either the marine 
mammal(s) has voluntarily left the specific clearance zones and has 
been visually or acoustically confirmed beyond that clearance zone, or, 
when specific time periods have elapsed with no further sightings or 
acoustic detections have occurred. The specific time periods are 15 
minutes for small odontocetes and pinnipeds and 30 minutes for all 
other marine mammal species. In cases where these criteria are not met, 
pile driving may restart only if necessary to maintain pile stability 
at which time Empire Wind must use the lowest hammer energy practicable 
to maintain stability;
    (16) If impact pile driving has been shut down due to the presence 
of a North Atlantic right whale, pile driving may not restart until the 
North Atlantic right whale is no longer observed or 30 minutes has 
elapsed since the last detection;
    (17) Empire Wind must utilize a soft-start protocol for impact pile 
driving of monopiles by performing 4-6 strikes per minute at 10 to 20 
percent of the maximum hammer energy, for a minimum of 20 minutes;
    (18) Soft-start must occur at the beginning of monopile 
installation and at any time following a cessation of impact pile 
driving of 30 minutes or longer;
    (19) If a marine mammal is detected within or about to enter the 
applicable clearance zones, prior to the beginning of soft-start 
procedures, impact pile driving must be delayed until the animal has 
been visually observed exiting the clearance zone or until a specific 
time period has elapsed with no further sightings. The specific time 
periods are 15 minutes for small odontocetes and pinnipeds and 30 
minutes for all other species;
    (20) PAM operators must assist the visual PSOs in monitoring by 
conducting PAM activities 60 minutes prior to any impact pile driving, 
at all times during pile driving, and for 30 minutes after pile driving 
completion for the appropriate size PAM clearance zone (dependent on 
season). The entire minimum visibility zone must be clear for at least 
30 minutes, with no marine mammal detections within the visual or PAM 
clearance zones prior to the start of impact pile driving. PAM 
operators must immediately communicate all detections of marine mammals 
at any distance (i.e., not limited to the Level B harassment zones) to 
the Lead PSO, including any determination regarding species 
identification, distance, and bearing and the degree of confidence in 
the determination;
    (21) Any acoustic monitoring must complement visual monitoring 
efforts and must cover an area of at least the Level B harassment zone 
around each monopile foundation;
    (22) Empire Wind must submit a Pile Driving and Marine Mammal 
Monitoring Plan to NMFS for review and approval at least 180 days 
before the start of any pile driving. The plan must include final 
project design related to pile driving (e.g., number and type of piles, 
hammer type, noise attenuation systems, anticipated start date, etc.) 
and all information related to PSO and PAM monitoring protocols;
    (23) Empire Wind must submit a Passive Acoustic Monitoring Plan to 
NMFS for review and approval at least 180 days prior to the planned 
start of monopile installation. The plan must describe all proposed PAM 
equipment, procedures, and protocols. The authorization to take marine 
mammals is contingent upon NMFS' approval of the PAM Plan;
    (24) Empire Wind must conduct sound field verification (SFV) on the 
first three monopiles installed and all piles associated with the first 
OSS foundation installed. Subsequent SFV is required should additional 
piles be driven that are anticipated to produce louder sound fields 
than those previously measured;
    (25) Empire Wind must conduct SFV after construction is complete to 
estimate turbine operational source levels based on measurements in the 
near and far-field at a minimum of three locations from each foundation 
monitored. These data must be used to also identify estimated 
transmission loss rates;
    (26) Empire Wind must submit a sound field verification (SFV) plan 
to NOAA Fisheries for review and approval at least 180 days prior to 
planned start of pile driving that identifies how Empire Wind will 
comply with the following requirements:
    (i) Empire Wind must empirically determine source levels, the 
ranges to the isopleths corresponding to the Level A harassment and 
Level B harassment thresholds in meters, and the transmission loss 
coefficient(s). Empire Wind may also estimate ranges to the Level A 
harassment and Level B harassment isopleths by extrapolating from in 
situ measurements conducted at several distances from the piles 
monitored;
    (ii) Empire Wind must perform sound field measurements at four 
distances from the pile being driven, including, but not limited to, 
750 m and the modeled Level B harassment zones to verify the accuracy 
of those modeled zones;
    (iii) The recordings must be continuous throughout the duration of 
all impact hammering of each pile monitored;
    (iv) The measurement systems must have a sensitivity appropriate 
for the expected sound levels from pile driving received at the nominal 
ranges throughout the installation of the pile;
    (v) The frequency range of the system must cover the range of at 
least 20 Hz to 20 kHz;
    (vi) The system will be designed to have omnidirectional 
sensitivity and will be designed so that the predicted broadband 
received level of all impact pile-driving strikes exceed the system 
noise floor by at least 10 dB. The dynamic range of the system must be 
sufficient such that at each location, pile driving signals are not 
clipped and are not masked by noise floor; and
    (vii) Identify operational noise levels and transmission loss 
rates.
    (27) If acoustic field measurements collected during installation 
of foundation piles indicate ranges to the isopleths, corresponding to 
Level A harassment and Level B harassment thresholds, are greater than 
the ranges predicted by modeling (assuming 10 dB attenuation), Empire 
Wind must implement additional noise mitigation measures prior to 
installing the next monopile. Each modification must be evaluated 
empirically by acoustic field measurements;
    (28) In the event that field measurements indicate ranges to 
isopleths, corresponding to Level A harassment and Level B harassment 
thresholds, are greater than the ranges predicted by modeling (assuming 
10 dB attenuation), NMFS may expand the relevant harassment, clearance, 
and shutdown zones and associated monitoring protocols;
    (29) If harassment zones are expanded beyond an additional 1,500 m, 
additional PSOs would be deployed on additional platforms with each 
observer responsible for maintaining watch in no more than 180 degrees 
and of an area with a radius no greater than 1,500 m;
    (30) If acoustic measurements indicate that ranges to isopleths 
corresponding to the Level A harassment and Level B harassment 
thresholds are less than the ranges predicted by modeling (assuming 10 
dB attenuation), Empire Wind may request to NMFS a modification of the 
clearance and shutdown zones for impact pile driving of monopiles and 
jacket foundation piles;

[[Page 22782]]

    (31) For NMFS to consider a modification request for reduced zone 
sizes, Empire Wind must have had to conduct SFV on three or more 
monopiles to verify that zone sizes are consistently smaller than those 
predicted by modeling (assuming 10 dB attenuation) and subsequent piles 
would be installed within and under similar conditions (e.g., 
monitoring data collected during installation of a typical pile can not 
be used to adjust difficult-to-drive pile ranges); and
    (32) If a subsequent monopile installation location is selected 
that was not represented by the previous three locations (i.e., 
substrate composition, water depth), SFV would be required.
    (d) Cable landfall construction and marina activities. The 
following requirements apply to cable landfall and marina pile driving 
activities:
    (1) Empire Wind must conduct impact and vibratory pile driving 
during daylight hours only;
    (2) Empire Wind must have a minimum of two PSOs on active duty 
during any installation and removal of the temporary cofferdams and 
goal posts. These PSOs must be located at the best vantage point(s) on 
the vibratory pile driving platform or secondary platform in the 
immediate vicinity of the vibratory pile driving platform, in order to 
ensure that appropriate visual coverage is available for the entire 
visual clearance zone and as much of the Level B harassment zone, as 
possible;
    (3) If a marine mammal is observed entering or within the 
respective shutdown zone, as defined in the LOA, after pile driving has 
begun, the PSO must call for a temporary shutdown of pile driving;
    (4) Empire Wind must immediately cease pile driving if a PSO calls 
for shutdown, unless shutdown is not practicable due to imminent risk 
of injury or loss of life to an individual or pile refusal or 
instability. In this situation, Empire Wind must reduce hammer energy 
to the lowest level practicable and the reason(s) for not shutting down 
must be documented and reported to NMFS; and
    (5) Pile driving must not restart until either the marine mammal(s) 
has voluntarily left the specific clearance zones and has been visually 
or acoustically confirmed beyond that clearance zone, or, when specific 
time periods have elapsed with no further sightings or acoustic 
detections have occurred. The specific time periods are 15 minutes for 
small odontocetes and pinnipeds and 30 minutes for all other marine 
mammal species. In cases where these criteria are not met, pile driving 
may restart only if necessary to maintain pile stability at which time 
Empire Wind must use the lowest hammer energy practicable to maintain 
stability.
    (e) HRG surveys. The following requirements apply to HRG surveys 
operating sub bottom profilers (SBPs):
    (1) Per vessel, Empire Wind would be required to have at least one 
PSO on active duty during HRG surveys that are conducted during 
daylight hours (i.e., from 30 minutes prior to sunrise through 30 
minutes following sunset) and at least two PSOs during HRG surveys that 
are conducted during nighttime hours;
    (2) Empire Wind must deactivate acoustic sources during periods 
where no data are being collected, except as determined to be necessary 
for testing. Unnecessary use of the acoustic source(s) is prohibited;
    (3) All personnel with responsibilities for marine mammal 
monitoring must participate in joint, onboard briefings that would be 
led by the vessel operator and the Lead PSO, prior to the beginning of 
survey activities. The briefing must be repeated whenever new relevant 
personnel (e.g., new PSOs, acoustic source operators, relevant crew) 
join the survey operation before work commences;
    (4) PSOs must begin visually monitoring clearance and shutdown 
zones 30 minutes prior to the initiation of the specified acoustic 
source (i.e., ramp-up, if applicable), during the HRG activities, and 
for 30 minutes after the use of the specified acoustic source has 
ceased;
    (5) Empire Wind is required to ramp-up sub-bottom profilers (SBPs) 
prior to commencing full power (unless the equipment operates on a 
binary on/off switch) and only when visual clearance zones are fully 
visible (e.g., not obscured by darkness, rain, fog, etc.) and clear of 
marine mammals, as determined by the Lead PSO, for at least 30 minutes 
immediately prior to the initiation of survey activities using a 
specified acoustic source;
    (6) Prior to a ramp-up procedure starting, the operator must notify 
the Lead PSO of the planned start of the ramp-up. This notification 
time must not be less than 60 minutes prior to the planned ramp-up 
activities as all relevant PSOs must monitor the clearance zone for 30 
minutes prior to the initiation of ramp-up;
    (7) Prior to starting the survey and after receiving confirmation 
from the PSOs that the clearance zone is clear of any marine mammals, 
Empire Wind must ramp-up sources to half power for 5 minutes and then 
proceed to full power, unless the source operates on a binary on/off 
switch in which case ramp-up is not required. Ramp-up activities must 
be delayed if a marine mammal(s) enters its respective shutdown zone. 
Ramp-up may only be reinitiated if the animal(s) has been observed 
exiting its respective shutdown zone or until 15 minutes for small 
odontocetes and pinnipeds, and 30 minutes for all other species;
    (8) Empire Wind must implement a 30-minute clearance period of the 
clearance zones immediately prior to the commencing of the survey or 
when there is more than a 30-minute break in survey activities or PSO 
monitoring;
    (9) If a marine mammal is observed within a clearance zone during 
the clearance period, ramp-up or acoustic surveys may not begin until 
the animal(s) has been observed voluntarily exiting its respective 
clearance zone or until a specific time period has elapsed with no 
further sighting. The specific time period is 15 minutes for small 
odontocetes and seals, and 30 minutes for all other species;
    (10) In any case when the clearance process has begun in conditions 
with good visibility, including via the use of night vision equipment 
(IR/thermal camera), and the Lead PSO has determined that the clearance 
zones are clear of marine mammals, survey operations would be allowed 
to commence (i.e., no delay is required) despite periods of inclement 
weather and/or loss of daylight;
    (11) Once the survey has commenced, Empire Wind must shut down SBPs 
if a marine mammal enters a respective shutdown zone, except in cases 
when the shutdown zones become obscured for brief periods due to 
inclement weather, survey operations would be allowed to continue 
(i.e., no shutdown is required) so long as no marine mammals have been 
detected. The shutdown requirement does not apply to small delphinids 
of the following genera: Delphinus, Stenella, Lagenorhynchus, and 
Tursiops. If there is uncertainty regarding the identification of a 
marine mammal species (i.e., whether the observed marine mammal belongs 
to one of the delphinid genera for which shutdown is waived), the PSOs 
must use their best professional judgment in making the decision to 
call for a shutdown. Shutdown is required if a delphinid that belongs 
to a genus other than those specified here is detected in the shutdown 
zone;
    (12) If SBPs have been shutdown due to the presence of a marine 
mammal, the use of SBPs not commence or resume until the animal(s) has 
been confirmed to have left the Level B harassment zone

[[Page 22783]]

or until a full 15 minutes (for small odontocetes and seals) or 30 
minutes (for all other marine mammals) have elapsed with no further 
sighting;
    (13) Empire Wind must immediately shutdown any SBP acoustic source 
if a marine mammal is sighted entering or within its respective 
shutdown zones;
    (14) If a SBP is shut down for reasons other than mitigation (e.g., 
mechanical difficulty) for less than 30 minutes, it would be allowed to 
be activated again without ramp-up only if:
    (i) PSOs have maintained constant observation; and
    (ii) No additional detections of any marine mammal occurred within 
the respective shutdown zones;
    (17) If a SBP was shut down for a period longer than 30 minutes, 
then all clearance and ramp-up procedures must be initiated; and
    (18) If multiple HRG vessels are operating concurrently, any 
observations of marine mammals must be communicated to PSOs on all 
nearby survey vessels.
    (f) Trawl Surveys. The following measures apply to all trawl 
surveys:
    (1) All captains and crew conducting fishery surveys will be 
trained in marine mammal detection and identification. Marine mammal 
monitoring will be conducted by the captain and/or a member of the 
scientific crew before (within 1 nautical mile (nm) and 15 minutes 
prior to deploying gear), during, and after haul back;
    (2) Survey gear will be deployed as soon as possible once the 
vessel arrives on station;
    (3) Empire Wind and/or its cooperating institutions, contracted 
vessels, or commercially-hired captains must implement the following 
``move-on'' rule: If marine mammals are sighted within 1 nm of the 
planned location and 15 minutes before gear deployment, Empire Wind 
and/or its cooperating institutions, contracted vessels, or 
commercially-hired captains, as appropriate, may decide to move the 
vessel away from the marine mammal to a different section of the 
sampling area if the animal appears to be at risk of interaction with 
the gear, based on best professional judgment. If, after moving on, 
marine mammals are still visible from the vessel, Empire Wind and/or 
its cooperating institutions, contracted vessels, or commercially-hired 
captains may decide to move again or to skip the station;
    (4) If a marine mammal is deemed to be at risk of interaction after 
the gear is set, all gear will be immediately removed from the water;
    (5) Empire Wind will maintain visual monitoring effort during the 
entire period of time that gear is in the water (i.e., throughout gear 
deployment, fishing, and retrieval). If marine mammals are sighted 
before the gear is fully removed from the water, Empire Wind will take 
the most appropriate action to avoid marine mammal interaction;
    (6) Trawls must have a limited tow time of 20 minutes (and depth);
    (7) Empire Wind must open the codend of the trawl net close to the 
deck/sorting area to avoid damage to animals that may be caught in 
gear; and
    (8) Trawl nets must be fully cleaned and repaired (if damaged) 
before setting again; and
    (9) Any lost gear associated with the fishery surveys must be 
reported to the NOAA Greater Atlantic Regional Fisheries Office 
Protected Resources Division within 48 hours.


Sec.  217.285  Requirements for monitoring and reporting.

    (a) Protected Species Observer (PSO) and PAM operator 
qualifications. The following measures apply to PSOs and PAM operators:
    (1) Empire Wind must use independent, dedicated, qualified PSOs, 
meaning that the PSOs must be employed by a third-party observer 
provider, must have no tasks other than to conduct observational 
effort, collect data, and communicate with and instruct relevant vessel 
crew with regard to the presence of protected species and mitigation 
requirements;
    (2) PSOs must successfully complete relevant training, including 
completion of all required coursework and passing a written and/or oral 
examination developed for the training;
    (3) PSOs must have successfully attained a bachelor's degree from 
an accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to: Secondary education and/or experience comparable 
to PSO duties; previous work experience conducting academic, 
commercial, or government sponsored marine mammal surveys; or previous 
work experience as a PSO; the PSO should demonstrate good standing and 
consistently good performance of PSO duties;
    (4) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable); Ability to conduct field 
observations and collect data according to the assigned protocols; 
Sufficient training, orientation, or experience with the construction 
operation to provide for personal safety during observations; writing 
skills sufficient to document observations, including but not limited 
to, the number and species of marine mammals observed, the dates and 
times of when in-water construction activities were conducted, the 
dates and time when in-water construction activities were suspended to 
avoid potential incidental injury of marine mammals from construction 
noise within a defined shutdown zone, and marine mammal behavior; and 
the ability to communicate orally, by radio, or in-person, with project 
personnel to provide real-time information on marine mammals observed 
in the area, as necessary;
    (5) All PSOs must be approved by NMFS. Empire Wind must submit PSO 
resumes for NMFS' review and approval at least 60 days prior to 
commencement of in-water construction activities requiring PSOs. 
Resumes must include dates of training and any prior NMFS approval, as 
well as dates and description of last experience, and must be 
accompanied by information documenting successful completion of an 
acceptable training course. NMFS shall be allowed three weeks to 
approve PSOs from the time that the necessary information is received 
by NMFS, after which PSOs meeting the minimum requirements will 
automatically be considered approved;
    (6) PSOs must have visual acuity in both eyes (with correction of 
vision being permissible) sufficient enough to discern moving targets 
on the water's surface with the ability to estimate the target size and 
distance (binocular use is allowable);
    (7) All PSOs must be trained in marine mammal identification and 
behaviors and must be able to conduct field observations and collect 
data according to assigned protocols. Additionally, PSOs must have the 
ability to work with all required and relevant software and equipment 
necessary during observations;
    (8) At least one PSO on active duty for each activity (i.e., 
foundation installation, cable landfall and marina activities, and HRG 
surveys) must be designated as the ``Lead PSO''. The Lead PSO must have 
a minimum of 90 days

[[Page 22784]]

of at-sea experience working in an offshore environment and is required 
to have no more than eighteen months elapsed since the conclusion of 
their last at-sea experience; and
    (9) PAM operators must complete specialized training for operating 
PAM systems and must demonstrate familiarity with the PAM system on 
which they must be working. PSOs may act as both acoustic operators and 
visual observers (but not simultaneously), so long as they demonstrate 
that their training and experience are sufficient to perform each task.
    (b) General PSO requirements. The following measures apply to PSOs 
during all project activities:
    (1) All PSOs must be located at the best vantage point(s) on the 
primary vessel in order to obtain 360[deg] visual coverage of the 
entire clearance and shutdown zones around the vessels, and as much of 
the Level B harassment zone as possible;
    (2) During all visual observation periods, PSOs must use high 
magnification (25x) binoculars, standard handheld (7x) binoculars, and 
the naked eye to search continuously for marine mammals. During impact 
pile driving, at least one PSO on the primary pile driving must be 
equipped with Big Eye binoculars (e.g., 25 x 150; 2.7 view angle; 
individual ocular focus; height control) of appropriate quality. These 
must be pedestal mounted on the deck at the best vantage point that 
provides for optimal sea surface observation and PSO safety;
    (3) During periods of low visibility (e.g., darkness, rain, fog, 
poor weather conditions, etc.), PSOs must use alternative technologies 
(i.e., infrared or thermal cameras) to monitor the shutdown and 
clearance zones;
    (4) PSOs must not exceed four consecutive watch hours on duty at 
any time, must have a two-hour (minimum) break between watches, and 
must not exceed a combined watch schedule of more than 12 hours in a 
24-hour period;
    (5) Any PSO has the authority to call for a delay or shutdown of 
project activities.
    (6) Any visual observations of ESA-listed marine mammals must be 
communicated immediately to PSOs and vessel captains associated with 
other vessels to increase situational awareness; and
    (7) Empire Wind's personnel and PSOs are required to use available 
sources of information on North Atlantic right whale presence to aid in 
monitoring efforts. These include daily monitoring of the Right Whale 
Sightings Advisory System, consulting of the WhaleAlert app, and 
monitoring of the Coast Guard's VHF Channel 16 throughout the day to 
receive notifications of any sightings and information associated with 
any Dynamic Management Areas, to plan construction activities and 
vessel routes, if practicable, to minimize the potential for co-
occurrence with North Atlantic right whales.
    (c) PSO and PAM operator requirements during WTG and OSS foundation 
installation. The following measures apply to PSOs and PAM operators 
during monopile and OSS foundation installation:
    (1) At least two PSOs must be actively observing marine mammals 
before, during, and after installation of foundation piles (monopiles). 
At least two PSOs must be stationed and observing on the pile driving 
vessel. Concurrently, at least one acoustic monitoring PSO (i.e., 
passive acoustic monitoring (PAM) operator) must be actively monitoring 
for marine mammals with PAM before, during and after impact pile 
driving;
    (2) All on-duty visual PSOs must remain in contact with the on-duty 
PAM operator, who would monitor the PAM systems for acoustic detections 
of marine mammals in the area.
    (3) If PSOs cannot visually monitor the minimum visibility zone at 
all times using the equipment described in paragraph (b)(1)(ii) of this 
section, impact pile driving operations must not commence or must 
shutdown if they are currently active;
    (4) All PSOs must begin monitoring 60 minutes prior to pile 
driving, during, and for 30 minutes after an activity. The impact pile 
driving of monopiles must only commence when the minimum visibility 
zone is fully visible (e.g., not obscured by darkness, rain, fog, etc.) 
and the clearance zones are clear of marine mammals for at least 30 
minutes, as determined by the Lead PSO, immediately prior to the 
initiation of impact pile driving;
    (5) For North Atlantic right whales, any visual or acoustic 
detection must trigger a delay to the commencement of pile driving. In 
the event that a large whale is sighted or acoustically detected that 
cannot be confirmed by species, it must be treated as if it were a 
North Atlantic right whale;
    (6) Empire Wind must prepare and submit a Pile Driving and Marine 
Mammal Monitoring Plan to NMFS for review and approval at least 180 
days before the start of any pile driving. The plans must include final 
pile driving project design (e.g., number and type of piles, hammer 
type, noise attenuation systems, anticipated start date, etc.) and all 
information related to PAM PSO monitoring protocols for pile-driving 
and visual PSO protocols for all activities;
    (8) Empire Wind must conduct PAM for at least 24 hours immediately 
prior to foundation installation pile driving activities;
    (9) During use of any real-time PAM system, at least one PAM 
operator must be designated to monitor each system by viewing data or 
data products that would be streamed in real-time or in near real-time 
to a computer workstation and monitor;
    (10) PAM operators may be located on a vessel or remotely on-shore 
but must have the appropriate equipment (i.e., computer station 
equipped with a data collection software system (i.e., Mysticetus or 
similar system and acoustic data analysis software) available wherever 
they are stationed;
    (11) Visual PSOs must remain in contact with the PAM operator 
currently on duty regarding any animal detection that might be 
approaching or found within the applicable zones no matter where the 
PAM operator is stationed (i.e., onshore or on a vessel); and
    (12) PAM operators must be on watch for a maximum of four 
consecutive hours, followed by a break of at least two hours between 
watches, and may not exceed a combined watch schedule of more than 12 
hours in a single 24-hour period.
    (d) PSO requirements during cable landfall construction and marina 
activities. The following measures apply to PSOs during pile driving 
associated with cable landfall construction and marina activities:
    (1) At least two PSOs must be on active duty during all activities 
related to the installation and removal of cofferdams, goal posts, and 
casing pipes;
    (2) These PSOs must be located at the best vantage points on the 
pile driving platform or secondary platform in the immediate vicinity 
of the pile driving;
    (3) PSOs must ensure that there is appropriate visual coverage for 
the entire clearance and shutdown zones and as much of the Level B 
harassment zone as possible; and
    (4) PSOs must monitor the clearance zone for the presence of marine 
mammals for 30 minutes before, throughout pile driving, and for 30 
minutes after all pile driving activities have ceased. Pile driving 
must only commence when visual clearance zones are fully visible (e.g., 
not obscured by darkness, rain, fog, etc.) and clear of marine mammals, 
as determined by the Lead PSO, for at least 30 minutes immediately 
prior to initiation of impact or vibratory pile driving.

[[Page 22785]]

    (e) PSO requirements during HRG surveys. The following measures 
apply to PSOs during HRG surveys using SBPs:
    (1) At least one PSO must be on active duty monitoring during HRG 
surveys conducted during daylight (i.e., from 30 minutes prior to 
sunrise through 30 minutes following sunset) and at least two PSOs must 
be on activity duty monitoring during HRG surveys conducted at night;
    (2) During periods of low visibility (e.g., darkness, rain, fog, 
etc.), PSOs must use alternative technology (i.e., infrared/thermal 
camera) to monitor the clearance and shutdown zones;
    (3) PSOs on HRG vessels must begin monitoring 30 minutes prior to 
activating SBPs during the use of these acoustic sources, and for 30 
minutes after use of these acoustic sources has ceased;
    (4) Any observations of marine mammals must be communicated to PSOs 
on all nearby survey vessels during concurrent HRG surveys; and
    (5) During daylight hours when survey equipment is not operating, 
Empire Wind must ensure that visual PSOs conduct, as rotation schedules 
allow, observations for comparison of sighting rates and behavior with 
and without use of the specified acoustic sources. Off-effort PSO 
monitoring must be reflected in the monthly PSO monitoring reports.
    (f) Reporting. Empire Wind must comply with the following reporting 
measures:
    (1) Prior to initiation of project activities, Empire Wind must 
demonstrate in a report submitted to NMFS (at [email protected] 
[email protected]">and[email protected]) that all required training for 
Empire Wind personnel (including the vessel crews, vessel captains, 
PSOs, and PAM operators) has been completed;
    (2) Empire Wind must use a standardized reporting system during the 
effective period of this subpart and LOA. All data collected related to 
the Empire Wind Project must be recorded using industry-standard 
softwares (e.g., Mysticetus or a similar software) that is installed on 
field laptops and/or tablets. Empire Wind must submit weekly (during 
foundation installation only), monthly and annual reports as described 
below. For all monitoring efforts and marine mammal sightings, Empire 
Wind must collect the following information:
    (i) Date and time that monitored activity begins or ends;
    (ii) Construction activities occurring during each observation 
period;
    (iii) Watch status (i.e., sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
    (iv) PSO who sighted the animal;
    (v) Time of sighting;
    (vi) Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
    (vii) Water conditions (e.g., sea state, tide state, water depth);
    (viii) All marine mammal sightings, regardless of distance from the 
construction activity;
    (ix) Species (or lowest possible taxonomic level possible);
    (x) Pace of the animal(s);
    (xi) Estimated number of animals (minimum/maximum/high/low/best);
    (xii) Estimated number of animals by cohort (e.g., adults, 
yearlings, juveniles, calves, group composition, etc.);
    (xiii) Description (i.e., as many distinguishing features as 
possible of each individual seen, including length, shape, color, 
pattern, scars or markings, shape and size of dorsal fin, shape of 
head, and blow characteristics);
    (xiv) Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling) and observed 
changes in behavior, including an assessment of behavioral responses 
thought to have resulted from the specific activity;
    (xv) Animal's closest distance and bearing from the pile being 
driven or specified HRG equipment and estimated time entered or spent 
within the Level A harassment and/or Level B harassment zones;
    (xvi) Activity at time of sighting (e.g., vibratory installation/
removal, impact pile driving, construction survey), use of any noise 
attenuation device(s), and specific phase of activity (e.g., ramp-up of 
HRG equipment, HRG acoustic source on/off, soft-start for pile driving, 
active pile driving, etc.);
    (xvii) Marine mammal occurrence in Level A harassment or Level B 
harassment zones;
    (xviii) Description of any mitigation-related action implemented, 
or mitigation-related actions called for but not implemented, in 
response to the sighting (e.g., delay, shutdown, etc.) and time and 
location of the action; and
    (xix) Other human activity in the area.
    (3) If a marine mammal is acoustically detected during PAM 
monitoring, the following information must be recorded and reported to 
NMFS:
    (i) Location of hydrophone (latitude & longitude; in Decimal 
Degrees) and site name;
    (ii) Bottom depth and depth of recording unit (in meters);
    (iii) Recorder (model & manufacturer) and platform type (i.e., 
bottom-mounted, electric glider, etc.), and instrument ID of the 
hydrophone and recording platform (if applicable);
    (iv) Time zone for sound files and recorded date/times in data and 
metadata (in relation to UTC. i.e., EST time zone is UTC-5);
    (v) Duration of recordings (start/end dates and times; in ISO 8601 
format, yyyy-mm-ddTHH:MM:SS.sssZ);
    (vi) Deployment/retrieval dates and times (in ISO 8601 format);
    (vii) Recording schedule (must be continuous);
    (viii) Hydrophone and recorder sensitivity (in dB re. 1[mu]Pa);
    (ix) Calibration curve for each recorder;
    (x) Bandwidth/sampling rate (in Hz);
    (xi) Sample bit-rate of recordings; and,
    (xii) Detection range of equipment for relevant frequency bands (in 
meters);
    (4) Information required for each detection, the following 
information must be noted:
    (i) Species identification (if possible);
    (ii) Call type and number of calls (if known);
    (iii) Temporal aspects of vocalization (date, time, duration, etc.; 
date times in ISO 8601 format);
    (iv) Confidence of detection (detected, or possibly detected);
    (v) Comparison with any concurrent visual sightings;
    (vi) Location and/or directionality of call (if determined) 
relative to acoustic recorder or construction activities;
    (vii) Location of recorder and construction activities at time of 
call;
    (viii) Name and version of detection or sound analysis software 
used, with protocol reference;
    (ix) Minimum and maximum frequencies viewed/monitored/used in 
detection (in Hz); and
    (x) Name of PAM operator(s) on duty.
    (5) Empire Wind must compile and submit weekly reports to NMFS (at 
[email protected] and [email protected]) that 
document the daily start and stop of all pile driving and HRG survey, 
the start and stop of associated observation periods by PSOs, details 
on the deployment of PSOs, a record of all detections of marine mammals 
(acoustic and visual), any mitigation actions (or if mitigation actions 
could not be taken, provide reasons why), and details on the noise 
attenuation system(s) used and its performance. Weekly reports are due 
on Wednesday for the previous week (Sunday-Saturday) and must include 
the information required under this section. The weekly report must 
also identify which turbines become operational and when (a map must be 
provided). Once all foundation pile installation is completed, weekly 
reports are no longer required;

[[Page 22786]]

    (6) Empire Wind must compile and submit monthly reports to NMFS (at 
[email protected] and [email protected]) that 
include a summary of all information in the weekly reports, including 
project activities carried out in the previous month, vessel transits 
(number, type of vessel, and route), number of piles installed, all 
detections of marine mammals, and any mitigative action taken. Monthly 
reports are due on the 15th of the month for the previous month. The 
monthly report must also identify which turbines become operational and 
when (a map must be provided). Once foundation installation is 
complete, monthly reports are no longer required;
    (7) Empire Wind must submit an annual report to NMFS (at 
[email protected] and [email protected]) no later 
than 90 days following the end of a given calendar year. Empire Wind 
must provide a final report within 30 days following resolution of 
comments on the draft report. The report must detail the following 
information:
    (i) The total number of marine mammals of each species/stock 
detected and how many were within the designated Level A harassment and 
Level B harassment zones with comparison to authorized take of marine 
mammals for the associated activity type;
    (ii) Marine mammal detections and behavioral observations before, 
during, and after each activity;
    (iii) What mitigation measures were implemented (i.e., number of 
shutdowns or clearance zone delays, etc.) or, if no mitigative actions 
was taken, why not;
    (iv) Operational details (i.e., days of impact and vibratory pile 
driving, days/amount of HRG survey effort etc.);
    (v) Any PAM systems used;
    (vi) The results, effectiveness, and which noise attenuation 
systems were used during relevant activities (i.e., impact pile 
driving);
    (vii) Summarized information related to Situational Reporting; and
    (viii) Any other important information relevant to the Empire Wind 
Project, including additional information that may be identified 
through the adaptive management process.
    (ix) The final annual report must be prepared and submitted within 
30 calendar days following the receipt of any comments from NMFS on the 
draft report. If no comments are received from NMFS within 60 calendar 
days of NMFS' receipt of the draft report, the report must be 
considered final.
    (8) Empire Wind must submit its draft final report to NMFS (at 
[email protected] and [email protected]) on all 
visual and acoustic monitoring conducted under the LOA within 90 
calendar days of the completion of activities occurring under the LOA. 
A final report must be prepared and submitted within 30 calendar days 
following receipt of any NMFS comments on the draft report. If no 
comments are received from NMFS within 30 calendar days of NMFS' 
receipt of the draft report, the report shall be considered final.
    (9) Empire Wind must submit situational reports if the following 
circumstances occur:
    (i) If a North Atlantic right whale is observed at any time by PSOs 
or personnel on or in the vicinity of any project vessel, or during 
vessel transit, Empire Wind must immediately report sighting 
information to the NMFS North Atlantic Right Whale Sighting Advisory 
System (866) 755-6622, through the WhaleAlert app (http://www.whalealert/org/), and to the U.S. Coast Guard via channel 16, as 
soon as feasible but no longer than 24 hours after the sighting. 
Information reported must include, at a minimum: time of sighting, 
location, and number of North Atlantic right whales observed.
    (ii) When an observation of a large whale occurs during vessel 
transit, the following information must be recorded and reported to 
NMFS:
    (A) Time, date, and location (latitude/longitude; in Decimal 
Degrees);
    (B) The vessel's activity, heading, and speed;
    (C) Sea state, water depth, and visibility;
    (D) Marine mammal identification to the best of the observer's 
ability (e.g., North Atlantic right whale, whale, dolphin, seal);
    (E) Initial distance and bearing to marine mammal from vessel and 
closest point of approach; and
    (F) Any avoidance measures taken in response to the marine mammal 
sighting.
    (iii) If a North Atlantic right whale is detected via PAM, the 
date, time, location (i.e., latitude and longitude of recorder) of the 
detection as well as the recording platform that had the detection must 
be reported to [email protected] as soon as feasible, but no 
longer than 24 hours after the detection. Full detection data and 
metadata must be submitted monthly on the 15th of every month for the 
previous month via the webform on the NMFS North Atlantic right whale 
Passive Acoustic Reporting System website (https://www.fisheries.noaa.gov/resource/document/passive-acoustic-reporting-system-templates);
    (iv) In the event that the personnel involved in the activities 
defined in Sec.  217.280(a) discover a stranded, entangled, injured, or 
dead marine mammal, Empire Wind must immediately report the observation 
to the NMFS Office of Protected Resources (OPR), the NMFS Greater 
Atlantic Stranding Coordinator for the New England/Mid-Atlantic area 
(866-755-6622), and the U.S. Coast Guard within 24 hours. If the injury 
or death was caused by a project activity, Empire Wind must immediately 
cease all activities until NMFS OPR is able to review the circumstances 
of the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the LOA. NMFS may 
impose additional measures to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Empire Wind may not resume 
their activities until notified by NMFS. The report must include the 
following information:
    (A) Time, date, and location (latitude/longitude; in Decimal 
Degrees) of the first discovery (and updated location information if 
known and applicable);
    (B) Species identification (if known) or description of the 
animal(s) involved;
    (C) Condition of the animal(s) (including carcass condition if the 
animal is dead);
    (D) Observed behaviors of the animal(s), if alive;
    (E) If available, photographs or video footage of the animal(s); 
and
    (F) General circumstances under which the animal was discovered.
    (v) In the event of a vessel strike of a marine mammal by any 
vessel associated with the Empire Wind Project, Empire Wind must 
immediately report the strike incident to the NMFS OPR and the NMFS 
Greater Atlantic Regional Fisheries Office (GARFO) within and no later 
than 24 hours. Empire Wind must immediately cease all on-water 
activities until NMFS OPR is able to review the circumstances of the 
incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the LOA. NMFS may 
impose additional measures to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Empire Wind may not resume 
their activities until notified by NMFS. The report must include the 
following information:
    (A) Time, date, and location (latitude/longitude; in Decimal 
Degrees) of the incident;

[[Page 22787]]

    (B) Species identification (if known) or description of the 
animal(s) involved;
    (C) Vessel's speed leading up to and during the incident;
    (D) Vessel's course/heading and what operations were being 
conducted (if applicable);
    (E) Status of all sound sources in use;
    (F) Description of avoidance measures/requirements that were in 
place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
    (G) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    (H) Estimated size and length of animal that was struck;
    (I) Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    (J) If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    (K) Estimated fate of the animal (e.g., dead, injured but alive, 
injured and moving, blood or tissue observed in the water, status 
unknown, disappeared); and
    (L) To the extent practicable, photographs or video footage of the 
animal(s).


Sec.  217.286  Letter of Authorization.

    (a) To incidentally take marine mammals pursuant to this subpart, 
Empire Wind must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the January 21, 2029, the expiration date 
of this subpart.
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, Empire Wind must 
apply for and obtain a modification of the LOA as described in Sec.  
217.287.
    (d) The LOA must set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under this subpart.
    (f) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.287  Modifications of Letter of Authorization.

    (a) An LOA issued under Sec. Sec.  217.282 and 217.286 or Sec.  
217.287 for the activity identified in Sec.  217.280(a) shall be 
modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for this subpart (excluding changes made 
pursuant to the adaptive management provision in paragraph (c)(1) of 
this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under this subpart regulations 
were implemented.
    (b) For a LOA modification request by the applicant that include 
changes to the activity or the mitigation, monitoring, or reporting 
(excluding changes made pursuant to the adaptive management provision 
in paragraph (c)(1) of this section) that do not change the findings 
made for this subpart or result in no more than a minor change in the 
total estimated number of takes (or distribution by species or years), 
NMFS may publish a notice of proposed LOA in the Federal Register, 
including the associated analysis of the change, and solicit public 
comment before issuing the LOA.
    (c) An LOA issued under Sec. Sec.  217.282 and 217.286 or Sec.  
217.287 for the activities identified in Sec.  217.280(a) may be 
modified by NMFS under the following circumstances:
    (1) Through adaptive management, NMFS may modify (including 
augment) the existing mitigation, monitoring, or reporting measures 
(after consulting with Empire Wind regarding the practicability of the 
modifications, if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from Empire Wind's monitoring from the previous 
year(s);
    (B) Results from other marine mammals and/or sound research or 
studies;
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by this subpart or 
subsequent LOA; and
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
shall publish a notice of proposed LOA in the Federal Register and 
solicit public comment;
    (2) If NMFS determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in the LOA issued pursuant to Sec. Sec.  217.282 and 
217.286 or Sec.  217.287, an LOA may be modified without prior notice 
or opportunity for public comment. Notice would be published in the 
Federal Register within thirty days of the action.


Sec.  Sec.  217.288-217.289  [Reserved]

[FR Doc. 2023-07417 Filed 4-12-23; 8:45 am]
BILLING CODE 3510-22-P