Safety Zone; Empire Wind 1 Wind Farm Project Area, Outer Continental Shelf, Lease OCS–A 0512, Offshore New York and New Jersey, Atlantic Ocean

Safety Zone; Empire Wind 1 Wind Farm Project Area, Outer Continental Shelf, Lease OCS-A 0512, Offshore New York and New Jersey, Atlantic Ocean

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

BOEM Bureau of Ocean Energy Management

COP Construction and Operations Plan

CFR Code of Federal Regulations

DD Degrees Decimal

DHS Department of Homeland Security

EW1 Empire Wind 1

FR Federal Register

LNM Local Notice to Mariners

MSIB Marine Safety Information Bulletin

NJ New Jersey

NY New York

NAD 83 North American Datum of 1983

NPRM Notice of Proposed Rulemaking

NOAA National Oceanic and Atmospheric Administration

NM Nautical Mile

OCS Outer Continental Shelf

OSS Offshore Substation

§ Section

U.S.C. United States Code

VHF Very High Frequency

WTG Wind Turbine Generator

II. Background Information and Regulatory History

The Energy Policy Act of 2005, Public Law 109-58, amended the Outer Continental Shelf Lands Act, 43 U.S.C. 1331 et seq., by adding a new subsection 8(p) to authorize the Secretary of the Interior to issue leases, easements, and rights-of-way in the Outer Continental Shelf (OCS) for renewable energy development, including wind energy projects. The Secretary of the Interior delegated to the Bureau of Ocean Energy Management (BOEM) the authority to decide whether to approve Construction and Operations Plans (COPs) for such projects. ⁽¹⁾

Empire Offshore Wind LLC, an offshore wind farm developer, proposed to develop two clusters of offshore wind energy facilities, known as Empire Wind 1 (EW1) and Empire Wind 2, just outside of the Port of New York and New Jersey. On February 22, 2024, BOEM announced its approval of Empire Wind's COP, which authorizes the offshore construction and operation of the wind energy project, consisting of both clusters of facilities. That was the project's final approval from BOEM, following the agency's Record of Decision (ROD) approving the project. ⁽²⁾

Empire Offshore Wind notified the Coast Guard that they plan to begin construction of the facilities in the EW1 Wind Farm project area, which lies within Federal waters on the OCS. The construction, which may begin as early as March 2025, will occur in a portion of the BOEM Renewable Energy Lease Area OCS-A 0512. That lease area lies approximately 12 nautical miles (NM) offshore, south of Long Island, New York (NY), and 17 NM offshore east of Long Branch, New Jersey (NJ).

On October 22, 2024, after determining that the establishment of safety zones was necessary to provide for the safety of life, property, and the environment during the anticipated construction of the structures, the Coast Guard published a notice of proposed rulemaking (NPRM) titled "Safety Zone; Empire Wind 1 Wind Farm Project Area, Outer Continental Shelf, Lease OCS-A 0512, Offshore New York and New Jersey, Atlantic Ocean" (89 FR 84316). There, we explained the basis for the NPRM and invited comments on our proposed regulatory action related to the establishment of safety zones around the construction of 54 Wind Turbine Generators (WTG) and one Offshore Sub Station (OSS) located in the EW1 project area. We received 42 written submissions during the comment period that ended November 21, 2024.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because action is needed to ensure public safety during construction by March 10, 2025. Construction of the wind energy facilities may begin by then, and the rule must in place by then in order to mitigate the potential safety hazards associated with construction.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under the authority provided in 14 U.S.C. 544, 43 U.S.C. 1333, and Department of Homeland Security (DHS) Delegation No. 00170.1, Revision No. 01.4. Our regulations in 33 CFR part 147, which implement these authorities, permit the establishment of safety zones for non-mineral energy resource, permanent or temporary structures located on the OCS. As explained in 33 CFR 147.1, safety zones under part 147 may be established around OCS facilities being constructed, maintained, or operated on the OCS. Such safety zones may be established to promote the safety of life and property on the facilities, their appurtenances, and attending vessels, and on the adjacent waters within the safety zones. They may include provisions to protect the environment, such as measures to protect the living resources of the sea from harmful agents.

IV. Discussion of Comments, Changes, and the Rule

As noted above, the Coast Guard received 42 written submissions to our NPRM published October 22, 2024. The comments in these submissions were thoroughly considered and the First Coast Guard District Commander has determined that establishment of 55 temporary safety zones through rulemaking is warranted to ensure the safety of life, property, and the environment within a 500-meter radius of each of the 55 facilities during their construction.

Two of the 42 submissions were supportive of the 55 temporary 500-meter safety zones. One submission pointed out a technical error in the proposed rule, and the remaining 39 were opposed to the rule as proposed. One of the two supportive submission stated the reasoning for their support to our proposed rule was to "reduce the risk for onsite workers." The other supporter of our proposed rule stated their support was to ensure the safe execution of the project.

The remaining 39 submissions opposed the proposed rule. These submissions communicated their opposition to wind farm construction in general and not necessarily to the creation of safety zones around this construction. As explained in the Background section, however, the Coast Guard does not have approval authority over the wind farm project, and this rule is not proposing to approve of the construction or operation of the project itself. Thus, comments on the merits of this wind farm project, or of wind farms in general, are outside the scope of this rulemaking.

One commenter specifically disagreed with the Environmental Planning and Historic Preservation program Decision Support System document finding that our rule is not a piece of or connected to the larger action of offshore wind development generally and requested a more comprehensive assessment of how the U.S. Coast Guard will meet our regulatory obligations. The Coast Guard is not, however, the decision-maker responsible for approval of the project. If the commenter believes that BOEM did not adequately consider environmental impacts flowing from the need to address navigational concerns during construction as part of BOEM's approval of the project, the commenter should direct those concerns to BOEM. The Coast Guard's role in this project is simply to consider and mitigate potential hazards to navigation as construction of the project proceeds. A failure to mitigate those hazards to navigation sufficiently may result in loss of life, damage to property, and environmental harm resulting from mishaps, but it has no bearing on whether or not the project will proceed, or on how the wind farm facilities will be regulated in the present or future.

A second commenter criticizing the safety zone rule stated that our proposed rule failed to provide clear enforcement strategies and implementation. As an implementing regulation of this authority, 33 CFR part 147 permits the establishment of safety zones for non-mineral energy resource permanent or temporary structures located on the OCS for the purpose of protecting life and property on the facilities, appurtenances and attending vessels, and on the adjacent waters within the safety zone (see 33 CFR 147.10). Accordingly, a safety zone established under 33 CFR part 147 may also include provisions to restrict, prevent, or control certain activities, including access by vessels or persons to maintain safety of life, property, and the environment. Coast Guard authorities direct us to assess the potential safety risks associated with such complex and unusually hazardous construction projects and require establishment of the safety zones to ensure the safety of life, property, and the environment. Violations of our rule may be processed in accordance with 33 CFR 140.40 on civil and criminal penalty proceedings.

Another commenter felt that a 500-meter safety zone was too small to protect marine life from sound and other pressure disturbances caused by offshore wind construction activities and recommended that we increase the size of the safety zones to protect marine life. In response, we point to 33 CFR 147.15, which limits our OCS safety zones to a maximum distance of 500 meters around an OCS facility.

Another commenter, who anticipates transiting the area as a recreational fisherman, had three objections to our proposed rule to create 55 temporary 500-meter safety zones during construction of these OCS facilities to protect life, property, and the environment, and offered some thoughts for the Coast Guard to consider.

First, the commenter expressed their concern that all 55 locations could be enforced at the same time, effectively closing the entire area all at once, and suggested the proposed regulation should define how many zones can be enforced at any one time. The Coast Guard does not control the schedule for construction, so we cannot set the number of safety zones that can be enforced at one time. But, as explained in the next paragraph, we do not anticipate that all 55 safety zones will be enforced at the same time.

As we stated in the proposed rule, each safety zone would only be enforced during active major construction, which could occur at several locations, sometimes simultaneously. We anticipate the "active major construction" will take place when there is a concentration of large stationary vessels and barges operating in close proximity to the facilities and to each other during hydraulic pile driving hammer operations and heavy lift operations. However, due to the limited number of specialized vessels available to complete this type of major offshore construction, enforcement of all of the 55 safety zones simultaneously, as the commenter suggests, is highly improbable.

Second, the commenter expressed a concern that a 500-meter safety zone was more than sufficient for smaller more maneuverable vessels and recommended we reduce the safety zones 500-meters to a lesser distance. When considering the total number of construction vessels and the concentration of these large stationary vessels and barges operating in close proximity to the facilities and each other during active major construction we believe that enforcement of the 500-meter zone is most appropriate for this offshore construction project while ensuring there is a balance between safety and reducing impact on vessel transit.

Finally, the commenter asked how mariners will be alerted to which zones are being enforced. As stated in the proposed rule, the Coast Guard will make notice of each enforcement period via the First Coast Guard District Local Notice to Mariners (LNM). The LNM has historically been the primary means for disseminating information concerning aids to navigation, hazards to navigation, and other marine information of interest to mariners on the waters of the United States. The First Coast Guard District LNM is available online and can be found at its dedicated website https://www.navcen.uscg.gov/msi. Notices are published weekly. Interested parties may subscribe to receive email updates at https://service.govdelivery.com/accounts/USDHSCG/subscriber/new?topic_id=USDHSCG_65 . The Coast Guard believes the use of the LNM to be the most efficient means to distribute information concerning enforcement periods for these safety zones.

The rule states that the Coast Guard will issue a Broadcast Notice to Mariners (BNM) via marine channel 16 (VHF-FM) as soon as practicable in response to an emergency or hazardous condition. The Coast Guard now offers an online subscription service in addition to the standard VHF BNM broadcasts which, traditionally, was the only method to receive this vital navigational information. Mariners may now use a subscription service to plan for underway periods and can receive updates to navigational hazards in near-real-time without waiting on scheduled VHF broadcasts. Sign up to receive BNMs via email for your waterway at https://www.navcen.uscg.gov/subscribe-email-rss-feeds.

The Coast Guard will also issue Safety Marine Information Broadcasts (SMIB) via marine channel 16 (VHF-FM) for each Safety Zone starting an hour before and broadcasting four times per day for the duration of the safety zone and Marine Safety Information Bulletins (MSIB) are distributed via email. MSIBs will also be posted on Coast Guard Sector New York's Homeport at https://homeport.uscg.mil/port-directory/new-york.

Additionally, Empire Wind will provide dedicated safety and scout vessels on scene to provide up-to-date advisory information.

A comment submitted by a cartographer from the Office of Coast Survey of the National Oceanic and Atmospheric Administration (NOAA), pointed out a technical error. The horizontal datum being used, "NAD 83," was mentioned in the discussion of our proposed rule, but it is not included with the regulatory text for the center point positions given in table 1 to paragraph (a). In response to this comment, the Coast Guard has added the horizontal datum to table 1 to paragraph (a) in the regulatory text.

The remaining opposing comments expressed concerns about wind farm construction projects, and stated their general opposition to all similar construction projects in the region. The Coast Guard acknowledges these comments and concerns, but notes, as stated above, that these are outside the scope of this rulemaking. Coast Guard authorities direct us to assess the potential safety risks associated with complex and unusually hazardous construction projects such as these, and to allows for the mitigation of such risks through the establishment of the safety zones to ensure the safety of life, property, and the environment.

The First Coast Guard District has factored applicable statutes and regulations into the subject rule. Applicable Authorities are cited in Section III.

After considering the comments discussed above, the Coast Guard determined that no additional changes besides adding the datum being used as suggested by NOAA should be made to the regulatory text. As written, the Coast Guard believes that the rule ensures consistency, sufficient notice, and improved safety while minimizing impact on vessel transit.

The District Commander is establishing 55 temporary 500-meter safety zones around the construction of 54 wind turbine generators (WTGs) and one offshore substation (OSS) on the OCS from March 10, 2025, through 11:59 p.m. on February 29, 2028.

The construction of these facilities is expected to repeatedly include the installation of the foundations followed by the installation of the upper structures for all 55 facilities. Major construction activity could take place for a period lasting approximately 96 hours or more at several locations, sometimes simultaneously, in the lease area for these 55 facilities. The Coast Guard will provide notice of each enforcement period via the Local Notice to Mariners and issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) as soon as practicable in response to an emergency or hazardous condition. The Coast Guard is publishing this rulemaking to be effective, and enforceable, through February 29, 2028, to encompass any construction delays due to weather or other unforeseen circumstances. If, as currently scheduled, the project is completed before February 29, 2028, enforcement of the safety zones would be suspended, and notice given via Local Notice to Mariners.

Additional information about the construction process of the EW1 can be found at https://www.boem.gov/renewable-energy/state-activities/empire-wind.

The 55 temporary 500-meter safety zones around the construction of 54 WTGs and one OSS are in the EW1 project area, specifically in a portion of the BOEM Renewable Energy Lease Area OCS-A 0512, approximately 12 NM offshore south of Long Island, NY, and 17 NM offshore east of Long Branch, NJ.

The positions of each individual safety zone are referred to using a unique alpha-numeric naming convention as shown in table 1 below.

Aligning with authorities under 33 CFR 147.15, the safety zones include the area within 500-meters of the center point of the positions provided in the table below expressed in Degrees (°) Minutes (′) Seconds (″) (DMS) based on North American Datum 1983 (NAD 83).

The positions of the 55 safety zones are shown on the chartlets in figures 1-3 below. For scaling purposes, there is approximately 0.65 NM spacing between each position in the figure 1-3.

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Navigation in the vicinity of the safety zones consists of large commercial shipping vessels, fishing vessels, cruise ships, tugs with tows, and recreational vessels.

When enforced, no unauthorized vessel or person would be permitted to enter the safety zone without obtaining permission from the First Coast Guard District Commander or a designated representative. Requests for entry into the safety zone would be considered and reviewed on a case-by-case basis. Persons or vessels seeking to enter the safety zone must request authorization from the First Coast Guard District Commander or designated representative via VHF-FM channel 16 or by phone at 866-842-1560 (First Coast Guard District Command Center). If permission is granted, all persons and vessels must comply with the instructions of the First Coast Guard District Commander or designated representative.

The regulatory text, which appears at the end of this document, is unchanged from the text proposed in the NPRM except with the addition of the datum being used.

IV. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. A summary of our analyses based on these statutes and Executive Orders follows.

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a "significant regulatory action," under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

Aligning with 33 CFR 147.15, the safety zones established would extend to a maximum distance of 500-meters around the OCS facility measured from its center point. Vessel traffic would be able to safely transit around the safety zones, which would impact a small, designated area in the Atlantic Ocean, without significant impediment to their voyage. This safety zone would provide for the safety of life, property, and the environment during the construction of each structure, in accordance with Coast Guard maritime safety missions.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term "small entities" comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect owners or operators of vessels intending to transit or anchor in the EW1 project area, some of which might be small entities. However, these safety zones would not have a significant economic impact on a substantial number of these entities because they will be temporarily enforced, allow for deviation requests, and do not impact vessel transit significantly. Regarding the enforcement period, although these safety zones would be in effect from March 10, 2025, through February 29, 2028, vessels would only be prohibited from the regulated zone during periods of actual construction activity in correspondence to the period of enforcement. We expect the enforcement period at each location to last for only a short period. Additionally, vessel traffic could pass safely around each safety zone using an alternate route. Use of an alternate route likely will cause minimal delay for the vessel in reaching their destination depending on other traffic in the area and vessel speed. Lastly, vessels would also be able to request deviation from this rule to transit through a safety zone. Such requests would be considered on a case by-case basis and may be authorized by the First Coast Guard District Commander or a designated representative. For these reasons, the Coast Guard expects any impact of this rulemaking establishing a temporary safety zone around these OCS facilities to be minimal and have no significant economic impact on small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

This rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have Tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the potential effects of this rule elsewhere in this preamble.

F. Environment

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zones around an OCS facility to protect life, property, and the marine environment. It is categorically excluded from further review under paragraph L60(a) of appendix A, table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

G. Protest Activities

Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard is amending 33 CFR part 147 as follows:

PART 147-SAFETY ZONES

[FR Doc. 2025-06188 Filed 4-10-25; 8:45 am]

BILLING CODE 9110-04-P

⁽¹⁾  See p. 5 of the Record of Decision for the Empire Offshore Wind Project (EW 1 and EW2) Construction and Operations Plan (November 20, 2023). It is available at: https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Empire%20Wind%20OCA-A%200512%20ROD%20signed.pdf.

⁽²⁾  BOEM announced the availability of the ROD on November 28, 2023, at 88 FR 83146.