Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction of the Vineyard Wind Offshore Wind Project, 33810-33851 [2021-13501]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Notices]
[Pages 33810-33851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13501]



[[Page 33809]]

Vol. 86

Friday,

No. 120

June 25, 2021

Part II





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to Construction of the Vineyard Wind Offshore 
Wind Project; Notice

Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / 
Notices

[[Page 33810]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA881]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Construction of the Vineyard Wind 
Offshore Wind Project

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Vineyard Wind 1, LLC (Vineyard Wind) to take, by Level A harassment and 
Level B harassment, marine mammals during construction of a commercial 
wind energy project offshore Massachusetts.

DATES: The IHA is valid from May 1, 2023 through April 30, 2024.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    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 and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    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 such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On September 7, 2018, NMFS received a request from Vineyard Wind 
for an IHA to take marine mammals incidental to pile driving associated 
with the construction of an offshore wind energy project south of 
Massachusetts. Vineyard Wind submitted revised versions of the 
application on October 11, 2018 and on January 28, 2019. The 
application was deemed adequate and complete on February 15, 2019. A 
notice of proposed IHA was published in the Federal Register on April 
30, 2019 (84 FR 18346). In response to Vineyard Wind's request and in 
consideration of public comments, NMFS has authorized the taking of 15 
species of marine mammals by harassment. Neither Vineyard Wind nor NMFS 
expects serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.

Description of Activity

    Vineyard Wind proposes to construct an 800 megawatt (mw) offshore 
wind energy project in the northern portion of Lease Area OCS-A 0501, 
offshore Massachusetts (Figure 1). In its request for an IHA, Vineyard 
Wind states that the project would consist of up to 100 offshore wind 
turbine generators (WTGs) and one or more electrical service platforms 
(ESPs), an onshore substation, offshore and onshore cabling, and 
onshore operations and maintenance facilities. Take of marine mammals 
may occur incidental to the construction of the project due to in-water 
noise exposure resulting from pile driving activities associated with 
installation of WTG and ESP foundations.
BILLING CODE 3510-22-P

[[Page 33811]]

[GRAPHIC] [TIFF OMITTED] TN25JN21.000

BILLING CODE 3510-22-C
    Vineyard Wind plans to install the WTGs and ESPs between May and 
November in the northeast portion of the 675 square kilometer (km\2\) 
(166,886 acre) Lease Area, referred to as the Wind Development Area 
(WDA) (See Figure 1 in the IHA application). At its nearest point, the 
WDA is just over 23 km (14 mi) from the southeast corner of Martha's 
Vineyard and a similar distance from Nantucket. Water depths in the WDA 
range from approximately 37-49.5 meters (m) (121-162 feet (ft)). 
Construction of the project is planned to commence in May 2023. Up to 
102 days of pile driving may occur between May 1 and November 30. Pile 
driving in December would only occur if unforeseen circumstances arise 
such that construction is not complete by November and the Bureau of 
Ocean Energy Management (BOEM) approves pile driving during December. 
No pile driving activities would occur from January 1 through April 30 
under any circumstances.
    Two potential foundation types are proposed for the project: 
Monopiles and jackets. A monopile is a single, hollow cylinder 
fabricated from steel that is secured in the seabed while the jacket 
design concept consists of three to four steel piles, a large lattice 
jacket structure, and a transition piece. Piles for monopile 
foundations would be constructed for specific locations with maximum 
diameters ranging from ~8 m (26.2 ft) up to 10.3 m (33.8 ft) and an 
expected median diameter of ~9 m (29.5 ft). The piles for the monopile 
foundations are up to 95 m (311.7 ft) in length and will be driven to a 
penetration depth of 20-45 m (65.6-147.6 ft) (mean penetration depth 30 
m

[[Page 33812]]

(98.4 ft)). A schematic diagram showing potential heights and 
dimensions of the various components of a monopile foundation are shown 
in Figure 2 of the IHA application. Jacket foundations each require the 
installation of three to four jacket securing piles, known as jacket 
pin piles, of ~3 m (9.8 ft) diameter. The 3 m (9.8 ft) diameter jacket 
piles for the jacket foundations are up to ~65 m (213.3 ft) in length 
and would be driven to a penetration depth of 30-75 m (98.4-196.9 ft) 
(mean penetration depth of 45 m (147. ft)). A schematic diagram showing 
potential heights and dimensions of the various components of a jacket 
foundation are shown in Figure 3 of the IHA application.
    WTGs and ESPs may be placed on either type of foundation. Vineyard 
Wind has proposed that up to 100 WTG foundations may be constructed and 
that, of those 100 foundations, no more than 10 may be jackets. In 
addition, either one or two ESPs would be built on a jacket foundation 
(each foundation is comprised of four piles). Therefore up to 108 piles 
may be installed in the WDA. Vineyard Wind has incorporated more than 
one design scenario in their planning of the project. This approach, 
called the ``design envelope'' concept, allows for flexibility on the 
part of the developer, in recognition of the fact that offshore wind 
technology and installation techniques are constantly evolving and 
exact specifications of the project are not yet certain as of the 
publishing of this document. Variables that are not yet certain include 
the number, size, and configuration of WTGs and ESPs and their 
foundations, and the number of foundations that may be installed per 
day (a maximum of two foundations would be installed per day). The 
flexibility provided in the envelope concept is important because it 
precludes the need for numerous authorization modifications as 
infrastructure or construction techniques evolve after authorizations 
are granted but before construction commences. Under the maximum design 
scenario in Vineyard Wind's IHA application, where 100 WTGs are 
installed on monopiles, a total of as many as 108 piles may be driven 
(i.e., 100 monopiles for WTG foundations and 8 pin piles for two ESPs). 
Specifications for both foundation types are shown in Table 1.

                   Table 1--Foundation Types and Specifications for the Vineyard Wind Project
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                                                                                                  Maximum number
         Foundation type              Pile diameter         Pile length       Penetration depth     that may be
                                                                                                    installed *
----------------------------------------------------------------------------------------------------------------
Monopile.........................  ~8 to ~10.3 m (26.2  ~60 m up to ~95 m    20-45 m (65.6-147.6             100
                                    to 33.8 ft).         (196.9-311.7 ft).    ft).
Jacket (4 piles each)............  3 m (9.8 ft).......  ~65 m (213.3 ft)...  30-75 m (98.4-196.9               2
                                                                              ft).
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* The total number of foundations installed would not exceed 102.

    For monopile installation, a typical pile driving operation is 
expected to take less than approximately three hours to achieve the 
target penetration depth. It is anticipated that a maximum of two 
monopiles could potentially be driven into the seabed per day. 
Concurrent driving (i.e., the driving of more than one pile at the same 
time) would not occur.
    A detailed description of Vineyard Wind's planned construction 
activities is provided in the notice of proposed IHA (84 FR 18346; 
April 30, 2019). Since that time, Vineyard Wind has not proposed any 
changes to its construction activities through the IHA process. 
Therefore, a detailed description is not provided here. Please refer to 
that notice for the detailed description of the specified activity. 
Mitigation, monitoring, and reporting measures are described in detail 
later in this document (please see Mitigation and Monitoring and 
Reporting below). Modifications and additions to the mitigation and 
monitoring measures have occurred since the proposed IHA. All changes 
since the proposed IHA have been summarized in the Changes From 
Proposed IHA to Final IHA section and described in detail in their 
respective sections and/or the Comment Responses below.

Comments and Responses

    A notice of proposed IHA was published in the Federal Register on 
April 30, 2019 (84 FR 18346). During the 30-day public comment period, 
NMFS received comment letters from the Atlantic Offshore Lobstermen's 
Association (AOLA), the Marine Mammal Commission (Commission), Gatzke 
Dillon & Ballance LLP representing ACK Residents Against Turbines, and 
a group of environmental non-governmental organizations (ENGOs) 
including Conservation Law Foundation, National Wildlife Federation, 
Natural Resources Defense Council, Defenders of Wildlife, Humane 
Society of the United States, Humane Society Legislative Fund, Whale 
and Dolphin Conservation, International Fund for Animal Welfare, Mass 
Audubon, NY4WHALES, and Inland Ocean Coalition. NMFS has posted the 
comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Please see those letters for full detail regarding the 
commenters' recommendations and underlying rationale.
    Comment 1: The Commission recommended that NMFS (1) authorize takes 
of the various marine mammal species that could occur during vibratory 
pile driving and (2) require Vineyard Wind conduct and report sound 
source and sound propagation measurements during vibratory pile driving 
and adjust the Level A and B harassment zones, as needed.
    Response: According to Vineyard Wind, vibratory driving is not 
planned and would only be used in extraordinary circumstances in the 
event that impact driving is not sufficient to ensure pile stability. 
Vineyard Wind is using a pile gripper to hold the pile in place during 
impact hammering. If that pile gripper fails (which is not 
anticipated), Vineyard Wind would either stand-down and fix the pile 
gripper or be forced to bring in a vibratory hammer to install the pile 
deep enough so that it is stable before moving to an impact hammer to 
finish installing the pile. This is an extremely unlikely scenario. As 
described in Vineyard Wind's application, if it becomes necessary to 
use a vibratory hammer, the average driving time to get the pile 
stabilized is anticipated to be 10 minutes (with a rare case of up to 
30 minutes). Because use of a vibratory hammer would be extremely 
costly, this option would be utilized only if absolutely necessary and 
for the minimum amount of time possible (as

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necessary to repair the pile gripper). For those limited number of 
piles partially installed with a vibratory hammer, less strikes of the 
impact hammer would be required to fully install the pile. Because of 
stability issues, use of a vibratory hammer and impact hammer would 
occur on the same day.
    As vibratory driving is not considered likely to occur and, if it 
did occur, less impact driving would be necessary, we have determined 
that additional modelling specifically to generate an estimate of take 
for this unlikely, brief activity is not warranted. If this vibratory 
driving were to occur, and if any small number of marine mammals not 
already disturbed by the impact driving in the same day were taken, the 
existing conservative amount of take authorized is adequate to account 
for any take that may occur during vibratory pile driving. Likewise, we 
have determined that a requirement for vibratory driving sound source 
verification is not warranted given that it is unlikely that this 
activity will occur and, if it did, would occur only temporarily on a 
limited number of piles for a limited duration (approximately 10 
minutes per pile). We anticipate that if Vineyard Wind determines that 
the unexpected use of a vibratory hammer is necessary, they will 
consult with NMFS upon making that decision.
    Comment 2: The Commission recommended that NMFS consult with 
external scientists and acousticians to determine the appropriate 
accumulation time that action proponents should use to determine the 
extent of the Level A harassment zones based on the associated 
[cumulative sound exposure level] SELcum thresholds for the various 
types of sound sources, including stationary sound sources and that 
NMFS make the issue a priority.
    Response: NMFS concurs with this recommendation and has prioritized 
the issue. As identified in the Commission's letter, NMFS has formed an 
internal committee to identify a more sophisticated approach for 
determining the extent of Level A harassment zones and is developing a 
proposal upon which additional internal and external review will be 
sought. Specific to this IHA, the Commission takes issue that the Level 
A harassment isopleth for jacket foundation installation (based on the 
installation of 4 piles in a 24-hour period) is greater than the Level 
B harassment isopleth and based on the extent of those zones, it is 
assumed that an animal would experience permanent threshold shift (PTS) 
before responding behaviorally and leaving or avoiding the area. 
However, the Commission simplifies application of the zone with such 
assumption in that they consider if an animal enters the Level A 
harassment zone, it would incur PTS upon entering, similar to how we 
consider the potential for Level B harassment to occur. This in fact is 
not the case, as the distance to the PTS isopleth represents the 
distance at which the animal would have to remain during installation 
of all four piles. NMFS recognizes calculating a zone based on work 
occurring over 24 hours is highly conservative; however, the zone does 
not represent the area in which PTS would occur simply if an animal 
enters the zone, as interpreted by the Commission. Further, Vineyard 
Wind conducted modeling using sophisticated sound propagation and 
animat modeling. The Commission identified in its letter that it 
supports the 24-hour approach if an action proponent is able to conduct 
more sophisticated sound propagation and animat modeling. Therefore, 
the Commission is contradictory in its comment specific to this action. 
NMFS has determined the modeling results represent likely zones by 
which we identify the potential for PTS and behavioral harassment to 
occur; however, NMFS appropriately considers the temporal component 
associated with the Level A harassment zone when considering the 
potential for PTS to occur.
    Comment 3: The Commission recommended that NMFS reassess the 
numbers of Level A harassment takes for low-frequency cetaceans and 
revise authorized take numbers such that the Level A harassment takes 
account for 77 percent of total takes for installation of monopiles and 
100 percent of the total takes for jacket piles.
    Response: The Commission suggests that the ratio of authorized 
takes by Level A harassment to takes by Level B harassment for low-
frequency cetaceans should exactly match the ratio of the Level A 
harassment to Level B harassment zone sizes. However, as noted in the 
Commission's comment, takes by Level A harassment and takes by Level B 
harassment are modeled differently, with the Level A harassment zones 
calculated with dual metrics (i.e., SELcum and peak sound pressure 
level (SPL)). The Level A harassment zone cited by the Commission in 
their comment (i.e., 3,191 m for impact driving for low-frequency 
cetaceans) is calculated with the SELcum metric and thereby 
incorporates a time component. As described in our response to comment 
2 above, while this zone based on the SELcum metric is used as a 
conservative tool for modeling potential exposures above the Level A 
harassment threshold, an animal documented within that zone does not 
necessarily mean that animal was taken by Level A harassment when 
observed within that zone. In contrast, the takes by Level B harassment 
are based on an instantaneous step function wherein the animal could 
experience Level B harassment as soon as it is exposed to sound levels 
above the 160 dB re 1 microPascal ([mu]Pa) root mean square (rms) 
threshold. Therefore, directly comparing zone sizes is not an 
appropriate approach. Moreover, suggesting the amount of take allocated 
to Level A harassment and Level B harassment should be proportional to 
zone sizes is not reflective of what the zones represent and therefore 
would be a misrepresentation of potential effects on marine mammals. In 
addition, as noted in the proposed IHA and as described below, the 
authorized number of takes by Level A harassment are already considered 
conservative, as there were 0 takes by Level A harassment modeled for 
the majority of species (including with the SELcum metric) and, in some 
cases, we increased the authorized number of takes by Level A 
harassment from 0 to mean group size based on a conservative assumption 
that a group of each species may be taken despite the modeling results. 
Further, take estimate modeling does not account for mitigation and 
monitoring measures included in the IHA. Thus, we reject the 
Commission's recommendation as the authorized numbers of takes by Level 
A harassment are sufficient and do not warrant revision.
    Comment 4: The Commission recommends that NMFS reassess the numbers 
of Level B harassment takes for all species and authorize an 
appropriate number of takes relative to the extent of the Level B 
harassment zones, each species' occurrence in the area, and the 102 
days that activities are proposed to occur.
    Response: The current numbers of takes by Level B harassment 
authorized are considered conservative for several reasons: Takes were 
modeled separately for each species through exposure modeling which was 
run for four separate construction scenarios and the largest resulting 
exposure number from the four scenarios was carried forward. Thus the 
number that was carried forward was from the ``maximum case scenario'' 
in terms of possible construction scenarios. All of the construction 
scenarios used in the modeling assumed 102 foundations would be 
installed when ultimately fewer foundations, resulting in fewer pile 
driving days, may be installed. For comparison, takes by Level B

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harassment were also calculated for each species using Vineyard Wind's 
observer data from site characterization surveys. Vineyard Wind 
reviewed monitoring data recorded during site characterization surveys 
in the WDA from 2016-2018 and calculated a daily sighting rate 
(individuals per day) for each species in each year, then multiplied 
the maximum sighting rate from the three years by the number of pile 
driving days under the Maximum Design scenario (i.e., 102 days). This 
method assumes that the largest average group size for each species 
observed during the three years of surveys may be present during piling 
on each day. Then, the larger of the two take numbers calculated for 
each species (i.e., through exposure modeling or calculated based on 
Vineyard Wind's monitoring data) was then carried forward as the 
authorized take number. For these reasons, the authorized take numbers 
by Level B harassment are sufficient, and we have determined that no 
revision to authorized numbers of takes by Level B harassment are 
warranted (aside from the minor revisions described in the Estimated 
Take section below).
    With respect to comparing the authorized amount of take here with 
HRG surveys, we find the Commission inappropriately compared the amount 
of take associated with HRG surveys to pile driving activities. The 
Commission made this recommendation based on the number of days without 
considering the daily amount of hours during which the activities 
occur. For example, 40 days of HRG surveys occur over a 24-hour period 
daily while pile driving associated with the Vineyard Wind project is 
limited to the installation of one to two piles per day (approximately 
3 hours of pile driving per pile which is significantly less than 24 
hours). While the number of hours of work per day is not part of the 
take calculation, it does play a role in making a direct comparison 
between take allocated for the two activities (i.e., site 
characterization versus pile driving). Moreover, many delphinid species 
(e.g., bottlenose dolphins) are attracted to HRG vessels, resulting in 
unavoidable take during the surveys. Impact pile driving; however, is 
not an activity expected to attract marine mammals. To compare the 
amount of take authorized from the proposed project to HRG surveys is 
inappropriate. Finally, while the Commission identifies the amount of 
take authorized to Bay State Wind for HRG surveys for some species 
(e.g., bottlenose dolphins), the subsequent monitoring report required 
under Bay State Wind's IHA showed detections of only a small fraction 
of the number of marine mammals authorized for Level B harassment take 
(Bay State Wind, 2019). For the reasons stated above, we find the 
authorized amount of take to Vineyard Wind, by Level B harassment, is 
sufficient considering the scope of the project.
    Comment 5: The Commission recommended that NMFS require Vineyard 
Wind to (1) submit the results of the sound source measurements taken 
during installation of the first monopile for which sound attenuation 
devices are used and adjust the Level A and B harassment zones 
accordingly prior to proceeding with installation of any additional 
monopiles and (2) conduct sound source measurements at least monthly to 
ensure that the sound attenuation device continues to provide at least 
a 6-dB reduction in sound levels.
    Response: The IHA includes extensive acoustic monitoring 
requirements. The IHA requires that sound field measurements must be 
conducted during pile driving of the first monopile and first jacket 
foundation installed over the course of the project and that Vineyard 
Wind must provide the initial results of the field measurements to NMFS 
as soon as they are available. In the event that subsequently driven 
piles are installed that have a larger diameter, or, are installed with 
a larger hammer or greater hammer energy than the first monopile and 
jacket pile, sound field measurements must be conducted for those 
subsequent piles. If initial acoustic field measurements indicate 
distances to the isopleths corresponding to Level A and/or Level B 
harassment thresholds are greater than the distances predicted by 
modeling (as presented in the IHA application), Vineyard Wind must 
implement additional sound attenuation measures prior to conducting 
additional pile driving. Additionally, in the event that field 
measurements indicate distances the isopleths corresponding to Level A 
harassment and Level B harassment thresholds are greater than the 
distances predicted by modeling, Vineyard Wind must implement 
additional attenuation devices such that modeled harassment threshold 
distances (or smaller) based on a 6 dB reduction are realized in the 
field. If an additional device(s) still does not achieve the model 
results and Vineyard Wind has no other means to reduce noise levels 
(e.g., reduced hammer energy), Vineyard Wind must expand the harassment 
zones to reflect field measurements, in consultation with NMFS.
    Regarding the Commission's recommendation to require Vineyard Wind 
to conduct sound source measurements at least monthly to ensure that 
the sound attenuation device continues to provide at least a 6-dB 
reduction in sound levels, we do not agree this is warranted. Vineyard 
Wind is required to conduct acoustic monitoring upon commencement of 
installing each foundation type and demonstrate that the piles 
monitored are done so under conditions that are reflective of 
conditions for other piles installed across the WDA (e.g., similar 
substrate, hammer energy, etc.). If Vineyard Wind finds noise levels 
associated with the project are higher than modeled (assuming 6 dB 
attenuation), mitigative action is required and acoustic monitoring 
must continue. If noise levels are less than those predicted, Vineyard 
Wind must conduct monitoring on at least 3 monopiles and again 
demonstrate the pile monitored are installed under conditions 
representative of future piles to ensure any variability is captured. 
These measures are sufficient to ensure the sound field produced during 
pile driving is well understood throughout construction.
    Comment 6: The Commission recommended that NMFS require Vineyard 
Wind to conduct passive acoustic monitoring (PAM) at all times during 
which pile-driving activities occur and implement shutdowns when NARWs 
are detected within Level A harassment zones.
    Response: Vineyard Wind is required to conduct passive acoustic 
monitoring before, during and after all pile driving events. Pile 
driving must be delayed upon a confirmed PAM detection of a NARW, if 
the detection is confirmed to have been located within the relevant PAM 
clearance zones (Table 16a). Vineyard Wind is also required, in 
consideration of safety and pile integrity, that pile driving for both 
monopile and jacket foundation piles be shut down should a NARW be 
observed within 3.2 kms of the pile being driven; this distance 
represents the Level A harassment zone for monopiles (Table 16b). 
Because the Level A harassment zone for a jacket foundation represents 
the energy needed to incur PTS from the installation of four piles, 
implementing a shutdown zone based on this amount of work over the 
amount of time it takes to install four piles is unreasonable and not 
appropriate.
    Comment 7: The Commission recommended that NMFS require Vineyard 
Wind to cease activities if any marine mammal comes within 10 m of the 
equipment, particularly during pile placement; implement delay and 
shutdown procedures, if a species for

[[Page 33815]]

which authorization has not been granted or if a species for which 
authorization has been granted but the authorized takes are met, 
approaches or is observed within the Level A and/or B harassment zone; 
and extrapolate the total number of marine mammals taken based on the 
distance to which visual observations can be made accurately and the 
extents of the Level A and B harassment zones.
    Response: Regarding the recommendation that NMFS require Vineyard 
Wind to cease activities if any marine mammal comes within 10 m of the 
equipment, we agree and have implemented this requirement in the IHA. 
The Commission provided a footnote (14) that this distance should be 
increased due to the size of Vineyard Wind piles; however, given the 
large clearance and shutdown zones in addition to the large bubble 
curtain encompassing the piles at distances greater than 10 m, we do 
not believe this recommendation is warranted simply because the piles 
are large. Regarding the recommendation that NMFS require Vineyard Wind 
to delay or shutdown pile driving if a species for which authorization 
has not been granted or if a species for which authorization has been 
granted but the authorized takes are met, approaches or is observed 
within the Level A harassment and/or B harassment zones, we have 
included a measure that Vineyard Wind must shutdown pile driving (as 
technically feasible) if such circumstances arise.
    Regarding the recommendation that NMFS require Vineyard Wind to 
extrapolate the total number of marine mammals taken based on the 
distance to which visual observations can be made accurately and the 
extents of the Level A and B harassment zones, we do not concur with 
the Commission's recommendation and do not adopt it as stated.
    The Commission does not explain why it believes Vineyard Wind 
should be required to extrapolate the total number of marine mammals 
taken other than it is ``standard'' which it is not. While NMFS 
previously included a requirement to report estimated takes based on an 
undefined extrapolation method in some inshore, estuarine construction 
project IHAs, we realized the assumptions and uncertainty surrounding 
this requirement preclude any meaningful analysis. Further, in those 
IHAs, NMFS did not consider those estimated takes to count against the 
total take authorized given the high degree of uncertainty surrounding 
the simplistic approach of estimating take based on the visible area 
compared to the estimated harassment area. The Commission does not 
provide recommendations for methods of generating such estimates in a 
manner that would lead to credible results.
    NMFS does believe that Vineyard Wind should report visibility and 
has included this requirement in the final authorization. NMFS is also 
requiring Vineyard Wind to report several details related to all 
observations of marine mammals, including if observed animals occurred 
within the Level B harassment zone during pile driving. These pieces of 
information--numbers of individuals of each species detected within the 
harassment zones and the estimated visibility--may be used to glean an 
approximate understanding of whether Vineyard Wind may have exceeded 
the amount of take authorized. Although the Commission does not explain 
its reasoning for offering these recommendations, NMFS recognizes the 
basic need to understand whether an IHA-holder may have exceeded its 
authorized take. The need to accomplish this basic function of 
reporting does not necessitate that NMFS require applicants to use 
methods we do not have confidence in to generate estimates of ``total 
take'' that cannot be considered reliable. To do so would require a 
number of assumptions resulting in a high degree of uncertainty 
regarding take and there would be very limited circumstances in which 
one could assume take occurred.
    Comment 8: The Commission recommended that NMFS refrain from using 
the proposed renewal process for Vineyard Wind's authorization and that 
NMFS provide the Commission and other reviewers the full 30-day comment 
opportunity.
    NMFS Response: Regarding renewals, NMFS issued a one-year IHA with 
the understanding that Vineyard Wind can complete the planned work for 
which the IHA authorizes take within the one-year period. As necessary, 
NMFS makes the decision of whether or not to issue a Renewal after one 
is requested based on current information, the best available science, 
and the renewal criteria described in the notice of the proposed IHA 
(84 FR 18346; April 30, 2019). NMFS may issue a one-time, one-year 
Renewal IHA if, upon review of the request for Renewal, the status of 
the affected species or stocks, and any other pertinent information, 
NMFS determines that there are no more than minor changes in the 
activities, the mitigation and monitoring measures will remain the same 
and appropriate, and the findings in the initial IHA remain valid. If 
and when Vineyard Wind were to request a Renewal, NMFS would fully 
consider the best available information available at the time of the 
request (2023 or 2024) and whether the Renewal criteria could be met. 
NMFS did not include language in the final IHA related to Renewal. 
While this does not necessarily preclude a Renewal, we think a Renewal 
is unlikely in this case, given the potential for changes over the next 
three years that could affect our analyses.
    The Commission expressed concern that a renewal for complex 
projects would hinder the ability for the public to comment within the 
15-day public comment period if a renewal is sought by the initial IHA 
Holder. NMFS maintains that the public has at least 30 days to comment 
on all proposed IHAs, with a cumulative total of 45 days for IHA 
Renewals. The Request for Public Comments section in the proposed IHA 
made clear that the agency was seeking comment on both the initial 
proposed IHA and the potential issuance of a Renewal for this project. 
Because any Renewal (as explained in the Request for Public Comments 
section) is limited to another year of identical or nearly identical 
activities in the same location (as described in the Description of 
Proposed Activity section) or the same activities that were not 
completed within the one-year period of the initial IHA, reviewers have 
the information needed to effectively comment on both the immediate 
proposed IHA and a possible one-year Renewal, should the IHA Holder 
choose to request one. While additional documents would be required 
should any such Renewal request be submitted, these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also confirm, among other things, that the 
activities will occur in the same location; involve the same species 
and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The Renewal request 
would also need to contain a preliminary monitoring report, 
specifically to verify that effects from the activities do not indicate 
impacts of a scale or nature not previously analyzed. The additional 
15-day public comment period provides the public an opportunity to 
review these few documents, provide any additional pertinent 
information and

[[Page 33816]]

comment on whether they think the criteria for a Renewal have been met. 
Between the initial 30-day comment period on these same activities and 
the additional 15 days, the total comment period for a Renewal is 45 
days.
    In addition to the IHA Renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress' intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for Renewals in the regulations, description of the process 
and express invitation to comment on specific potential Renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
Renewals respectively, NMFS has ensured that the public is ``invited 
and encouraged to participate fully in the agency decision-making 
process.''
    Lastly, in prior responses to comments about IHA Renewals (e.g., 84 
FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS has 
explained how the Renewal process, as implemented, is consistent with 
the statutory requirements contained in section 101(a)(5)(D) of the 
MMPA, provides additional efficiencies beyond the use of abbreviated 
notices, and, further, promotes NMFS' goals of improving conservation 
of marine mammals and increasing efficiency in the MMPA compliance 
process.
    Comment 9: ACK Residents Against Turbines (represented by Gatzke 
Dillon & Ballance LLP) stated that NMFS' analysis focused solely on 
construction-related impacts on marine mammals (e.g., noise effects 
from pile-driving) and failed to evaluate the extent to which the 
operation of the project could affect marine mammals.
    Response: Vineyard Wind's request for authorization to take marine 
mammals was specific to one-year during construction of the project. 
The activities considered under this request are those associated with 
pile driving, which includes the use of vessels necessary to support 
pile installation. As required under 101(a)(5)(D) of the MMPA, NMFS 
assessed the impacts of the construction in supporting the issuance of 
an incidental take authorization for the construction phase. Vineyard 
Wind has not submitted a request for authorization to take marine 
mammals incidental to the operational phase of their project. Further, 
the IHA is valid for one-year, during which time operations would not 
occur. The MMPA is specific in that upon request, NMFS shall authorize, 
for periods of not more than one year, the incidental taking of marine 
mammals while engaging in a specified activity (in this case 
construction of the project) provided NMFS makes the necessary 
findings. NMFS has made the necessary findings (see Negligible Impact 
Analysis and Determination section) and therefore, in accordance with 
the MMPA, and upon request by Vineyard Wind, NMFS has issued a 1-year 
IHA for the take of marine mammals incidental to construction of the 
Vineyard Wind Project.
    In addition to our analysis under the MMPA related to the specified 
activity (i.e., construction of the project), NMFS Greater Atlantic 
Regional Fisheries Office (GARFO) issued a Biological Opinion on 
September 11, 2020 that fully evaluated the effects of the 
construction, operation, maintenance, and decommissioning of the 
Vineyard Wind Project on ESA-listed species, including marine mammals. 
The Biological Opinion includes an assessment of the potential effects 
from WTG operations and concluded that noise from turbines operations 
is expected to be at or below ambient levels at relatively short 
distances from the foundations and that if ESA-listed marine mammals 
are exposed to operational noise, the effects on ESA-listed whales are 
considered insignificant (i.e., so minor that the effect cannot be 
meaningfully evaluated or detected). Supporting activities such as 
vessel and aircraft operation would also occur during operation. The 
2020 Biological Opinion concluded that ESA-listed marine mammals are 
either not likely to respond to vessel noise or are not likely to 
measurably respond in ways that would significantly disrupt normal 
behavior patterns that include, but are not limited to, breeding, 
feeding or sheltering. Therefore, the effects of vessel noise on ESA-
listed marine mammals were also deemed to be insignificant. A similar 
finding was made for exposure to aircraft noise.
    In addition, NMFS is a cooperating agency on BOEM's EIS for the 
project and a co-signatory to the associated Record of Decision (ROD), 
issued on May 10, 2021. Under the National Environmental Policy Act 
(NEPA), BOEM, in coordination with NMFS, evaluated the direct, 
indirect, and cumulative effects of the proposed action which include 
construction, operation and decommissioning. See National Environmental 
Policy Act section below.
    Comment 10: ACK Residents Against Turbines stated that NMFS' 
analysis does not assess cumulative impacts on marine mammals, when 
considered in conjunction with other threats to marine mammals, 
including those posed by the other proposed wind farms adjacent to the 
Vineyard Wind leasehold.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations specifically call for consideration of other unrelated 
activities and their impacts on marine mammal populations. The preamble 
for NMFS' implementing regulations (54 FR 40338; September 29, 1989) 
states in response to comments that the impacts from other past and 
ongoing anthropogenic activities are to be incorporated into the 
negligible impact analysis via their impacts on the baseline. 
Consistent with that direction, NMFS has factored into its negligible 
impact analysis the impacts of other past and ongoing anthropogenic 
activities via their impacts on the baseline, e.g., as reflected in the 
density/distribution and status of the species, population size and 
growth rate, and other relevant stressors. Section 101(a)(5)(D) of the 
MMPA requires NMFS to modify, suspend, or revoke the IHA if it finds 
that the activity is having more than a negligible impact on the 
affected species or stocks of marine mammals. NMFS will closely monitor 
baseline conditions before and during the period when the IHA is 
effective and will exercise this authority if appropriate.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity,'' as 
opposed to other activities not specified in the request, will have a 
negligible impact on the affected species or stocks of marine mammals. 
NMFS' implementing regulations require applicants to include in their 
request a detailed description of the specified activity or class of 
activities that can be expected to result in incidental taking of 
marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified activity'' 
for which incidental take coverage is being sought under section 
101(a)(5)(D) is generally defined and described by the applicant. Here, 
Vineyard Wind was the applicant for the IHA, and we are responding to 
the specified activity as described in their application (and making 
the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, we also indicated (1) that NMFS would consider cumulative 
effects that are reasonably foreseeable

[[Page 33817]]

when preparing a NEPA analysis, and (2) that reasonably foreseeable 
cumulative effects would also be considered through the section 7 
consultation for ESA-listed species. In this case, cumulative impacts 
have been adequately addressed under NEPA in BOEM's Environmental 
Impact Statement regarding Vineyard Wind's proposed project. NMFS is a 
cooperating agency under NEPA on that EIS and has adopted the Final 
Environmental Impact Statement (FEIS) for purposes of issuing the IHA 
to Vineyard Wind. In addition, NMFS was a signatory to the associated 
Record of Decision issued on May 10, 2021.
    Separately, NMFS engaged in intra-agency consultation under section 
7 of the ESA, which determined that NMFS' action of issuing the IHA is 
not likely to adversely affect listed marine mammals or their critical 
habitat. The resulting Biological Opinion considered activities both 
within and outside the scope of NMFS' IHA (e.g., operation and 
decommissioning) and included Terms and Conditions aimed at reducing 
the potential impacts of the project on marine mammals, including 
NARWs.
    Comment 11: ACK Residents Against Turbines stated that the analysis 
of impacts to marine mammals from vessel strikes is inadequate and is 
based on an assumption that mitigation to prevent vessel strikes will 
be 100 percent effective.
    Response: Vineyard Wind did not request authorization for takes 
from vessel strikes and NMFS has not authorized any. NMFS analyzed the 
potential for vessel strikes to occur during construction and 
determined that vessel strike is unlikely to occur (not that there is 
no collision threat at all, as suggested by AKC), based on a 
combination of the low probability of a ship strike generally, and the 
extensive mitigation and monitoring included. The IHA also includes a 
provision that NMFS may modify, suspend or revoke the IHA if the holder 
fails to abide by the conditions prescribed herein (including, but not 
limited to, failure to comply with monitoring or reporting 
requirements), or if NMFS determines: (1) The authorized taking is 
likely to have or is having more than a negligible impact on the 
species or stocks of affected marine mammals or (2) the prescribed 
measures are likely not or are not effecting the least practicable 
adverse impact on the affected species or stocks and their habitat. We 
find that the prescribed measures are effecting the least practicable 
adverse impact on marine mammals; however, should an unanticipated ship 
strike occur (to any marine mammal), the IHA could be modified, 
suspended, or revoked.
    Vineyard Wind is planning on running a limited number of crew 
transfer vessels during construction and proposed a very conservative 
suite of mitigation measures related to vessel strike avoidance, 
including measures specifically designed to avoid impacts to right 
whales. Section 4(l) in the IHA contains a suite of non-discretionary 
requirements pertaining to ship strike avoidance, including vessel 
operational protocols and monitoring. Construction of the project will 
be based out of New Bedford, Massachusetts, which is a 50 to 60-mile 
(80 to 97 kilometers (km)) trip by vessel to the WDA. Vineyard Wind has 
indicated that during construction, the number of crew transfer vessels 
will be limited to two and that each of those vessels will make only 
one round trip per day (for a total of two round trips).
    To date, NMFS is not aware of a wind industry vessel (e.g., marine 
site characterization survey vessel or wind energy vessels used in 
European wind project construction and operation) reporting a ship 
strike. When considered in the context of the low overall probability 
of any vessel strike given the limited additional vessel traffic, the 
comprehensive visual and PAM monitoring required in transit lanes, and 
that construction would occur during the time of year when NARW density 
is lowest, NMFS believes these measures are adequately protective to 
avoid ship strike; thus, we did not authorize take from ship strike. 
These measures are described fully in the Mitigation section below, and 
include, but are not limited to training for all vessel observers and 
captains, daily monitoring of the NARW Sighting Advisory System, 
WhaleAlert app, and USCG Channel 16 for whale presence awareness, 
communications protocols if whales are observed by any Vineyard Wind 
personnel, vessel speed restrictions at certain times of year or if 
certain monitoring requirements are not met, vessel operational 
protocols should any marine mammal be observed, and visual and passive 
acoustic monitoring to clear transit routes and WDA of NARWs.
    We have determined the mitigation measures in the IHA provide the 
means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for subsistence uses.
    Comment 12: ACK Residents Against Turbines stated that the proposed 
mitigation measures are ``inadequate and unenforceable'' and that the 
proposed seasonal moratorium on pile driving (i.e., from January 
through April) is ``far too short.''
    Response: The mitigation measures included in the final IHA, 
including seasonal closures, are adequate and appropriate for the 
protection of NARWs and are enforceable. Despite the commenters' 
suggestion, NMFS does not intend to rely on the wind energy industry to 
police itself. If Vineyard Wind fails to implement any mitigation 
measure in the IHA and an unauthorized take occurs, Vineyard Wind will 
be in violation of the MMPA. NOAA's Office of Law Enforcement is 
responsible for investigating all violations of the MMPA, including any 
unauthorized takes that may occur during this project.
    In concluding the proposed seasonal pile driving moratorium of 
January through April is ``far too short'' the commenters incorrectly 
state that NARW densities are higher in May, June, and December than in 
January. However, as shown in Table 9, NARW densities during the months 
of the seasonal closure identified in the IHA (January: 0.510 per 100 
km\2\; February: 0.646 per 100 km\2\; March: 0.666 per 100 km\2\; 
April: 0.599 per 100 km\2\) are higher than in May (0.204 per 100 
km\2\), June (0.016 per 100 km\2\) and December (0.274 per 100 km\2\)) 
and, in fact, are by far the highest in those four months compared to 
any other months of the year (December has the next highest density at 
0.274 per 100 km\2\). In addition, Vineyard Wind has agreed to not pile 
drive in December unless extraordinary circumstances arise 
necessitating pile driving in December, and this is notified to and 
approved by BOEM. This measure is included in the IHA. Thus, the 
seasonal moratorium in the IHA minimizes the exposure of right whales 
to pile driving noise while allowing the project to move forward (i.e., 
is practicable). In addition to the seasonal moratorium, enhanced 
mitigation measures for right whales (which are fully described in the 
Mitigation section below) include, but are not limited to, the 
following for times of year when pile driving may occur:
     Pile driving must be delayed upon visual observation of a 
NARW by protected species observers (PSOs) on the pile driving vessel 
at any distance from the pile;
     Pile driving must be delayed upon a confirmed PAM 
detection of a NARW, if the detection is confirmed to have been located 
within the relevant PAM clearance zone;

[[Page 33818]]

     From May 1 through May 14 and November 1 through December 
31 an extended clearance zone of 10 km is established for NARWs, 
monitored using real-time PAM, and an aerial or vessel-based survey 
must also be conducted that covers the 10 km extended clearance zone;
     From May 1 through May 14 and November 1 through December 
31, if a NARW is confirmed via visual observation or PAM within the 10 
km extended clearance zone, pile driving must be delayed or shut down 
until the following day; and
     Pile driving must shut down, if feasible, if a marine 
mammal enters a designated shut down zone.
    The commenters do not provide any recommendations regarding 
additional or different mitigation measures, or specifically explain 
why they believe the measures are unenforceable. NMFS has determined 
the mitigation measures in the IHA provide the means of effecting the 
least practicable adverse impact on marine mammal species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for subsistence uses (see Mitigation section 
below).
    Comment 13: AOLA commented that the IHA should consider the entire 
life cycle of the wind turbine generators (WTGs) and all potential 
sources of take (i.e., acoustics, vessel strike, habitat changes, etc.) 
applicable to those phases.
    Response: As described above (Comment 9), we analyzed the potential 
for the take of marine mammals to occur during pile driving activities 
associated with the construction phase of the project, as identified in 
Vineyard Wind's application. We have therefore authorized the requested 
take as a result of the construction phase of the project, specifically 
pile driving activities. However, we note that the potential impacts of 
other phases of the project are fully analyzed in BOEM' Final EIS, 
which NMFS has adopted to satisfy our obligations under NEPA (see 
National Environmental Policy Act section, above) as well as NMFS 2020 
Biological Opinion associated with this action for ESA-listed species. 
Vineyard Wind has the opportunity to submit an IHA application for 
operation or decommissioning activities, if appropriate.
    Comment 14: AOLA requested that NMFS consider recent survey data 
and any pre-construction data being collected in the analysis of risk 
to marine mammals.
    Response: We have relied on the best available scientific evidence 
in our analysis of potential impacts of the project on marine mammals 
and the development of take estimates, including recent survey data. 
For example, where survey data indicated take estimates may be higher 
than those modeled, we adjusted to represent the higher potential for 
take. We note that after the proposed IHA was published, updated NARW 
density data (Roberts et al., 2020) became available that incorporated 
more recent survey data (through 2018) and that for the first time 
included data from the 2011-2015 surveys of the Massachusetts and Rhode 
Island (M/RI) Wind Energy Areas (WEA) (Kraus et al. 2016) as well as 
the 2017-2018 continuation of those surveys, known as the Marine Mammal 
Surveys of the Wind Energy Areas (MMS-WEA) (Quintana et al., 2018). As 
this data represented new information that was deemed the best 
available information on NARW density in the project area, we based the 
exposure modeling for right whales in the final IHA on this new density 
data, for all possible construction scenarios, to confirm whether the 
incorporation of the new density data would result in a change to 
modeled exposure numbers. This is described in more detail in the 
Estimated Take section below. In addition, Pace et al. (2021) describes 
that the stock abundance of NARW is lower than that considered when the 
proposed IHA was published and we have evaluated that new information. 
In developing the final IHA, NMFS also consulted the NARW sighting 
database, WhaleMap, which aggregates both visual and acoustic sighting 
information from 2010 to present day. Contributors to the database 
include the Department of Fisheries and Oceans Canada, Transport 
Canada, NOAA's Protected Species Branch, Woods Hole Oceanographic 
Institution/robots4whales, New England Aquarium, Center for Coastal 
Studies, Candadian Whale Institute, Mingan Island Cetacean Study, Ocean 
Tracking Network, Dalhouise University, University of New Brunswick, 
and Nike Hawkins Photography, making it an extensive database and 
useful tool in identifying spatial and temporal occurrence of whales as 
well as locations and timing of management actions such as 
implementation of Dynamic Management Areas (DMAs).
    NMFS invests heavily in conserving NARWs and, in analyzing the 
impacts to NARWs from project construction, has considered and 
leveraged the wealth of data collected by NOAA and partners to make 
conservative management decisions in consideration of our statutory 
authority under the MMPA. Despite the changes in density and population 
numbers noted above, when the proposed IHA was issued, the status of 
NARWs was critically endangered and this remains true today. We have 
applied the best available (and most recent) science and have made the 
determinations necessary to issue the IHA.
    Comment 15: AOLA commented that it was concerned that the real-time 
PAM system has not yet been developed and will only be ``used to inform 
visual monitoring during construction; no mitigation actions would be 
required on PAM detection alone'' and asked whether the IHA would be 
contingent on vetting the design and operation of the currently 
hypothetical system by experts in the field.
    Response: As described in the Mitigation section, the real-time PAM 
system will not only be used to inform visual monitoring, but will also 
trigger required mitigation actions under certain circumstances. For 
instance, as described above and as described more fully under the 
Mitigation section below, from May 1 through May 14, an extended 
clearance zone of 10 km must be established for NARWs using real-time 
PAM, and any detection of a NARW via real-time PAM within that 10 km 
clearance zone would trigger immediate delay or shutdown of pile 
driving. Regarding the request that the design of the real-time PAM 
system be vetted by experts in the field, while the commenters do not 
provide any specific recommendations regarding who should be consulted 
on the design and operation, we note that the IHA requires that a 
Passive Acoustic Monitoring Plan, which must describe all proposed PAM 
equipment, procedures, and protocols including those related to real-
time PAM, must be submitted to NMFS for review and approval at least 90 
days prior to the planned start of pile driving.
    Comment 16: AOLA recommended NOAA or BOEM create a third-party 
certification program for PSOs, similar to the system used for fishery 
observers, which sets universal standards for all wind projects and 
requires reporting after each construction activity/trip.
    Response: At this time, NMFS is not creating a third-party 
certification program for PSOs. Each IHA requires all PSOs must be 
approved by NMFS, and that Vineyard Wind must submit PSO resumes to 
NMFS for approval at least 60 days prior to commencing pile driving 
activity. A full list of qualifications required of PSOs is included in 
Vineyard Wind's IHA. For

[[Page 33819]]

example, PSO must have a degree in biological sciences and experience 
and/or training working as a PSO. The lead PSO must have experience as 
a PSO in an offshore environment. All PSO qualification requirements 
can be found in the Monitoring and Reporting section and the issued 
IHA. BOEM and NMFS are also working on developing consistent data 
reporting requirements for the offshore wind industry.
    Comment 17: AOLA recommended that all pile driving activity should 
cease when a NARW is observed within 5 miles (8 km) of a pile being 
driven, and that all shutdowns called for by a PSO should be reported 
to NOAA daily with detailed explanation when shutdowns were not deemed 
feasible. AOLA also recommended that further mitigation should be 
immediately required if NMFS finds continued pile driving to cause 
unauthorized risk to marine mammals.
    Response: The commenters' recommendation for a 5 mile (8 km) 
shutdown zone is not supported or warranted. First, we have already 
included a requirement in the IHA that pile driving be delayed upon a 
visual detection of a NARW by PSOs on the pile driving platform at any 
distance from the pile, at any time of year. In addition, as noted 
above and as described fully in the Mitigation section below, the IHA 
also requires a 10 km clearance zone (larger than the zone recommended 
by the commenters) during the seasons when NARW abundance is greatest 
(November-December (although VW would avoid pile driving in December 
except in unforeseen, extraordinary circumstances) and May 1 through 
May 14). Further, during these periods, if a NARW is detected within 
the 10 km extended clearance zone (via visual observation or PAM), pile 
driving must be delayed. Pile driving must not resume until the 
following day, or, until a follow-up aerial or vessel-based survey is 
able to confirm all right whale(s) have departed the 10 km extended 
clearance zone, as determined by the lead PSO. NMFS also added a 
minimum shutdown distance of 3.2 km, which is a conservative estimate 
to the Level A harassment isopleth, more than half the distance to the 
Level B harassment isopleth for NARWs, and is a practicable shutdown 
zone.
    Regarding the recommendation that all shutdowns called for by a PSO 
should be reported to NOAA daily with detailed explanation when 
shutdowns were not deemed feasible, we have determined that this is not 
necessary as the IHA requires weekly and monthly monitoring reports 
which will include a summary of any mitigation-related actions (e.g., 
delay, shutdown, etc.) called for by PSOs but not implemented, and the 
reason why the mitigation-related action was not implemented.
    Regarding the recommendation that further mitigation should be 
immediately required if NMFS finds continued pile driving to cause 
unauthorized risk to marine mammals, we note that the IHA explicitly 
identifies that the taking by serious injury or death of any of the 
species for which take is authorized or any taking of any other species 
of marine mammal is prohibited and may result in the modification, 
suspension, or revocation of the IHA. 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 Level B harassment zone, 
Vineyard Wind is required to delay or shutdown pile driving activities 
(when technically feasible) to avoid unauthorized take. Further, the 
IHA may be modified, suspended, or withdrawn if Vineyard Wind fails to 
abide by the conditions prescribed in the IHA, or, if NMFS determines 
that the authorized taking is having more than a negligible impact on 
the species or stock of affected marine mammals.
    Comment 18: AOLA recommended that the IHA require a mandatory 10 
nautical miles per hour (knots; kts) (18.52 nautical km per hour) speed 
restriction on all vessels in all leased areas of the RI/MA WEA when 
right whales are present.
    Response: As noted above (see Comment 11) and as described fully in 
the Mitigation section below, we have included a suite of mitigation 
measures related to vessel speed to minimize potential impacts to 
marine mammals and to NARWs in particular. The mitigation measures in 
the IHA prescribe the 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.
    Comment 19: The ENGOs recommended that NMFS: (1) Fund analyses of 
recently collected sighting and acoustic data for all data-holders; and 
(2) continue to fund and expand surveys and studies to improve our 
understanding of distribution and habitat use of marine mammals off 
Rhode Island and Massachusetts, including the Project area, as well as 
the broader region, in the very near future.
    Response: We note that this is a general comment not specific to 
Vineyard Wind's IHA. NMFS executes, funds, and coordinates several 
marine mammal studies throughout the Northeast to improve our 
understanding of marine mammals distribution and habitat use. The 
primary entity charged with doing so is the Northeast Fisheries Science 
Center; however, NMFS Office of Protected Resources and GARFO also 
contribute to studies on marine mammals. These are continuing ongoing 
efforts. For example, through the Atlantic Marine Assessment Program 
for Protected Species (AMAPPS), the NEFSC is developing models and 
tools to provide seasonal abundance estimates that incorporate 
environmental habitat characteristics for marine mammals and other 
protected species in the western North Atlantic Ocean, including Rhode 
Island and Massachusetts.
    With respect to funding analyses of recently collected sighting and 
acoustic data for all data-holders, the ENGOS did not identify which 
data holders or which data they are referring to. Because data on 
marine mammals in the project area are collected in different ways 
(e.g., from PSOs, systematic aerial surveys, anecdotal sightings, 
stranding reports); it is not possible to integrate all the data on 
marine mammals. Therefore, it is unclear what type of analyses the 
ENGOs are referring to. However, NMFS is committed to improving our 
understanding of distribution and habitat use of marine mammals. NMFS 
and its many partners (including the government of Canada) already, and 
continue to, submit all survey reports (effort and sightings) to the 
NARW Consortium Database maintained by the University of Rhode Island 
for inclusion in the sightings database and those with photographs are 
also submitted to the New England Aquarium for integration into a 
unified photo-identification catalog. Most field research teams match 
their photographs to this catalog during their field efforts. In 
addition, NMFS is developing systematic data collection methods, where 
possible, to maximize the use of those data in conservation and 
management decisions. For example, with funding from the Marine Mammal 
Commission, NMFS is currently working with the New England Aquarium to 
analyze offshore wind site characterization survey PSO data and how 
those data compare to more systematic, line transect surveys. The 
results of this project will include recommendations about how PSO data 
can be collected to provide the greatest conservation value for 
protected species and recommendations about how PSO data can be 
utilized for regulatory/

[[Page 33820]]

management and scientific purposes. More information on this project 
can be found at https://www.mmc.gov/grants-and-research-survey/grant-awards/2020-grant-awards/.
    Comment 20: Regarding NMFS' requirement that pile driving be 
postponed until the following day if a NARW is detected by real-time 
PAM or a vessel-based or aerial survey within 10 km of the pile driving 
location from May 1-May 14, the ENGOs recommended NMFS remove the 
exception that allows the activity to resume the same day if an aerial 
or vessel-based survey could confirm that the extended clearance zone 
is free of right whales. They assert that as many NARW sightings go 
unseen, resuming the same day is too risky.
    Response: NMFS disagrees that PAM and a visual survey (either 
vessel or aerial) would not result in adequate protections for NARWs. 
First, the ENGOs do not acknowledge there will be additional monitoring 
efforts. PSOs at the pile driving vessel will monitor for NARWs, 
Vineyard Wind is required to monitor the NARW sighting network, USCG 
Channel 16, etc., and all Vineyard Wind vessels will have observers. 
The project area is a known foraging area but it is also a migratory 
corridor and we anticipate NARWs may remain in the area or pass through 
rather quickly. If a whale(s) remains, it is likely to be detected by 
PAM, vessel or aerial surveys, or the pile driving PSO in which case 
pile driving would not commence. If it is migrating, there is no reason 
for pile driving to be delayed an additional day as animals may move 
quickly through the area. For example, in 2000, one whale was 
photographed in Florida waters on January 12th, then again 11 days 
later (January 23rd) in Cape Cod Bay, less than a month later off 
Georgia (February 16th), and back in Cape Cod Bay on March 23rd, 
effectively making the round-trip migration to the Southeast and back 
at least twice during the winter season (Brown and Marx 2000). Further, 
if any animal is missed and pile driving does begin while the NARW is 
within the Level B harassment zone, we have analyzed the impacts to 
that individual and have concluded any impacts would be minor in that 
no fitness consequences are likely (see Negligible Impact Analysis and 
Determination section). We have also identified that pushing any pile 
driving to times when NARWs are more likely to be present in greater 
numbers would result in unnecessary impacts as the potential for take 
is higher and pile driving could occur over a longer timeframe.
    Comment 21: The ENGOs recommended that PAM be required for 60 
minutes prior to commencement of pile driving.
    Response: We agree with the recommendation and have incorporated 
this requirement in the IHA. The IHA requires that acoustic monitoring 
begin at least 60 minutes prior to initiation of pile driving. See the 
Mitigation section below for details.
    Comment 22: The ENGOs recommended that the mitigation requirements 
include NARW acoustic detections as a shutdown trigger.
    Response: We agree with the recommendation and have incorporated 
this requirement in the IHA. The IHA requires that pile driving be 
delayed or shut down upon a confirmed acoustic detection of a NARW 
within the relevant exclusion zone. See the Mitigation section and 
Table 16 for details.
    Comment 23: The ENGOs recommended that between November 1 and May 
14, upon a confirmed sighting of a NARW, vessels should be required to 
reduce their speed to 10 kts or less for the remainder of the day, and 
to use real-time PAM in order to more accurately detect the presence of 
right whales. They also recommended PAM be used in transit corridors.
    Response: The IHA includes several scenarios under which vessels 
are required to travel at 10 kts or less and requires use of real-time 
PAM at all times. The IHA requires that from November 1 through May 14, 
all vessels, regardless of size, must travel at less than 10 kts within 
the WDA. In the transit corridor, crew transfer vessels must reduce 
speed to 10kts if the PAM system within the corridor detects a NARW or 
one is sighted from the vessel. Further, any vessel traveling over 10 
kts is required to have a dedicated observer(s) on board at all times. 
Crew transfer vessels traveling within any designated DMA must travel 
at 10 kts or less, unless NARWs are clear of the transit route and WDA 
for two consecutive days, as confirmed by vessel based surveys 
conducted during daylight hours and real-time PAM, or, by an aerial 
survey, conducted once the lead aerial observer determines adequate 
visibility. If confirmed clear by one of the measures above, vessels 
transiting within a DMA must employ at least two visual observers to 
monitor for NARWs. Vineyard Wind is required to submit a Vessel Strike 
Avoidance Plan to NMFS for approval no later than 90 days prior to 
utilizing vessels which will include details regarding monitoring and 
the PAM systems in both the WDA and transit corridors. We note 
submission of such a plan was not included in the proposed IHA.
    Comment 25: The ENGOs recommended that the IHA require reporting of 
NARW sightings to NMFS within 2 hours of the sighting.
    Response: We agree with the recommendation that NARW sightings be 
reported as soon as possible to NMFS. The IHA requires that if a NARW 
is observed at any time by PSOs or personnel on any project vessels, 
during any project-related activity or during vessel transit, Vineyard 
Wind must report sighting information to the NMFS NARW Sighting 
Advisory System, the U.S. Coast Guard via channel 16, and WhaleAlert 
app as soon as feasible but no longer than 24 hours after the sighting. 
We anticipate that most sightings will be reported within the 2 hour 
timeframe recommended by the ENGOs; however, we also recognize that 
communications at sea can sometimes be interrupted (e.g., poor cellular 
or satellite service); therefore, we are allowing 24 hours maximum 
(with the caveat they report a sighting as soon as feasible) in case 
such. We note that given the gravity of a situation associated with an 
unauthorized take from a ship strike, the IHA requires Vineyard Wind to 
report any such taking to NMFS immediately, dedicating all resources to 
ensure that incident is reported. Such dedication, including 
immediately ceasing activities (as required if a ship strike occurs) is 
not necessary for a sighting report.
    See the Mitigation section below for details.
    Comment 26: The ENGOs recommended that the take analysis be updated 
to reflect the best available scientific information to account for 
evidence supporting the importance of the waters off Massachusetts and 
Rhode Island as NARW foraging habitat, and to more accurately reflect 
times that right whales are likely to be present in the area. The ENGOs 
further recommended that NMFS consider any initial data from state 
monitoring efforts, passive acoustic monitoring data, opportunistic 
marine mammal sightings data, and other data sources, and to take steps 
to develop a dataset that more accurately reflects marine mammal 
presence so it is in hand for future authorizations.
    Response: As noted above, updated NARW density data (Roberts et 
al., 2020) that incorporated more recent survey data and that for the 
first time included survey data from the MA and RI/MA WEAs (Kraus et 
al. 2016; Quintana et al., 2018) became available after the proposed 
IHA was published. The exposure modeling for NARWs in the final IHA was 
updated to

[[Page 33821]]

incorporate this more recent and more accurate density data which 
reflects year-round presence in the project area (albeit highest 
densities are when pile driving would not occur). Habitat use is 
indirectly considered in density estimates as the estimates are based 
on sighting data and those data would reflect if animals are remaining 
(i.e., present) within an area for prolonged periods; thereby, 
increasing density. If animals are remaining in the area, it can be 
assumed they are engaging in critical behaviors such as foraging. We 
note; however, habitat use is directly considered in our Negligible 
Impact Analysis and Determination section. We have used the best 
scientific information available as the basis for generating take 
numbers for all marine mammal species. This is described in more detail 
in the Estimated Take section below. In our negligible impact analysis 
(see Negligible Impact Analysis and Determinations section), we 
identify how habitat use is factored into our determinations given the 
type and amount of take authorized.
    Regarding the recommendation to consider initial data from other 
monitoring efforts and to take steps to develop a dataset that more 
accurately reflects marine mammal presence so it is in hand for future 
authorizations, we considered all data sources and did not solely rely 
upon density data when estimating take as the ENGOs suggested we did. 
For example, we increased the amount of take authorized for some 
species from the modelling results in consideration of HRG survey 
monitoring data previously collected by Vineyard Wind. In other cases, 
when model results suggested take was less than average group size, 
take was increased. NMFS will continue to rely on the best available 
scientific information in both the analysis of potential impacts to 
marine mammals and in the development of exposure estimates and our 
findings.
    Comment 27: The ENGOs recommended that vessel strikes be 
incorporated into the take analysis. The ENGOs also recommended that 
the potential for vessel strike resulting from displacement as a result 
of project-related noise be considered.
    Response: NMFS analyzed the potential for vessel strikes to occur 
during Vineyard Wind's construction and determined that it is not 
likely to occur. We do not authorize any take of marine mammals by 
vessel strike incidental to Vineyard Wind's planned construction 
activities under this IHA. Also as described under Comment 10 above, we 
have included a conservative suite of mitigation measures related to 
vessel strike avoidance, including measures specifically designed to 
avoid impacts to NARWs. These measures (e.g., reduced vessel speed) 
also provide protection for other marine mammals. All ship strike 
avoidance measures are described fully in the Mitigation section below.
    Regarding the commenters' recommendation to consider displacement 
as a result of project-related noise to result in vessel strike, we 
have considered this possibility and have concluded that while short-
term displacement from the project area is a possibility, there is no 
evidence to suggest that any short-term displacement would result in a 
change to the likelihood of vessel strike occurring for any marine 
mammal species. The amount of vessels utilized by Vineyard Wind during 
the effective period of the IHA results in only a small increase in 
vessel traffic over baseline (e.g., two crew transfer vessels making 
one round trip per day).
    Comment 28: The ENGOs recommended that NMFS avoid describing 
potential changes resulting from offshore wind development as 
``beneficial,'' as it is unclear what implications these changes may 
have on the wider ecosystem, and instead use terminology such as 
``increase,'' ``decrease,'' and ``change.''
    Response: In the proposed IHA notice, NMFS identified that impacts 
from the permanent structures (i.e., WTGs) on marine mammal habitat may 
be beneficial as a result of increased presence of prey due to the WTGs 
acting as artificial reefs (Russell et al., 2014). However, we 
recognize, the long-term impact from foundation presence is outside the 
scope of the effective period of the IHA and that this analysis is more 
appropriate in the context of the ESA consultation and NEPA analysis as 
it relates to marine mammal habitat. Regarding the EIS, we agree that 
the long term ecosystem effects from offshore wind development in the 
Northwest Atlantic are still being evaluated and that those ecosystem 
effects are likely to be complex. Accordingly, we acknowledge that 
documentation of a change that may appear ``beneficial'' (i.e., an 
increased number of a particular species documented within a wind 
development area) does not necessarily equate to overall beneficial 
impacts to a species or ecosystem. BOEM's FEIS describes impacts to 
coastal and benthic habitats as being adversely negligible to moderate, 
as defined in the FEIS. That said, just as there are potential negative 
impacts to marine mammals from noise associated with offshore wind 
construction, there are also potential benefits that may result from 
the presence of wind turbine foundations in marine mammal habitat. 
Thus, BOEM also concluded that some impacts from the Project can be 
moderately beneficial for those habitats. Thus, while we acknowledge 
that there is currently insufficient information to draw a conclusion 
regarding longer term impacts to marine mammals, we disagree with the 
commenters that the term ``beneficial'' should be avoided altogether 
when describing potential outcomes of offshore wind for marine mammals.
    Comment 29: The ENGOs recommended that NMFS' negligible impact 
determination consider potential cumulative impacts arising from the 
construction of the proposed project and additional offshore wind 
projects that are expected to be installed in the future. Specifically, 
they recommended a cumulative effects analysis include consideration of 
repeated disturbance from the same activity over time and space, 
interactions between different types of potential impacts, multiple 
wind energy development projects, and the broader context of other 
ocean uses within the leasing area and that may be encountered by 
transboundary and migratory species during their life cycles.
    Response: NMFS agrees that consideration of repeated disturbance 
from the same activity (as identified in the application) over time and 
space should be incorporated into a negligible impact determination and 
we have done so as the impact of the specified activity on marine 
mammals must be considered in accordance with 101(a)(5)(D) of the MMPA. 
However, neither the MMPA nor NMFS' codified implementing regulations 
require NMFS to consider impacts from other unrelated activities (such 
as the construction and operation of additional wind farms) and their 
impacts on populations. The preamble for NMFS' implementing regulations 
(54 FR 40338; September 29, 1989) states in response to comments that 
the impacts from other past and ongoing anthropogenic activities are to 
be incorporated into the negligible impact analysis via their impacts 
on the baseline. Consistent with that direction, NMFS has factored into 
its negligible impact analysis the impacts of other past and ongoing 
anthropogenic activities via their impacts on the baseline, e.g., as 
reflected in the density/distribution and status of the species, 
population size and growth rate, and current stressors. In addition, we 
consider these factors as relevant contextual elements of the analysis. 
See

[[Page 33822]]

the Negligible Impact Analysis and Determinations section of this 
notice for full detail.
    Section 101(a)(5)(A) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals, and will not result in an unmitigable adverse impact on the 
availability of marine mammals for taking for subsistence uses. NMFS' 
implementing regulations require applicants to include in their request 
a detailed description of the specified activity that can be expected 
to result in incidental taking of marine mammals (50 CFR 
216.104(a)(1)). Thus, the ``specified activity'' for which incidental 
take coverage is being sought under section 101(a)(5)(D) is generally 
defined and described by the applicant. Here, Vineyard Wind is the 
applicant and we are responding to the specified activity as described 
in their petition (and making the necessary findings on that basis).
    Our 1989 final rule for the MMPA implementing regulations also 
addressed public comments regarding cumulative effects from future, 
unrelated activities. There we stated that such effects are not 
considered in making findings under section 101(a)(5) concerning 
negligible impact. We indicated (1) that NMFS would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) that reasonably foreseeable cumulative effects would also be 
considered under section 7 of the ESA for ESA-listed species.
    In addition to above considerations, BOEM's 2021 FEIS, of which 
NMFS was a cooperating agency, NMFS adopted, and was a co-signatory to 
the joint Record of Decision, analyzes cumulative impacts from the 
construction and operation of the Vineyard Wind Project when combined 
with other past, present and reasonably foreseeable future actions, 
including development of other wind energy areas and other stressors 
(e.g., ship strike, entanglement, climate change). That analysis 
included an assessment of whether the predicted level and amount of 
take from construction would have meaningful biological consequences at 
a species or population level. NMFS, therefore, assessed and integrated 
other contextual factors (e.g., species' life history and biology, 
distribution, abundance, and status of the stock; mitigation and 
monitoring; characteristics of the surveys and sound sources) in 
determining the overall impact of issuance of the IHA to Vineyard Wind. 
While exposure to noise during construction could temporarily affect 
marine mammals, the extensive mitigation (including those measures 
designed to avoid vessel strike) would minimize the severity and amount 
of harassment such that no meaningful biological consequences would 
occur.
    Similar findings were made in NMFS' 2020 Biological Opinion related 
to this action. The effects of the action analyzed in the 2020 
Biological Opinion reflect all consequences to listed species or 
critical habitat that are caused by the proposed action, including the 
consequences of other activities that are caused by the proposed 
action. It considered whether the action will result in reductions in 
reproduction, numbers or distribution of these species and then 
considered whether any reductions in reproduction, numbers or 
distribution resulting from the action would reduce appreciably the 
likelihood of both the survival and recovery of these species. The 
Biological Opinion concluded the proposed action, which included NMFS' 
action of issuing an IHA to Vineyard Wind, may adversely affect ESA-
listed marine mammals but would not likely jeopardize the continued 
existence of those species or adversely modify or destroy their 
critical habitat. We note the analysis in BOEM's FEIS and Biological 
Opinion extends over the duration of the project while our IHA is 
limited to one year, and to harassment during construction of the 
project.
    Comment 30: The ENGOs recommended NMFS expand its analysis to 
better consider repeated exposure to the same stressor over multiple 
days, as well as masking and acoustic habitat impacts.
    Response: As described above, the potential impacts from repeat 
exposures are incorporated into our negligible impact analysis. As 
described in the Negligible Impact Determination and Analysis section 
below, although some animals may be disturbed repeatedly from pile 
driving over multiple days, we anticipate the impact on marine mammals 
from resulting behavioral reactions such as temporary avoidance of the 
ensonified area during pile driving would not result in impacts to 
reproductive success of any individual marine mammal, much less annual 
rates of recruitment and survival. For large whales, including the 
NARW, we authorize only a small number of Level B harassment takes. For 
example, Vineyard Wind is authorized for 20 takes by Level B harassment 
of NARW. Each take represents exposure of one NARW above NMFS 
behavioral harassment threshold (and the expected associated behavioral 
disturbance) occurring within one day. While 20 instances of take is 
the maximum anticipated and authorized, we do not know whether these 20 
takes occur to 20 different individual NARWs (each taken on one day) or 
if some individuals might be taken on more than one day, but we do know 
that the product of individual whales times days of disturbance cannot 
exceed 20 (e.g., 20 different whales disturbed on 1 day each, 10 
different whales disturbed on two days each, etc.), and given the 
number, it is unlikely that any single whale would be disturbed on more 
than a few days. Given Vineyard Wind would be pile driving primarily 
June through October (with limited pile driving in May and November) it 
is highly unlikely that any single whale would be taken 20 times. Thus 
any instances of repeated disturbance would be minimal. For smaller 
cetaceans, their populations are relatively large compared to baleen 
whales and they have large habitat ranges; therefore, repeated 
disturbance to a degree that would cause impacts to annual rates and 
survival to those populations is also unlikely.
    The impacts of masking and impacts to marine mammal acoustic 
habitat from the specified activity were fully considered in the 
Federal Register notice announcing the proposed IHA (see sections 
entitled Auditory Masking and Potential Effects of the Specified 
Activity for discussions on masking; see section entitled Anticipated 
Effects on Marine Mammal Habitat for discussion on potential impacts to 
acoustic habitat). That analysis was integrated into our negligible 
impact finding decision-making. For example, we found that impacts from 
masking would be insignificant and any masking event that could 
possibly rise to Level B harassment under the MMPA would occur 
concurrently within the zones of behavioral harassment already 
estimated for impact pile driving, and which have already been taken 
into account in the exposure analysis. The temporary elevated noise 
levels caused by the project would impact acoustic habitat; however, 
similar to masking, these elevated noise areas are captured in the 
behavioral harassment zones established in our analysis.
    Comment 31: The ENGOs believe that NMFS' use of a Renewal IHA 
process does not allow for adequate public comment because NMFS 
supplies no legal rationale for why it is authorized to issue an 
identical IHA for a second year while cutting in half the comment 
period the statute requires. They state that should the agency wish to 
establish its new IHA renewal process as a reasonable interpretation of 
an

[[Page 33823]]

ambiguous statutory provision, it should do so through notice-and-
comment rulemaking or comparable process with the appropriate indicia 
of formality. NMFS must also explain why applicants whose activities 
may result in the incidental harassment of marine mammals over more 
than one year should not be required to apply for authorization to do 
so through the incidental take regulation procedure established by sec. 
101(a)(5)(A)(i), and justify how its extension process, with a 
curtailed comment period, is consistent with both statutorily-
established processes.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA and promotes NMFS' goals of improving conservation of marine 
mammals and increasing efficiency in the MMPA compliance process. Also, 
please see our response to Comment 8 for additional information.
    The ENGOs recommended we utilize a stand-alone rulemaking process 
to solicit input on the renewal process so that it is open to public 
comment. However, using the 30-day public comment period for an IHA to 
provide relevant explanations of the Renewal process and also announce 
the option to issue a Renewal to an applicant for a specific project is 
an effective and efficient way for NMFS to provide information to the 
reader, solicit focused input from the public, and ultimately affords 
the same opportunities for public comment as a stand-alone rulemaking 
would. The ENGOs have the opportunity to comment on the potential 
Renewal, and, by default, the process during the proposed IHA phase. 
There is no reason to undertake a rulemaking process to carry out a 
process that is afforded under the MMPA and for which NMFS has 
discretion to carry out. The eNGOs have not provided reason why the 30 
day public comment period during the proposed IHA phase plus the 
additional 15-day public comment during a proposed Renewal IHA phase 
(which generally occurs less than one year after the initial 30-day 
public comment period) for a total public comment period of 45 days 
does not meet the requirements of the MMPA.
    The Renewal process does not allow for an IHA to cover applicants 
intending on conducting activities for more than one year, as 
mistakenly interpreted by the eNGOs. Rather, the FR notice for the 
initial 30-day comment period for the proposed IHA asks the public to 
review and provide input on both the initial proposed IHA, as well as 
the potential for a Renewal should the Renewal conditions be met, 
following an additional 15-day comment period. It would be unnecessary 
and inefficient for both the applicant and NMFS to require them to go 
through a rulemaking process in case their project extended beyond the 
expiration date of their IHA. The most common cases of issuing a 
Renewal IHA is when there are unforeseen circumstances that prevent the 
applicant from completing the analyzed activity from being completed 
before the expiration date of the original IHA. As noted in the 
response to Comment 8 above, there are strict criteria NMFS has set 
forth that an applicant must meet prior to being granted a Renewal IHA. 
Specific to the Vineyard Wind IHA, any request for a Renewal by 
Vineyard Wind, will be considered against established and transparent 
Renewal criteria, including the careful consideration of any changes in 
the status of the affected species or stocks and whether they would 
change our findings.

Changes From Proposed IHA to Final IHA

    Since publication of the Proposed IHA (83 FR 18346, April 30, 
2019), Vineyard Wind has split into separate corporate entities, 
Vineyard Wind, LLC (the applicant identified in the IHA application), 
and Vineyard Wind 1, which now holds assets associated with the 
project. While the application and the proposed IHA identify Vineyard 
Wind, LLC as the potential IHA Holder, NMFS has issued, upon request 
from Vineyard Wind, LLC, the IHA to Vineyard Wind 1.
    In the final IHA, NMFS Office of Protected Resources adopted the 
Terms and Conditions of the November 2020 Biological Opinion for the 
Vineyard Wind Project and made other modifications as a result of 
public input on the proposed IHA, which resulted in several changes to 
mitigation and monitoring measures from proposed to final. We provide a 
summary here, and the changes are also described in the specific 
applicable sections below (e.g., Mitigation). A complete list of final 
measures may be found in the issued IHA (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable).
    Vineyard Wind has committed to adding December to the seasonal pile 
driving moratorium window. However, to be practicable, in the case of 
unanticipated delays due to weather or technical problems that require 
extension of pile-driving activities, pile driving may occur in 
December if BOEM is notified and approves.
    In consideration of the best available science and public input, 
NMFS has increased clearance zone sizes from the proposed IHA to ensure 
Level A take of NARWs is avoided and that any Level B harassment is 
minimized to the maximum extent practicable. During all times of the 
year, if a PSO on the pile driving vessel observes a NARW, at any 
distance, pile driving will be delayed. However, we recognize in 
certain circumstances, weather may impede visibility. From June 1 
through October 31, we increased the minimum clearance zone (i.e., the 
zone that must be visibly clear of NARWs for 30 minutes prior to 
commencing pile driving) from 1 km (which Vineyard Wind had proposed as 
a result of their Agreement with NGOs) to 2 km. In addition, we have 
imposed a 5 km PAM clearance zone during the same time of year. In 
addition to modifications to the clearance zone, we have extended the 
shutdown zone (i.e., the zone in which Vineyard Wind must shut down 
pile driving if a NARW approaches or enters, except if not deemed 
feasible for human safety or structural integrity) for NARW from 1 km 
to 3.2 kms. The 3.2 km shutdown zone represents the modeled Level A 
harassment zone assuming a 6 dB of attenuation from the sound 
attenuation systems. That is, this distance represents where a NARW 
could incur PTS if it remains at that distance for the number of 
strikes considered in the model (i.e., the maximum number of strikes 
for installing a pile). To be conservative, we have identified this 
distance as the initial shutdown zone; however, should sound source 
verification (SSV) monitoring determine the Level A harassment isopleth 
is less than 3.2 km, NMFS may modify the shutdown zone upon receipt of 
a SSV report detailing measurements from, at minimum, three piles 
representing conditions reflective of future piles driving scenarios 
(e.g., similar substrate, hammer energy, etc.).
    The final IHA also incorporates all Terms and Conditions of the 
2021 Vineyard Wind Biological Opinion. These include not starting to 
install a new pile less than 1.5 hours prior to civil sunset and that 
pile driving may only occur at night if pile driving began during 
daylight hours and the relevant visual and PAM clearance zone were 
clear of NARWs. We also carried over the suite of vessel strike 
avoidance measures considered part of the

[[Page 33824]]

proposed action in the Biological Opinion. These include mandatory ship 
speeds and separation distances, use of trained dedicated observers, 
PAM in the transit corridors, and monitoring of the NARW Sighting 
Network.
    From proposed to final IHA, we modified take numbers for sperm 
whales. The proposed IHA allocated two takes, by Level A harassment 
(i.e., PTS) of sperm whales incidental to pile driving, as it was 
requested by Vineyard Wind. However, after further examination, we have 
determined the potential for Level A harassment (PTS) for this species 
is de minimis and we have not authorized take by Level A harassment. 
The area is not a preferred sperm whale habitat as they prefer deeper 
waters and bathymetric features such as canyons. The monopile and 
jacket foundation Level A harassment distance for sperm whales is very 
small (less than 75 m). It is highly unlikely that a sperm whale would 
remain within this area during the entire duration of pile driving 
necessary to incur PTS and we have required clearance and shut down 
zones greater than 75 m. In addition, in the 2020 Biological Opinion, 
NMFS concluded take of sperm whales by Level A harassment was not 
reasonably certain to occur and determined no take by injury (PTS) will 
be exempted in the corresponding Incidental Take Statement issued under 
the ESA. The final IHA identifies the amount of take authorized for 
non-listed marine mammals should Vineyard Wind install 100 WTG monopile 
foundations and two jacket foundations for the ESPs (the maximum design 
envelope), though fewer WTG foundations will be installed. The ESA 
incidental take statement (ITS), which NMFS Office of Protected 
Resources is required to implement, will be scaled so that the amount 
of ESA-listed marine mammal take authorized will correspond with the 
actual amount of piles planned to be installed. Thus, if Vineyard Wind 
installs fewer piles, it will be exempted from the ESA section 9 
prohibition on take for a fewer number of ESA-listed marine mammals 
(see Endangered Species Act section below). The amount of take 
authorized for non-listed marine mammals is not scaled.
    NMFS did not include language in the final IHA related to a 
Renewal. This does not necessarily preclude a Renewal, but as described 
above, we think a Renewal is unlikely in this case, given the potential 
for changes over the next three years that could affect our analyses.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the IHA application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history of the potentially affected 
species. Additional information regarding population trends and threats 
may be found in NMFS' Stock Assessment Reports (SARs; 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS' 
website (www.fisheries.noaa.gov/find-species).
    There are 26 marine mammal species that could potentially occur in 
the project area and that are included in Table 3 of the IHA 
application. However, the temporal and/or spatial occurrence of several 
species listed in Table 3 of the IHA application is such that take of 
these species is not expected to occur nor authorized, and they are 
therefore not discussed further beyond the explanation provided here. 
Take of these species is not anticipated either because they have very 
low densities in the project area, or because they are not expected to 
occur in the project area due to their more likely occurrence in 
habitat that is outside the WDA, based on the best available 
information. There are two pilot whale species (long-finned and short-
finned (Globicephala macrorhynchus)) with distributions that overlap in 
the latitudinal range of the WDA (Hayes et al., 2020). Because it is 
difficult to discriminate between the two species at sea, sightings, 
and thus the densities calculated from them, are generally reported 
together as Globicephala spp. (Hayes et al., 2020; Roberts et al., 
2016). However, based on the best available information, short-finned 
pilot whales occur in habitat that is both further offshore on the 
shelf break and further south than the project area (Hayes et al., 
2018). Therefore, we assume that any take of pilot whales would be of 
long-finned pilot whales. Blue whales (Balaenoptera musculus musculus), 
dwarf and pygmy sperm whales (Kogia sima and K. breviceps), Cuvier's 
beaked whale (Ziphius cavirostris), striped dolphins (Stenella 
coeruleoalba) and four species of Mesoplodont beaked whale (Mesoplodon 
spp.), also occur in deepwater habitat that is further offshore than 
the project area (Hayes et al., 2020, Roberts et al., 2016). Likewise, 
Atlantic spotted dolphins (Stenella frontalis) primarily occur near the 
continental shelf edge and continental slope, in waters that are 
further offshore than the project area (Hayes et al., 2019).
    Between October 2011 and June 2015 a total of 76 aerial surveys 
were conducted throughout the MA and RI/MA Wind Energy Areas (WEAs) 
(the WDA is contained within the MA WEA along with several other 
offshore renewable energy lease areas). Between November 2011 and March 
2015, Marine Autonomous Recording Units (MARU; a type of static PAM 
recorder) were deployed at nine sites in the MA and RI/MA WEAs. The 
goal of the study was to collect visual and acoustic baseline data on 
distribution, abundance, and temporal occurrence patterns of marine 
mammals (Kraus et al., 2016). Further, between 2004-2014, acoustic 
detections of four species of baleen whales were examined that show 
important distributional changes over the range of baleen whales (Davis 
et al., 2020). That study showed blue whales were more frequently 
detected in the northern latitudes of the study area after 2010 and no 
detections occurred in the project area in spring, summer, and fall 
when pile driving would occur (Davis et al., 2020). In addition, during 
recent Vineyard Wind marine site characterization surveys, none of the 
aforementioned species were observed during marine mammal monitoring 
(Vineyard Wind, 2021). The lack of sightings of any of the species 
listed above reinforces the fact that these species are not expected to 
occur in the project area. As these species are not expected to occur 
in the project area during the planned activities, they are not 
discussed further in this document.
    We expect that the species listed in Table 2 will potentially occur 
in the project area and will potentially be taken as a result of the 
project. Table 2 summarizes information related to the population or 
stock, including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. For taxonomy, we follow the 
Committee on Taxonomy (2018). 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 (as described in NMFS' 
SARs). While no mortality is anticipated or authorized here, PBR is 
included here as a gross indicator of the status of the species and 
other threats. Four marine mammal species that are listed under the 
Endangered Species Act (ESA) may be present in the project area and may 
be taken incidental to the planned

[[Page 33825]]

activity: The NARW, fin whale, sei whale, and sperm whale.
    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' 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' U.S. Atlantic SARs. All values presented in Table 2 are the most 
recent available at the time of publication and, except as otherwise 
noted, are available in the 2019 Atlantic SARs (Hayes et al., 2019), 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                       Table 2--Marine Mammals Known To Occur in the Project Area That May Be Affected by Vineyard Wind's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           MMPA and ESA     Stock abundance
                                                              status;       (CV, Nmin, most       Predicted               Annual M/     Occurrence and
  Common name (scientific name)            Stock           strategic (Y/   recent  abundance      abundance     PBR \4\     SI \4\      seasonality in
                                                              N) \1\          survey) \2\         (CV) \3\                               project area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Toothed whales (Odontoceti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale (Physeter             North Atlantic........  E; Y            4,349 (0.28; 3,451;    5,353 (0.12)        3.9          0  Rare.
 macrocephalus).                                                           2019).
Long-finned pilot whale           W North Atlantic......  -; N            39,219 (0.3;             \5\ 18,977        306         21  Rare.
 (Globicephala melas).                                                     30,627; n/a).               (0.11)
Atlantic white-sided dolphin      W North Atlantic......  -; N            93,233 (0.71;         37,180 (0.07)        544         26  Common year round.
 (Lagenorhynchus acutus).                                                  54,443; 2019).
Bottlenose dolphin (Tursiops      W North Atlantic,       -; N            62,851 (0.23;            \5\ 97,476        519         28  Common year round.
 truncatus).                       Offshore.                               51,914; 2019).              (0.06)
Common dolphin (Delphinus         W North Atlantic......  -; N            172,974 (0.21;        86,098 (0.12)      1,452        399  Common year round.
 delphis).                                                                 145,216; 2019).
Risso's dolphin (Grampus          W North Atlantic......  -; N            35,493 (0.19;          7,732 (0.09)        303       54.3  Rare.
 griseus).                                                                 30,298; 2019).
Harbor porpoise (Phocoena         Gulf of Maine/Bay of    -; N            95,543 (0.31;              * 45,089        851        217  Common year round.
 phocoena).                        Fundy.                                  74,034; 2019).              (0.12)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Baleen whales (Mysticeti)
--------------------------------------------------------------------------------------------------------------------------------------------------------
NARW (Eubalaena glacialis)......  W North Atlantic......  E; Y            368 (0; 356; 2020)     * 535 (0.45)    \6\ 0.8   \6\ 18.6  Year round in
                                                                           \6\.                                                       continental shelf
                                                                                                                                      and slope waters,
                                                                                                                                      seasonally.
Humpback whale (Megaptera         Gulf of Maine.........  -; N            1,393 (0.15; 1,375;  * 1,637 (0.07)         22         58  Common year round.
 novaeangliae).                                                            2019).
Fin whale (Balaenoptera           W North Atlantic......  E; Y            6,802 (0.24; 5,573;    4,633 (0.08)         11       2.35  Year round in
 physalus).                                                                2019).                                                     continental shelf
                                                                                                                                      and slope waters,
                                                                                                                                      occur seasonally.
Sei whale (Balaenoptera           Nova Scotia...........  E; Y            6,292 (1.02; 3,098;    * 717 (0.30)        6.2        1.2  Year round in
 borealis).                                                                2019).                                                     continental shelf
                                                                                                                                      and slope waters,
                                                                                                                                      occur seasonally.
Minke whale (Balaenoptera         Canadian East Coast...  -; N            21,968 (0.31;        * 2,112 (0.05)        170       10.6  Year round in
 acutorostrata).                                                           17,002; n/a).                                              continental shelf
                                                                                                                                      and slope waters,
                                                                                                                                      occur seasonally.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Earless seals (Phocidae)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal \7\ (Halichoerus        W North Atlantic......  -; N            27,131 (0.19;                   n/a      1,389      4,729  Common year round.
 grypus).                                                                  23,158; 2019).
Harbor seal (Phoca vitulina)....  W North Atlantic......  -; N            75,834 (0.15;                   n/a      2,006        350  Common year round.
                                                                           66,884; 2019).
Harp seal (Pagophilus             W North Atlantic......  -; N            7,411,000 \8\                   n/a        unk    232,422  Rare.
 groenlandicus).                                                           (unk.; unk; 2019).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 (see
  footnote 3) 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\ Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at:
  www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate
  of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no
  associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have
  not yet been incorporated into the estimate. All values presented are from the 2019 Atlantic SARs.
\3\ This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016,
  2017, 2018, 2020). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S.
  Atlantic Ocean, and we provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing
  the mean density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information
  supported development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted
  abundance.
\4\ Potential biological removal, 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 size (OSP). Annual mortality or serious injury
  (M/SI), found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum
  value. All M/SI values are as presented in the draft 2019 Atlantic SARs.
\5\ Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly,
  the habitat-based cetacean density models produced by Roberts et al. (2016) are based in part on available observational data which, in some cases, is
  limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016) produced density models to genus level for Globicephala spp. and
  produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks.
\6\ Abundance source is Pace et al. (2021). PBR and annual M/SI source is draft 2020 SAR (Hayes et al. 2020). Because PBR is based on the minimum
  population estimate, we anticipate it will be slightly lower than what is presented here given the Pace et al. (2021) abundance; however, the 2020
  SARs are not yet finalized. Regardless of final numbers, NMFS recognizes the NARW stock is critically endangered with a low PRB and high annual M/SI
  rate due primarily to ship strikes and entanglement.

[[Page 33826]]

 
\7\ NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.
\8\ The stock abundance of harp seal is considered unknown in the draft 2020 SAR; however, the abundance reflected here is the most recent available.

    A detailed description of the species for which take has been 
authorized, including brief introductions to the relevant stocks as 
well as available information regarding population trends and threats, 
and information regarding local occurrence, were provided in the 
Federal Register notice for the proposed IHA (84 FR 18346; April 30, 
2019). Since that time, the status of some species and stocks have been 
updated, most notably for large whales. Table 2 includes the most 
recent population, PBR and annual mortality and serious injury (M/SI) 
rates for all species. We refer the reader to the proposed IHA Federal 
Register notice for basic descriptions on each species status and 
provide a summary of updates below where necessary. Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.
    As described in the proposed IHA notice, beginning in 2017, 
elevated mortalities in the NARW population have been documented, 
primarily in Canada but some in the U.S., and were collectively 
declared an Unusual Mortality Event (UME). As of May 2021, 34 NARWs 
have been confirmed dead and an additional 15 have been determined to 
be seriously injured. Entanglement and vessel strikes are the primary 
causes of M/SI. In addition, Pace et al. (2021) has identified a 
reduction in NARW abundance since the proposed IHA (451 to 368) and 
Oleson et al. (2020) have established the project area as year-round 
foraging habitat.
    Since the proposed IHA, the annual rate of mortality and serious 
injury for humpback whales belonging to the Gulf of Maine stock 
increased from 12.5 to 58. This dramatic increase is a result of 
changing how the rate is modeled; 12.5 was observed M/SI while 58 
represents a model approach considering the observed rate. The draft 
2020 SAR applies a new hierarchical Bayesian, state-space model used to 
estimate mortality (Hayes et al., 2020). The estimated rate is based on 
the observed rate of serious injury and mortality and an estimated 
detection rate. The estimated annual rate of total mortality using this 
modeling approach is 57.6 animals for the period 2011-2015. The IHA 
does not authorize serious injury or mortality of humpback whales.

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, 2019) 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 3.

                  Table 3--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).
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).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur 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. 
Fifteen marine mammal species (twelve cetacean and three pinniped (all 
phocid species)) have the reasonable potential to co-occur with the 
planned activities. Please refer to Table 2. Of the cetacean species 
that may be present, five are classified as low-frequency cetaceans 
(i.e., all mysticete species), six are classified as mid-frequency 
cetaceans (i.e., all delphinid species and the sperm whale), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from Vineyard Wind's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the project area. The notice of 
proposed IHA (84 FR 18346; April 30, 2019) included a discussion of the 
effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from Vineyard Wind's construction 
activities on marine

[[Page 33827]]

mammals and their habitat. That information and analysis is 
incorporated by reference into this final IHA determination and is not 
repeated here; please refer to the notice of proposed IHA (84 FR 18346; 
April 30, 2019).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination. As noted 
in the Summary of Changes from Proposed to Final, a small change was 
made for Level A harassment for fin whales and sperm whales.
    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 are primarily by Level B harassment, as noise from 
pile driving has the potential to result in disruption of behavioral 
patterns for individual marine mammals, either directly or as a result 
of masking or temporary hearing impairment (also referred to as 
temporary threshold shift (TTS), as described in the notice of proposed 
IHA (83 FR 18346, April 30, 2019)). There is also some potential for 
auditory injury (Level A harassment) to result for select marine 
mammals. Mitigation and monitoring measures are expected to minimize 
the severity of such taking to the extent practicable. No marine mammal 
mortality is anticipated or authorized for this activity. Below we 
describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
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 take estimates.

Acoustic Thresholds

    Using the best available science, NMFS has developed 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).
    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 (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al., 2007, Ellison et al., 2012). Based on what 
the available science indicates and the practical need to use a 
threshold based on a factor that is both predictable and measurable for 
most activities, NMFS uses a generalized acoustic threshold based on 
received level to estimate the onset of behavioral harassment. NMFS 
predicts that marine mammals are likely to be behaviorally harassed in 
a manner we consider Level B harassment when exposed to underwater 
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms) 
for impulsive and/or intermittent sources (e.g., impact pile driving). 
Quantifying Level B harassment in this manner is also expected to 
capture any qualifying changes in behavioral patterns that may result 
from TTS.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (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). The 
components of Vineyard Wind's planned activity that may result in the 
take of marine mammals include the use of impulsive sources.
    These thresholds are provided in Table 4. 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 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic 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 should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The 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 acoustic thresholds will be
  exceeded.


[[Page 33828]]

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    As described above, Vineyard Wind requested NMFS evaluate project 
construction activity (specifically pile driving) involving 
installation of up to 100 WTGs and up to two ESPs in the WDA (i.e., a 
maximum of 102 foundations). Two types of foundations may be used in 
the construction of the project and were therefore considered in the 
acoustic modeling study conducted to estimate the potential number of 
marine mammal exposures above relevant harassment thresholds: Monopile 
foundations varying in size with a maximum of 10.3 m (33.8 ft.) 
diameter piles and jacket-style foundations using three or four 3 m 
(9.8 ft.) diameter piles per foundation.
    As described above, Vineyard Wind has incorporated more than one 
design scenario in their planning of the project. This approach, called 
the ``design envelope'' concept, allows for flexibility on the part of 
the developer, in recognition of the fact that offshore wind technology 
and installation techniques are constantly evolving and exact 
specifications of the project are not yet certain as of the publishing 
of this document. Variables that are not yet certain include the 
number, size, and configuration of WTGs and ESPs and their foundations, 
and the number of foundations that may be installed per day (though a 
maximum of two foundations would be installed per day).
    In recognition of the need to ensure that the range of potential 
impacts to marine mammals from the various potential scenarios within 
the design envelope are accounted for, potential design scenarios were 
modeled separately in order to conservatively assess the impacts of 
each scenario. The two installation scenarios modeled are shown in 
Table 5 and consist of:
    (1) The ``maximum design'' scenario consisting of 10010.3 m (33.8 
ft.) WTG monopile foundations, 0 jacket foundations, and 2 jacket 
foundations for ESPs (i.e., eight jacket pin piles); and
    (2) The ``most likely design'' scenario consisting of 90 10.3 m 
(33.8 ft.) WTG monopile foundations, 10 WTG jacket foundations (i.e., 
40 total jacket pin piles), and 2 jacket foundations for ESPs (i.e., 
eight jacket pin piles).

                            Table 5--Potential Construction Design Scenarios Modeled
----------------------------------------------------------------------------------------------------------------
                                                                    ESP jacket
                                   WTG monopiles    WTG jacket      foundations                    Total number
         Design scenario            (pile size:     foundations      \1\ (pile     Total number         of
                                   10.3 m (33.8    (pile size: 3  size: 3 m (9.8     of piles      installation
                                       ft))         m (9.8 ft))        ft))                          locations
----------------------------------------------------------------------------------------------------------------
Most likely design scenario.....              90              10               2             138             102
Maximum design scenario \3\.....             100               0               2             108             102
----------------------------------------------------------------------------------------------------------------
\1\ Each ESP jacket foundation consists of four pin piles each.
\2\ To be conservative and in alignment with Vineyard Wind's request, we considered the maximum design scenario
  in the IHA; however, the amount of take for ESA-listed species will be contingent upon that authorized in the
  ITS.

    Vineyard Wind's IHA application requested authorization to take 
marine mammals incidentally while driving 100 monopiles and 2 jacket 
foundations in the WDA, but other information suggests that Vineyard 
Wind may actually drive fewer monopiles, which would result in fewer 
impacts to marine mammals. In December 2020, Vineyard Wind announced it 
would likely reduce the total number of turbines to 62, and on May 5, 
2021, BOEM signed a Record of Decision authorizing the construction of 
no more than 84 turbines (in addition to the foundations required to 
construct the two ESPs (for a total of 92 individual piles)). As 
Vineyard Wind has not amended its original proposal of 102 foundations 
in its IHA application and because evaluating the impacts from driving 
those foundations allows for the conservative assessment of the 
relevant statutory criteria, NMFS finds it appropriate to evaluate the 
impact of 102 foundations in this IHA.
    Vineyard Wind may install either one or two monopiles per day, both 
the ``maximum design'' and ``most likely design'' scenarios were 
modeled assuming the installation of one foundation per day and two 
foundations per day distributed across the same calendar period. No 
more than one jacket would be installed per day thus one jacket 
foundation per day (four piles) was assumed for both scenarios. No 
concurrent pile driving (i.e., driving of more than one pile at a time) 
would occur and therefore concurrent driving was not modeled. The pile 
driving schedules for modeling were created based on the number of 
expected suitable weather days available per month (based on weather 
criteria determined by Vineyard Wind) in which pile driving may occur 
to better understand when the majority of pile driving is likely to 
occur throughout the year. The number of suitable weather days per 
month was obtained from historical weather data. The modeled pile-
driving schedule for the Maximum Design scenario is shown in Table 2 of 
the IHA application.
    Monopile foundation would have maximum diameters ranging from ~8 m 
(26.2 ft) up to ~10.3 m (33.8 ft) and an expected median diameter of ~9 
m (29.5 ft). The 10.3-m (33.8 ft) monopile foundation is the largest 
potential pile diameter that may be used for the project and was 
therefore used in acoustic modeling to be conservative. Jacket 
foundations each require the installation of three to four piles, known 
as jacket pin piles, of ~3 m (9.8 ft) diameter. All modeling assumed 
10.3-m piles would be used for monopiles and 3 m piles would be used 
for jacket foundations (other specifications associated with monopiles 
and jacket pin piles are shown in Figures 2 and 3 in the IHA 
application).
    Representative hammering schedules of increasing hammer energy with 
increasing penetration depth were modeled, resulting in, generally, 
higher intensity sound fields as the hammer energy and penetration 
increases. For both monopile and jacket structure models, the piles 
were assumed to be vertical and driven to a penetration depth of 30 m 
and 45 m, respectively. While pile penetrations across the site would 
vary, these values were chosen as reasonable penetration depths. The 
estimated number of strikes required to drive piles to completion were 
obtained from drivability studies provided by Vineyard Wind. All 
acoustic modeling was performed assuming that only one pile is driven 
at a time.
    Additional modeling assumptions for the monopiles were as follows:
     1,030 cm steel cylindrical piling with wall thickness of 
10 cm.
     Impact pile driver: IHC S-4000 (4000 kilojoules (kJ) rated 
energy; 1977 kips (kN) ram weight).

[[Page 33829]]

     Helmet weight: 3234 kN.
    Additional modeling assumptions for the jacket pile are as follows:
     300 cm steel cylindrical pilings with wall thickness of 5 
cm.
     Impact pile driver: IHC S-2500 (2500 kJ rated energy; 1227 
kN ram weight).
     Helmet weight: 2401 kN.
     Up to four jacket pin piles installed per day.
    Sound fields produced during pile driving were modeled by first 
characterizing the sound signal produced during pile driving using the 
industry-standard GRLWEAP (wave equation analysis of pile driving) 
model and JASCO Applied Sciences' (JASCO) Pile Driving Source Model 
(PDSM).
    Underwater sound propagation (i.e., transmission loss) as a 
function of range from each source was modeled using JASCO's Marine 
Operations Noise Model (MONM) for multiple propagation radials centered 
at the source to yield 3D transmission loss fields in the surrounding 
area. The MONM computes received per-pulse SEL for directional sources 
at specified depths. MONM uses two separate models to estimate 
transmission loss.
    At frequencies less than 2 kHz, MONM computes acoustic propagation 
via a wide-angle parabolic equation (PE) solution to the acoustic wave 
equation based on a version of the U.S. Naval Research Laboratory's 
Range-dependent Acoustic Model (RAM) modified to account for an elastic 
seabed. MONM-RAM incorporates bathymetry, underwater sound speed as a 
function of depth, and a geoacoustic profile based on seafloor 
composition, and accounts for source horizontal directivity. The PE 
method has been extensively benchmarked and is widely employed in the 
underwater acoustics community, and MONM-RAM's predictions have been 
validated against experimental data in several underwater acoustic 
measurement programs conducted by JASCO. At frequencies greater than 2 
kHz, MONM accounts for increased sound attenuation due to volume 
absorption at higher frequencies with the widely used BELLHOP Gaussian 
beam ray-trace propagation model. This component incorporates 
bathymetry and underwater sound speed as a function of depth with a 
simplified representation of the sea bottom, as subbottom layers have a 
negligible influence on the propagation of acoustic waves with 
frequencies above 1 kHz. MONM-BELLHOP accounts for horizontal 
directivity of the source and vertical variation of the source beam 
pattern. Both propagation models account for full exposure from a 
direct acoustic wave, as well as exposure from acoustic wave 
reflections and refractions (i.e., multi-path arrivals at the 
receiver).
    The sound field radiating from the pile was simulated using a 
vertical array of point sources. Because sound itself is an oscillation 
(vibration) of water particles, acoustic modeling of sound in the water 
column is inherently an evaluation of vibration. For this study, 
synthetic pressure waveforms were computed using FWRAM, which is 
JASCO's acoustic propagation model capable of producing time-domain 
waveforms.
    Models are more efficient at estimating SEL than rms SPL. 
Therefore, conversions may be necessary to derive the corresponding rms 
SPL. Propagation was modeled for a subset of sites using a full-wave 
RAM PE model (FWRAM), from which broadband SEL to SPL conversion 
factors were calculated. The FWRAM required intensive calculation for 
each site, thus a representative subset of modeling sites were used to 
develop azimuth-, range-, and depth-dependent conversion factors. These 
conversion factors were used to calculate the broadband rms SPL from 
the broadband SEL prediction.
    Two locations within the WDA were selected to provide 
representative propagation and sound fields for the project area (see 
Table 6). The two locations were selected to span the region from 
shallow to deep water and varying distances to dominant bathymetric 
features (i.e., slope and shelf break). Water depth and environmental 
characteristics (e.g., bottom-type) are similar throughout the WDA 
(Vineyard Wind, 2018), and therefore minimal difference was found in 
sound propagation results for the two sites (see Appendix A of the IHA 
application for further detail).

                                 Table 6--Locations Used in Propagation Modeling
----------------------------------------------------------------------------------------------------------------
                                  Location  (UTM Zone 19N)
             Site             --------------------------------   Water depth         Sound sources modeled
                                   Easting        Northing           (m)
----------------------------------------------------------------------------------------------------------------
P1...........................          382452         4548026              38  Monopile, Jacket pile.
P2...........................          365240         4542200              46  Monopile, Jacket pile.
----------------------------------------------------------------------------------------------------------------

    Estimated pile driving schedules were used to calculate the SEL 
sound fields at different points in time during pile driving. The pile 
driving schedule for monopiles is shown in Tables A-3 and A-4 in the 
IHA application. For each hammer energy level, the pile penetration is 
expected to be 20 percent of the total depth.
    The sound propagation modeling incorporated site-specific 
environmental data that describes the bathymetry, sound speed in the 
water column, and seabed geoacoustics in the construction area. Sound 
level estimates are calculated from three-dimensional sound fields and 
then collapsed over depth to find the ranges to predetermined threshold 
levels (see the IHA application; Appendix A.3.2). Contour maps (see the 
IHA application; Appendix A.14) show the planar distribution of the 
limits of the areas affected by levels that are higher than the 
specific sound level thresholds.
    The modeled source spectra are provided in Figures 11 and 12 of the 
IHA application. For both pile diameters, the dominant energy is below 
100 Hz. The source spectra of the 10.3 m (33.8 ft) pile installation 
contain more energy at lower frequencies than for the smaller 3 m (9.8 
ft) piles. Please see Appendix A of the IHA application for further 
details on the modeling methodology.
    Noise attenuation systems, such as bubble curtains, are used to 
decrease the sound levels radiated from an underwater 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,

[[Page 33830]]

and configuration and operation of the curtain (Austin, Denes, 
MacDonnell, & Warner, 2016; Koschinski & 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 & L[uuml]demann, 2013; Nehls, Rose, Diederichs, Bellmann, & 
Pehlke, 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. A California Department of Transportation 
(CalTrans) study tested several systems and found that the best 
attenuation systems resulted in 10-15 dB of attenuation (Buehler et 
al., 2015). Similarly, D[auml]hne et al. (2017) found that single 
bubble curtains reduced sound levels by 7 to 10 dB and reduced the 
overall sound level by ~12 dB when combined as a double bubble curtain 
for 6 m steel monopiles in the North Sea. In August 2018, Norther NV 
started the construction of an offshore wind farm at about 13 NM from 
Zeebrugge. The diameter of the 45 monopiles installed for that project 
ranged from 7.2 to 7.8 m. The pile driving was done using a 3500 kJ 
hydraulic hammer. Monitoring results demonstrated the big bubble 
curtain achieved 6-7 dB of reduction and, in combination with an 
additional sound attenuation device, a 10-12 dB reduction was achieved 
(Degraer et al., 2019). In modeling the sound fields for the planned 
project, hypothetical broadband attenuation levels of 6 dB and 12 dB 
were modeled to gauge the effects on the ranges to thresholds given 
these levels of attenuation.
    The acoustic thresholds for impulsive sounds (such as pile driving) 
contained in the Technical Guidance (NMFS, 2018) are presented as dual 
metric acoustic thresholds using both SELcum and peak sound 
pressure level metrics. 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). 
The SELcum metric considers both level and duration of 
exposure, as well as auditory weighting functions by marine mammal 
hearing group.
    Table 7 shows the modeled radial distances to the dual Level A 
harassment thresholds using NMFS (2018) frequency weighting for marine 
mammals, with 0 dB, 6 dB, and 12 dB sound attenuation incorporated. For 
the peak level, the greatest distances expected are shown, typically 
occurring at the highest hammer energies. The distances to SEL 
thresholds were calculated using the hammer energy schedules for 
driving one monopile or four jacket pin piles, as shown. The radial 
distances shown in Table 7 are the maximum distances from the piles, 
averaged between the two modeled locations.

       Table 7--Radial Distances (m) to Level A Harassment Thresholds for Each Foundation Type With 0, 6, and 12 dB Sound Attenuation Incorporated
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Level A harassment  (peak)                       Level A harassment  (SEL)
                                                         -----------------------------------------------------------------------------------------------
           Foundation type              Hearing  group                         6 dB            12 dB                           6 dB            12 dB
                                                          No attenuation    attenuation     attenuation   No attenuation    attenuation     attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
10.3 m (33.8 ft) monopile...........  LFC...............              34              17             8.5           5,443           3,191           1,599
                                      MFC...............              10               5             2.5              56              43               0
                                      HFC...............             235             119              49             101              71              71
                                      PPW...............              38              19              10             450             153              71
Four, 3 m (9.8 ft) jacket pin piles.  LFC...............             7.5               4             2.5          12,975           7,253           3,796
                                      MFC...............             2.5               1             0.5              71              71              56
                                      HFC...............              51              26            13.5           1,389             564             121
                                      PPW...............               9               5             2.5           2,423             977             269
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:* Radial distances were modeled at two different representative modeling locations as described above. Distances shown represent the average of the
  two modeled locations.

    Table 8 shows the modeled radial distances to the Level B 
harassment threshold with no attenuation, 6 dB and 12 dB sound 
attenuation incorporated. Acoustic propagation was modeled at two 
representative sites in the WDA as described above. The radial 
distances shown in Table 8 are the maximum distance to the Level B 
harassment threshold from the piles, averaged between the two modeled 
locations, using the maximum hammer energy.

                        Table 8--Radial Distances (m) to the Level B Harassment Threshold
----------------------------------------------------------------------------------------------------------------
                                                                                       6 dB            12 dB
                         Foundation type                          No attenuation    attenuation     attenuation
----------------------------------------------------------------------------------------------------------------
10.3 m (33.8 ft) monopile.......................................           6,316           4,121           2,739
Four, 3 m (9.8 ft) jacket pin piles.............................           4,104           3,220           2,177
----------------------------------------------------------------------------------------------------------------

    Please see Appendix A of the IHA application for further detail on 
the acoustic modeling methodology.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. We note that NARW density estimates used to inform take 
estimates have been updated since the proposed IHA was published to 
include more recent surveys (Roberts et al., 2020).

[[Page 33831]]

    The best available information regarding marine mammal densities in 
the project area is provided by habitat-based density models produced 
by the Duke University Marine Geospatial Ecology Laboratory (Roberts et 
al., 2016, 2017, 2018, 2020). Density models were originally developed 
for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016); more 
information, including the model results and supplementary information 
for each model, is available at seamap.env.duke.edu/models/Duke-EC-GOM-2015/. In subsequent years, certain models have been updated on the 
basis of additional data as well as certain methodological 
improvements. Our evaluation of the changes leads to a conclusion that 
these represent the best scientific evidence available. Marine mammal 
density estimates in the WDA (animals/km\2\) were obtained using these 
model results (Roberts et al., 2016, 2017, 2018, 2020). As noted, the 
updated models incorporate additional sighting data, including 
sightings from the NOAA Atlantic Marine Assessment Program for 
Protected Species (AMAPPS) surveys, which included some aerial surveys 
over the RI/MA & MA WEAs (NEFSC & SEFSC, 2011b, 2012, 2014a, 2014b, 
2015, 2016), and the 2020 update to the NARW density model (Roberts et 
al., 2020) that for the first time includes data from the 2011-2015 
surveys of the MA and RI/MA WEAs (Kraus et al. 2016) as well as the 
2017-2018 continuation of those surveys, known as the Marine Mammal 
Surveys of the Wind Energy Areas (MMS-WEA) (Quintana et al., 2018).
    Mean monthly densities for all animals were calculated using a 13 
km (8 mi) buffered polygon around the WDA perimeter and overlaying it 
on the density maps from Roberts et al. (2016, 2017, 2018, 2020). 
Please see Figure 13 in the IHA application for an example of a density 
map showing Roberts et al. (2016, 2017, 2018, 2020) density grid cells 
with a 13 km buffer overlaid on a map of the WDA. The 13 km (8 mi) 
buffer is conservative as it encompasses and extends beyond the 
estimated distances to the isopleth corresponding to the Level B 
harassment (with no attenuation, as well as with 6 dB and 12 dB sound 
attenuation) for all hearing groups using the unweighted threshold of 
160 dB re 1 [mu]Pa (rms) (Table 8). The 13 km buffer incorporates the 
maximum area around the WDA with the potential to result in behavioral 
disturbance for the 10.3 m (33.8 ft) monopile installation using (Wood, 
Southall, & Tollit, 2012) threshold criteria.
    The mean density for each month was determined by calculating the 
unweighted mean of all 10 x 10 km (6.2 x 6.2 mi) grid cells partially 
or fully within the buffer zone polygon. Densities were computed for 
the months of May to December to coincide with planned pile driving 
activities (as described above, no pile driving would occur from 
January through April). In cases where monthly densities were 
unavailable, annual mean densities (e.g., pilot whales) and seasonal 
mean densities (e.g., all seals) were used instead. Table 9 shows the 
monthly marine mammal density estimates for each species incorporated 
in the exposure modeling analysis.

                                          Table 9--Monthly Marine Mammal Density Estimates for Each Species Incorporated in Exposure Modeling Analysis
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Monthly densities  (animals/100 km2) \1\                                    Annual   May to
                                                                   ---------------------------------------------------------------------------------------------------------------------   Dec
                              Species                                                                                                                                                   --------
                                                                      Jan      Feb      Mar      Apr      May      Jun      Jul      Aug      Sep      Oct      Nov      Dec      Mean     Mean
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale.........................................................    0.151    0.115    0.122    0.234    0.268    0.276     0.26    0.248    0.197    0.121     0.12    0.131    0.187    0.203
Humpback whale....................................................    0.033    0.018    0.034    0.204    0.138    0.139    0.199    0.109    0.333    0.237    0.078    0.049    0.131     0.16
Minke whale.......................................................    0.052    0.064    0.063    0.136    0.191    0.171    0.064    0.051    0.048    0.045    0.026    0.037    0.079    0.079
North Atlantic right whale \2\....................................    0.510    0.646    0.666    0.599    0.204    0.016    0.002    0.001    0.002    0.007    0.053    0.274    0.248    0.070
Sei whale.........................................................    0.001    0.002    0.001    0.033    0.029    0.012    0.003    0.002    0.003    0.001    0.002    0.001    0.007    0.007
Atlantic white sided dolphin......................................    1.935    0.972    1.077    2.088    4.059    3.742    2.801    1.892    1.558     1.95    2.208    3.281    2.297    2.686
Bottlenose dolphin................................................    0.382    0.011    0.007    0.497    0.726    2.199    5.072    3.603    4.417     4.46    2.136    1.216    2.061    2.979
Pilot whales......................................................    0.555    0.555    0.555    0.555    0.555    0.555    0.555    0.555    0.555    0.555    0.555    0.555    0.555    0.555
Risso's dolphin...................................................    0.006    0.003    0.001    0.001    0.005    0.005     0.01     0.02    0.016    0.006    0.013    0.018    0.009    0.012
Short beaked dolphin..............................................    7.734     1.26    0.591    1.613    3.093    3.153    3.569    6.958     12.2   12.727    9.321   16.831    6.588    8.482
Sperm whale *.....................................................    0.001    0.001    0.001    0.001    0.003    0.006    0.029    0.033    0.012    0.012    0.008    0.001    0.009    0.013
Harbor porpoise...................................................    3.939    6.025   12.302    6.959    3.904    1.332     0.91    0.784    0.717    0.968    2.609    2.686    3.595    1.739
Gray seal \3\.....................................................    6.844    8.291    8.621    15.17   19.123    3.072    0.645    0.372    0.482    0.687    0.778    3.506    5.633    3.583
Harbor seal \3\...................................................    6.844    8.291    8.621    15.17   19.123    3.072    0.645    0.372    0.482    0.687    0.778    3.506    5.633    3.583
Harp seal \3\.....................................................    6.844    8.291    8.621    15.17   19.123    3.072    0.645    0.372    0.482    0.687    0.778    3.506    5.633    3.583
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Density estimates from habitat-based density modeling of the entire Atlantic EEZ from Roberts et al. (2016, 2017, 2018, 2020).
\2\ NARW density estimates have been updated from the Notice of Proposed IHA based on data from 2010 through 2018 (Roberts et al, 2020).
\3\ All seal species are grouped together in the density models presented by Roberts et al. (2018).

    JASCO's Animal Simulation Model Including Noise Exposure (JASMINE) 
animal movement model was used to predict the probability of marine 
mammal exposure to project-related sound. Sound exposure models like 
JASMINE use simulated animals (also known as ``animats'') to forecast 
behaviors of animals in new situations and locations based on 
previously documented behaviors of those animals. The predicted 3D 
sound fields (i.e., the output of the acoustic modeling process 
described earlier) are sampled by animats using movement rules derived 
from animal observations. The output of the simulation is the exposure 
history for each animat within the simulation.
    The precise location of animals (and their pathways) are not known 
prior to a project, therefore a repeated random sampling technique 
(Monte Carlo) is used to estimate exposure probability with many 
animats and randomized starting positions. The probability of an animat 
starting out in or transitioning into a given behavioral state can be 
defined in terms of the animat's current behavioral state, depth, and 
the time of day. In addition, each travel parameter and behavioral 
state has a termination function that governs how long the parameter 
value or overall behavioral state persists in the simulation.
    The output of the simulation is the exposure history for each 
animat within the simulation, and the combined history of all animats 
gives a probability density function of exposure during the project. 
Scaling the probability density function by the real-world density of 
animals (Table 9) results in the mean number of animals expected to be 
exposed over the duration of the project. Due to the probabilistic 
nature of the process, fractions of animals may be predicted to exceed 
threshold. If, for example, 0.1 animals are predicted to

[[Page 33832]]

exceed threshold in the model, that is interpreted as a 10 percent 
chance that one animal will exceed a relevant threshold during the 
project, or equivalently, if the simulation were re-run ten times, one 
of the ten simulations would result in an animal exceeding the 
threshold. Similarly, a mean number prediction of 33.11 animals can be 
interpreted as re-running the simulation where the number of animals 
exceeding the threshold may differ in each simulation but the mean 
number of animals over all of the simulations is 33.11. A portion of an 
animal cannot be taken during a project, so it is common practice to 
round mean number animal exposure values to integers using standard 
rounding methods. However, for low-probability events it is more 
precise to provide the actual values. For this reason, mean number 
values are not rounded.
    Sound fields were input into the JASMINE model and animats were 
programmed based on the best available information to ``behave'' in 
ways that reflect the behaviors of the 15 marine mammal species 
expected to occur in the project area during the planned activity. The 
various parameters for forecasting realistic marine mammal behaviors 
(e.g., diving, foraging, surface times, etc.) are determined based on 
the available literature (e.g., tagging studies); when literature on 
these behaviors was not available for a particular species, it was 
extrapolated from a similar species for which behaviors would be 
expected to be similar to the species of interest. See Appendix B of 
the IHA application for a description of the species that were used as 
proxies when data on a particular species was not available. The 
parameters used in JASMINE describe animal movement in both the 
vertical and horizontal planes. The parameters relating to travel in 
these two planes are briefly described below:
    Travel sub-models:
     Direction--determines an animat's choice of direction in 
the horizontal plane. Sub-models are available for determining the 
heading of animats, allowing for movement to range from strongly biased 
to undirected. A random walk model can be used for behaviors with no 
directional preference, such as feeding and playing. A directional bias 
can also be incorporated in the random walk for use in situations where 
animals have a preferred absolute direction, such as migration.
     Travel rate--defines an animat's rate of travel in the 
horizontal plane. When combined with vertical speed and dive depth, the 
dive profile of the animat is produced.
    Dive sub-models:
     Ascent rate--defines an animat's rate of travel in the 
vertical plane during the ascent portion of a dive.
     Descent rate--defines an animat's rate of travel in the 
vertical plane during the descent portion of a dive.
     Depth--defines an animat's maximum dive depth.
     Bottom following--determines whether an animat returns to 
the surface once reaching the ocean floor, or whether it follows the 
contours of the bathymetry.
     Reversals--determines whether multiple vertical excursions 
occur once an animat reaches the maximum dive depth. This behavior is 
used to emulate the foraging behavior of some marine mammal species at 
depth. Reversal-specific ascent and descent rates may be specified.
     Surface interval-determines the duration an animat spends 
at, or near, the surface before diving again.
    An individual animat's received sound exposure levels are summed 
over a specified duration, such as 24 hours, to determine its total 
received energy, and then compared to the threshold criteria described 
above. As JASMINE modeling includes the movement of animats both within 
as well as in and out of the modeled ensonified area, some animats 
enter and depart the modeled ensonified area within a modeled 24 hour 
period; however, it is important to note that the model accounts for 
the acoustic energy that an animat accumulates even if that animat 
departs the ensonified area prior to the full 24 hours (i.e., even if 
the animat departs prior to a full 24 hour modeled period, if that 
animat accumulated enough acoustic energy to be taken, it is accounted 
for in the take estimate). Also note that animal aversion was not 
incorporated into the Jasmine model runs that were the basis for the 
take estimate for any species. See Figure 14 in the IHA application for 
a depiction of animats in an environment with a moving sound field. See 
Appendix B of the IHA application for more details on the JASMINE 
modeling methodology, including the literature sources used for the 
parameters that were input in JASMINE to describe animal movement for 
each species that is expected to occur in the project area.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. We note the only 
change from proposed to final IHA was the removal of two Level A takes 
for sperm whales. The following steps were performed to estimate the 
potential numbers of marine mammal exposures above Level A and Level B 
harassment thresholds as a result of the planned activity:
    (1) The characteristics of the sound output from the planned pile-
driving activities were modeled using the GRLWEAP (wave equation 
analysis of pile driving) model and JASCO's PDSM;
    (2) Acoustic propagation modeling was performed using JASCO's MONM 
and FWRAM that combined the outputs of the source model with the 
spatial and temporal environmental context (e.g., location, 
oceanographic conditions, seabed type) to estimate sound fields;
    (3) Animal movement modeling integrated the estimated sound fields 
with species-typical behavioral parameters in the JASMINE model to 
estimate received sound levels for the animals that may occur in the 
operational area; and
    (4) The number of potential exposures above Level A and Level B 
harassment thresholds was calculated for each potential scenario within 
the project design envelope.
    As described above, two project design scenarios were modeled: The 
``maximum design'' consisting of 100 10.3-m (33.8 ft) WTG monopile 
foundationsand two jacket foundations for ESPs, and the ``most likely 
design'' consisting of 90 10.3-m (33.8 ft) WTG monopile foundations, 10 
WTG jacket foundations, and two ESP jacket foundations (Table 5). Both 
of these design scenarios were also modeled with either one or two 
monopile foundations installed per day. All scenarios were modeled with 
both 6 dB sound attenuation and 12 dB sound attenuation incorporated. 
Results of marine mammal exposure modeling of these scenarios is shown 
in Tables 10-13. Note that while fractions of an animal cannot be 
taken, these tables are meant simply to show the modeled exposure 
numbers, versus the actual take estimate. Authorized take numbers are 
shown below in Table 15.

[[Page 33833]]



 Table 10--Mean Numbers of Marine Mammals Estimated To Be Exposed Above Level A and Level B Harassment Thresholds Using the Maximum Design Scenario and
                                                            One Foundation Installed per Day
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               0 dB attenuation                 6 dB attenuation                12 dB attenuation
                                                      --------------------------------------------------------------------------------------------------
                       Species                          Level A    Level A               Level A    Level A               Level A    Level A
                                                         (SEL)      (peak)    Level B     (SEL)      (peak)    Level B     (SEL)      (peak)    Level B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin Whale............................................       0.25      16.78      49.76        0.1       4.13      33.11       0.02       0.29      21.78
Humpback Whale.......................................       0.12      27.25      45.33       0.03       9.01       30.1       0.01          1      19.66
Minke Whale..........................................       0.12       2.72      17.74       0.04       0.22      12.21          0       0.07        7.9
North Atlantic Right Whale*..........................       0.04       2.99       9.03       0.02       0.63       5.97          0       0.04       3.94
Sei Whale............................................       0.01       0.57       1.63          0       0.14       1.09          0       0.01       0.74
Atlantic White-Sided Dolphin.........................          0          0     706.25          0          0      449.2          0          0     277.82
Bottlenose Dolphin...................................       0.33          0     159.14          0          0      96.21          0          0      62.21
Pilot Whales.........................................          0          0          0          0          0          0          0          0          0
Risso's Dolphin......................................       0.01          0       2.48          0          0       1.61          0          0       1.04
Common Dolphin.......................................       1.58          0    1603.82        0.1          0    1059.97        0.1          0     703.81
Sperm Whale..........................................          0          0          0          0          0          0          0          0          0
Harbor Porpoise......................................       8.85       0.27     236.74       4.23       0.17     150.13       1.54          0      91.96
Gray Seal............................................       0.61        0.6     314.75       0.11        0.3      196.4       0.04       0.07     118.06
Harbor Seal..........................................       0.82       0.81     340.11       0.36       0.21     214.04       0.33       0.07     136.33
Harp Seal............................................       1.53       2.08     349.08       0.73       0.87     217.35          0       0.04     132.91
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area
  (Roberts et al., 2020).


  Table 11--Mean Numbers of Marine Mammals Estimated To Be Exposed Above Level A Harassment and Level B Harassment Thresholds Using the Maximum Design
                                                     Scenario and Two Foundations Installed per Day
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               0 dB attenuation                 6 dB attenuation                12 dB attenuation
                                                      --------------------------------------------------------------------------------------------------
                       Species                          Level A    Level A               Level A    Level A               Level A    Level A
                                                         (SEL)      (peak)    Level B     (SEL)      (peak)    Level B     (SEL)      (peak)    Level B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin Whale............................................       0.29      18.09      41.57        0.1       4.49      29.71          0       0.41      20.57
Humpback Whale.......................................       0.15      27.65      38.91       0.03       9.59      27.23          0       1.09      18.48
Minke Whale..........................................       0.09       2.87      16.05       0.03       0.23      11.52          0       0.05       7.76
North Atlantic Right Whale*..........................       0.03       3.02       7.42       0.01       1.39       5.32          0       0.05        3.6
Sei Whale............................................       0.01       0.57       1.32          0       0.14       0.93          0       0.01       0.65
Atlantic White-Sided Dolphin.........................       0.25          0      632.3       0.13          0     428.23          0          0     272.67
Bottlenose Dolphin...................................       0.17          0      103.3          0          0      67.71          0          0      43.87
Pilot Whales.........................................          0          0          0          0          0          0          0          0          0
Risso's Dolphin......................................          0          0       1.95          0          0       1.38          0          0       0.95
Common Dolphin.......................................       0.89          0    1260.46       0.44          0     897.91        0.1          0     622.78
Sperm Whale..........................................          0          0          0          0          0          0          0          0          0
Harbor Porpoise......................................       8.24       0.33      183.1       4.23       0.17     125.23       1.85       0.06      82.28
Gray Seal............................................       1.32       1.12     209.52       0.29       0.47      145.2       0.04       0.25      96.41
Harbor Seal..........................................       2.45       1.62     235.29       1.01       0.86     164.48       0.16       0.39     110.25
Harp Seal............................................       1.36        2.6     238.09       0.38       0.53     162.03       0.17       0.04     108.19
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area
  (Roberts et al., 2020).


 Table 12--Mean Numbers of Marine Mammals Estimated To Be Exposed Above Level A and Level B Harassment Thresholds Using the Most Likely Scenario and One
                                                              Foundation Installed per Day
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     0 dB attenuation                   6 dB attenuation                     12 dB attenuation
                                            ------------------------------------------------------------------------------------------------------------
                  Species                                                                  Level A                                Level A
                                              Level A    Level A    Level B    Level A    harassment    Level B      Level A     harassment    Level B
                                               (SEL)      (peak)                (SEL)       (peak)     harassment     (SEL)        (peak)     harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin Whale..................................       0.26      11.86      46.71       0.11         2.84        29.85         0.02         0.23        19.43
Humpback Whale.............................       0.13      20.26      41.32       0.04         6.54        26.27         0.01         0.83        17.08
Minke Whale................................       0.12        1.7      15.41       0.04         0.13        10.28            0         0.06         6.77
North Atlantic Right Whale *...............       0.03       1.59       7.38       0.02         0.31          4.6            0         0.02         3.01
Sei Whale..................................       0.01        0.4       1.48          0         0.09         0.95            0         0.01         0.65
Atlantic White-Sided Dolphin...............          0          0     630.06          0            0       380.82            0            0       236.77
Bottlenose Dolphin.........................       0.37          0        165          0            0        98.56            0            0        64.19
Pilot Whales...............................          0          0          0          0            0            0            0            0            0
Risso's Dolphin............................       0.01          0       2.37          0            0         1.48            0            0         0.94
Common Dolphin.............................       1.55          0    1480.84       0.01            0       941.41         0.01            0       617.01
Sperm Whale................................          0          0          0          0            0            0            0            0            0
Harbor Porpoise............................       8.12       0.15     221.91       3.86         0.14       134.88         1.38            0        80.89
Gray Seal..................................       0.37       0.02     292.13          0         0.01       176.92            0            0        104.6
Harbor Seal................................       0.68       0.35     312.37       0.34         0.01       191.06         0.34            0       120.64
Harp Seal..................................       1.43       0.76     320.84       0.72         0.72       193.65            0            0       116.13
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area
  (Roberts et al., 2020).


[[Page 33834]]


 Table 13--Mean Numbers of Marine Mammals Estimated To Be Exposed Above Level A and Level B Harassment Thresholds Using the Most Likely Scenario and Two
                                                              Foundations Installed per Day
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                0 dB attenuation                       6 dB attenuation                      12 dB attenuation
                                    --------------------------------------------------------------------------------------------------------------------
              Species                  Level A      Level A                   Level A      Level A                   Level A      Level A
                                      harassment   harassment    Level B     harassment   harassment    Level B     harassment   harassment    Level B
                                        (SEL)        (peak)     harassment     (SEL)        (peak)     harassment     (SEL)        (peak)     harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin Whale..........................          0.3        13.31        37.62         0.11         3.24        26.07            0         0.36        18.08
Humpback Whale.....................         0.16        20.71        34.21         0.04         7.18        23.09            0         0.93        15.77
Minke Whale........................         0.09         1.86        13.57         0.03         0.15         9.53            0         0.04         6.62
North Atlantic Right Whale *.......         0.03         1.63          5.7         0.01         0.32         3.91            0         0.03         2.66
Sei Whale..........................         0.01          0.4         1.15            0         0.09         0.78            0         0.01         0.55
Atlantic White-Sided Dolphin.......         0.28            0       548.53         0.14            0       357.71            0            0       231.09
Bottlenose Dolphin.................         0.19            0       102.67            0            0        66.75            0            0        43.72
Pilot Whales.......................            0            0            0            0            0            0            0            0            0
Risso's Dolphin....................            0            0         1.78            0            0         1.22            0            0         0.84
Common Dolphin.....................         0.79            0      1099.62         0.39            0       761.48         0.01            0       527.04
Sperm whale........................            0            0            0            0            0            0            0            0            0
Harbor Porpoise....................         7.44         0.22       163.17         3.86         0.14       107.61         1.72         0.07        70.29
Gray Seal..........................          1.1         0.56       183.32         0.19         0.19       123.97            0         0.18        82.23
Harbor Seal........................         2.37         1.19       203.98         1.01         0.68       139.82         0.17         0.34        93.67
Harp Seal..........................         1.26         1.29       206.08         0.36         0.36       136.45         0.18            0        90.56
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * NARW exposure estimates have been revised from the Notice of Proposed IHA based on updated density estimates for the species in the project area
  (Roberts et al., 2020).

    As shown in Tables 10-13, the greatest potential number of marine 
mammal exposures above the Level B harassment threshold occurs under 
the Maximum Design scenario with one monopile foundation installed per 
day (Table 10) while the greatest potential number of marine mammal 
exposures above the Level A harassment thresholds occurs under the 
Maximum Design scenario with two monopile foundations installed per day 
(Table 11). With the inclusion of more jacket foundations, which would 
require more piles and more overall pile driving, marine mammal 
exposure estimates for the Maximum Design scenario (Tables 10 and 11) 
are higher than under the Most Likely scenario (Tables 12 and 13). In 
all scenarios, the maximum number of jacket foundations modeled per day 
was one (four jacket pin piles). Modeling indicates that whether one 
monopile foundation is installed per day or two makes little difference 
with respect to estimated Level A harassment exposures; total exposures 
above the Level A harassment threshold differed by less than one 
exposure over the duration of the project, for each species. For 
exposures above the Level B harassment threshold, exposure estimates 
for one monopile foundation per day are somewhat higher than for two 
monopile foundations per day. With two monopile foundations per day, 
there are half as many days of pile driving so there is likewise a 
reduced number of overall predicted Level B harassment exposures over 
the duration of the project.
    Exposure modeling indicated that no Level A harassment takes are 
expected for several species (i.e., minke whale, sei whale, and all 
small cetaceans and pinnipeds). However, Vineyard Wind requested Level 
A harassment takes for most species as a precautionary measure, based 
on the fact that shutdown of pile driving may not be technically 
feasible once pile driving has begun, thus if a marine mammal were to 
enter the Level A harassment zone after pile driving has commenced 
Vineyard Wind may not be able to avoid that animal(s) being taken by 
Level A harassment. Vineyard Wind requested Level A harassment takes 
for these species based on mean group size for each respective species, 
assuming that if one group member were to be exposed, it is likely that 
all animals in the same group would receive a similar exposure level, 
especially in a scenario with a larger area ensonified above the Level 
A harassment threshold. Thus, for the species for which exposure 
modeling indicated less than the number of individuals in a mean group 
size would be taken (by either Level A or Level B harassment), Vineyard 
Wind increased the value from the exposure modeling results to equal 
one mean group size, rounded up to the nearest integer, for species 
with predicted exposures of less than one mean group size (with the 
exception of NARWs, as described below). Mean group sizes for species 
were derived from Kraus et al. (2016), where available, as the best 
representation of expected group sizes within the RI/MA & MA WEAs. 
These were calculated as the number of individuals sighted, divided by 
the number of sightings summed over the four seasons (see Tables 5 and 
19 in Kraus et al., 2016). Sightings for which species identification 
was considered either definite or probable were used in the Kraus et 
al. (2016) data. For species that were observed very rarely during the 
Kraus et al. (2016) study (i.e., sperm whales and Risso's dolphins) or 
observed but not analyzed (i.e., pinnipeds), data derived from AMAPPS 
surveys (Palka et al., 2017) were used to evaluate mean group size. For 
sperm whales and Risso's dolphins, the number of individuals divided by 
the number of groups observed during 2010-2013 AMAPPS NE summer 
shipboard surveys and NE aerial surveys during all seasons was used 
(Appendix I of Palka et al., 2017). Though pinnipeds congregate in 
large numbers on land, at sea they are generally foraging alone or in 
small groups. For harbor and gray seals, Palka et al. (2017) report 
sightings of seals at sea during 2010-2013 spring, summer, and fall NE 
AMAPPS aerial surveys. Those sightings include both harbor seals and 
gray seals, as well as unknown seals, and thus a single group size 
estimate was calculated for these two species. Harp seals are 
occasionally recorded south of the RI/MA & MA WEAs on Long Island, New 
York, and in the nearshore waters, usually in groups of one or two 
individuals. During 2002-2018, the Coastal Research and Education 
Society of Long Island (CRESLI) reported seven sightings of harp seals 
(CRESLI, 2018). Five of these were of single individuals and two were 
of two animals. Calculated group sizes for all species are shown in 
Table 14.

[[Page 33835]]



 Table 14--Mean Group Sizes of Marine Mammal Species in the Project Area
------------------------------------------------------------------------
                                                                   Mean
                             Species                               group
                                                                   size
------------------------------------------------------------------------
Fin Whale.......................................................     1.8
Humpback Whale..................................................       2
Minke Whale.....................................................     1.2
North Atlantic Right Whale......................................     2.4
Sei Whale.......................................................     1.6
Atlantic White-Sided Dolphin....................................    27.9
Common Bottlenose Dolphin.......................................     7.8
Pilot whale.....................................................     8.4
Risso's Dolphin.................................................     5.3
Short-Beaked Common Dolphin.....................................    34.9
Sperm Whale.....................................................     1.5
Harbor Porpoise.................................................     2.7
Gray Seal.......................................................     1.4
Harbor Seal.....................................................     1.4
Harp Seal.......................................................     1.3
------------------------------------------------------------------------

    Vineyard Wind requested Level B take numbers for some species that 
differ from the numbers modeled and were instead based on monitoring 
data from site characterization surveys conducted at the same location. 
Vineyard Wind reviewed monitoring data recorded during site 
characterization surveys in the WDA from 2016-2018 and calculated a 
daily sighting rate (individuals per day) for each species in each 
year, then multiplied the maximum sighting rate from the three years by 
the number of pile driving days under the Maximum Design scenario 
(i.e., 102 days). This method assumes that the largest average group 
size for each species observed during the three years of surveys may be 
present during piling on each day. Vineyard Wind used this method for 
all species that were documented by protected species observers (PSOs) 
during the 2016-2018 surveys. For sei whales, this approach resulted in 
the same number of estimated Level B harassment takes as Level A 
harassment takes (two), so to be conservative Vineyard Wind doubled the 
Level A harassment value to arrive at their requested number of Level B 
harassment takes. Risso's dolphins and harp seals were not documented 
by PSOs during those surveys, so Vineyard Wind requested take based on 
two average group sizes for those species. The Level B harassment take 
calculation methodology described here resulted in higher take numbers 
than those modeled (Table 10) for 10 out of 15 species expected to be 
taken.
    We have authorized take numbers that are slightly different than 
the numbers requested by Vineyard Wind for some species. Vineyard 
Wind's requested take numbers for Level A harassment authorization are 
based on an expectation that 12 dB sound attenuation will be effective 
during the planned activity. NMFS reviewed the CalTrans bubble curtain 
``on and off'' studies conducted in San Francisco Bay in 2003 and 2004. 
Based on 74 measurements (37 with the bubble curtain on and 37 with the 
bubble curtain off) at both near (<100 m) and far (>100 m) distances, 
the linear averaged received level reduction is 6 dB (CalTrans, 2015). 
Nehls et al. (2016) reported that attenuation from use of a bubble 
curtain during pile driving at the Borkum West II offshore wind farm in 
the North Sea was between 10 dB and 17 dB (mean 14 dB) (peak).
    Based on the best available information, we believe it reasonable 
to assume some level of effective attenuation due to implementation of 
noise attenuation during impact pile driving. Vineyard Wind did not 
provide information regarding the attenuation system that will 
ultimately be used during the planned activity (e.g., what size bubbles 
and in what configuration a bubble curtain would be used, whether a 
double curtain will be employed, whether hydro-sound dampers, noise 
abatement system, or some other alternate attenuation device will be 
used, etc.) to support their conclusion that 12 dB effective 
attenuation can be expected. In the absence of this information 
regarding the attenuation system that will be used, and in 
consideration of the available information on attenuation that has been 
achieved during impact pile driving, we conservatively assume that 6 dB 
of sound attenuation will be achieved. We further recognize that the 
pile size and hammer strength ultimately chosen by Vineyard Wind may be 
less than that considered under the maximum design scenario. 
Regardless, in absence of in situ data, NMFS conservatively assumes the 
sound field generated from pile driving will resemble that of the model 
assuming 6dB of attenuation and the amount of take we have authorized 
reflects that assumption.
    In some cases Vineyard Wind's site characterization survey 
monitoring efforts revealed species presence at lower values than the 
Level B harassment exposure numbers modeled (assuming 6 dB of 
attenuation) based on marine mammal densities reported by Roberts et 
al. (2016, 2017, 2018, 2020) (Table 10). While we agree that Vineyard 
Wind's use of visual observation data as the basis for Level B 
harassment take requests is generally sound, we believe that, to be 
conservative, the higher of the two calculated take numbers (i.e., take 
numbers based on available visual observation data, or, based on 
modeled exposures above threshold) should be used to estimate Level B 
exposures. Therefore, for species for which the Level B harassment 
exposure numbers modeled based on marine mammal densities reported by 
Roberts et al. (2016, 2017, 2018, 2020) with 6 dB sound attenuation 
applied (Table 10) were higher than the take numbers based on visual 
observation data (i.e., fin whale, bottlenose dolphin, harbor porpoise, 
harbor seal and harp seal) we authorize take numbers based on those 
modeled using densities derived from Roberts et al. (2016, 2017, 2018, 
2020) with 6 dB sound attenuation applied.
    As noted above, there were zero takes of sperm whales modeled under 
all modeling scenarios (Table 10, 11, 12 and 13) and sightings of sperm 
whales were extremely rare in the Kraus et al (2016) data. However, 
Vineyard Wind requested Level A takes of sperm whales based on the 
potential for there to be one group of average size exposed to noise 
above the Level A harassment threshold and we proposed to authorize 2 
takes of sperm whales by Level A harassment in the notice of proposed 
IHA (84 FR 18346; April 30, 2019). However, through the analysis 
conducted during ESA section 7 consultation, we determined the 
likelihood of a sperm whale to incur PTS (Level A harassment) is de 
minimis because the area is not a preferred sperm whale habitat as they 
prefer deeper waters and bathymetric features such as canyons and the 
monopile and jacket foundation Level A harassment distances for sperm 
whales is very small (less than 75 m). It is highly unlikely that a 
sperm whale would remain within this area during the entire duration of 
pile driving necessary to incur PTS and we have required clearance and 
shut down zones greater than 75 m. Accordingly, the Biological 
Opinion's ITS does not include an exemption for any takes by Level A 
harassment of sperm whales. For these reasons, we did not authorize 
take by Level A harassment of sperm whales.
    For NARWs, exposure modeling presented in the IHA application was 
based on the best available density data available at the time (i.e., 
Roberts et al. 2016, 2017, 2018). Because takes by Level B harassment 
calculated based on Vineyard Wind's PSO data were higher than those 
modeled using the best available density data, in the proposed IHA (84 
FR 18346; April 30, 2019) we proposed to authorize Level B harassment 
based on the numbers calculated from Vineyard Wind's PSO data (i.e., 20 
takes by Level B harassment). After the proposed IHA

[[Page 33836]]

was published, NARW density data (Roberts et al., 2020) was updated to 
incorporate more recent survey data (through 2018) including those data 
from the 2011-2015 surveys of the MA and RI/MA WEAs (Kraus et al. 2016) 
as well as the 2017-2018 continuation of those surveys, known as the 
Marine Mammal Surveys of the Wind Energy Areas (MMS-WEA) (Quintana et 
al., 2018) (Table 9). As this data represented new information that was 
deemed the best available information on NARW density in the project 
area, we requested that Vineyard Wind re-run the exposure modeling for 
NARWs using this new density data, for all possible construction 
scenarios, to confirm whether the incorporation of the new density data 
would result in a change to modeled exposure numbers. The resulting 
modeled number of takes by Level B harassment of right whales were 
lower under all four potential construction scenarios than the numbers 
that had been previously modeled and presented in the IHA application 
and the proposed IHA, and, remained lower under all four potential 
construction scenarios than the number calculated using Vineyard Wind's 
PSO data. To be conservative in our impact assessment and given the 
year-round presence of NARWs in the project area (albeit still very low 
in the summer months as indicated in the density estimates), the number 
of authorized takes by Level B harassment of right whales in the IHA 
remains at 20 (the same number of authorized takes proposed in the 
proposed IHA (84 FR 18346; April 30, 2019)) based on calculations using 
Vineyard Wind's PSO data. Modeled NARW exposure numbers (based on the 
newer density data (Roberts et al., 2020)) for all construction 
scenarios are shown in Tables 10-13. The updated NARW density data 
incorporated in the revised exposure modeling (Roberts et al., 2020) is 
shown in Table 9.
    For NARWs, one exposure above the Level A harassment threshold was 
modeled over the duration of the planned project based on the Maximum 
Design scenario and 6 dB effective attenuation (Tables 10 and 11). 
However, exposure modeling does not consider mitigation and Vineyard 
Wind requested no authorization for Level A harassment takes of NARWs 
based on an expectation that any potential exposures above the Level A 
harassment threshold will be avoided through enhanced mitigation and 
monitoring measures implemented specifically to minimize potential NARW 
exposures. As described in the notice of proposed IHA, based on the 
enhanced mitigation and monitoring measures implemented specifically 
for NARWs (described below, see ``Mitigation''), including, but not 
limited to, the seasonal moratorium on construction from January 
through April, delay of pile driving upon any sighting of a NARW at any 
distance by observers on the pile driving platform, extended PAM 
clearance and monitoring zones beyond the Level B harassment zone, and 
pile driving shutdown called for at the Level A harassment distance, 
any potential take of right whales by Level A harassment will be 
avoided. Therefore, we do not authorize any takes of NARWs by Level A 
harassment.
    Estimates of take by Level A harassment are based on exposure 
modeling with 6 dB sound attenuation applied rather than Vineyard 
Wind's PSO data. However, for all species for which the modeled number 
of takes by Level A harassment was lower than the estimated mean group 
size (Table 9), we proposed to authorize takes by Level A harassment 
based on mean group size to be conservative (except for NARWs, for 
which no takes by Level A harassment were proposed because of the 
enhanced mitigation protocols). There were three species for which 
estimated takes by Level A harassment based on exposure modeling were 
higher than the estimated mean group size, and therefore the proposed 
number of takes by Level A harassment were based on exposure modeling 
rather than mean group size: Fin whale, humpback whale and harbor 
porpoise. Thus for these three species, we recalculated takes by Level 
A harassment based on exposure modeling assuming a scenario of 100 
piles driven with 6 dB attenuation and two piles driven with no 
attenuation. This resulted in the following change to takes by Level A 
harassment from the proposed IHA (84 FR 18346; April 30, 2019): Fin 
whale takes by Level A harassment increased from 4 to 5 (recalculation 
of Level A harassment takes for humpback whale and harbor porpoise did 
not result in a change to the estimated Level A harassment take 
number). Although no unattenuated pile driving will occur, we have 
issued the amount of take of fin whales in Table 15 to be conservative. 
This take also aligns with the amount of take exempted in the 
Biological Opinion and associated ITS. Authorized take numbers are 
shown in Table 15.

                              Table 15--Total Amount of Take Authorized, by Species
----------------------------------------------------------------------------------------------------------------
                                                                                                  Total takes as
                                                  Takes by Level  Takes by Level    Total takes    a percentage
                     Species                       A harassment    B harassment     authorized    of stock taken
                                                                                                         2
----------------------------------------------------------------------------------------------------------------
Fin whale 1.....................................               5              33              38             0.5
Humpback Whale..................................              10              56              66             4.7
Minke Whale.....................................               2              98             100             0.4
North Atlantic Right Whale 1....................               0              20              20             5.4
Sei Whale 1.....................................               2               4               6             0.1
Sperm whale 1...................................               0               5               5             0.1
Atlantic White-Sided Dolphin....................              28           1,107           1,135             1.2
Bottlenose Dolphin..............................               8              96             104             0.2
Long-finned Pilot Whale.........................               9              91             100             0.3
Risso's Dolphin.................................               6              12              18             0.1
Common Dolphin..................................              35           4,646           4,681             2.7
Harbor porpoise.................................               4             150             155             0.2
Gray seal.......................................               2             414             416             1.5
Harbor seal.....................................               2             214             216             0.3
Harp seal.......................................               2             217             219             0.0
----------------------------------------------------------------------------------------------------------------
1 Here we present take numbers of ESA-listed marine mammals provided Vineyard Wind installs 102 foundations.
  Ultimately this take is contingent upon the amount of take authorized in the associated Incidental Take
  Statement which is scaled based on final design.

[[Page 33837]]

 
2 Calculations of percentage of stock taken are based on the Nbest abundance estimate as shown in Table 2. For
  all other species the best available abundance estimates are derived from the most recent NMFS Stock
  Assessment Reports (Hayes et al., 2020).

    The take numbers authorized (Table 15) are considered conservative 
for the following reasons:
     Authorized take numbers are based on an assumption that 
all installed monopiles would be 10.3 m in diameter, when some or all 
monopiles ultimately installed may be smaller;
     Authorized take numbers are based on an assumption that 
102 foundations would be installed, when ultimately the total number 
installed may be lower;
     Authorized take numbers are based on a scenario that 
includes up to 10 jacket foundations, when it is possible that fewer 
than 10 jacket foundations may be installed;
     Authorized Level A take numbers do not account for the 
likelihood that marine mammals will avoid a stimulus when possible 
before that stimulus reaches a level that would have the potential to 
result in injury;
     Authorized take numbers do not account for the 
effectiveness of mitigation and monitoring measures in reducing the 
number of takes (with the exception of NARWs, for which mitigation and 
monitoring measures are factored into the Level A harassment take 
number);
     For 9 of 15 species, no Level A takes were predicted based 
on modeling, however Level A take numbers have been conservatively 
increased from zero to mean group size for these species.

Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such 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 such 
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 and impact on 
operations.
    The mitigation strategies described below are consistent with those 
required and successfully implemented under previous incidental take 
authorizations issued in association with in-water pile-driving 
activities (e.g., ramp-up, establishing harassment zone, implementing 
shutdown zones, etc.). Additional measures have also been incorporated 
to account for the fact that the planned activities would occur 
offshore. Modeling was performed to estimate zones of influence (ZOI; 
see ``Estimated Take''); these ZOI values were used to inform 
mitigation measures for pile driving activities to minimize Level A 
harassment and Level B harassment to the extent possible, while 
providing estimates of the areas within which Level B harassment might 
occur. Several measures have been added or modified since the proposed 
IHA was published, and are identified and described in detail below.
    In addition to the specific measures described later in this 
section, Vineyard Wind would conduct briefings for construction 
supervisors and crews, the marine mammal and acoustic monitoring teams, 
and Vineyard Wind staff prior to the start of all pile driving 
activity, and when new personnel join the work, in order to explain 
responsibilities, communication procedures, the marine mammal 
monitoring protocol, and operational procedures. Vineyard Wind must use 
available sources of information on right whale presence, including, at 
least, daily monitoring of the Right Whale Sightings Advisory System, 
monitoring of Coast Guard VHF Channel 16 throughout the day to receive 
notifications of any sightings, and information associated with any 
Dynamic Management Areas and Slow Zones to plan pile driving to 
minimize the potential for exposure of any right whales to pile driving 
noise. This measure was not included in the proposed IHA and affords 
increased protection of NARWs by raising awareness of NARW presence in 
the area by both visual and passive acoustic monitoring efforts outside 
of Vineyard Wind's efforts and allows for planning of pile driving to 
minimize potential impacts.

Seasonal Restriction

    As described in the proposed IHA, no pile driving activities may 
occur between January 1 and April 30. More recently, as identified in 
the final IHA, Vineyard Wind has also committed to avoiding pile 
driving in December except under unforeseen, extraordinary 
circumstances that require them to do so to complete the project and 
they may only do so upon approval from BOEM. This seasonal restriction 
is established to minimize the potential for NARWs to be exposed to 
pile driving noise. Based on the best available information (Kraus et 
al., 2016; Roberts et al., 2017, 2020), the highest densities of right 
whales in the project area are expected during the months of December 
through April. This restriction is expected to greatly reduce the 
potential for NARW exposure to pile driving noise associated with the 
planned project.

Clearance Zones

    Vineyard Wind must use PSOs to establish clearance zones around the 
pile driving equipment to ensure these zones are clear of marine 
mammals prior to the start of pile driving. The purpose of 
``clearance'' of a particular zone is to prevent potential instances of 
auditory injury and potential instances of more severe behavioral 
disturbance as a result of exposure to pile driving noise (serious 
injury or death are unlikely outcomes even in the absence of mitigation 
measures) by delaying the activity before it begins if marine mammals 
are detected within certain pre-defined distances of the pile driving 
equipment. The primary goal in this case is to prevent auditory injury 
(Level A harassment) of NARWs and reduce the risk of PTS to other 
marine mammals where there is potential it may occur. The clearance 
zones are

[[Page 33838]]

larger than the modeled distances to the isopleths corresponding to 
Level A harassment (based on peak SPL) for all marine mammal functional 
hearing groups, assuming an effective 6 dB attenuation of pile driving 
noise. For NARWs, a detection at any distance by a PSO on the pile 
driving vessel will trigger a delay. The clearance zone identified in 
Table 16a is the minimum zone that must be visible and clear prior to 
commence pile driving; however, PSO will be able to detect a whale at 
farther distances on clear days. Further, at all times of year, 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 NARW, triggering 
a delay in pile driving.
    The proposed IHA identified a pile driving clearance zone of 1,000 
m (1 km) for NARWs from May 15 through October 31. In the final IHA, 
the clearance zone for NARWs during this time period was greatly 
expanded to 5 km and a minimum visibility zone was established. The 
clearance zones for non-NARWs species remained as proposed in the final 
IHA. Clearance zones apply to both monopile and jacket installation. 
These zones vary depending on species and are shown in Table 16 for all 
piles. All distances to clearance zones are the radius from the center 
of the pile.

                  Table 16a and b--Required NARW Clearance Zones (16a) and Shutdown Zones (16b)
----------------------------------------------------------------------------------------------------------------
                                       Clearance and PAM Monitoring Zones
-----------------------------------------------------------------------------------------------------------------
                                                           Minimum visual
           Time of year                 Pile type        clearance zone 1 2   PAM clearance zone  PAM monitoring
                                                                                      5              zone (km)
----------------------------------------------------------------------------------------------------------------
May 1-May 14.....................  All................  10 km..............  10 km 6............              10
May 15-May 31....................  monopile/jacket....  2 km/1.6 km 3 4....  5 km/3.2 km 3......              10
June 1-Oct 31....................  monopile/jacket....  2 km/1.6 km 3 4....  5 km/3.2 km 3 6....             7 5
Nov 1-Dec 31.....................  monopile/jacket....  2 km/1.6 km 3......  10 km 6............              10
----------------------------------------------------------------------------------------------------------------
1 At any time of year, a visual detection of a NARW by a PSO at the pile driving platform triggers a delay in
  pile driving.
2 At all times of year, 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 NARW.
3 Upon receipt of an interim SSV report, NMFS may adjust the clearance zones to reflect SSV measurements such
  that the minimum visual clearance zones represent the Level A (SELcum) zones and the PAM clearance zones
  represent the Level B harassment zones. However, zone sizes will not be decreased less than 1 km from June 1-
  Oct 31 and not less than 2 km during May 15-May 31 or if a DMA or Slow Zone is established that overlaps with
  the Level B harassment zone.
4 If a DMA or Slow Zone overlaps the Level B harassment zone, Vineyard Wind will employ a third PSO at the pile
  driving platform such that 3 PSOs will be on duty. The primary duty of the 3rd PSO is to observe for NARWs.
5 At any time of year, a PAM detection (75 percent confidence) within the clearance zone must be treated as a
  visual detection, triggering a delay in pile driving.
6 From May 1-14 and Nov 1-Dec 31, the PAM system must be operated 24/7 if pile driving will occur and must not
  be less than 10 km.
7 If a DMA or Slow Zone overlaps the Level B zone, the PAM system must be extended to the largest practicable
  detection zone to increase situational awareness but must not be smaller than the Level B zone.


------------------------------------------------------------------------
                   NARW shutdown zone (visual and PAM)
-------------------------------------------------------------------------
                                                               Shutdown
                         Pile type                             zone 1 2
                                                                 (km)
------------------------------------------------------------------------
Monopile/Jacket............................................          3.2
------------------------------------------------------------------------
1 If a marine mammal is observed entering or within the respective
  clearance zone after pile driving has commenced, a shutdown of pile
  driving must be implemented when technically feasible.
2 Upon receipt of an interim SSV report, NMFS may adjust the shutdown
  zone.


        Table 17--Required Non-NARW Clearance and Shutdown Zones
------------------------------------------------------------------------
                                                               Clearance
                                                                  and
                        Species group                          shutdown
                                                               zones (m)
------------------------------------------------------------------------
Non-NARW mysticete whales (including humpback, sei, fin and          500
 minke) and sperm whale.....................................
Harbor porpoise.............................................         120
All other marine mammals (including dolphins and pinnipeds).          50
------------------------------------------------------------------------

    If a marine mammal is observed within or entering the relevant 
clearance zones prior to the start of pile driving operations, pile 
driving activity must be delayed until either the marine mammal has 
voluntarily left the respective clearance zone and been visually 
confirmed beyond that clearance zone, or, 30 minutes have elapsed 
without re-detection of the animal in the case of mysticetes, sperm 
whales, Risso's dolphins and pilot whales, or 15 minutes have elapsed 
without re-detection of the animal in the case of all other marine 
mammals.
    Prior to the start of pile driving activity, the clearance zones 
will be monitored for 60 minutes to ensure that they are clear of the 
relevant species of marine mammals. Pile driving may only commence once 
PSOs and PAM operators have declared the respective clearance zones 
clear of marine mammals. Marine mammals observed within a clearance 
zone must be allowed to remain in the clearance zone (i.e., must leave 
of their own volition), and their behavior will be monitored and 
documented. The clearance zones may only be declared clear, and pile 
driving started, when the entire clearance zones are visible (i.e., 
when not obscured by dark, rain, fog, etc.) for a full 30 minutes prior 
to pile driving.
    From May 1 through May 14 an extended clearance zone of 10 km 
(radial distance from the pile being driven) must be established for 
NARWs. This zone must be monitored using real-time PAM. An aerial or 
vessel-based survey must also be conducted that covers the 10 km 
extended clearance zone during this period. Vessel-based surveys must 
not begin until the lead PSO on duty determines there is adequate 
visibility. Aerial surveys must not begin until the lead PSO on duty 
determines adequate visibility and at least one hour after sunrise (on 
days with sun glare). From November 1 through December 31 an extended 
clearance zone of 10 km (radial distance from the pile being driven) 
must be established for NARWs. This zone must be monitored using real-
time PAM (no survey is required prior to pile driving during this 
period).
    From May 1 through May 14 and November 1 through December 31, if a 
NARW is confirmed via visual observation or PAM within the 10 km 
extended clearance zone, pile driving must be delayed (if it has not 
yet

[[Page 33839]]

commenced) or shut down (if it has already begun, and if technically 
feasible) and must not resume until the following day or until a survey 
confirms NARWs are no longer in the zone. From May 15 through May 31 an 
extended PAM monitoring zone of 10 km must be established for NARWs. 
While the clearance zone is 5 km, a confirmed PAM detection of a NARW 
from 5 to 10 km does not trigger delay or shutdown of pile driving but 
must be immediately relayed to visual PSOs to increase situational 
awareness. From June 1 through October 31, the PAM clearance and 
monitoring zone is 5 km.
    NMFS did consider a 5 km minimum visibility clearance zone; 
however, to do so during a time of year when NARW density is very low, 
and in consideration of all the enhanced mitigation and monitoring 
measures, we determined a zone of that size would only delay the 
project such that pile driving would be pushed to the shoulder seasons 
when NARWs are present in higher densities. Further, a 5 km minimum 
visibility clearance zone is impracticable as it would likely result in 
a delay in construction. According to Vineyard Wind, the project must 
be constructed in one construction season to meet the commercial 
operations date under its contractual obligations and maintain the 
commercial viability of the project. Vineyard Wind is planning for a 6-
month construction season. Of the hours available for pile driving 
during the 6-month construction season, almost 60 percent are lost due 
to prohibitions on pile driving at night and pile driving not being 
allowed to begin until at least one hour after sunrise and not before 
1.5 hours of civil sunset. Further restricting the available hours for 
pile driving are wind and wave conditions that preclude the ability to 
work safely offshore. Overall, Vineyard Wind estimates that of the 
total available hours for pile driving, an average of 75 percent are 
lost due to regulatory restrictions and sea/weather conditions. This 
does not account for lost time due to technical difficulties or 
stoppages for protected species. If we were to increase the minimum 
visual clearance zone to 5 km, the project would likely not be 
completed within the time necessary and therefore the measure is 
impracticable. Further, pushing pile driving to times when NARWs are 
more abundant (but still within the pile driving window), could result 
in adverse and unnecessary impacts to NARWs. Finally, we have included 
a minimum 5 km PAM clearance zone which is not impacted by weather/
visibility.

Additional Measures for North Atlantic Right Whales

    Enhanced measures for right whales, including extended clearance 
zones during certain times of year, are included in the IHA and are 
designed to further minimize the potential for right whales to be 
exposed to pile driving noise. Extended clearance zones are required 
during times of year that are considered to be ``shoulder seasons'' in 
terms of NARW presence in the project area (November, December and 
May). While NARW presence during these times of year is considered less 
likely than during the required seasonal closure (January through 
April), based on the best available information right whales may occur 
in the project area during these times of year (Roberts et al, 2017, 
2020; Kraus et al. 2016). Extended clearance zones must be maintained 
through PAM, as well as by visual observation conducted on aerial or 
vessel-based surveys during certain seasons, as described below.
    Pile driving must be delayed upon visual observation of a NARW by 
PSOs on the pile driving vessel at any distance from the pile. We note 
that in the proposed IHA, the delay in pile driving was triggered from 
May 15-October 31 by a detection within 1km of the pile; therefore, the 
measure in the final IHA is more protective of NARWs. Pile driving must 
be delayed upon a confirmed PAM detection of a NARW, if the detection 
is confirmed to have been located within the relevant clearance zone 
(Table 16). Any large whale visually observed by a PSO within 1,000 m 
of the pile that cannot be identified to species must be treated as if 
it were a NARW for clearance purposes (we note this measure was not 
included in the IHA). Any sighting of a NARW by Vineyard Wind personnel 
or by personnel contracted by Vineyard Wind (including vessel crews and 
construction personnel) must be immediately reported to the lead PSO on 
duty.
    Real-time acoustic monitoring must begin at least 60 minutes prior 
to pile driving. The real-time PAM system must be designed and 
established such that detection capability extends to 10 km from the 
pile driving location. The real-time PAM system must ensure that 
acoustic detections can be classified (i.e., potentially originating 
from a NARW) within 30 minutes of the original detection. The PAM 
operator must be trained in identification of mysticete vocalizations. 
The PAM operator responsible for determining if the acoustic detection 
originated from a NARW within the 10 km PAM monitoring zone would be 
required to make such a determination if they have at least 75 percent 
confidence that the vocalization within 10 km of the pile driving 
location originated from a North Atlantic right whale. A record of the 
PAM operator's review of any acoustic detections must be reported to 
NMFS.
    If a NARW is observed at any time by PSOs or personnel on any 
project vessels, during any project-related activity or during vessel 
transit, Vineyard Wind must report sighting information to the NMFS 
NARW Sighting Advisory System, to the U.S. Coast Guard via channel 16, 
and through the WhaleAlert app (https://www.whalealert.org/) as soon as 
feasible but no longer than 24 hours after the sighting. If a NARW is 
detected via PAM, a report of the detection must be submitted to NMFS 
as soon as feasible but no longer than 24 hours after the detection. In 
addition, within 48 hours, metadata associated with the detection must 
be submitted to the NMFS NARW Passive Acoustic Reporting System 
website. None of these reporting requirements were included in the 
proposed IHA and offer additional protection to marine mammals via 
increased awareness for all mariners.

Soft Start

    The use of a soft start procedure is believed to provide additional 
protection to marine mammals by warning marine mammals or providing 
them with a chance to leave the area prior to the hammer operating at 
full capacity, and typically involves a requirement to initiate sound 
from the hammer at reduced energy followed by a waiting period. 
Vineyard Wind must utilize soft start techniques for impact pile 
driving by performing an initial set of three strikes from the impact 
hammer at a reduced energy level followed by a 1 minute waiting period. 
We note that it is difficult to specify the reduction in energy for any 
given hammer because of variation across drivers and, 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, Vineyard Wind has proposed that they 
will target less than 40 percent of total hammer energy for the initial 
hammer strikes during soft start. The soft start process would be 
conducted a total of three times prior to driving each pile (e.g., 
three single strikes followed by a one minute delay, then three 
additional single strikes followed by a one minute delay, then a final 
set of three single strikes followed by an additional one

[[Page 33840]]

minute delay). Soft start would be required at the beginning of each 
day's impact pile driving work and at any time following a cessation of 
impact pile driving of thirty minutes or longer.

Shutdown

    The purpose of a shutdown is to prevent some undesirable outcome, 
such as auditory injury or behavioral disturbance of sensitive species, 
by halting the activity. The proposed IHA included a shutdown zone 
equal to the proposed clearance zones (i.e., 1 km for NARWs, 500 m for 
all other mysticetes, 120 m for harbor porpoise, and 50 m for all other 
marine mammals). However, after further consideration, we determined 
that a shutdown zone equal to the Level A harassment zone for monopiles 
was warranted for NARWs year-round. This expansion of the shutdown zone 
affords additional protection to NARWs from both Level A harassment 
(e.g., PTS) and reduces the severity of Level B harassment as a 
received level at 3.2 km will be much less than that at 1km. The 
shutdown zones for all other marine mammals remain as proposed. If a 
marine mammal is observed entering or within the respective clearance 
zones (Table 16) after pile driving has begun, the PSO will request a 
temporary cessation of pile driving. Vineyard Wind has proposed that, 
when called for by a PSO, shutdown of pile driving would be implemented 
when feasible but that shutdown would not always be technically 
practicable once driving of a pile has commenced as it has the 
potential to result in pile instability. We therefore require that 
shutdown would be implemented when technically feasible, with a focus 
on other mitigation measures as the primary means of minimizing 
potential impacts on marine mammals from noise related to pile driving. 
If shutdown is called for by a PSO, and Vineyard Wind determines a 
shutdown to be technically feasible, pile driving would be halted 
immediately.
    In situations when shutdown is called for but Vineyard Wind 
determines shutdown is not practicable due to human safety or 
operational concerns, reduced hammer energy would be implemented when 
practicable. In cases where pile driving is already started and a PSO 
calls for shutdown, the lead engineer on duty will evaluate the 
following to determine whether shutdown is technically feasible: (1) 
Use the site-specific soil data and the real-time hammer log 
information to judge whether a stoppage would risk causing piling 
refusal at re-start of piling; and (2) Check that the 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. Determinations 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 a shutdown is called for by PSOs but Vineyard Wind determines 
shutdown is not technically feasible due to human safety concerns or to 
maintain installation feasibility then reduced hammer energy must be 
implemented, when the lead engineer determines it is technically 
feasible.
    Following a shutdown, pile driving may not commence until either 
the animal has voluntarily left and been visually confirmed beyond the 
relevant clearance zone or when 30 minutes have elapsed without re-
detection (for mysticetes, sperm whales, Risso's dolphins and pilot 
whales) or 15 minutes have elapsed without re-detection (for all other 
marine mammals), or if required to maintain installation feasibility.

Visibility Requirements

    The proposed IHA included a measure that pile driving must not be 
initiated after sunset or at nighttime. The final IHA affords 
additional protection to marine mammals in that no pile driving may 
begin until at least one hour after (civil) sunrise and no pile driving 
may begin within 1.5 hours of (civil) sunset, after sunset or at 
nighttime. Pile driving may continue after dark only when the 
installation of the same pile began during daylight (within 1.5 hours 
of (civil) sunset) when clearance zones were fully visible for at least 
30 minutes immediately prior to pile driving. Pile driving must not be 
initiated at night, or, when the full extent of all relevant clearance 
zones cannot be confirmed to be clear of marine mammals, as determined 
by the lead PSO on duty. The clearance zones may only be declared 
clear, and pile driving started, when the full extent of all clearance 
zones are visible (i.e., when not obscured by dark, rain, fog, etc.) 
for a full 30 minutes prior to pile driving. During periods of obscured 
visibility, alternative detection devices (e.g., night vision, thermal, 
infrared) must be used.

Sound Attenuation

    The proposed IHA indicated Vineyard Wind may drive unattenuated 
piles to identify the effectiveness of the bubble curtain and confirm 
that at least a 6dB attenuation was being achieved using such devices. 
After further consideration, we determined that driving such large 
piles to meet the 6dB attenuation requirement was not warranted. 
Instead, Vineyard Wind is prohibited from driving unattenuated piles 
and instead must ensure such devices are achieving the anticipated 
harassment isopleths based on modeling assuming 6 dB reduction. This 
measure results in reduced noise levels, benefiting all marine mammals. 
The final IHA states that Vineyard Wind must implement a noise 
attenuation device(s) during all impact pile driving. The attenuation 
system may include one of the following or some combination of the 
following: A Noise Mitigation System, Hydro-sound Damper, Noise 
Abatement System, and/or bubble curtain. Vineyard Wind would also have 
a second back-up attenuation device (e.g., bubble curtain or similar) 
available, if needed, to ensure the harassment zones do not exceed 
those modeled (assuming at least a 6dB reduction), pending results of 
sound field verification testing. A Pile Driving Plan including a 
complete description of the sound attenuation systems planned for use 
must be submitted to NMFS for approval no less than 90 days prior to 
commencement of pile driving. We note that submission of such a plan 
was not included in the proposed IHA. We have also included additional 
requirements related to field measurements (see Monitoring and 
Reporting section below).

Marine Mammal Monitoring Protocols

    Monitoring would be conducted before, during, and after pile 
driving activities. In addition, observers will record all incidents of 
marine mammal occurrence, regardless of distance from the construction 
activity, and monitors will document any behavioral reactions in 
concert with distance from piles being driven. Observations made 
outside the clearance zones will not result in delay of pile driving; 
that pile segment may be completed without cessation, unless the marine 
mammal approaches or enters the clearance zone, at which point pile 
driving activities would be halted when practicable, as described 
above. Pile driving activities include the time to install a single 
pile or series of piles, as long as the time elapsed between uses of 
the pile driving equipment is no more than 30 minutes.

Vessel Strike Avoidance

    The IHA contains numerous vessel strike avoidance measures. 
Vineyard Wind is 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

[[Page 33841]]

is restricted in its ability to maneuver and, because of the 
restriction, cannot comply.
    Vineyard Wind must submit a NARW strike avoidance plan 90 days 
prior to commencement of vessel use. The plan will, at minimum, 
describe how the required vessel, PAM, or aerial based monitoring will 
be conducted to ensure the transit corridor is clear of NARWs. The plan 
will also provide details on the vessel-based observer protocol on 
transiting vessels and PAM required between November 1 and May 14. 
Submission of this plan was not included in the proposed IHA.
    Additional measure included in the final IHA that was not included 
in the proposed IHA includes one that states, year-round, vessel 
operators will use all available sources of information on right whale 
presence, including at least daily monitoring of the Right Whale 
Sightings Advisory System, WhaleAlert app, and monitoring of Coast 
Guard VHF Channel 16 throughout the day to receive notifications of any 
sightings and/or consideration of information associated with any 
Dynamic Management Areas to plan vessel routes to minimize the 
potential for co-occurrence with any right whales.
    Vessel operators and crews must maintain a vigilant watch for all 
marine mammals and slow down, stop their vessel, or alter course, as 
appropriate and regardless of vessel size, to avoid striking any marine 
mammal. A visual observer aboard the vessel must monitor a vessel 
strike avoidance zone around the vessel (distances stated below). 
Visual observers monitoring the vessel strike avoidance zone may be 
third-party observers (i.e., PSOs) or crew members, but crew members 
responsible for these duties must be provided sufficient training to 
distinguish marine mammals from other phenomena and broadly to identify 
a marine mammal as a right whale, other whale (defined in this context 
as sperm whales or baleen whales other than right whales), or other 
marine mammal. Vineyard Wind must adhere to the following measures:
    Whenever multiple vessels are operating, any visual observations of 
ESA-listed marine mammals must be communicated to a PSO and/or vessel 
captains associated with other vessels. Under any condition, vessel 
speeds will immediately be reduced to 10 kts or less if a NARW is 
sighted by the observer or anyone on the vessel.
    From November 1 through May 14, all vessels, regardless of size, 
must travel at less than 10 kts within the WDA. From November 1 through 
May 14, when transiting to or from the WDA, vessels must either travel 
at less than 10 kts, or, must implement visual surveys with at least 
one visual observer to monitor for NARWs (with the exception of vessel 
transit within Nantucket Sound unless a DMA is in place).
    In the event that any DMA is established that overlaps with an area 
where a vessel would operate, that vessel, regardless of size, will 
transit that area at 10 kts or less unless it is a crew transfer vessel 
and certain monitoring conditions are met.
    Crew transfer vessels traveling within any designated DMA must 
travel at 10 kts (18.5 km/hr.) or less, unless NARWs are clear of the 
transit route and WDA for two consecutive days, as confirmed by vessel-
based surveys conducted during daylight hours and real-time PAM, or, by 
an aerial survey, conducted once the lead aerial observer determines 
adequate visibility. If confirmed clear by one of the measures above, 
vessels transiting within a DMA over 10 kts must employ at least two 
visual observers to monitor for NARWs. If a NARW is observed within or 
approaching the transit route, vessels must operate at less than 10 kts 
until clearance of the transit route for 2 consecutive days.
    Since the proposed IHA was released, NMFS has developed the NARW 
``Slow Zone'' Program. This program notifies vessel operators of areas 
where maintaining speeds of 10 kts or less can help protect right 
whales from vessel collisions. Maintaining speeds of 10 kts or less in 
a Slow Zone is voluntary (i.e., there is no requirement any mariner 
reduce speeds). All DMAs (triggered by the visual detection of three or 
more NARWs) fall under the Slow Zone program. Slow Zones may also be 
triggered by acoustic detections on PAM systems meeting certain 
criteria. Acoustically-triggered Slow Zones are in place for 15 days 
(similar to a DMA) and extend 20 miles from the recorder on which the 
NARW was detected. NMFS determined that measures associated with Slow 
Zones that are acoustically triggered should be included in the final 
IHA. Therefore, crew transfer vessels travelling over 10 kts within an 
acoustically-triggered Right Whale Slow Zone must employ an additional 
observer (for a total of two similar to a DMA) or other enhanced 
detection methods (e.g., thermal cameras) to monitor for NARWs in 
addition to PAM monitoring in the transit corridor.
    All vessels greater than or equal to 65 ft (19.8 m) in overall 
length must comply with the 10 kt speed restriction in any Seasonal 
Management Area (SMA).
    Crew transfer vessels may travel at over 10 kts if, in addition to 
the required dedicated observer, real-time PAM of transit corridors is 
conducted prior to and during transits. If a NARW is detected via 
visual observation or PAM within or approaching the transit route, all 
crew transfer vessels must travel at 10 kts or less for the remainder 
of that day. All vessels will reduce vessel speed to 10 kts or less 
when any large whale, any mother/calf pairs, pods, or large assemblages 
of non-delphinoid cetaceans are observed near (within 100 m (330 ft.)) 
an underway vessel.
    NMFS did consider whether all vessels associated with Vineyard 
Wind's specified activity should travel at 10 kts or less at all times 
of the year under all conditions (except when there is risk to human 
and vessel safety). NMFS finds this measure both impracticable and 
unnecessary. First and foremost, to limit vessel speeds during a time 
when NARW presence is extremely low could result in delays to the 
project that push work into times of year when NARW presence is higher. 
In addition, given the 50-60 mile distance from port to the WDA, 
traveling at 10kts or less would take approximately 4.5 to 5 hours each 
way (9-10 hours total). Vineyard Wind has indicated that workers are 
limited to a 12-hour workday, including transit time. Therefore, 10 
hours of their 12 hour workday would be taken up by transit, which is 
not feasible when workers are limited to a 12 hour work day.
    All vessels must maintain a minimum separation distance of 500 m 
(1,640 ft) from a NARW. If a whale is observed but cannot be confirmed 
as a species other than a right whale, the vessel operator must assume 
that it is a right whale and take appropriate action. If underway, 
vessels must steer a course away from any sighted NARW at 10 kts or 
less such that the 500 m (1,640 ft.) minimum separation distance is not 
violated. If a NARW is sighted within 500 m (1,640 ft.) of an underway 
vessel, the underway vessel must shift the engine to neutral. Engines 
will not be engaged until the right whale has moved outside of the 
vessel's path and beyond 500 m.
    All vessels must maintain a minimum separation distance of 100 m 
from sperm whales and non-NARW baleen whales. If one of these species 
is sighted within 100 m (330 ft.) of an underway vessel, the underway 
vessel must shift the engine to neutral. Engines will not be engaged 
until the whale has moved outside of the vessel's path and beyond 100 
m.
    All vessels must, to the maximum extent practicable, attempt to 
maintain a

[[Page 33842]]

minimum separation distance of 50 m (164 ft) from all delphinoid 
cetaceans and pinnipeds, with an exception made for those that approach 
the vessel (e.g., bowriding dolphins). If a delphinoid cetacean or 
pinniped is sighted within 50 m (164 ft.) of an underway vessel, the 
underway vessel must shift the engine to neutral, with an exception 
made for those that approach the vessel (e.g., bowriding dolphins). 
Engines will not be engaged until the animal(s) has moved outside of 
the vessel's path and beyond 50 m.
    When marine mammals are 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 marine mammals are sighted within the 
relevant separation distance, the vessel must reduce speed and shift 
the engine to neutral, not engaging the engines until animals are clear 
of the area. This does not apply to any vessel towing gear or any 
vessel that is navigationally constrained.
    All vessels underway will not divert or alter course in order to 
approach any marine mammal. Any vessel underway will avoid excessive 
speed or abrupt changes in direction.
    Project-specific training must be conducted for all vessel crew 
prior to the start of in-water construction activities. Confirmation of 
the training and understanding of the requirements must be documented 
on a training course log sheet. Vineyard Wind must ensure that vessel 
operators and crew maintain a vigilant watch for marine mammals by 
slowing down or stopping the vessel to avoid striking marine mammals. 
When not on active watch duty, members of the monitoring team must 
consult NMFS' NARW advisory systems for the presence of NARWs in the 
project area at least once a day.
    With the measure described herein, we have prescribed the means of 
effecting the least practicable adverse impact on the affected marine 
mammal species and stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) 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 
project 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).
     Mitigation and monitoring effectiveness.

Visual Marine Mammal Observation

    Vineyard Wind will collect sighting data and behavioral responses 
to pile driving activity for marine mammal species observed in the 
region of activity during the period of activity. All observers will be 
trained in marine mammal identification and behaviors and are required 
to have no other construction-related tasks while conducting 
monitoring. PSOs will monitor all clearance zones at all times. PSOs 
will also monitor Level B harassment zones (i.e., 4,121 m for monopiles 
and 3,220 m for jacket pin piles) and will document any marine mammals 
observed within these zones, to the extent practicable (noting that 
some distances to these zones are too large to fully observe). Vineyard 
Wind will conduct monitoring 60 minutes before, during, and 30 minutes 
after pile driving, with observers located at the best practicable 
vantage points on the pile driving vessel. Full details regarding 
marine mammal monitoring must be included in a Marine Mammal Monitoring 
Plan that, under the IHA, Vineyard Wind is required to submit to NMFS 
for approval at least 90 days in advance of commencement of pile 
driving. We note submission of this plan was not included in the 
proposed IHA.
    Monitoring will be conducted by qualified, trained PSOs, who will 
be placed on the installation vessel, which represents the best vantage 
point to monitor for marine mammals and implement shutdown procedures 
when applicable. The proposed IHA included a measure that a minimum of 
two PSOs will be on-watch from 60 minutes prior to commencement of pile 
driving, throughout the time required to drive a pile, and for 30 
minutes following the conclusion of pile driving. The final IHA carries 
this measure over but includes an enhanced measure in that, if a DMA or 
Slow Zone is in place that overlaps the Level B harassment zone, an 
additional PSO will be required (for a total of three PSOs on active 
duty on the pile driving vessel). PSOs may not exceed four consecutive 
watch hours; must have a minimum two hour break between watches; and 
may not exceed a combined watch schedule of more than 12 hours in a 24- 
hour period. Monitoring will be conducted. PSOs will have no other 
construction-related tasks while conducting monitoring.
    All PSOs must be approved by NMFS. Vineyard Wind must submit 
resumes of the initial set of PSO resumes necessary to commence the 
project to NMFS for approval at least 60 days prior to the first day of 
pile driving activity.
    PSOs must have the following minimum qualifications:
    (1) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
    (2) Ability to conduct field observations and collect data 
according to assigned protocols;
    (3) Experience or training in the field identification of marine 
mammals, including the identification of behaviors;
    (4) Sufficient training, orientation, or experience with the 
construction

[[Page 33843]]

operation to provide for personal safety during observations;
    (5) Writing skills sufficient to document observations including, 
but not limited to: The number and species of marine mammals observed; 
dates and times when in-water construction activities were conducted; 
dates and times 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
    (6) 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.
    Observer teams employed by Vineyard Wind in satisfaction of the 
mitigation and monitoring requirements described herein must meet the 
following additional requirements:
     Be independent observers (i.e., not construction 
personnel) are required;
     At least one observer must have prior experience working 
as an observer in an offshore environment;
     Other observers may substitute education (degree in 
biological science or related field) or training for experience;
     One observer will be designated as lead observer or 
monitoring coordinator. The lead observer must have prior experience 
working as an observer; and
     NMFS will require submission and approval of observer 
resumes.
    Vineyard Wind must conduct briefings between construction 
supervisors and crews and the PSO team prior to the start of all pile 
driving activities, and when new personnel join the work, in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures. An informal guide must 
be included with the Marine Mammal Monitoring Plan to aid in 
identifying species if they are observed in the vicinity of the project 
area. PSOs must be located at best vantage point(s) in order to observe 
the entire clearance zones and must record all incidents of marine 
mammal occurrence, regardless of distance from the construction 
activity. PSOs must document any behavioral reactions of marine mammals 
in concert with distance from the pile being driven. During all pile 
driving, PSOs must use high-magnification (25X), as well as standard 
handheld (7X) binoculars, and the naked eye to search continuously for 
marine mammals. During periods of poor visibility, PSOs must use 
alternative monitoring technologies to monitor clearance zones (e.g., 
night vision devices, IR/Thermal camera). A full description of this 
technology will be included in Vineyard Wind's Alternative Monitoring 
Plan which will be submitted to NMFS no later than 90 days prior to the 
commencement of pile driving. We note submission of this plan was not 
included in the proposed IHA. Monitoring distances must be measured 
with range finders or reticule binoculars. Distances to marine mammals 
observed must be based on the best estimate of the PSO, relative to 
known distances to objects in the vicinity of the PSO. Bearings to 
animals shall be determined using a compass.
    When monitoring is required during vessel transit (as described 
above), the PSO(s) will be stationed on vessels at the best vantage 
points to ensure maintenance of standoff distances between marine 
mammals and vessels (as described above). Vineyard Wind would implement 
the following measures during vessel transit when there is an 
observation of a marine mammal:
     PSOs will record the vessel's position and speed, water 
depth, sea state, and visibility will be recorded at the start and end 
of each observation period, and whenever there is a change in any of 
those variables that materially affects sighting conditions.
     PSOs will record the time, location, speed, and activity 
of the vessel, sea state, and visibility.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. PSOs will use their best 
professional judgment throughout implementation and seek improvements 
to these methods when deemed appropriate. Any modifications to the 
protocol will be coordinated between NMFS and Vineyard Wind.

Data Collection

    We require that observers use standardized data forms. Among other 
pieces of information, Vineyard Wind will record detailed information 
about any implementation of delays or shutdowns, including the distance 
of animals to the pile and a description of specific actions that 
ensued and resulting behavior of the animal, if any. The following 
information will be collected by PSOs during pile driving:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance and bearing of each marine mammal observed 
relative to the pile being driven for each sighting and time spent 
within harassment zone (if pile driving was occurring at time of 
sighting);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity;
     Type of construction activity (e.g., monopile or jacket 
pile installation) when marine mammals are observed;
     Description of implementation of mitigation measures 
(e.g., delay or shutdown) or why mitigation was not implemented;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Marine Mammal Passive Acoustic Monitoring

    Vineyard Wind would utilize a PAM system to supplement visual 
monitoring. The PAM system would be monitored by a minimum of one 
acoustic PSO beginning at least 60 minutes prior to ramp-up of pile 
driving and at all times during pile driving. Acoustic PSOs must 
immediately communicate all detections of marine mammals to visual 
PSOs, including any determination regarding species identification, 
distance, and bearing and the degree of confidence in the 
determination. The PAM system would not be located on the pile 
installation vessel.
    Acoustic PSOs may be on watch for a maximum of four consecutive 
hours followed by a break of at least two hours between watches. 
Acoustic PSOs would be required to demonstrate that they have completed 
specialized training for operating PAM systems. PSOs can act as 
acoustic or visual observers (but not simultaneously) as long as they 
demonstrate that their training and experience are sufficient to 
perform each task. Acoustic PSO(s) must immediately communicate all 
detections of marine mammals to visual PSOs, including any 
determination regarding species identification, distance, and bearing 
and the degree of confidence in the determination.
    A Passive Acoustic Monitoring Plan must be submitted to NMFS and 
BOEM for review and approval at least 90 days prior to the planned 
start of pile driving.

[[Page 33844]]

The Plan must describe all proposed PAM equipment, procedures, and 
protocols. We note submission of this plan was not included in the 
proposed IHA.
Sound Field Verification Acoustic Monitoring
    Vineyard Wind will also conduct hydroacoustic monitoring during 
pile driving of the first monopile and first jacket foundation 
installed over the course of the project, with noise attenuation 
activated. We note the proposed IHA did not specify that the first of 
these piles were to be monitored. In the event that subsequently driven 
piles are installed that have a larger diameter, or, are installed with 
a larger hammer or greater hammer energy than the first monopile and 
jacket pile, sound field measurements must be conducted for those 
subsequent piles. A Sound Field Verification Plan must be submitted to 
NMFS for review and approval at least 90 days prior to planned start of 
pile driving (this measure was not included in the proposed IHA). This 
plan must describe how Vineyard Wind will ensure that the location 
selected is representative of the rest of the piles of that type to be 
installed and, in the case that it is not, how additional sites will be 
selected for sound field verification, or, how the results from the 
first pile can be used to predict actual installation noise propagation 
for subsequent piles. The plan must describe how the effectiveness of 
the sound attenuation methodology will be evaluated based on the 
results. Vineyard Wind must provide the initial results of the field 
measurements to NMFS as soon as they are available.
    Vineyard Wind would be required to empirically determine the 
distances to the isopleths corresponding to the Level A and Level B 
harassment thresholds either by extrapolating from in situ measurements 
conducted at several points from the pile being driven, or by direct 
measurements to locate the distance where the received levels reach the 
relevant thresholds or below. Isopleths corresponding to the Level A 
and Level B harassment thresholds would be empirically verified for 
impact driving of the largest diameter monopile used over the duration 
of the IHA, and impact driving of the largest diameter jacket pile used 
over the duration of the IHA. For verification of the extent of the 
Level B harassment zone, Vineyard Wind would be required to report the 
measured or extrapolated distances where the received levels SPLrms 
decay to 160-dB, as well as integration time for such SPLrms. If 
initial acoustic field measurements indicate distances to the isopleths 
corresponding to Level A and/or Level B harassment thresholds are 
greater than the distances predicted by modeling (Tables 5 and 6), 
Vineyard Wind must implement additional sound attenuation measures 
prior to conducting additional pile driving. Additionally, in the event 
that field measurements indicate distances the isopleths corresponding 
to Level A and Level B harassment thresholds are greater than the 
distances predicted by modeling, NMFS may expand the relevant clearance 
and shutdown zones. We note that none of these measures regarding 
specific action based on results of the acoustic monitoring were 
included in the proposed IHA. The acoustic monitoring report would 
include: Peak sound pressure level (SPLpk), root-mean-square sound 
pressure level that contains 90 percent of the acoustic energy 
(SPLrms), single strike sound exposure level, integration time for 
SPLrms, SELss spectrum, and 24-hour cumulative SEL extrapolated from 
measurements. All these levels would be reported in the form of median, 
mean, max, and minimum. The sound levels reported would be in median 
and linear average (i.e., taking averages of sound intensity before 
converting to dB). The acoustic monitoring report would also include a 
description of depth and sediment type at the recording location.
    Recording would also occur when no construction activities are 
occurring in order to establish ambient sound levels. Vineyard Wind 
would also conduct real-time PAM during certain times of year to 
facilitate mitigation (as described above).

Reporting

    The proposed IHA included a measure that, similar to other coastal 
pile driving projects, Vineyard Wind would submit a final report to 
NMFS within 90 days after expiration of the IHA that contained both 
marine mammal and pile driving acoustic monitoring data. Since that 
time, NMFS determined more frequent review of Vineyard Wind's pile 
driving activities and monitoring data was warranted. In the final IHA, 
Vineyard Wind is required to submit weekly and monthly marine mammal 
monitoring reports in addition to submitting a draft final marine 
mammal monitoring report to NMFS within 90 days of the completion of 
monitoring activities (not 90 days upon expiration of the IHA). The 
reports would include marine mammal observations pre-activity, during-
activity, and post-activity during pile driving days, and would also 
provide descriptions of any behavioral responses to construction 
activities by marine mammals. The reports would detail the monitoring 
protocol, summarize the data recorded during monitoring including an 
estimate of the number of marine mammals that may have been harassed 
during the period of the report, and describe any mitigation actions 
taken (i.e., delays or shutdowns due to detections of marine mammals, 
and documentation of when shutdowns were called for but not implemented 
and why). The reports would also include results from marine mammal 
passive acoustic monitoring including dates and times of all 
detections, types and nature of sounds heard, whether detections were 
linked with visual sightings, water depth of the hydrophone array, 
bearing of the animal to the vessel (if determinable), species or 
taxonomic group (if determinable), spectrogram screenshot, a record of 
the PAM operator's review of any acoustic detections, and any other 
notable information. The weekly reports would contain a summary of this 
information while the final report would contain more detailed 
information. After receipt of the 90-day draft final report, NMFS will 
provide comments on the report, if necessary, to Vineyard Wind. 
Vineyard Wind must submit a final report within 30 days following 
resolution of comments on the draft report.
    The final IHA also requires Vineyard Wind to submit results of pile 
driving sound field verification to NMFS as soon as possible but no 
later than within 30 days following completion of acoustic monitoring.

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'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness

[[Page 33845]]

of the 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's 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).
    Pile driving activities associated with the project, as described 
previously, have the potential to disturb or temporarily displace 
marine mammals. Specifically, the specified activities may result in 
take, in the form of Level A harassment (potential injury) or Level B 
harassment (potential behavioral disturbance) from underwater sounds 
generated from pile driving. Potential takes could occur if individual 
marine mammals are present in the ensonified zone when pile driving is 
occurring.
    To avoid repetition, the majority of our analyses apply to all the 
species listed in Table 2, given that many of the anticipated effects 
of the planned project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the NARW--they 
are included as separate sub-sections below. As noted above, some new 
data and literature have become available since the Proposed IHA was 
published (e.g., NARW abundance and distribution information), and this 
information has been considered fully in the analysis below.

North Atlantic Right Whales

    NARWs are currently threatened by low population abundance, higher 
than average mortality rates and lower than average reproductive rates. 
Pace et al. (2021) recently released an update of his NARW abundance 
model. From 1990-2014, the female apparent survival rate fluctuated 
around 0.96. In 2014, survival decreased to approximately 0.93 and hit 
an all-time low of 0.89 in 2017. However, in 2018, survival increased 
dramatically back to around 0.95. The average survival rate, based on 
the Pace et al. (2021) regime model from 2014-2018 is approximately 
0.93, slightly lower than the average long term rate from 1990-2014 
(0.96). Since 1990, the estimated number of new entrants (which can be 
used as a proxy for recruitment rates) has widely fluctuated between 0 
and 39 (Pace et al., 2021, NMFS 2021). In the last 10 years (2011-
2020), the average number of calves born into the population is 
approximately 11. Unfortunately, not all calves born into the 
population survive. Most recently, a dead NARW calf was reported 
stranded on February 13, 2021, along the Florida coast. On December 22, 
2020, a newborn calf was sighted off El Hierro, an island in the Canary 
Islands, but has not been subsequently detected with its mother 
suggesting it did not survive.
    As described above, the project area represents part of an 
important migratory area for NARWs. Core year-round foraging habitats 
have also been identified south of Martha's Vineyard and Nantucket 
within and around the project area (Oleson et al., 2020); however, 
abundance in this area in summer months remains low compared to winter. 
It also appears the majority of sightings between the June-October 
timeframe (when Vineyard Wind would be conducting most if not all of 
its pile driving work) are concentrated approximately 20-30 kms west of 
the WDA boundary line on Nantucket Shoals (which triggered DMAs in 2019 
and 2020) with occasional, random sightings east of the project area. 
In general, due to the current status of NARWs, and the spatial overlap 
of the planned project with an area of biological significance for 
right whales, the potential impacts of the planned project on right 
whales warrant particular attention.
    The IHA includes nine overarching mitigation measures related to 
pile driving. The following measures are related to pile driving: (1) 
Time of year restrictions; (2) time of day restrictions; (3) 
implementation of pre-pile driving clearance zones; (4) implementation 
of shutdown zones; (5) use of soft-start; (6) use of sound attenuation 
systems; (7) use of PSOs to visually observe for NARWs (with any 
detection triggering delay or shutdown); (8) use of PAM to acoustically 
detect NARWs (with any detection within designated zones triggering 
delay or shutdown); and (9) requirement to monitor NARW sighting 
network platforms to be aware of NARW presence within or near the 
project area and transit corridors. The specifics regarding these 
measures are dependent upon the time of year.
    As described in Oleson et al. (2020), NARWs respond to 
environmental changes and may use habitat intermittently over time. 
They have been known to nearly abandon a frequently used foraging 
habitat only to come back in future years in large numbers. In recent 
years, the whales have demonstrated actual shifts in distribution, 
frequenting previously unrecognized foraging habitats. Sighting data 
also indicate that NARWs may investigate a previously preferred 
habitat, but not stay if the prey resource is insufficient, so some 
habitats previously used no longer have high densities of NARWs (Davies 
et al. 2019; Davis et al. 2017). As described above, NARW presence in 
the project area is year-round; however, abundance during summer months 
is low compared to winter months with spring and fall serving as 
``shoulder seasons'' wherein abundance waxes (fall) or wanes (spring). 
During aerial surveys conducted from 2011-2015 in the project area, 
NARW sightings occurred only December through April, with no sightings 
from May through November (Kraus et al., 2016). There was not 
significant variability in sighting rate among years, indicating 
consistent annual seasonal use of the area by right whales during those 
years (Kraus et al., 2016). More recently, seasonal distribution 
patterns of right whales have been less consistent, with right whales 
observed near the project area in late summer and fall. For example, in 
2019 and 2020, NARWs were observed in August and September around 
Nantucket Shoals, triggering NMFS to establish a DMA that last several 
weeks each year; however, these sightings around Nantucket Shoals are 
approximately 20-30 kms east of the most eastern edge of the project 
area and outside the Level B harassment zones created by the 
activities. Figure 2 provides a map of all sightings from June 1 
through November 31, annually, for the years 2010 through 2020 as well 
as 2021 to date (Johnson, 2018). The 2019 and 2020 cluster of sightings 
around Nantucket Shoals is prominent. Given this year-round habitat 
usage and in recognition where whales may actually occur during pile 
driving is largely influenced by unpredictable, patchy prey 
availability, NMFS has included a suite of mitigation measures designed 
to reduce impacts to NARWs to the maximum extent practicable. However, 
even in consideration of these recent habitat-use and distribution 
shifts, Vineyard Wind would be conducting pile driving when presence of 
NARWs is lower than in winter months, as reflected in the density data 
(Roberts et al., 2020; Table 9).

[[Page 33846]]

[GRAPHIC] [TIFF OMITTED] TN25JN21.001

    The most significant measure in minimizing impacts to right whales 
is the seasonal pile driving moratorium that would occur from January 
through April, when NARW abundance in the project area is expected to 
be greatest. NMFS has also included a measure that no pile will occur 
in December (a time when NARW density is lower than January-April; 
however, is greater than summer and fall through November) unless 
unforeseen circumstances arise that require Vineyard Wind to complete 
the project. We also expect these measures to greatly reduce the 
potential for mother-calf pairs to be exposed to project-related noise 
above the Level B harassment threshold during their annual migration 
through the project area. In addition, mitigation and monitoring 
measures outside of those months will greatly minimize any takes that 
may otherwise occur.
    When pile driving does occur, Vineyard Wind is committed to 
reducing the noise levels generated by pile driving to the lowest 
levels practicable such that they do not exceed a noise footprint above 
that which was modeled assuming a 6 dB attenuation. Use of a soft start 
will allow animals to move away from (i.e., avoid) the sound source 
prior to reaching the hammer energy needed to install the pile 
(Vineyard Wind will not use a hammer energy greater than necessary to 
install piles). To reduce the amount of time the area may be ensonified 
(and thereby decrease exposure risk), Vineyard Wind will drive no more 
than two monopiles or four jacket pin piles per day.
    We expect that any avoidance of the project area by NARWs would be 
temporary in nature and that any NARW that avoids the project area 
during construction would not be permanently displaced. The IHA 
authorizes 20 takes of NARWs based on the maximum design scenario. This 
may be comprised of 20 individuals taken once or less than 20 
individuals taken on multiple days. The most likely scenario is some 
combination wherein a few individuals are taken only once and a few 
individuals are taken on more than one day. For those individuals where 
take is limited to one day, behavioral disturbance and other Level B 
harassment impacts that may occur during exposure to elevated noise 
levels (e.g., masking, stress) is likely insignificant. As described in 
the notice of proposed IHA, nearly all Population Consequences of 
Disturbance (PCOD) studies and experts agree that infrequent exposures 
from a single day or less are unlikely to impact individual fitness, 
let alone lead to population-level effects.
    There is potential for the same individual NARW to be exposed on 
multiple days; however, the risk is low. Pile driving is limited per 
day and would only begin in the absence of NARWs detected from PSOs on 
the pile driving vessel (at any distance) or within the designated PAM 
clearance zone. If pile driving has commenced, we anticipate NARWs 
would avoid the area, utilizing nearby habitats not impacted by the 
project. Further, during times of the year NARWs are most likely to be 
in the area, the clearance zones are much greater than the Level B 
harassment zone. However, should a NARW be exposed to pile driving 
noise above the Level B harassment threshold, pile driving would be 
shut down (if safe) thereby minimizing the duration and intensity of 
exposure. We anticipate if NARWs go undetected and they are exposed to 
pile driving noise, it would be to noise levels only slightly above the 
Level B harassment threshold as it is likely a NARW would not approach 
pile driving locations to the degree they would purposely expose 
themselves to very high noise levels. The implementation of a soft 
start would provide an opportunity for whales to move away from the 
source. Given any given exposure would likely involve noise levels on 
the low end of the Level B harassment spectrum and that animals would 
likely be at some great distance to the source, the magnitude of any 
Level B harassment is expected to be low.

[[Page 33847]]

    There are no known NARW mating or calving areas within the project 
area; however, as described above, it is as part of a larger core 
foraging area (Oleson et al., 2020). If a NARW does avoid foraging 
within the project area, there is ample foraging habitat for it 
adjacent to the project area that is not ensonified by the project's 
pile driving noise. For example, in the fall of 2019 and 2020, NARWs 
were particularly attracted to Nantucket Shoals, a known foraging hot 
spot. The nearest NARWs detections were approximately 30 kms away from 
the most western edge of the project area where pile driving would 
occur. Therefore, any noise from the project would not have impacted 
NARW foraging in this habitat should it have been occurring at the 
time.
    Prey for NARWs are mobile and broadly distributed throughout the 
project area; therefore, right whales that may be temporarily displaced 
during Vineyard Wind's pile driving activities are expected to be able 
to resume foraging once they have moved away from areas with disturbing 
levels of underwater noise. Because of the temporary nature of the 
disturbance and the availability of similar habitat and resources in 
the surrounding area, the impacts to right whales and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual right whales or their population. Even 
repeated Level B harassment of some smaller number (<20) of individuals 
as a subset of the overall stock over several days is unlikely to 
result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole.
    With respect to potential vessel strike, the IHA includes an 
extensive suite of mitigation measures designed to avoid ship strike 
and close approaches, including, but not limited it, separation 
distances, limiting vessel speed to 10 kts (18.5 km/hr) (except in the 
case of transiting crew transfer vessels in the transit route under 
specific conditions), use of observers and PAM for crew transfer 
vessels travelling in excess of 10 kts (18.5 km/hr), training and 
communication protocols, and NARW observation system monitoring. As 
described above, given anticipated effectiveness of these measures on 
top of the already very low probability of a vessel strike, take from 
vessel strike is not anticipated or authorized.
    As described above, NARWs are experiencing an ongoing UME. The loss 
of even one individual could significantly impact the population. 
However, no mortality, serious injury or injury of right whales as a 
result of the project is expected or authorized. Any disturbance to 
NARWs due to exposure to pile driving noise (Level B harassment) is 
expected to result in temporary avoidance of the immediate area of 
construction. As no injury or mortality is expected or authorized, and 
Level B harassment of NARWs will be reduced to the level of least 
practicable adverse impact through use of mitigation measures, the 
authorized takes of right whales would not exacerbate or compound the 
ongoing UME in any way.
    NMFS concludes that exposures to NARWs would be greatly reduced due 
to the seasonal restrictions, and additional mitigation measures that 
would ensure that any exposures above the Level B harassment threshold 
would result in only short-term effects to individuals exposed. With 
implementation of the mitigation requirements, take by Level A 
harassment is unlikely and is therefore not authorized. Potential 
impacts associated with Level B harassment would include low-level, 
temporary behavioral modifications, most likely in the form of 
avoidance behavior or potential alteration of vocalizations. Although 
unlikely given the NARW-specific mitigation, temporary threshold shift 
is another potential form of Level B harassment and could result in 
brief periods of slightly reduced hearing sensitivity that could affect 
behavioral patterns by making it more difficult to hear or interpret 
acoustic cues in the frequency range of pile driving (and slightly 
above)--however, it is unlikely that any individuals would be exposed 
to piling noise at a distance or duration that would have more than 
brief and minor impacts, which would not be expected to affect the 
fitness of any individuals.
    In order to evaluate whether or not individual behavioral 
responses, in combination with other stressors, impact animal 
populations, scientists have developed theoretical frameworks which can 
then be applied to particular case studies when the supporting data are 
available. One such framework is the Population Consequences of 
Disturbance Model (PCoD), which attempts to assess the combined effects 
of individual animal exposures to stressors at the population level 
(NAS 2017). 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; 
Harris et al. 2017; 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). Since NMFS expects that any 
exposures would be brief, and the likelihood or repeat exposures to the 
same individuals is low (but possible), any behavioral responses that 
would occur due to animals being exposed to pile driving noise are 
expected to be temporary, with behavior returning to a baseline state 
shortly after the acoustic stimuli ceases. Given this, and NMFS' 
evaluation of the available PCoD studies, any such behavioral responses 
are not expected to impact individual animals' health or have effects 
on individual animals' survival or reproduction, thus no detrimental 
impacts at the population or stock level are anticipated. NARWs may 
temporarily avoid the immediate area but are not expected to 
permanently abandon the area. Further, while the project area may be 
used as foraging habitat, the surrounding area, including Nantucket 
Shoals where NARWs are most likely to congregate, is approximately 20-
30 kms west of the project area. Therefore, noise from the project in 
this area will be minimal to none and well below the 160 dB rms Level B 
harassment threshold. In addition, the amount of Level B take 
authorized in the IHA is limited to 20. Under the ITS, less take is 
authorized if fewer piles are ultimately installed, meaning the 
authorized level of take may be lower for NARW.
    In our IHA, up to 20 NARW individuals could be behaviorally 
disturbed or some fewer number of individual right whales could be 
behaviorally disturbed on more than one day, but no more than 20 
instances of take would occur. Given most pile driving would occur 
during a time when NARW is much lower than January through May (when 
pile driving is, under no circumstances, allowed to proceed) and given 
the required mitigation and monitoring, it is highly unlikely a single 
NARW would absorb all the authorized take (i.e., the same whale taken 
on 20 different days). Because the project area is both a migratory 
corridor and foraging area, it is likely a subset of whales will be 
exposed only once and some subset would be exposed on more than one 
day.
    While there may be temporary impacts to behaviors such as foraging 
near pile driving activities, meaningful shifts in habitat use, 
distribution, or foraging success are not anticipated. Given the suite 
of mitigation measures in the IHA, if a NARW is exposed to

[[Page 33848]]

noise levels that may result in Level B harassment, this exposure would 
occur at distance. Because sound loses energy as it moves away from the 
source, received levels at distance would be low and any resulting 
behavioral changes are anticipated to be low in severity. We also 
expect NARWs to avoid areas with high noise levels. NMFS does not 
anticipate NARW harassment that may result from Vineyard Wind's planned 
pile driving would impact the reproduction or survival of any 
individual NARWs, much less annual rates of recruitment or survival.

All Other Marine Mammal Species

    Impact pile driving has source characteristics (short, sharp pulses 
with higher peak levels and sharper rise time to reach those peaks) 
that are potentially injurious or more likely to produce severe 
behavioral reactions. However, modeling indicates there is limited 
potential for injury even in the absence of the mitigation measures, 
with several species predicted to experience no Level A harassment 
based on modeling results (Tables 10-13). In addition, the potential 
for injury is expected to be greatly minimized through implementation 
of mitigation measures including soft start, use of a sound attenuation 
system, and the implementation of clearance zones 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 auditory injury. Given sufficient notice through use of soft 
start, marine mammals are expected to move away from a sound source 
that is annoying prior to it becoming potentially injurious (i.e., PTS) 
or resulting in more severe behavioral reactions. The requirement that 
pile driving can only commence when the full extent of all clearance 
zones are fully visible to PSOs will ensure a high marine mammal 
detection capability, enabling a high rate of success in implementation 
of clearance zones to avoid injury.
    We expect that any take resulting from exposures above the Level A 
harassment threshold would be in the form of slight PTS, i.e., minor 
degradation of hearing capabilities within regions of hearing that 
align most completely with the energy produced by pile driving (i.e., 
the low-frequency region below 2 kHz), not severe hearing impairment. 
If hearing impairment occurs, 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, marine mammals are expected to move away 
from a sound source that is annoying prior to it becoming potentially 
injurious or resulting in more severe behavioral reactions.
    Additionally, the numbers of exposures above the Level A harassment 
authorized are relatively low for all marine mammal stocks and species: 
For 13 of 15 stocks, we authorize no more than 10 takes by Level A 
harassment over the duration of Vineyard Wind's planned pile driving 
activities; for the other two stocks we propose to authorize no more 
than 35 takes by Level A harassment. As described above, we expect that 
marine mammals would be likely to move away from a sound source that 
represents an aversive stimulus, especially at levels that would be 
expected to result in PTS, given sufficient notice through use of soft 
start, thereby minimizing the degree of PTS that would be incurred. Any 
PTS incurred would likely be a slight shift in hearing threshold and be 
limited to lower frequencies produced by pile driving.
    NMFS has authorized an amount of Level B harassment take for all 
marine mammal species based on either sophisticated modeling or 
information reflected in field data (e.g., monitoring reports, group 
sizes). To be conservative, NMFS authorized whichever method resulted 
in a greater amount of take). This take reflects behavioral disturbance 
directly in response to noise exposure (e.g., avoidance) or indirectly 
from associated impacts such as TTS or masking. Both the amount and 
intensity of Level B harassment will be reduced to the level of least 
practicable adverse impact through use of mitigation measures and, if 
sound produced by pile driving is sufficiently disturbing, marine 
mammals are likely to simply avoid the area while the activity is 
occurring. Effects on individuals that are taken by Level B harassment, 
on the basis of reports in the literature as well as monitoring from 
other similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; HDR, Inc., 2012; Lerma, 2014). Most likely, individuals will 
simply move away from the sound source and temporarily avoid the area 
where pile driving is occurring. Therefore, we expect that animals 
annoyed by project sound would simply avoid the area during pile 
driving in favor of other, similar habitats. We expect that any 
avoidance of the project area by marine mammals would be temporary in 
nature and that any marine mammals that avoid the project area during 
construction would not be permanently displaced.
    Feeding behavior is not likely to be significantly impacted, as 
prey species are mobile and are broadly distributed throughout the 
project area and likely only respond temporarily to exposure to pile 
driving noise; therefore, marine mammals that may be temporarily 
displaced during construction activities are expected to be able to 
resume foraging once they have moved away from areas with disturbing 
levels of underwater noise. Soft starts would allow prey 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, for example, is a key mitigation measure in 
reducing injury and mortality of ESA-listed salmon on the west coast. 
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 by marine mammal prey are 
expected to be brief. For example, 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. 
We expect that other impacts such as stress or masking would occur in 
fish that serve as marine mammals prey (Thomas et al. 2006); however, 
those impacts would be limited to the duration of pile driving and, if 
prey were to move out the area in response to noise, these impacts 
would be minimized.
    Because of the temporary nature of the disturbance and the 
availability of similar habitat and resources in the surrounding area, 
the impacts to marine mammals and the food sources that they utilize 
are not expected to cause significant or long-term consequences for 
individual marine mammals or their populations. There are no notable 
areas of biological significance for non-NARW marine mammal feeding 
activity known to exist within the WDA. A fin whale BIA (foraging; 
March-October) is delineated to the east of the WDA and a minke whale 
BIA (foraging, March-

[[Page 33849]]

November) is delineated west of the WDA. While marine mammals may be 
able to detect pile driving noise within the edges of the BIAs closest 
to pile driving activities, it is unlikely noise levels would rise to 
the level where any foraging behavior is anticipated to be impacted 
from pile driving activities. In addition, there are no rookeries or 
mating or calving areas known to be biologically important to marine 
mammals within the project area.
    Repeated exposures of individuals to relatively low levels of sound 
outside of preferred habitat areas are unlikely to significantly 
disrupt critical behaviors. Thus, even repeated Level B harassment of 
some small subset of an overall stock is unlikely to result in any 
significant realized decrease in viability for the affected 
individuals, and thus would not result in any adverse impact to the 
stock as a whole.
    NMFS concludes that exposures to marine mammals due to Vineyard 
Wind's activity would result in only short-term effects to individuals 
exposed to pile driving. Marine mammals may temporarily avoid the 
immediate area but are not expected to permanently abandon the area. 
Impacts to breeding, feeding, sheltering, resting, or migration are not 
expected, nor are shifts in habitat use, distribution, or foraging 
success. NMFS does not anticipate the marine mammal takes that would 
result from the planned activity would impact annual rates of 
recruitment or survival.
    As described in the notice of proposed IHA (84 FR 18346; April 30, 
2019), humpback whales, minke whales, and gray, harbor and harp seals 
are experiencing ongoing UMEs. For minke whales and seals, although the 
ongoing UME is under investigation (as occurs for all UMEs), this event 
does not provide cause for concern regarding population level impacts. 
The minke whale population abundance is greater than 20,000 whales. 
Even though the PBR value is based on an abundance for U.S. waters that 
is negatively biased and a small fraction of the true population 
abundance, annual M/SI does not exceed the calculated PBR value for 
minke whales. For harbor seals, the population abundance is over 75,000 
and annual M/SI (345) is well below PBR (2,006) (Hayes et al., 2018). 
For gray seals, the population abundance is over 27,000, and abundance 
is likely increasing in the U.S. Atlantic EEZ and in Canada (Hayes et 
al., 2018). For harp seals, the current population trend in U.S. waters 
is unknown, as is PBR (Hayes et al., 2018), however the population 
abundance is over 7 million seals, suggesting that the UME is unlikely 
to result in population-level impacts (Hayes et al., 2018). With regard 
to humpback whales, the population is facing a UME wherein elevated 
strandings have occurred since 2016 and are ongoing. A portion of the 
whales have shown evidence of pre-mortem vessel strike; however, this 
finding is not consistent across all whales examined and investigations 
are ongoing. Animals involved in this UME primarily belong to the West 
Indies Distinct Population Segment (DPS) of which the Gulf of Maine 
stock is a part. While the MMPA designated Gulf of Maine stock is 
relatively small (n = 1,393), the most recent population estimate for 
the ESA-designated West Indies DPS (of which animals belonging to the 
Gulf of Maine stock also belong) is approximately 10,400 animals (Smith 
et al, 2009). The UME is a cause for concern to the Gulf of Maine 
stock; however, the taking associated with the issuance of the IHA is 
not anticipated to contribute to the UME or impact the stock such that 
it would affect annual rates or recruitment or survival. Authorized 
takes by Level A harassment for all species are very low (i.e., no more 
than 10 takes by Level A harassment authorized for any of these 
species) and as described above, any Level A harassment would be 
expected to be in the form of slight PTS, i.e., minor degradation of 
hearing capabilities which is not likely to meaningfully affect the 
ability to forage or communicate with conspecifics. Even absent 
mitigation, no serious injury or mortality from pile driving is 
anticipated. The suite of measures for vessel operation and monitoring 
ensure risk of serious injury or mortality from ship strikes is 
minimized such that the probability of a strike is de minimus. 
Mortality and serious injury is neither expected nor authorized, and 
Level B harassment of humpback whales and minke whales and gray, harbor 
and harp seals will be reduced to the level of least practicable 
adverse impact through implementation of mitigation measures. As such, 
the authorized takes of these species would not exacerbate or compound 
the ongoing UMEs in any way.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect any marine mammal species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized and no Level A take of ESA-listed marine mammals is 
authorized;
     Instances of Level A harassment are limited for all 
impacted species and would be in the form of a slight PTS;
     Level B harassment would be in the form of behavioral 
disturbance, primarily resulting in avoidance of the project area 
around where pile driving is occurring, and some low-level TTS and 
masking that may limit the detection of acoustic cues for relatively 
brief amounts of time.
     Repeated disturbance to some individuals, including a very 
limited number of NARWs, may occur; however, any resulting behavioral 
reactions from exposure to pile driving noise (e.g., avoidance, short-
term cessation of foraging) are not expected to result in impacts to 
any stock's reproduction or survival.
     Total authorized takes as a percentage of population are 
very low for all species and stocks impacted (i.e., less than 5.5 
percent for all stocks, and less than 1 percent for 10 of 15 stocks);
     Areas of similar habitat value are available for marine 
mammals that may temporarily vacate the project area during 
construction;
     Effects on species that serve as prey for marine mammals 
from the activity are expected to be short-term and are not expected to 
result in significant or long-term consequences for individual marine 
mammals, or to contribute to adverse impacts on their populations;
     A biologically important migratory area exists for NARWs, 
however the required seasonal moratorium on construction is expected to 
largely avoid impacts to the NARW migration, as described above. The 
project area encompasses a subset of a core year-round foraging 
habitat; however, there are areas within this core foraging habitat 
that would not be impacted by project noise. Further, any noise within 
the project area would be temporary given the limitation to the amount 
of pile driving and time of day pile driving could occur. Moreover, 
potential for exposure from noise causing behavioral disruptions such 
as a cessation of foraging is also more reduced through implementation 
of the required mitigation measures (e.g., requiring a delay in pile 
driving should a NARW be observed at any distance by PSOs on the pile 
driving vessel would limit any disruption of foraging).
     There are no known important feeding, breeding or calving 
areas in the project area for all other marine mammals within the 
project area. A foraging BIA exists for fin and minke whales in the 
general region of southern New England; however, any received levels 
within these areas would be low given their distance from the WDA and

[[Page 33850]]

therefore exposure to these low levels (while possibly audible) are not 
expected to result in disruption of foraging within the BIAs.
     The required mitigation measures, including visual and 
acoustic monitoring, clearance zones, and soft start, are expected to 
minimize potential impacts to marine mammals and effect the least 
practicable adverse impact on all marine mammals.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from Vineyard 
Wind's planned activity 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. Additionally, other qualitative 
factors may be considered in the analysis, such as the temporal or 
spatial scale of the activities.
    We authorize incidental take of 15 marine mammal stocks. The total 
amount of taking authorized is less than 5.5 percent for five of these 
stocks, and less than 1 percent for the remaining 10 stocks (Table 15), 
which we consider to be relatively small percentages and we find are 
small numbers of marine mammals relative to the estimated overall 
population abundances for those stocks.
    Based on the analysis contained herein of the planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of all 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.

National Environmental Policy Act

    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 review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment. In compliance with NEPA, as implemented by 
the regulations published by the Council on Environmental Quality (40 
CFR parts 1500-1508 (1978)), the Bureau of Ocean Energy Management 
(BOEM) prepared an Environmental Impact Statement (EIS) to consider the 
direct, indirect and cumulative effects to the human environment 
resulting from the Vineyard Wind project. NMFS has participated as a 
cooperating agency on BOEM's EIS and provided technical expertise to 
BOEM in development of the document as it pertains to NMFS trust 
resources, including marine mammals. BOEM's Draft EIS was made 
available for public comment from December 7, 2018 to February 22, 
2019. A Supplement to the Draft EIS was subsequently made available for 
public comment from June 12, 2020 to July 27, 2020; both the Draft EIS 
and Supplement to the Draft EIS were made available online at: 
www.boem.gov/Vineyard-Wind. BOEM published a Notice of Availability of 
the Final EIS on March 8, 2021. As a cooperating agency, NMFS reviewed 
and provided comments related to NMFS trust resources, including marine 
mammals, on the Draft EIS, Supplement to the Draft EIS and cooperating 
agency review draft of the Final EIS. In compliance with NEPA and the 
CEQ regulations (40 CFR 1506.3), as well as NOAA Administrative Order 
216-6 and its Companion Manual, NMFS has reviewed BOEM's Final EIS, 
determined it to be sufficient, and adopted that Final EIS which 
adequately evaluates the direct, indirect and cumulative impacts of 
NMFS's proposed action to issue an IHA under the MMPA to Vineyard Wind 
for its offshore commercial wind project. NMFS has further determined 
that its comments and suggestions as a cooperating agency have been 
satisfied and recirculation of BOEM's EIS is therefore unnecessary (40 
CFR 1506.3(c)). NMFS signed a joint Record of Decision (ROD) on May 10, 
2021.

Endangered Species Act

    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 issuance of IHAs, 
NMFS consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    The NMFS Office of Protected Resources Permits and Conservation 
Division is authorizing the incidental take of four species of marine 
mammals which are listed under the ESA: The North Atlantic right, fin, 
sei and sperm whale. We requested initiation of consultation under 
Section 7 of the ESA with NMFS GARFO on April 26, 2019, for the 
issuance of this IHA. On September 11, 2020, NMFS GARFO issued a 
Biological Opinion concluding that these activities may adversely 
affect but are not likely to jeopardize the continued existence of 
North Atlantic right, fin, sei and sperm whales.
    The ITS issued with the Biological Opinion authorizes take of ESA-
listed species based on the number of turbines that will actually be 
constructed. This means that if fewer turbines are constructed, fewer 
takes of ESA-listed species are authorized by the ITS. This scaled 
approach reflects how NMFS GARFO chose to satisfy requirements under 
ESA. Under Section 7 of the ESA, a biological opinion reviews a 
proposed action, as reasonably defined by the action agency, and 
assesses the ``effects of the action.'' BOEM sought consultation on its 
proposed action, which it defined using a reasonable ``maximum design 
envelope.'' The maximum design envelope, however, was not necessarily 
what would actually be constructed. Under regulations implementing 
Section 7 of the ESA, ``effects of the action'' include all 
consequences to listed species caused by the proposed action. A 
consequence is caused by the proposed action if it would not occur but 
for the proposed action and it is reasonably certain to occur. In the 
Biological Opinion, NMFS GARFO evaluated effects from driving a range 
of piles up to the design envelope's maximum number of pile foundations 
(57 to 102) and then scaled the take numbers in the ITS based on the 
number of turbines that will be constructed so that the amount of

[[Page 33851]]

incidental take that is reasonably certain to occur and, therefore, 
commensurate with the actual construction. Without scaling, the ITS 
would have exempted more incidental take of ESA-listed species than is 
reasonably certain to occur. Since the scaled approach is a function of 
the ITS for this project, it only applies to ESA-listed marine mammals 
in the IHA.
    Consultation has been reinitiated on the September 11, 2020 
Biological Opinion and ITS. However, they remain valid and effective 
until reinitiated consultation is completed.

Authorization

    NMFS has issued an IHA to Vineyard Wind authorizing take of marine 
mammals incidental to pile driving associated with the construction of 
the proposed wind project offshore of Massachusetts, for a period of 
one year, from May 1, 2023 through April 30, 2024. Vineyard Wind is 
required to abide by all mitigation, monitoring, and reporting 
requirements in the IHA.

    Dated: June 15, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-13501 Filed 6-24-21; 8:45 am]
BILLING CODE 3510-22-P